Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3 Filing Table of Contents
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S-3 — Registration Statement for Securities Offered Pursuant to a Transaction
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)
490 Villaume Avenue South Saint Paul, Minnesota55075
Telephone: (651) 455-1621
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Joseph J. Grillo
Chief Executive Officer and President
Digital Angel Corporation
490 Villaume Avenue South Saint Paul, Minnesota55075
Telephone: (651) 455-1621
Facsimile: (651) 455-0217
(Name, address, including zip code, and telephone number, including area code, of agent for service)
From time to time after the effective date of this Registration Statement.
(Approximate date of commencement of proposed sale to the public)
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this form are to be offered on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the following box. þ
If this form is filed to register additional securities for an offering pursuant to Rule 462(b)
under the Securities Act, check the following box and list the Securities Act registration number
of 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,
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 registration statement pursuant to General Instruction I.D. or a post-effective
amendment thereto that shall become effective upon filing with the Commission pursuant to Rule
462(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, or a smaller reporting company. See the definitions of “large accelerated
filer,”“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act
(check one):
Large accelerated filer o
Accelerated
filer þ
Non-accelerated filer o (do not check if a smaller reporting company)
Smaller reporting company o
CALCULATION OF REGISTRATION FEE
Proposed
Maximum
Amount of
Title of Each Class of
Aggregate
Registration
Securities to Be Registered(1)
Offering Price(1)(2)(6)
Fee(2)(3)(6)
Common Stock, $0.01 par value(4)
Preferred Stock, $10.00 par value(4)
Warrants(5)
Units
Total:
$4,000,000
$285.20*
(1)
This registration statement registers an indeterminate number or aggregate principal amount of securities of each identified
class as may at various times be issued at indeterminate prices, with an aggregate public offering price not to exceed
$4,000,000. For each class of security, the amount to be registered, the proposed maximum offering price per unit and the
proposed maximum aggregate offering price will be determined by the registrant from time to time in connection with the
issuance of the securities. The securities registered under this registration statement may be sold separately, together or
as units with other securities registered under this registration statement.
(2)
Not specified as to each class of securities to be registered pursuant to General Instruction II.D. to Form S-3.
(3)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o).
(4)
In addition to any shares of common stock or preferred stock that may be issued directly under this registration statement,
there are being registered hereunder an indeterminate number of shares of common stock or preferred stock as may from time to
time be issued upon conversion or exchange of preferred stock registered hereunder that provide for conversion or exchange or
upon the exercise of warrants registered hereunder. No separate consideration will be received for any shares of common stock
or preferred stock so issued upon conversion or exchange of preferred stock. In addition, pursuant to Rule 416 under the
Securities Act of 1933, this registration statement will cover such indeterminate number of shares of common stock and
preferred stock as may be issued with respect to the securities registered hereunder as a result of stock splits, stock
dividends and similar transactions.
(5)
Warrants to purchase preferred stock or common stock of the registrant may be sold separately or with preferred stock or
common stock of the registrant.
(6)
At no time will the aggregate maximum offering price of all securities issued in any given 12-month period exceed the amount
allowed for in General Instruction I.B.6.
*
Paid on account
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 said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. These securities may not be
sold until the Registration Statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and it is not soliciting any
offer to buy these securities in any state where the offer or sale is not permitted.
From time to time, we may offer up to $4,000,000 of any combination of the securities described in
this prospectus, either individually or in units. We may also offer common stock upon conversion
of preferred stock or common stock or preferred stock upon exercise of warrants. We may offer
these securities in one or more offerings in amounts, at prices, and on terms determined at the
time of the offering.
This prospectus provides a general description of these securities. When we offer securities, we
will provide you with a prospectus supplement describing the specific terms of the offering and the
securities, including the offering price of the securities. The prospectus supplements may also
add, update or change information contained in this prospectus. You should read this prospectus
and any supplements carefully before you invest. This prospectus may not be used to sell
securities unless accompanied by a prospectus supplement.
Our common stock is listed on the Nasdaq Capital Market (“Nasdaq”) under the symbol “DIGA.” On
December 21, 2009, the last reported sale price for our common stock reported on Nasdaq was $0.63
per share.
We have offered 3,000,000 shares of our common stock pursuant to General Instruction I.B.6. of Form
S-3 during the prior 12-month period that ends on and includes the date of this prospectus.
We may offer securities through underwriting syndicates managed or co-managed by one or more
underwriters, dealers or agents or directly to purchasers. The prospectus supplement for each
offering of securities will describe the plan of distribution for that offering. For general
information about the distribution of the shares, see “Plan of Distribution” in this prospectus.
Unless the context otherwise requires, the terms “we,”“our,”“us,” the “Company” and “Digital
Angel” refer to Digital Angel Corporation and its consolidated subsidiaries.
Investing in our securities is highly speculative and involves a high degree of risk. See “Risk
Factors” beginning on page 6.
Neither the Securities and Exchange Commission nor any state securities commission has approved or
disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The date of this prospectus is December , 2009.
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ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that we filed with the Securities and Exchange
Commission, which we refer to as the “SEC,” using a “shelf” registration process. Under this shelf
process, we may, from time to time, sell our common stock, preferred stock or warrants to purchase
any of such securities, either individually, together or in units as described in this prospectus
in one or more offerings up to a total amount of $4,000,000.
This prospectus provides you with a general description of the securities offered. Each time we
offer securities, we will provide a prospectus supplement that will contain specific information
about the terms of that offering. We will file each prospectus supplement with the SEC. The
prospectus supplement may also add, update or change information contained in this prospectus. You
should read both this prospectus and any prospectus supplement together with additional information
described under the heading “Where You Can Find More Information” in this prospectus.
For investors outside the United States: We have done nothing that would permit this offering or
the possession or distribution of this prospectus in any jurisdiction where action for that purpose
is required, other than in the United States. You are required to inform yourselves about and to
observe any restrictions relating to this offering and the distribution of this prospectus.
You should rely only on the information contained in this prospectus and the accompanying
prospectus supplement and information to which we have referred you, including the information
incorporated by reference. We have not authorized anyone to provide you with different information.
The information contained in this prospectus is complete and accurate only as of the date on the
front cover, but the information may have changed since that date. You must not rely on any
unauthorized information or representation. This prospectus is not an offer to sell, nor is it
seeking an offer to buy, these securities in any jurisdiction where the offer or sale is not
permitted.
Ratio of Combined Fixed Charges and Preference Dividends to Earnings
17
Description of Capital Stock, Preferred Stock, Warrants and Units
17
Plan of Distribution
22
Legal Matters
23
Experts
23
3
PROSPECTUS SUMMARY
This summary does not contain all of the information you should consider before buying our
securities. You should read the entire prospectus carefully, especially the “Risk Factors” section
in this prospectus, and our financial statements, related notes and other information incorporated
by reference into this prospectus before deciding to invest in our securities.
Our Business
We develop innovative identification, location and software products for consumer, commercial and
government sectors worldwide. Our unique and often proprietary products provide safety for people,
animals, food chains, government/military assets, and commercial assets. Included in this diverse
product line are applications for radio frequency identification systems, commonly known as RFID,
end-to-end food safety systems and global positioning satellite communications systems (“GPS”).
We operate in two business segments: Animal Identification and Emergency Identification.
Animal Identification
Our Animal Identification segment focuses on developing, manufacturing and marketing of visual and
electronic identification tags and implantable RFID microchips, primarily for identification,
tracking and location of companion pets, horses, livestock (e.g., cattle and hogs), fish and
wildlife worldwide, and, more recently, for animal bio-sensing applications, such as temperature
reading for companion pet, equine and livestock applications. Our Animal Identification segment’s
proprietary products focus on pet identification and safeguarding and the positive identification
and tracking of livestock and fish, which we believe is crucial for asset management and for
disease control and food safety.
This segment’s principal products are:
•
visual and electronic ear tags for livestock; and
•
implantable microchips and RFID scanners for the companion pet, horse,
livestock, and fish and wildlife industries.
Emergency Identification
Our Emergency Identification segment focuses on developing and marketing GPS and GPS-enabled
products used for location tracking and message monitoring of pilots, aircraft, maritime vehicles
and outdoor adventurers in remote locations. Our Emergency Identification segment consists of our
98.5% owned subsidiary, Signature Industries Limited (“Signature”). Signature is based in the
United Kingdom and has been developing and manufacturing personal locator beacons (“PLBs”) for five
decades.
This segment’s principal products are:
•
GPS enabled search and rescue equipment and intelligent communications
products and services for mobile data and radio communications
applications, which serve commercial and military markets; and
•
alarm sounders for industrial use and other electronic components.
Company Information
We were incorporated on May 11, 1993 in Missouri and reincorporated on April 20, 2007 in Delaware.
Our principal executive offices are located at 490 Villaume Avenue, South St. Paul, Minnesota55075, and our telephone number is (651) 455-1621. Our website is www.digitalangel.com. The
information contained on our website is not a part of this prospectus. We have included our website
address in this prospectus as an inactive textual reference only.
