IPIX Corporation Form S-3 07/25/06
As
Filed with the Securities and Exchange Commission on July26,
2006 Registration
No. _________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
___________________
FORM
S-3
REGISTRATION
STATEMENT UNDER THE
SECURITIES
ACT OF 1933
IPIX
Corporation
(Exact
Name of Registrant as Specified in Its Charter)
|
Delaware
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|
7379
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|
52-2213841
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|
(State
or other jurisdiction of incorporation
|
|
(Primary
Standard Industrial
|
|
(I.R.S.
Employer
|
|
or
organization)
|
|
Classification
Code Number)
|
|
Identification
No.)
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12120
Sunset Hills Road, Suite 410
Reston,
Virginia 20190
(703)
674-4100
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
___________________
Clara
M. Conti
President
and Chief Executive Officer
IPIX
Corporation
12120
Sunset Hills Road, Suite 410
Reston,
Virginia 20190
(703)
674-4100
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of
Agent
for Service)
___________________
Copies
to
Matthew
S. Heiter, Esq.
Richard
F. Mattern, Esq.
Baker,
Donelson, Bearman, Caldwell & Berkowitz, P.C.
165
Madison Avenue, Suite 2000
Memphis,
TN 38103
Telephone
(901) 526-2000
Facsimile
(901) 577-2303
_____________________
Approximate
date of commencement of proposed sale to the public:
From
time to time after the effective date of this registration statement.
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. 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, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same
offering. o
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the 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
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of Securities To Be
Registered
|
|
Amount
To
Be
Registered
|
|
Proposed
Maximum
Offering
Price
Per
Share
|
|
Proposed
Maximum
Aggregate
Offering
Price
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Amount
Of
Registration
Fee
|
|
|
Common
Stock, $0.001 par value per share, underlying senior convertible
notes
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|
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7,661,440(1
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)
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$
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0.56(3
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)
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$
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4,290,406
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$
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459.07
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Common
Stock, $0.001 par value per share, underlying warrants
|
|
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5,338,560(2
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)
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$
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0.56(3
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)
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$
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2,989,594
|
|
$
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319.89
|
|
|
Total
|
|
|
13,000,000
|
|
|
|
|
$
|
7,280,000
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$
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778.96
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|
| (1) |
The
shares of common stock being registered hereunder are being registered
for
resale by the selling stockholders named in the prospectus who were
issued
the shares in a private offering that was completed on June 26, 2006.
The
shares consist of (i) 5,208,338 shares issuable upon conversion of
senior
convertible notes outstanding as of the date hereof issued to accredited
investors and (ii) up to an additional 2,453,102 shares that may
be issued
in lieu of monthly interest payments and include an indeterminate
number
of shares issuable upon conversion of the senior convertible notes,
as
such number may be adjusted as a result of stock splits, stock dividends,
anti-dilution provisions and similar transactions in accordance with
Rule
416.
|
| (2) |
The
shares consist of 5,338,560 shares issuable upon exercise of common
stock
purchase warrants outstanding as of the date hereof issued to accredited
investors and include an indeterminate number of shares issuable
upon
exercise of the warrants, as such number may be adjusted as a result
of
stock splits, stock dividends, anti-dilution provisions and similar
transactions in accordance with Rule
416.
|
| (3) |
The
price of $0.56, which is the average of the high and low prices of
the
Registrant’s common stock on the Nasdaq Stock Market on July 24,
2006, is set forth solely for the purpose of computing the registration
fee pursuant to Rule 457(c).
|
The
registrant hereby amends this Registration Statement on such date or dates
as
may be necessary to delay its effective date until the Registration shall file
a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
____________________________
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement relating to these
securities that has been filed with the Securities and Exchange Commission
is
effective. This prospectus is not an offer to sell these securities and it
is
not soliciting an offer to buy these securities in any state where the offer
or
sale is not permitted.
Subject
to Completion, Dated July 26, 2006
PROSPECTUS
13,000,000
Shares
IPIX
CORPORATION
Common
Stock
This
prospectus relates to 13,000,000 shares of common stock of IPIX Corporation
that
may be sold from time to time by the selling stockholders named on page 8
of this prospectus. The selling stockholders may offer their shares through
public or private transactions, in or off the over-the-counter market in the
United States, at prevailing market prices, or at privately negotiated prices.