4
Recent Events
Sale of McMurdo Assets
On November 20, 2009, pursuant to the terms of the Asset Sale and Purchase Agreement (“McMurdo
Purchase Agreement”) dated November 2, 2009, between us, together with our subsidiaries, Signature
Industries Limited (“Signature”) and McMurdo Limited, and Orolia SA, we completed the sale of
certain assets of our U.K.-based McMurdo business unit (“McMurdo”). At closing, the parties
amended the McMurdo Purchase Agreement to reduce the amount to be held in escrow, to assign to the
buyer the obligation for certain trade and vendor payables in existence at the time of closing, and
to exclude certain product lines and related assets from the transaction (which product lines and
assets will be retained by Signature in exchange for a $250,000
credit against the purchase price and which were not material to our business).
As a result of these amendments and the adjustment for actual inventory levels at the time of
closing, the consideration paid at closing totaled approximately $9.6 million, of which
approximately $8.8 million was paid to Signature in cash and approximately $0.8 million was
retained by the buyer to pay the retained trade and vendor payables. $1 million of the proceeds
will be held in escrow for up to 12 months. The proceeds were used to pay debt obligations and to
fund working capital.
Nasdaq Listing Notice
On December 10, 2009, we received a letter from Nasdaq indicating that we were not in compliance
with the Nasdaq’s requirements for continued listing because, for the previous 30 consecutive
business days, the bid price of our common stock closed below the minimum $1.00 per share price
requirement for continued inclusion under Nasdaq Marketplace Rule 4310(c)(4) (the “Rule”). In
accordance with the Nasdaq Marketplace Rules, the Company will be provided 180 calendar days, or
until June 8, 2010, to regain compliance with the Rule.
If, at any time before June 8, 2010, the bid price of our common stock closes at $1.00 per share or
more for a minimum of 10 consecutive business days, the Nasdaq staff will provide us written
notification that were are in compliance with the Rule. However, if we do not regain compliance
with the Rule by June 8, 2010, the Nasdaq staff will determine whether we meet the Nasdaq Capital
Market initial listing criteria set forth in Marketplace Rule 4310(c), except for the bid price
requirement, and if it does, we will be granted an additional 180 calendar day compliance period.
Amendment to Letter Agreement with Lender
On December 14, 2009, we, Destron Fearing Corporation, a wholly-owned subsidiary of the Company
(“Destron”), along with Digital Angel Technology Corporation, Digital Angel International, Inc.,
Fearing Manufacturing Co., Inc., and Florida Decision Corporation, all wholly-owned subsidiaries of
Destron, entered into the Amendment to Letter Agreement (“Amendment”) with Laurus Master Fund, Ltd.
(“Laurus”); Kallina Corporation (“Kallina”); Valens Offshore SPV I, Ltd., Valens Offshore SPV II,
Corp, Valens US SPV I, LLC (together “Valens”); and Psource Structured Debt Limited (collectively,
the “Lenders,” which are all affiliated) and LV Administrative Services, Inc., the administrative
and collateral agent for the Lenders, to amend, among other things, the repayment schedule of all
amounts owed pursuant to the terms of the Secured Term Note dated as of August 31, 2007 in the
original principal amount of $7,000,000 from us originally in the favor of Kallina (“2007 Note”),
the Secured Term Note dated as of August 24, 2006 in the original principal amount of $13,500,000
from us originally in the favor of Laurus (“2006 Note”), and the Senior Secured Term Note dated as
of October 2, 2008 in the original principal amount of $2,000,000 from us in the favor of Valens
(“2008 Note”), in all cases as amended or modified from time to time including pursuant to the
November 26, 2008 Letter Agreement (“2008 Amendment”) as previously reported (collectively, the
“Existing Debt Obligations”).
Under the terms of the Amendment, we paid $3,800,000 of the Existing Debt Obligations to Lenders
(“Prepayment”), of which $3,000,000 was paid in cash and $800,000 was paid through the issuance of
approximately 1.4 million shares of common stock in accordance with the terms of the 2008
Amendment. After Prepayment, the balance of the Existing Debt Obligations, which is currently
approximately $1,400,000, is payable in full to Lenders on or before the original maturity date of
February 1, 2010.
5
RISK FACTORS
An investment in our securities involves a high degree of risk and should be considered only by
those persons who are able to afford a loss of their entire investment. There are important factors
that could cause our actual results, level of activity, performance or achievements to differ
materially from the results, level of activity, performance or achievements expressed or implied by
any forward-looking statement. In particular, you should consider the numerous risks outlined
below. Those risk factors are not exhaustive. Other sections of this prospectus, any prospectus
supplement and the documents incorporated by reference may include additional factors which could
adversely impact our business and financial performance. Moreover, we operate in a very competitive
and rapidly changing environment. New risk factors emerge from time to time, and it is not possible
for our management to predict all risk factors, nor can we assess the impact of all factors on our
business or the extent to which any factor, or combination of factors, may cause actual results to
differ materially from those contained in any forward-looking statements. In evaluating our
business, prospective investors should carefully consider the risk factors in addition to the other
information included or incorporated by reference in this prospectus.
We have a history of operating losses and negative cash flows and we may not become profitable in
the future, which could ultimately result in our inability to continue operations in the normal
course of business.
Historically, we have incurred losses and, in 2007 and prior years, we did not generate positive
cash flows from operations. We incurred a consolidated loss from continuing operations of $3.6
million, $58.3 million, $34.8 million and $16.3 million in the nine months ended September 30, 2009
and the years ended December 31, 2008, 2007 and 2006, respectively, and our consolidated operating
activities provided (used) cash of $2.5 million, $1.4 million and $(18.5) million during the nine
months ended September 30, 2009 and the years ended December 31, 2008 and 2007, respectively. As
of September 30, 2009, we had an accumulated deficit of approximately $562.6 million. We have
funded our operating cash requirements, as well as our capital needs, with the proceeds from
investing and/or financing activities. There is no assurance that our operating activities will be
able to fund our cash requirements in the future if our investing and/or financing activities
cannot.
Historical losses and the maturity of debt raise concerns about our ability to continue operations
as a going concern.
Our ability in the future to achieve or sustain profitability is based on a number of factors, many
of which are beyond our control, including the future demand for our RFID and GPS satellite-based
systems and the technical requirements associated with the manufacture of our GPS products. If
demand for such systems does not reach anticipated levels, or if we fail to manage our cost
structure or to develop technologically viable products, we may not achieve profitability.
Our capital requirements depend on a variety of factors, including but not limited to, the rate of
increase or decrease in our existing business base, the success, timing, and amount of investment
required to bring new products on-line, revenue growth or decline, and potential acquisitions or
divestitures. We have established a management plan to guide us in achieving profitability and
positive cash flows from operations during 2010. No assurance can be given that we will be
successful in implementing the plan. Failure to generate positive cash flow from operations will
have a material adverse effect on our business, financial condition and results of operations.
Our historical sources of liquidity have included proceeds from the sale of common stock and
preferred shares, proceeds from the issuance of debt, proceeds from the sale of businesses, and
proceeds from the exercise of stock options and warrants. In addition to these sources, other
sources of liquidity may include the raising of capital through additional private placements or
public offerings of debt or equity securities. However, going forward some of these sources may not
be available, or if available, they may not be on favorable terms. We will be required to generate
funds to repay certain of our debt obligations during 2010. We recently used a portion of the
proceeds from the sale of our McMurdo business unit, which we sold on November 30, 2009, as more
fully discussed above under Recent Events, to repay a portion of our term debt. As of September 30,2009, we had a working capital deficiency, which is partially due to a number of our debt
obligations becoming due or potentially due within the next twelve months, including our term debt
which is due in February 2010 and our revolver, which is due on August 31, 2010. Our credit
facility with Danske Bank, which is more fully discussed in Note 9 to our Annual Report on Form
10-K for the fiscal year ended December 31, 2008, is due on demand and beginning in July 2009, we
were required to make monthly principal payments of approximately $0.1 million. Our factoring
lines may also
6
be amended or terminated at any time by the lenders. These conditions indicate that
we may not be able to continue
as a going concern, as we may be unable to generate the funds necessary to pay our obligations in
the ordinary course of business.
The current volatility in economic conditions and the financial markets may adversely affect our
industry, business and financial performance.
We have witnessed unprecedented disruptions in financial markets, including volatility in asset
values and constraints on the availability of credit. In response to these developments, the U.S.
government has taken, and may take further, steps designed to stabilize markets generally and
strengthen financial institutions in particular. The impact, if any, that these financial market
events or these governmental actions might have on us and our business is uncertain and cannot be
estimated at this time. To the extent current economic developments worsen, and to the extent
legislation or regulatory action adversely affects the U.S. economy, there could be an adverse
impact on our access to capital and to our results of operations.
Our stock price has reflected a great deal of volatility, including a significant decrease over the
past few years. The volatility may mean that, at times, our stockholders may be unable to resell
their shares at or above the price at which they acquired them.
From January 1, 2005 to December 21, 2009, the price per share of our common stock has ranged from
a high of $57.20 to a low of $0.39, on a split adjusted basis. The price of our common stock has
been, and may continue to be, highly volatile and subject to wide fluctuations. The market value of
our common stock has declined in the past, in part, due to our operating performance. In the
future, broad market and industry factors may decrease the market price of our common stock,
regardless of our actual operating performance. Recent declines in the market price of our common
stock and in broad capital markets could affect our access to capital, and may, if continuing,
impact our ability to continue as a going concern. In addition, any continuation of the recent
declines in the price of our common stock may harm employee morale and retention, curtail
investment opportunities presented to us, and negatively impact other aspects of our business. As a
result of any such declines, many stockholders have been or may become unable to resell their
shares at or above the price at which they acquired them.
If we fail to achieve compliance with the Nasdaq Capital Market requirements, our stock could be
delisted by the Nasdaq Capital Market. If delisting occurs, it would adversely affect the market
liquidity of our common stock and harm our businesses.
Our common stock is currently traded on the Nasdaq Capital Market under the symbol “DIGA.” On
December 10, 2009, we received a letter from Nasdaq indicating that we were not in compliance with
the Nasdaq’s requirements for continued listing because, for the previous 30 consecutive business
days, the bid price of our common stock closed below the minimum $1.00 per share price requirement
for continued inclusion under Nasdaq Marketplace Rule 4310(c)(4) (the “Rule”). In accordance with
the Nasdaq Marketplace Rules, the Company will be provided 180 calendar days, or until June 8,2010, to regain compliance with the Rule.
If, at any time before June 8, 2010, the bid price of our common stock closes at $1.00 per share or
more for a minimum of 10 consecutive business days, the Nasdaq staff will provide us written
notification that were are in compliance with the Rule. However, if we do not regain compliance
with the Rule by June 8, 2010, the Nasdaq staff will determine whether we meet the Nasdaq Capital
Market initial listing criteria set forth in Marketplace Rule 4310(c), except for the bid price
requirement, and if it does, we will be granted an additional 180 calendar day compliance period.
In addition, if we fail to meet any of the other continued listing standards of the Nasdaq Capital
Market, our common stock could be delisted from the Nasdaq Capital Market. These continued listing
standards include specifically enumerated criteria, such as:
•
shareholders’ equity of $2.5 million, market value of publicly-held shares of $35
million, or net income from continuing operations of $500,000 in the most recently
completed fiscal year or in two of the last three most recently completed fiscal years;
•
500,000 shares of publicly-held common stock with a market value of at least $1 million;
7
•
300 round-lot stockholders; and
•
compliance with Nasdaq’s corporate governance requirements, as well as additional or
more stringent criteria that may be applied in the exercise of Nasdaq’s discretionary
authority.
In the future, if our common stock were to fail to regain compliance with the minimum bid price
requirement or any of the other listing requirements it could be delisted from the Nasdaq Capital
Market. In that case trading of our common stock most likely will be conducted in the
over-the-counter market, (“OTC”) Bulletin Board market, an electronic bulletin board established
for unlisted securities. Such delisting could also adversely affect our ability to obtain financing
for the continuation of our operations and could result in the loss of confidence by investors,
suppliers and employees.
We have substantial debt and debt service and our debt agreements contain certain events of
default.
As of September 30, 2009, our indebtedness, totaled approximately $13.2 million, and we had
advances on our factoring lines of approximately $2.6 million. As a result, we incur significant
interest expense. In addition, we are obligated to make monthly principal payments on certain of
our notes. Currently, we have $1.4 million of outstanding term debt that matures in February 2010,
also approximately $2.6 million of our outstanding revolver debt at September 30, 2009 matures in
August 2010 and approximately $2.0 million of mortgage debt matures on November 1, 2010. In
addition, we became obligated to make monthly principal payments of approximately $0.1 million on
our outstanding credit line with Danske Bank beginning in July 2009.
Our debt agreements contain certain events of default, including, among other things, failure to
pay, violation of covenants, and certain other expressly enumerated events. Additionally, we
granted Laurus a first priority security interest and granted Kallina a security interest in
substantially all of our assets, and we pledged all of the issued and outstanding capital stock we
own in certain of our subsidiaries.
The degree to which we are leveraged could have important consequences, including the following:
•
our ability to obtain additional financing in the future for
operations, capital expenditures, potential acquisitions, and other
purposes may be limited, or financing may not be available on terms
favorable to us or at all;
•
a substantial portion of our cash flows from operations must be used
to pay our interest expense and repay our debt, which reduces the
funds that would otherwise be available to us for our operations and
future business opportunities; and
•
our ability to continue operations at the current level could be
negatively affected if we cannot refinance our obligations before
their due date.
A default under any of our debt agreements could result in acceleration of debt payments and it
could permit the lender to foreclose on our assets and the stock we have pledged in our
subsidiaries. We cannot assure you that we will be able to maintain compliance with these
covenants. Failure to maintain compliance could have a material adverse impact on our financial
position, results of operations and cash flow.
We have effected or entered into (and will likely continue to effect or enter into) capital raising
transactions, acquisitions, legal settlements and contracts for services that involve the issuance
of shares of our common stock (or securities convertible into or exchangeable for such shares) and,
as a result, your investment in our common stock will be further diluted.
We currently have a legal settlement and an earn out obligation aggregating approximately $3.4
million, both of which we currently intend to settle in shares of our common stock. The legal
settlement may be settled in unregistered shares of our common stock and the earn out obligation
(to the extent we owe any) must be settled in registered shares of our common stock. Such share
issuances have in the past been and we expect will in the future be dilutive to the value of our
common stock. As a result, your investment in our common stock will be further diluted.
Certain events over which you will have no control could result in the issuance of additional
shares of our common stock or other securities, which could dilute the value of your shares of
common stock. We may issue additional shares of common stock:
•
to raise additional capital;
8
•
upon the exercise of outstanding options and stock purchase warrants
or additional options and warrants issued in the future;
•
in connection with severance agreements;
•
in connection with loans or other capital raising transactions; and
•
in connection with acquisitions of other businesses or assets.
As of December 21, 2009, there were 313,674 outstanding warrants and 3,198,808 options to acquire
additional shares of our common stock with weighted average exercise prices of $30.29 per share and
$14.98 per share, respectively. If exercised, these securities could dilute the value of the shares
of common stock. In addition, we have the authority to issue up to a total of 50,000,000 shares of
common stock and up to 5,000,000 shares of preferred stock without further shareholder approval,
including shares that could be convertible into our common stock, subject to applicable Nasdaq
requirements for issuing additional shares of stock. Were we to issue any such shares, or enter
into any other financing transactions, the terms may have the effect of significantly diluting or
adversely affecting the holdings or the rights of the holders of the common stock.
We may issue preferred stock under this prospectus, which will rank senior to the shares of our
common stock and which may delay or prevent a change in control of us.
We may issue preferred stock under this prospectus. In addition, preferred stock may be created
and issued from time to time by our board of directors. Such preferred stock may have such rights
and preferences as our board of directors determine. Because of our board of directors’ broad
discretion with respect to the creation and issuance of any series of preferred stock without
shareholder approval, our board of directors could adversely affect the voting power of our common
stock. The issuance of preferred stock may also have the effect of delaying, deferring or
preventing a change in control of us.
There is no guarantee that we will sell the maximum number of securities offered.
We currently intend to offer up to $4,000,000 shares of our common stock, preferred stock or
warrants to purchase any of such securities either individually, together or in units under this
prospectus. There can be no assurance that any of the securities being offered by this prospectus
will be sold or that we will receive all of the estimated net proceeds generated from a sale of all
of such securities. If all of the securities offered are not sold, we may be unable to fund all of
the intended uses for the net proceeds anticipated from this offering without obtaining funds from
alternative sources or using working capital generated by our operations. Alternative sources of
funds may not be available to us at a reasonable cost. In addition, since our securities are being
offered on a best-efforts basis and there is no minimum number of securities that must be sold, the
proceeds from the offering, if any, may not be sufficient to cover the offering expenses.
Because we will not pay dividends on our common stock for the foreseeable future, stockholders must
rely on stock appreciation for any return on their investment in the common stock.
We have never declared or paid dividends on our common stock, and we cannot assure you that any
dividends will be paid in the foreseeable future. Our outstanding debt agreements place
restrictions on the declaration and payment of dividends. We intend to use any earnings that we
generate to finance our operations and to repay debt obligations, and, we do not anticipate paying
cash dividends in the future. As a result, only appreciation of the price of our common stock will
provide a return to our stockholders.
We rely heavily on revenues derived from sales to various governmental agencies, and the loss of,
or a significant reduction in, orders from government agencies could result in significant losses
and deficits in cash flows from operations.
Our principal customers for electronic identification devices for fish are Pacific States Marine, a
government contractor that relies on funding from the U.S. government, and the U.S. Army Corps of
Engineers. Our Emergency Identification segment is heavily dependent on contracts with domestic
government agencies and foreign governments, including the United Kingdom, primarily relating to
military applications. Because we rely on revenues and cash flows generated from contracts,
directly or indirectly, with governmental agencies, the loss of or delays in deliveries under any
such contract would result in a decrease in revenues and cash flows, and such a decrease may be
significant and thereby have a material adverse effect on our financial condition and results of
operations.