For details of how the selling stockholders may offer their shares of common
stock, please see the section of this prospectus called “Plan of Distribution.”
We will not receive any proceeds from the sales by the selling stockholders.
Our
common stock is traded on the Nasdaq Capital Market under the symbol “IPIX.” On
July 24, 2006, the last reported sale price for our common stock on the Nasdaq
Capital Market was $0.56 per share.
_______________________
The
securities offered by this prospectus involve a high degree of risk. See “Risk
Factors” beginning on page 2.
_______________________
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or determined if this prospectus
is
truthful or complete. Any representation to the contrary is a criminal offense.
This
prospectus is dated July 26, 2006
Table
of Contents
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Section
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Page
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Securities
Offered
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2
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Special
Note on Forward Looking Statements
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2
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Risk
Factors
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2
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Use
of Proceeds
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7
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Selling
Stockholders
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8
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Plan
of Distribution
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10
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Legal
Matters
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11
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Experts
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11
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Where
You Can Find More Information
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11
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Incorporation
of Certain Documents by Reference
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12
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__________________________
You
should rely only on the information contained or incorporated by reference
in
this prospectus or any prospectus supplement. We have not authorized anyone
to
provide you with information different from that contained or incorporated
by
reference into this prospectus. No dealer, salesperson or other person is
authorized to give any information or to represent anything not contained in
this prospectus. You must not rely on any unauthorized information or
representation. You should assume that the information contained in this
prospectus or any prospectus supplement is accurate only as of the date on
the
front of the document and that any information contained in any document we
have
incorporated by reference is accurate only as of the date of the document
incorporated by reference, regardless of the time of delivery of this prospectus
or any prospectus supplement or any sale of a security. These documents are
not
an offer to sell or a solicitation of an offer to buy these shares of common
stock in any circumstances under which the offer or solicitation is unlawful.
In
this prospectus and any prospectus supplement, unless otherwise indicated,
the
terms “IPIX,” the “Company,” “us,” “our,” “registrant,” or “we” refer to IPIX
Corporation and its consolidated subsidiaries.
IPIX
Corporation
IPIX
is a
premium provider of immersive imaging products for government and commercial
applications. We combine experience, patented technology and strategic
partnerships to deliver visual intelligence solutions worldwide. Our immersive,
360 degree imaging technology has been used to create high-resolution digital
still photography and video products for surveillance, visual documentation
and
forensic analysis.
Our
principal executive offices are located at 12120 Sunset Hills Road, Suite 410,
Reston, VA 20190, and our telephone number is (703) 674-4100. Our website is
located at www.ipix.com. Information contained in our website is not part of
this prospectus.
Securities
Offered
The
maximum number of shares of Common Stock issuable by the Company pursuant to
this transaction if shareholder approval
is not
obtained is 5,529,027 shares, or 19.99% of the Company’s outstanding shares on
the closing date of the transaction. If shareholder approval is obtained, the
number of shares issuable by the Company pursuant to the transaction is
13,000,000,
which
are comprised of:
| · |
7,661,440
shares of our common stock, which consist of (i) 5,208,338 shares
issuable
upon conversion of senior convertible notes issued on June 26, 2006
to
accredited investors and (ii) up to an additional 2,453,102 shares
that
may be issued in lieu of monthly interest payments on the senior
convertible notes; and
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| · |
5,338,560
shares of our common stock issuable upon the exercise of warrants
issued
on June 26, 2006.
|
Special
Note on Forward Looking Statements
This
prospectus and the documents and information incorporated by reference in this
prospectus include “forward-looking statements” within the meaning of section
27A of the Securities Act of 1933, as amended, and section 21E of the Securities
Exchange Act of 1934, as amended. Forward-looking statements include the
information concerning our possible or assumed future operating results,
business strategies, financing plans, competitive position, industry
environment, the anticipated impact on our business and financial results of
recent and future acquisitions, the effects of competition, our ability to
produce new products in a cost-effective manner and estimates relating to our
industry. Forward-looking statements may be identified by the use of words
like
“believes,” “intends,” “expects,” “may,” “will,” “should” or “anticipates,” or
the negative equivalents of those words or comparable terminology, and by
discussions of strategies that involve risks and uncertainties.