9
Our Animal Identification segment relies heavily on revenue from a principal distributor and
two customers and the loss of the principal distributor and customers could negatively affect our
revenue, cash flows and results of operations.
Our pet identification and location system is marketed in the U.S. by Schering-Plough. For the
years ended December 31, 2008, 2007 and 2006, Schering-Plough accounted for approximately 19%, 34%
and 15%, respectively, of our Animal Identification segment’s revenues. It may be difficult and
time-consuming for us to arrange for distribution of the implantable microchip by a third party.
The loss of Schering-Plough as our exclusive distributor may negatively affect future sales. Our
contract with Schering-Plough was due to expire on June 30, 2009 but has been extended to December31, 2009. There is no assurance that Schering-Plough and Destron Fearing will extend the contract
beyond December 31, 2009. Our principal customers for electronic identification devices for fish
are Pacific States Marine and the U.S. Army Corps of Engineers. The loss of, or a significant
reduction in, orders from these customers could have a material adverse effect on our financial
condition and results of operations.
We depend on a small team of senior management and key employees, and we may have difficulty
attracting and retaining additional personnel.
Our future success will depend in large part upon the continued services and performance of senior
management and other key personnel. If we lose the services of any member of our senior management
team, our overall operations could be materially and adversely affected. In addition, our future
success will depend on our ability to identify, attract, hire, train, retain and motivate other
highly skilled technical, managerial, marketing, purchasing and customer service personnel when
they are needed. Competition for qualified individuals to fill these positions is intense. We
cannot ensure that we will be able to successfully attract, integrate or retain sufficiently
qualified personnel when the need arises. Any failure to attract and retain the necessary
technical, managerial, marketing, purchasing and customer service personnel could have a material
adverse effect on our financial condition and results of operations.
The loss of any senior executive could materially adversely affect our financial results. Our
senior executives, in many cases, have strong relationships with our customers and suppliers.
Therefore, the loss of the services of such senior executives or any general instability in the
composition of our senior management could have a negative impact on our relationship with these
customers and suppliers.
Over the past few years, we have made significant changes in the nature and scope of our businesses
and we have expanded into different product lines, including new and unproven technologies and new
products under development.
If we are not successful in implementing our business model and developing and marketing these
products or if these products do not gain sufficient market acceptance or meet expected
technological standards or performance metrics, we may not be able to recoup investments in such
product and technology and may not be able to achieve or sustain profitable operations. In that
case, the market price of our common stock would likely decrease.
Management continues to review strategic alternatives to increase shareholder value, which may
result in a decrease in consolidated revenue and the overall size of our operations.
Management is focusing on various strategic alternatives, which include the possibility of selling
additional business units in our Emergency Identification segment. If we are successful in
streamlining our business to focus our attention on only our Animal Identification business
segment, it would, at least in the short term, result in a decrease in our revenue and the size of
our operations. Such a decrease could negatively impact the price of our common stock.
Technological requirements could cause our products and technology to be unacceptable or to become
obsolete or require the redesign of our products, which could have a material adverse effect on our
businesses.
Technological requirements or changes within the industries in which we conduct business as well as
customer requirements may require us to expend substantial resources in an effort to develop new
products and technology. We may not be able to anticipate or respond to technological changes and
requirements in a timely manner, and our response may not result in successful product development
and timely product introductions. If we are unable to anticipate or respond to technological
changes, our businesses could be adversely affected.
10
We may be subject to costly product liability claims from the use of our systems, which could
damage our reputation, impair the marketability of our systems and force us to pay costs and
damages that may not be covered by adequate insurance.
Manufacturing, marketing, selling, testing and operation of our systems entail a risk of product
liability. We could be subject to product liability claims in the event our systems fail to perform
as intended. Even unsuccessful claims against us could result in the expenditure of funds in
litigation, the diversion of management time and resources, damage to our reputation and impairment
in the marketability of our systems. While we maintain liability insurance, it is possible that a
successful claim could be made against us, that the amount of our insurance coverage would not be
adequate to cover the costs of defending against or paying such a claim, or that damages payable by
us would harm our business.
If others assert that our products infringe their intellectual property rights, we may be drawn
into costly disputes and risk paying substantial damages or losing the right to sell our products.
We face the risk of adverse claims and litigation alleging our infringement of the intellectual
property rights of others. If infringement claims are brought against us or our suppliers, these
assertions could distract management and necessitate our expending potentially significant funds
and resources to defend or settle such claims. We cannot be certain that we will have the financial
resources to defend ourselves against any patent or other intellectual property litigation. If we
or our suppliers are unsuccessful in any challenge to our rights to market and sell our products,
we may, among other things, be required to:
•
pay actual damages, royalties, lost profits and/or
increased damages and the third party’s attorneys’ fees,
which may be substantial;
•
cease the development, manufacture, use and/or sale of
products that use the intellectual property in question
through a court-imposed sanction called an injunction;
•
expend significant resources to modify or redesign our
products, manufacturing processes or other technology so
that it does not infringe others’ intellectual property
rights or to develop or acquire non-infringing technology,
which may not be possible; or
•
obtain licenses to the disputed rights, which could require
us to pay substantial upfront fees and future royalty
payments and may not be available to us on acceptable
terms, if at all, or to cease marketing the challenged
products.
Ultimately, we could be prevented from selling a product or otherwise be forced to cease some
aspect of our business operations as a result of any intellectual property litigation. Even if we
or our suppliers are successful in defending an infringement claim, the expense, time delay, and
burden on management of litigation and negative publicity could have a material adverse effect on
our business.
We obtain the implantable microchip used in certain of our Animal Identification segment’s products
from a single supplier, making us vulnerable to supply disruptions that could constrain our sales
of such systems and/or increase the per-unit cost of production of the microchip.
At present, we source our implantable microchip for certain of our products from Raytheon
Microelectronics España S.A. (“RME”), the actual manufacturer, under a supply agreement between us
and RME for use in our Animal Identification segment’s products. The term of that agreement expires
on June 30, 2010, subject to earlier termination by either party if, among other things, the other
party breaches the agreement and does not remedy the breach within 30 days of receiving notice. We
and RME each own certain of the automated equipment and tooling used in the manufacture of the
microchip. Accordingly, it would be difficult for us to arrange for a third party other than RME to
manufacture the implantable microchip to satisfy our requirements. Even if we were able to arrange
to have the implantable microchip manufactured in another facility, we believe that making such
arrangements and commencement of production could take at least three to six months. A supply
disruption of this length could cause customers to cancel orders, negatively affect future sales
and damage our business reputation. In addition, the per-unit cost of production at another
facility could be more than the price per unit that we currently pay.
11
The expiration or invalidation of patents covering products and technologies in our Animal
Identification segment could expose us to potential competition that may have a material adverse
effect on our sales and results of operations.
We rely on various patents covering microchip and reader products used in our Animal Identification
segment that expire from 2015 through 2021. Without patent protection, our competitors may be able
to independently develop similar technology or duplicate our systems, which could have a material
adverse effect on our sales and results of operations.
Our inability to safeguard our intellectual property may adversely affect our business by causing
us to lose a competitive advantage or by forcing us to engage in costly and time-consuming
litigation to defend or enforce our rights.
We rely on copyrights, trademarks, trade secret protections, know-how and contractual safeguards to
protect our non-patented intellectual property, including our software technologies. Our employees,
consultants and advisors are required to enter into confidentiality agreements that prohibit the
disclosure or use of our confidential information. We also have entered into confidentiality
agreements to protect our confidential information delivered to third parties for research and
other purposes. There can be no assurance that we will be able to effectively enforce these
agreements, the confidential information will not be disclosed, others will not independently
develop substantially equivalent confidential information and techniques or otherwise gain access
to our confidential information, or that we can meaningfully protect our confidential information.
Costly and time-consuming litigation could be necessary for enforcement, and failure to maintain
the confidentiality of our confidential information could adversely affect our business by causing
us to lose a competitive advantage maintained through such confidential information.
Disputes may arise in the future with respect to the ownership of rights to any technology
developed with third parties. These and other possible disagreements could lead to delays in the
collaborative research, development or commercialization of our systems, or could require or result
in costly and time-consuming litigation that may not be decided in our favor. Any such event could
have a material adverse effect on our business, financial condition and results of operations by
delaying our ability to commercialize innovations or by diverting our resources away from
revenue-generating projects.
We compete with other companies in the visual and electronic identification and locator markets,
and the products sold by our competitors could become more popular than our products or render our
products obsolete.
The markets for visual and electronic identification and beacon products are highly competitive. We
believe that our principal competitors in the visual identification market for livestock are
AllFlex USA and Y-Tex Corporation, that our principal competitors in the electronic identification
market are AllFlex USA, Datamars SA and Avid Identification Systems, Inc., and that our principal
competitors in the beacon market are Boeing North American Inc., General Dynamics Decision Systems,
Tadiran Spectralink Ltd., Becker Avionic Systems, and ACR Electronics, Inc.
In addition, other companies could enter this line of business in the future. Many of our
competitors have substantially greater financial and other resources than us. We may not be able to
compete successfully with these competitors, and those competitors may develop or market
technologies and products that are more widely accepted than our products or that would render our
products obsolete or noncompetitive.
Infringement by third parties on our intellectual property or development of substantially
equivalent proprietary technology by our competitors could negatively affect our businesses.
Our success depends significantly on our ability to:
•
maintain patent and trade secret protection;
•
obtain future patents and licenses; and
•
operate without infringing on the proprietary rights of third parties.
There can be no assurance that the measures we have taken to protect our intellectual property will
prevent the misappropriation or circumvention of our intellectual property. In addition, there can
be no assurance that any patent application, when filed, will result in an issued patent, or that
our existing patents, or any patents that may be issued in the future, will provide us with
significant protection against competitors. Moreover, there can be no assurance
12
that any patents
issued to or licensed by us will not be infringed upon or circumvented by others. Litigation to
establish the validity of patents and to assert infringement claims against others can be expensive
and time-consuming, even if the outcome, which is often uncertain, is in our favor. Infringement of our
intellectual property or the development of substantially equivalent technology by competitors
could have a material adverse effect on our business.
Our efforts to protect our intellectual property may be less effective in some foreign countries
where intellectual property rights are not as well protected as in the U.S.
The laws of some foreign countries do not protect intellectual property to as great an extent as do
the laws of the U.S. Policing unauthorized use of the intellectual property utilized in our systems
and system components is difficult, and there is a risk that our means of protecting our
intellectual property may prove inadequate in these countries. Our competitors in these countries
may independently develop similar technology or duplicate our systems, which would likely reduce
our sales in these countries. Furthermore, some of our patent rights may be limited in
enforceability to the U.S. or certain other select countries, which may limit our intellectual
property protection abroad.
Domestic and foreign government regulation and other factors could impair our ability to develop
and sell our products in certain markets.
The electronic animal identification market can be negatively affected by such factors as food
safety concerns, price, consumer perceptions regarding cost and efficacy, international technology
standards, government regulation and slaughterhouse removal of microchips.
We are also subject to federal, state and local regulation in the U.S., including regulation by the
FDA, the FCC and the USDA, and similar regulatory bodies in other countries. We cannot predict the
extent to which we may be affected by further legislative and regulatory developments concerning
our products and markets. We are required to obtain regulatory approval before marketing most of
our products. The regulatory process can be very time-consuming and costly, and there is no
assurance that we will receive the regulatory approvals necessary to sell our products under
development. Regulatory authorities also have the authority to revoke approval of previously
approved products for cause, to request recalls of products and to close manufacturing plants in
response to violations. Any such regulatory action, including the failure to obtain such approval,
could prevent us from selling, or materially impair our ability to sell, our products in certain
markets and could negatively affect our businesses.
Our foreign operations pose additional risks.
We operate our businesses and market our products internationally. During the years ended December31, 2008 and 2007, approximately 63% and 52% of our sales were to both private and public
businesses in foreign countries (approximately 18% and 8% of such sales were from our recently sold McMurdo business unit). Our foreign operations are subject to the risks described herein,
as well as risks related to compliance with foreign laws and other economic or political
uncertainties. International sales are subject to risks related to general economic conditions,
currency exchange rate fluctuations, imposition of tariffs, quotas, trade barriers and other
restrictions, enforcement of remedies in foreign jurisdictions and compliance with applicable
foreign laws, and other economic and political uncertainties. All of these risks could result in
increased costs or decreased revenues, which could have an adverse effect on our financial results.
Our results of operations may be adversely affected if we write-off additional goodwill and other
intangible assets.
During the third quarter of 2008, we recorded an impairment charge of $26.2 million for goodwill
associated with our Animal Identification segment and an impairment of our investment in VeriChip
Corporation, a subsidiary owned at the time. In the fourth quarter of 2008, we recorded an
impairment charge of $4.1 million for goodwill associated with our Animal Identification segment.
During the fourth quarter of 2007, we recorded an impairment charge of approximately $4.6 million
for goodwill associated with our DSD Holding business. In addition, during 2007 and 2006, we
recorded an impairment charge of approximately $9.5 million and $6.6 million, respectively, for
goodwill and other intangible assets associated with our discontinued companies, Computer Equity
and OuterLink, which are included in our results from discontinued operations. As of September 30,2009, we had approximately $8.5 million in goodwill and approximately $20.2 million in other
intangible assets. We assess the fair value of our goodwill and other intangible assets annually or
earlier if events occur or circumstances change that would more likely than not reduce the fair
value of these assets below their carrying value. If we determine that significant additional
impairment has occurred, we will be required to write off the impaired portion of goodwill and our
other
intangible assets. Additional impairment charges could have a material adverse effect on our
operating results and financial condition.
13
We face the risk that the value of our inventory may decline before it is sold or that our
inventory may not be able to be sold at anticipated prices.
On September 30, 2009, the book value of our inventory was $12.8 million. Our inventory could
decline in value as a result of technological obsolescence or a change in the product. Our success
depends in part on our ability to minimize the cost to purchase/produce inventory and sell that
inventory rapidly. The failure to sell such inventory may require us to sell such inventory at a
discount or at a loss or write down its value, which could result in significant losses and
decreases in our cash flows.
Currency exchange rate fluctuations could have an adverse effect on our sales and financial
results.
During the years ended December 31, 2008 and 2007, we generated approximately 63% and 52%,
respectively, of our sales and incurred a portion of our expenses in currencies other than U.S.
dollars. During the years ended December 31, 2008 and 2007, we recorded foreign currency gains of
approximately $0.3 million and $0.4 million, respectively. In prior years, we have not incurred
material amounts of foreign currency gains or losses. During 2008, we saw significant fluctuations
in foreign currency exchange rates which resulted in approximately $2.3 million of other
comprehensive loss.
To the extent that going forward we are unable to match revenues received in foreign currencies
with costs paid in the same currency, exchange rate fluctuations in any such currency could have an
adverse effect on our financial results.
If we fail to maintain proper and effective internal controls, our ability to produce accurate
financial statements could be impaired, which could adversely affect our operating results, our
ability to operate our business and our stock price.
During the course of our testing of our internal controls, we may identify, and have to disclose,
material weaknesses or significant deficiencies in our internal controls that will have to be
remediated. Implementing any appropriate changes to our internal controls may require specific
compliance training of our directors, officers and employees, entail substantial costs in order to
modify our existing accounting systems, and take a significant period of time to complete. Such
changes may not, however, be effective in maintaining the adequacy of our internal controls, and
any failure to maintain that adequacy, or consequent inability to produce accurate financial
statements on a timely basis, could increase our operating costs and could materially impair our
ability to operate our business. In addition, investors’ perceptions that our internal controls are
inadequate or that we are unable to produce accurate financial statements may negatively affect our
stock price.
This prospectus, any prospectus supplement and the documents incorporated herein by reference and
any other written or oral statements made by or on our behalf include forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. Forward-looking statements reflect our current views with respect to future
events and future financial performance and do not relate only to historical matters. You can
identify these forward-looking statements by our use of the words “believes,”“anticipates,”“forecasts,”“projects,”“could,”“plans,”“expects,”“may,”“will,”“would,”“intends,”“estimates,”“hopes,” and similar expressions, whether in the negative or affirmative. We wish to
caution you that any forward-looking statements made by us or on our behalf are subject to
uncertainties and other factors that could cause such statements to be wrong. We cannot guarantee
that we actually will achieve these plans, intentions or expectations. Actual results or events
could differ materially from the plans, intentions and expectations disclosed in the
forward-looking statements that we make. These statements are only predictions and speak only of
our views as of the date the statements were made. Although we believe that the expectations
reflected in the forward-looking statements are reasonable, we cannot guarantee future results,
levels of activity and/or performance of achievements. We do not assume any obligation to update or
revise any forward-looking statements that we make, whether as a result of new information, future
events or otherwise.
We have identified some of the important factors that could cause future events to differ from our
current expectations herein and in our most recent Annual Report on Form 10-K filed on March 31,2009 including, without limitation, under the captions “Item 1A. Risk Factors” and “Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operation,” in our
Quarterly Report on Form 10-Q filed on November 9, 2009
14
and other documents we file with the SEC
and that are incorporated herein by reference, all of which you should review carefully. Although
we have attempted to list comprehensively these important factors, we also wish to caution
investors that other factors may prove to be important in the future in affecting our operating
results. New factors emerge from time to time, and it is not possible for us to predict all of
these factors, nor can we assess the impact each factor or combination of factors may have on our
business.
The SEC allows us to “incorporate by reference” the information we file with the SEC, which means
that we can disclose important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this prospectus, and information
that we file with the SEC after the date of this prospectus will automatically update and may
supersede this information. We are incorporating by reference into this prospectus our:
•
Current Report on Form 8-K filed with the SEC on January 8, 2009;
•
Current Report on Form 8-K filed with the SEC on January 21, 2009;
All documents we file (but not furnish) under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 after the date of this prospectus and before the termination of the offering
are also incorporated by reference and are an important part of this prospectus. Any statement
contained in a document incorporated by reference in this prospectus shall be modified or
superseded for purposes of this prospectus to the extent that a statement contained in this
prospectus or in any other subsequently filed document which is incorporated by reference modifies
or supersedes such statement.