Actual
results may differ materially from those expressed or implied by forward-looking
statements for a number of reasons, including those appearing above in this
prospectus under the heading “Risk Factors.” In addition, we base
forward-looking statements on assumptions about future events, which may not
prove to be accurate. In light of these risks, uncertainties and assumptions,
you should be aware that the forward-looking events described in this prospectus
and the documents incorporated by reference in this prospectus may not
occur.
Risk
Factors
You
should carefully consider and evaluate all of the information contained or
incorporated by reference in this prospectus, including the following risk
factors, before deciding to invest in our Company. Any of these risks could
materially and adversely affect our business, financial condition and results
of
operations, which in turn could adversely affect the price of the notes and
our
common stock.
Our
limited operating history and recent changes in our customer base makes it
difficult to evaluate our business
In
early
2004, we launched several new products for video surveillance and immersive
photography. Additionally, in February 2005, we sold our AdMission business
unit. As a result, we have a limited operating history of the Company in 2005
and upon which you can base an evaluation of our business and prospects. Our
prospects must be considered in the light of the risks, uncertainties, expenses
and difficulties frequently encountered by companies that have undertaken a
substantial business restructuring. To address these risks and uncertainties,
we
must, among other things:
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· maintain
and enhance our brand and expand our immersive product and service
offerings;
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· expand
our customer base for all product offerings;
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· attract,
integrate, retain and motivate qualified personnel; and
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· adapt
to meet changes in our markets and competitive developments.
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We
may
not be successful in accomplishing these objectives.
We
have a history of losses, and we expect to continue to incur losses and may
not
achieve or maintain profitability.
The
extent of our future losses and the timing of profitability are highly
uncertain, and we may never achieve profitable operations. As of
December 31, 2005, we had a total accumulated deficit of approximately
$541 million. Historically, our net sales have varied significantly. We
will need to generate additional revenue to achieve profitability in the future.
If we are unable to achieve profitability or to maintain profitability if
achieved, it may have a material adverse effect on our business and stock price
and we may be unable to continue operations at the current levels, if at all.
We
cannot provide any assurances that we will generate additional revenues or
achieve profitability.
Additional
capital or strategic alternatives may be required for us to continue our
operations and as a result, our independent registered public accounting firm’s
report includes an explanatory paragraph that states that significant matters
exist that raise substantial doubt about our ability to continue as a going
concern.
If
we are
not successful in increasing our revenues or cutting costs, we may be required
to reduce operations further, seek additional equity financing or financing
from
other sources, or consider other strategic alternatives, including a possible
merger, sale of assets or other business combination or restructuring
transactions. There can be no assurances that additional financing or strategic
alternatives will be obtainable on terms acceptable to us or that any additional
financing would not be substantially dilutive to existing stockholders. The
holders of our Series B preferred stock have rights that are senior to
those of the holders of our common stock in the event of the sale of our Company
or in the event of our liquidation, dissolution or winding up. We have included
a “going concern” footnote in our audited financial statements for fiscal 2005.
See Financial Statements - Note 3.
Our
operating results are highly dependent on the development of new products and
technologies, and marketing them in order to generate revenue from new markets
Our
results are subject to risks related to our significant investment in developing
and introducing new products and services. These risks include:
(i) difficulties and delays in the development, production, testing and
marketing of products and services; (ii) customer acceptance;
(iii) the development of industry standards; (iv) the significant
amount of resources we must devote to the development of new technology; and
(v) the ability to differentiate our products or services and compete with
other companies in the same markets.
We
may
not be able to develop and market new products and technologies and generate
revenues. This could have a material adverse effect on our financial results.
Our
operating results are highly dependent on obtaining adequate supplies of the
components of our products
Our
ability to meet customer demands depends, in part, on our ability to obtain
timely and adequate delivery of quality materials, parts and components from
our
suppliers and external manufacturing capacity. Although we work closely with
our
suppliers to avoid these types of shortages, there can be no assurances that
we
will not encounter these problems in the future. A reduction or interruption
in
supplies or a significant increase in the price of one or more supplies could
have a material adverse effect on our revenues and operating results.