We will provide without charge to each person to whom this prospectus is delivered, upon written or
oral request, a copy of any or all documents that have been or may be incorporated by reference in
the prospectus (other than exhibits to such documents that are not specifically incorporated by
reference into such documents). Your requests should be directed to our Chief Financial Officer at
our principal executive offices at:
We are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended,
and we file annual, quarterly and special reports, proxy statements and other information with the
SEC. You may read and copy the reports, proxy statements and other information that we file at the
SEC’s public reference facilities at 100 F Street NE, Washington, D.C. 20549 at prescribed rates.
Our filings are also available free of charge at the SEC’s website at http://www.sec.gov. You may
also obtain copies of such materials by calling the SEC at 1-800-SEC-0330, or by mail from the
Public Reference Room at 100 F Street NE, Washington, D.C. 20549.
This prospectus is part of a Registration Statement on Form S-3, as amended, or the Registration
Statement, we filed with the SEC under the Securities Act of 1933. This prospectus does not contain
all of the information set forth in the Registration Statement. For more information about us and
our common stock and other securities, you should read the Registration Statement and its exhibits
and schedules. Copies of the Registration Statement, including its exhibits, may be inspected
without charge at the offices of the SEC or obtained at prescribed rates from the Public Reference
Section of the SEC at 100 F Street NE, Washington, D.C. 20549. Copies of the Registration Statement
may be obtained without charge via the SEC’s website.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we anticipate that the net
proceeds, if any, from the sale of the securities that we may offer under this prospectus and any
accompanying prospectus supplement will be used for the following:
Working Capital Requirements
We expect additional cash flow requirements for working capital associated with our SARBE products
as well as our Animal Identification business.
Debt repayment
We may also use a portion of the funds to repay existing debt.
We have not yet determined the amount or timing of the expenditures for each of the uses listed
above, and these expenditures may vary significantly depending on a variety of factors. As a
result, we will retain broad discretion in the allocation and use of the net proceeds of this
offering.
GENERAL DESCRIPTION OF SECURITIES WE MAY OFFER
We may offer shares of common stock and preferred stock or warrants to purchase any of such
securities, either individually or in units, with a total value of up to $4,000,000 from time to
time under this prospectus at prices and on terms to be determined by market conditions at the time
of any offering. This prospectus provides you with a general description of the securities we may
offer. Each time we offer a type or series of securities under this prospectus, we will provide a
prospectus supplement that will describe the specific amounts, prices and other
16
important terms of
the securities, including, to the extent applicable:
•
designation or classification;
•
aggregate principal amount or aggregate offering price;
•
rates and times of payment of interest or dividends, if
any;
•
redemption, conversion, exercise, or exchange terms, if
any;
•
ranking;
•
restrictive covenants, if any;
•
voting or other rights, if any;
•
conversion prices, if any; and
•
important U.S. federal income tax considerations.
The prospectus supplement and any related free writing prospectus that we may authorize to be
provided to you may also add or update information contained in this prospectus or in documents we
have incorporated by reference. However, no prospectus supplement or free writing prospectus will
offer a security that is not registered and described in this prospectus at the time of the
effectiveness of the registration statement of which this prospectus is a part.
We may sell the securities directly to investors or to or through agents, underwriters or dealers.
We, and our agents or underwriters, reserve the right to accept or reject all or part of any
proposed purchase of securities. If we do offer securities to or through agents or underwriters, we
will include in the applicable prospectus supplement:
•
the names of those agents or underwriters;
•
applicable fees, discounts and commissions to be paid to
them;
•
details regarding over-allotment options, if any; and
•
the net proceeds to us.
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a
prospectus supplement.
RATIO OF COMBINED FIXED CHARGES AND PREFERENCE DIVIDENDS TO EARNINGS
If we offer preferred stock pursuant to this registration statement, we will provide a ratio of
earnings to fixed charges and/or ratio of combined fixed charges and preference dividends to
earnings in the applicable prospectus supplement for such offering.
DESCRIPTION OF CAPITAL STOCK, PREFERRED STOCK, WARRANTS AND UNITS
The following is a description of our capital stock, including our common stock, preferred stock,
and warrants and the material provisions of our certificate of incorporation, bylaws and other
agreements. The following is only a summary and is qualified by applicable law and by the
provisions of our certificate of incorporation, bylaws and other agreements, copies of which are
available as set forth under the captions “Where You Can Find More Information” and “Information We
Have Incorporated by Reference.”
17
General
Under our certificate of incorporation, we have 55,000,000 shares of authorized capital stock, of
which 50,000,000 shares have been classified as common stock and 5,000,000 shares have been
classified as preferred stock, $0.01 per share par value and $10.00 per share par value,
respectively. As of December 21, 2009, there were 23,570,399 shares of common stock outstanding and
no outstanding shares of preferred stock.
Common Stock
Subject to the rights of the preferred stock, holders of common stock are entitled to receive such
dividends as are declared by our board of directors out of funds legally available for the payment
of dividends. We presently intend to retain any earnings to fund the development of our business.
Accordingly, we do not anticipate paying any dividends on our common stock for the foreseeable
future. Any future determination as to declaration and payment of dividends will be made at the
discretion of our board of directors and subject to approval by our lenders.
In the event of the liquidation, dissolution, or winding up of Digital Angel, each outstanding
share of our common stock will be entitled to share equally in any of our assets remaining after
payment of or provision for our debts and other liabilities.
Holders of common stock are entitled to one vote per share on matters to be voted upon by
stockholders. There is no cumulative voting for the election of directors, which means that the
holders of shares entitled to exercise more than 50% of the voting rights in the election of
directors are able to elect all of the directors.
Holders of common stock have no preemptive rights to subscribe for or to purchase any additional
shares of common stock or other obligations convertible into shares of common stock which we may
issue after the date of this prospectus.
All of the outstanding shares of common stock are fully paid and non-assessable. Holders of our
common stock are not liable for further calls or assessments.
Preferred Stock
Our certificate of incorporation authorizes 5,000,000 shares of preferred stock. Our board of
directors is authorized, without further stockholder action, to establish various series of such
preferred stock from time to time With respect to each series of our preferred stock, our board of
directors has the authority to fix the following terms:
•
the designation of the series;
•
the number of shares within the series;
•
whether dividends are cumulative and, if cumulative, the dates from which dividends are
cumulative;
•
the rate of any dividends, any conditions upon which dividends are payable, and the
dates of payment of dividends;
•
whether the shares are redeemable, the redemption price and the terms of redemption;
•
the amount payable to you for each share you own if we dissolve or liquidate;
•
whether the shares are convertible or exchangeable, the price or rate of conversion or
exchange, and the applicable terms and conditions;
•
any restrictions on issuance of shares in the same series or any other series;
•
voting rights applicable to the series of preferred stock; and
•
any other rights, priorities, preferences, restrictions or limitations of such series.
Your rights with respect to your shares of preferred stock will be subordinate to the rights of our
general creditors. Shares of our preferred stock that we issue in accordance with their terms will
be fully paid and nonassessable, and will not be entitled to preemptive rights unless specified in
the applicable prospectus supplement.
18
Our ability to issue preferred stock, or rights to purchase such shares, could discourage an
unsolicited acquisition proposal. For example, we could impede a business combination by issuing a
series of preferred stock containing class voting rights that would enable the holders of such
preferred stock to block a business combination transaction. Alternatively, we could facilitate a
business combination transaction by issuing a series of preferred stock having sufficient voting
rights to provide a required percentage vote of the shareholders. Additionally, under certain
circumstances, our issuance of preferred stock could adversely affect the voting power of the
holders of our common stock. Although our board of directors is required to make any determination
to issue any preferred stock based on its judgment as to the best interests of our shareholders,
our board of directors could act in a manner that would discourage an acquisition attempt or other
transaction that some, or a majority, of our shareholders might believe to be in their best
interests or in which shareholders might receive a premium for their stock over prevailing market
prices of such stock. Our board of directors does not at present intend to seek shareholder
approval prior to any issuance of currently authorized stock, unless otherwise required by law or
applicable stock exchange requirements.
As of the date of this prospectus, there were no shares of preferred stock designated or
outstanding.
Options and Warrants
As of December 21, 2009, there were options held by our employees and others to purchase an
aggregate of 3,198,808 shares of common stock. Of the outstanding options, 2285,477 options are now
exercisable at a weighted average exercise price of $20.33 per share, and the rest become
exercisable at various times over the next three years. We currently have 1,198,456 options
available for grant under our option plans. As of December 21, 2009, the average weighted exercise
price of all outstanding options was $14.98 per share.
As of December 21, 2009, there were 313,674 shares subject to outstanding warrants. The average
weighted exercise price of all outstanding warrants was $30.29 per share. All of the warrants are
currently exercisable. The warrant agreements provide for anti-dilution provisions that require
that the exercise price be adjusted if we issue certain securities at a price below the exercise
price then in effect and the number of warrants and the exercise price is required to be adjusted
upon the declaration or payment of a dividend or other distribution of our common stock. The total
number of shares that can be issued under such provisions is subject to a ceiling. The exercise
price of the warrants may be paid in cash, in shares of common stock or by surrendering other
warrants.
Under this prospectus, we may issue warrants to purchase our equity securities. We may issue
warrants independently or together with any offered securities and the warrants may be attached to
or separate from those offered securities. We will issue the warrants under warrant agreements to
be entered into between us and a bank or trust company, as warrant agent, all as described in the
applicable prospectus supplement. The warrant agent will act solely as our agent in connection with
the warrants of the series being offered and will not assume any obligation or relationship of
agency or trust for or with any holders or beneficial owners of warrants.
The applicable prospectus supplement will describe the following terms, where applicable, of
warrants in respect of which this prospectus is being delivered:
the title of the warrants;
the designation, amount and terms of the securities for which the warrants are exercisable;
the designation and terms of the other securities, if any, with which the warrants are to be issued
and the number of warrants issued with each such security;
the price or prices at which the warrants will be issued;
the aggregate number of warrants;
any provisions for adjustment of the number or amount of securities receivable upon exercise of the
warrants or the exercise price of the warrants;
the price or prices at which the securities purchasable upon exercise of the warrants may be
purchased;
if applicable, the date on and after which the warrants and the securities purchasable upon
exercise of the warrants will be separately transferable;
if applicable, a discussion of the material United States federal income tax considerations
applicable to the exercise of the warrants;
any other terms of the warrants, including terms, procedures and limitations relating to the
exchange and exercise of the warrants;
19
the date on which the right to exercise the warrants shall commence, and the date on which the
right shall expire;
the currency or currencies in which the warrants are exercisable;
the terms of any mandatory or optional redemption or call provisions;
the identity of the warrant agent;
if applicable, the maximum or minimum number of warrants which may be exercised at any time; and
information with respect to book-entry procedures, if any.
Each warrant will entitle the holder of warrants to purchase for cash the amount of equity
securities, at the exercise price as shall be set forth in, or be determinable as set forth in, the
prospectus supplement relating to the warrants. Warrants may be exercised at any time up to the
close of business on the expiration date set forth in the prospectus supplement relating to the
warrants. After the close of business on the expiration date, unexercised warrants will become
void.
Warrants may be exercised as set forth in the prospectus supplement relating to the warrants. When
the warrant holder makes the payment and properly completes and signs the warrant certificate at
the corporate trust office of the warrant agent or any other office indicated in the prospectus
supplement, we will, as soon as possible, forward the equity securities which the warrant holder
has purchased. If the warrant holder exercises the warrant for less than all of the warrants
represented by the warrant certificates, we will issue a new warrant certificate for the remaining
warrants.
Until the exercise of their warrants for equity securities, holders of warrants will not have
rights as a holder of the equity securities, as the case may be, by virtue of such holder’s
ownership of warrants.
Units
We may issue, in one more series, units consisting of our common stock, preferred stock and
warrants in any combination. We may issue units in such amounts and in such numerous distinct
series as we determine. While the terms we have summarized below will apply generally to any units
that we may offer under this prospectus, we will describe the particular terms of any series of
units in more detail in the applicable prospectus supplement.
We will issue each series of units under a separate unit agreement to be entered into between us
and the unit holders or a unit agent identified in the applicable prospectus supplement. The unit
agent will act solely as our agent under the applicable unit agreement and will not assume any
obligation or relationship of agency or trust with any holder of any unit. A single bank or trust
company may act as unit agent for more than one series of units. A unit agent will have no duty or
responsibility in case of any default by us under the applicable unit agreement or unit, including
any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand
upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of
any other unit, enforce by appropriate legal action its rights as holder under any security
included in the unit.
We will file as an exhibit to the registration statement of which this prospectus is a part, or
incorporate by reference from reports that we file with the SEC, the form of unit agreement that
describes the terms of the series of units we are offering, and any supplemental agreements, before
we issue such series, and the following summary is qualified in its entirety by reference to such
exhibit. The following summaries of material terms and provisions of the units are subject to, and
qualified in their entirety by reference to, all the provisions of the unit agreement and any
supplemental agreements applicable to a particular series of units. You should read the following
summary, the applicable prospectus supplement and any related free writing prospectuses, together
with the complete applicable unit agreement and any supplemental agreements containing the terms of
the units.
General
Each unit will be issued so that the holder of the unit is also the holder of each security
included in the unit. Accordingly, the holder of a unit will have the rights and obligations of a
holder of each included security. The unit agreement under which a unit is issued may provide that
the securities included in the unit may not be held or transferred separately, at any time or at
any time before a specified date.
The applicable prospectus supplement will describe the terms of the series of units being offered,
including:
•
the designation and terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may be held or
transferred separately;
20
•
any provisions of the governing unit agreement that differ from those described below; and
•
any provisions for the issuance, payment, settlement, transfer or exchange of the units
or of the securities comprising the units.
The provisions described in this section, as well as those described under “Description of Capital
Stock” and “Description of Warrants” will apply to each unit and to any common stock, preferred
stock or warrant included in each unit, respectively.
Title
We, and any unit agent and any of their agents, may treat the registered holder of any unit
certificate as an absolute owner of the units evidenced by that certificate for any purpose and as
the person entitled to exercise the rights attaching to the units so requested, despite any notice
to the contrary.
Limitations on Directors’ Liability
Our certificate of incorporation and bylaws contain provisions indemnifying our directors and
officers to the fullest extent permitted by Delaware law.
In addition, as permitted by Delaware law, our certificate of incorporation provides that no
director will be liable to us or our stockholders for monetary damages for breach of the director’s
fiduciary duty as a director. The effect of this provision is to restrict our rights and the rights
of our stockholders in derivative suits to recover monetary damages against a director for breach
of the director’s fiduciary duty as a director, except that a director will be personally liable
for:
•
any breach of his or her duty of loyalty to us or our stockholders;
•
acts or omissions not in good faith which involve intentional misconduct or a knowing violation of law;
•
the payment of dividends or the redemption or purchase of stock in violation of Delaware law; or
•
any transaction from which the director derived an improper personal benefit.
This provision does not affect a director’s liability under the federal securities laws.
To the extent that our directors, officers and controlling persons are indemnified under the
provisions contained in our certificate of incorporation or Delaware law against liabilities
arising under the Securities Act of 1933, we have been advised that in the opinion of the SEC, such
indemnification is against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
Certain provisions set forth in our certificate of incorporation and Delaware law, which are
summarized below, may have an anti-takeover effect and may delay, deter or prevent a tender offer
or takeover attempt that a stockholder might consider to be in the stockholder’s best interests,
including attempts that might result in a premium being paid over the market price for the shares
held by stockholders.
Delaware Takeover Statute
Section 203 of the Delaware General Corporation Law (“DGCL”) prohibits a Delaware corporation that
is a public company from engaging in any “business combination” (as defined below) with any
“interested stockholder” (defined generally as an entity or person beneficially owning 15% or more
of the outstanding voting stock of the corporation and any entity or person affiliated with such
entity or person) for a period of three years following the date that such stockholder became an
interested stockholder, unless:
•
before such date, the board of directors of the corporation approved
either the business combination or the transaction that resulted in
the stockholder becoming an interested stockholder;
21
•
upon consummation of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned
at least 85% of the voting stock of the corporation outstanding at the
time the transaction commenced, excluding for purposes of determining
the number of shares outstanding those shares owned by persons who are
directors and also officers, and by employee stock plans in which
employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
•
on or subsequent to such date, the business combination is approved by
the board of directors and authorized at an annual or special meeting
of stockholders, and not by written consent, by the affirmative vote
of at least 66-2¤3% of the outstanding voting stock that is not
owned by the interested stockholder.
Section 203 of the Delaware General Corporation Law defines “business combination” to include:
•
any merger or consolidation involving the corporation and the interested stockholder;
•
any sale, transfer, pledge or other disposition of 10% or more of the assets of the
corporation involving the interested stockholder;
•
subject to certain exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the interested
stockholder;
•
any transaction involving the corporation that has the effect of increasing the
proportionate share of the stock of any class or series of the corporation
beneficially owned by the interested stockholder; or
•
the receipt by the interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or through the
corporation.
Undesignated Preferred Stock
Our certificate of incorporation contains provisions that permit our board of directors to issue,
without any further vote or action by our stockholders, up to 5,000,000 shares of preferred stock
in one or more series and, with respect to each such series, to fix the number of shares
constituting the series and the designation of the series, any voting powers of the shares of the
series, and any preferences and relative, participating, optional and other special rights and any
qualifications, limitations or restrictions, of the shares of such series. Our board could
authorize the issuance of shares of preferred stock that could have the effect of delaying,
deferring or preventing a transaction or change in control that might involve a premium price for
shares of our common stock or otherwise be in their interests. See the additional discussion of our
preferred stock above.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Registrar and Transfer Company, whose
address is 10 Commerce Drive, Cranford, New Jersey07016.
Listing
Our common stock is listed on the Nasdaq Capital Market under the symbol “DIGA.” We have not
applied to list our common stock on any other exchange or quotation system.
PLAN OF DISTRIBUTION
We may sell the shares of our common stock, preferred stock or warrants being offered pursuant to
this prospectus:
•
directly to purchasers;
•
to or through underwriters;
•
through dealers or agents; or
•
through a combination of methods.
We may distribute the common stock, preferred stock, warrants or units from time to time in one or
more transactions at a fixed price or prices, which may be changed, at market prices prevailing at
the time of sale, at prices related to the prevailing market prices or at negotiated prices.
22
The prospectus supplement with respect to the common stock, preferred stock, warrants or units
being offered will set forth the terms of the offering, including the names of the underwriters,
dealers or agents, if any, the purchase
price of the securities, the net proceeds to us, any underwriting discounts and other items
constituting underwriters’ compensation and any discounts or concessions allowed or reallowed or
paid to dealers.
If underwriters are used in an offering, we will sign an underwriting agreement with the
underwriters and will specify the name of each underwriter and the terms of the transaction
(including any underwriting discounts and other terms constituting compensation of the underwriters
and any dealers) in a prospectus supplement. If an underwriting syndicate is used, the managing
underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are
used in the sale, the offered securities will be acquired by the underwriters for their own
accounts and may be resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined at the time of sale.
Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time. Unless otherwise set forth in the prospectus supplement, the
obligations of the underwriters to purchase the offered securities will be subject to conditions
precedent, and the underwriters will be obligated to purchase all of the offered securities if any
are purchased.
If dealers are used in an offering, we will sell the securities to the dealers as principals. The
dealers then may resell the securities to the public at varying prices which they determine at the
time of resale. The names of the dealers and the terms of the transaction will be specified in a
prospectus supplement.
The securities may be sold directly by us or through agents we designate. If agents are used in an
offering, the names of the agents and the terms of the agency will be specified in a prospectus
supplement. Unless otherwise indicated in a prospectus supplement, the agents will act on a
best-efforts basis for the period of their appointment.
Dealers and agents named in a prospectus supplement may be deemed to be underwriters (within the
meaning of the Securities Act of 1933) of the securities described therein. In addition, we may
sell the common stock, preferred stock or warrants directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the Securities Act of 1933 with respect
to any resales thereof.
In compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA,
the maximum discount or commission to be received by any FINRA member or independent broker-dealer
may not exceed 8% of the aggregate offering price of the shares offered pursuant to this prospectus
and any applicable prospectus supplement.
Underwriters, dealers and agents may be entitled to indemnification by us against specific civil
liabilities, including liabilities under the Securities Act of 1933 or to contribution with respect
to payments which the underwriters or agents may be required to make in respect thereof, under
underwriting or other agreements. Certain underwriters, dealers or agents and their associates may
engage in transactions with, and perform services for us in the ordinary course of business.
Any common stock sold pursuant to a prospectus supplement will be eligible for listing and trading
on Nasdaq, subject to official notice of issuance. Any underwriters to whom securities are sold by
us for public offering and sale may make a market in the securities, but the underwriters will not
be obligated to do so and may discontinue any market making at any time without notice.
LEGAL MATTERS
Certain legal matters with respect to the validity of the securities being offered hereby is being
passed upon for us by Winthrop & Weinstine, P.A., Minneapolis, Minnesota. We received certain
advice from our legal counsel in connection with the matters described herein. Such legal advice is
solely for our benefit and not for any stockholder or prospective investor. Purchasers of the
securities offered hereby are not entitled to rely on any such advice and should not consider any
such counsel to represent them or their interests.
EXPERTS
The
consolidated financial statements as of December 31, 2008 and 2007 and for each of the years in the three year period ended December 31, 2008, the related financial statement schedule and report on the
effectiveness of internal control over financial reporting incorporated by reference in this
prospectus from Digital Angel Corporation’s Annual Report on Form 10-K for the year ended December31, 2008 and Current Report on Form 8-K dated July 7, 2009, have been audited by Eisner LLP, an
independent registered public accounting firm, as stated in their reports which are incorporated
herein by reference, which reports (1) express an unqualified opinion on the
23
financial statements
and financial statement schedule and contain an explanatory paragraph concerning the restatement of
our financial statements to reflect the retrospective application of the presentation and
disclosure requirements of Statement of Financial Accounting Standards No. 160, “Noncontrolling
Interests in Consolidated Financial Statements — an amendment of ARB No. 51”, and (2) express an
unqualified opinion on the effectiveness
of internal control over financial reporting, and have been incorporated herein by reference in
reliance upon the reports of such firm given upon their authority as experts in accounting and
auditing.
24
Digital Angel Corporation
$4,000,000
Common Stock
Preferred Stock
Warrants
Units
PROSPECTUS
December ___, 2009
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than underwriting discounts and
commissions, payable by us in connection with the issuance and distribution of the shares of the
securities being registered. All of such expenses, except for the SEC registration fee, are
estimated.
SEC registration fee
$
285
Legal fees
10,000
Accountant’s fees and expenses
10,000
Registrar’s and transfer agent’s fees
500
Printing expenses
1,000
Miscellaneous
215
Total
$
22,000
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides as follows:
A Delaware corporation may indemnify any person who was or is a party or who is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director, officer, employee or
agent of such corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in connection with such
action, suit or proceeding if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that the person’s conduct was
illegal.
A Delaware corporation may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right of the corporation
by reason of the fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit if the person acted
in good faith and in a manner the person reasonably believed to be in or not opposed to the best
interest of the corporation, except that no indemnification will be made in respect to any claim,
issue or matter as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite the adjudication of liability
but in view of all of the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem
proper.
Section 9.2 of our Certificate of Incorporation provides that Digital Angel shall indemnify its
officers, directors, employees and agents and other persons to the fullest extent authorized or
permitted by the Delaware General Corporation Law.
We maintain directors’ and officers’ liability insurance for the benefit of our directors and
certain of our officers.
Reference is made to Item 17(d) for our undertakings with respect to indemnification for
liabilities arising under the Securities Act of 1933.
Item 16. Exhibits
The exhibits are described on the Exhibit Index to this Pre-Effective Amendment No. 2 to the
Registration Statement on Form S-3/A.
II-1
Item 17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this
registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value
of securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Securities and Exchange Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement;
(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;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do
not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in 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 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 that 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)(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 that 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.
II-2
(5)
That, for the purpose of
determining liability under
the Securities Act of 1933
to any purchaser in the
initial distribution of the
securities, the undersigned
registrant 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 the undersigned
registrant to the purchaser.
(b)
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(e) or 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.
(c)
If the securities registered are to be offered at
competitive bidding, the undersigned registrant hereby
undertakes: (1) to use its best efforts to distribute prior
to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of
a prospectus which at that time meets the requirements of
Section 10(a) of the Act, and relating to the securities
offered at competitive bidding, as contained in the
registration statement, together with any supplements
thereto, and (2) to file an amendment to the registration
statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required
by the applicable form, not later than the first use,
authorized by the issuer after the opening of bids, of a
prospectus relating to the securities offered at
competitive bidding, unless no further public offering of
such securities by the issuer and no reoffering of such
securities by the purchasers is proposed to be made.
(d)
Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in said Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant
in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
(e)
The undersigned registrant hereby undertakes that:
(1)
For purposes of determining
any liability under the
Securities Act of 1933, the
information omitted from the
form of prospectus filed as
part of this registration
statement in reliance upon
Rule 430A and contained in a
form of prospectus filed by
the registrant 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.
(2)
For the purpose of
determining any liability
under the Securities Act of
1933, each post-effective
amendment that contains a
form of prospectus shall be
deemed to be a new
registration statement
II-3
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.
II-4
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 on Form S-3 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of South Saint Paul, State of Minnesota, on December 28,2009.
Each person whose signature appears below hereby constitutes and appoints Joseph J. Grillo and
Lorraine M. Breece, or either of them, such person’s true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution for such person and in such person’s name, place
and stead, in any and all capacities, to sign the Registration Statement on Form S-3 of Digital
Angel Corporation and any or all amendments thereto (including post-effective amendments) and to
file the same, with all exhibits hereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and purposes as such person
might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed by the following persons in the capacities and on the dates indicated.
Certificate of Elimination to Certificate of Designations filed with
the Secretary of State of Missouri on April 5, 2007 (incorporated by
reference to Exhibit 3.4 to the registrant’s Annual Report on Form
10-K/A filed with the Commission on April 6, 2007)
Form of Preferred Stock Certificate of Designation*
4.11
Form of Warrant Agreement (together with form of Warrant Certificate)*
4.12
Form of Unit Agreement*
5.1
Opinion of Winthrop & Weinstine, P.A.**
23.1
Consent of Eisner LLP**
23.2
Consent of Winthrop & Weinstine, P.A. (included in Exhibit 5.1)
24.1
Power of
attorney (included on signature page)
*
To be filed, if necessary, by amendment or as an exhibit to a document to be
incorporated by reference herein in connection with an offering of our securities.