Failure
to manage expenses would prevent us from achieving profitability
We
may
have to increase our operating expenses in order to increase our customer base,
enhance our brand image and support our growing infrastructure. In order for
us
to become profitable, we must increase our revenues and gross profit margins
sufficiently to cover current and future operating expenses. If we fail to
do
so, we may never achieve sustained profitability.
In
late
2003, we reduced the number of employees in the business unit that previously
supported our largest customer. In February of 2005, we sold this business
unit
to AdMission Corporation as previously disclosed. During 2005, we further
reduced the number of employees in all functional areas of the Company. We
continue to streamline our cost structure but recognize the need to increase
some sales and marketing costs that directly benefit the sale of security
products. As a result, we hope to lower our future break-even revenue level.
If
we fail to do so, we may be required to implement further cost reductions that
could adversely affect our business.
Since
the
first half of 2000, we have been reducing costs and simplifying our product
portfolios in all of our businesses; however, our overall costs have increased
over the past three years. We discontinued product lines, exited businesses,
consolidated operations and reduced our employee population. The impact of
these
cost-reduction efforts on our revenues and profitability may influence our
ability to successfully complete these ongoing efforts; our ability to generate
the level of cost savings we expect or that are necessary to enable us to
effectively compete; the risk that we may not be able to retain key employees;
and the performance of other parties under outsourcing arrangements.
Another
cost-reduction action has been to develop outsourcing arrangements for the
design and/or manufacture of certain products and components. If these third
parties fail to deliver quality products and components on time and at
reasonable prices, we could have difficulties fulfilling our orders and our
revenues and operating results could be negatively impacted.
Our
quarterly results may fluctuate, which could make financial forecasting
difficult and increase volatility in our common stock
Our
revenues and operating results may vary significantly from quarter-to-quarter.
As a result, quarter-to-quarter comparisons of our revenues and operating
results may not be meaningful. In addition, due to our limited operating history
and restructuring, it may be difficult to predict our future revenues and
results of operations accurately. It is likely that, in one or more future
quarters, our operating results will fall below the expectations of investors.
If this happens, the trading price of our common stock is likely to be
materially and adversely affected.
We
are dependent on a few products
We
anticipate that most of our revenue growth in the future, if any, will come
from
our visual intelligence technologies within both the commercial and government
market segments. We may not be able to successfully increase sales of our
current product offering. Additionally, our efforts to market new products
and
enhancements to our existing products may not be successful. If we are unable
to
continue to develop our products or if we are not successful in marketing and
selling our new products, our financial condition could be materially and
adversely affected. Additionally, camera technology is changing rapidly and
we
cannot be sure that our technology will continue to be attractive to customers
or that technological advances will not render some inventory items such as
cameras and lenses obsolete.
Our
success depends on our ability to protect our intellectual property
We
rely
on trademark, copyright and patent law, trade secret protection and
confidentiality or license agreements with our employees, customers, partners
and others to protect our proprietary rights. If we are not successful in
protecting our intellectual property, there could be a material adverse effect
on our business.
While
we
believe that our issued patents and pending patent applications help to protect
our business, there can be no assurance that:
|
· any
patent can be successfully defended against challenges by third parties;
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· pending
patent applications will result in the issuance of patents;
|
|
our competitors or potential competitors will not devise new methods
of
competing with us that are not covered by our patents or patent
applications;
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· new
prior art will not be discovered which may diminish the value of
or
invalidate an issued patent; or
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· a
third party will have or obtain one or more patents that prevent
us from
practicing features of our business
or will require us to pay for a license to use those features.
|
Also,
our
patents, service marks or trademarks may be challenged and invalidated or
circumvented. In addition, we are exposed to infringement of our intellectual
property in foreign markets because our intellectual property is protected
under
United States laws that may not extend to foreign uses. We have been and are
currently involved in litigation relating to the protection of intellectual
property rights and could be involved in future litigation as third parties
develop products that we believe infringe on our patents and other intellectual
property rights. We have experienced attempts to misappropriate our technology,
and we expect those attempts may continue. We have been involved in litigation
in which our rights to technology have been challenged. The cost of such
litigation, or the determination against us in this type of lawsuit, could
have
a material adverse effect on our business.
Compliance
with changing regulation of corporate governance and public disclosure may
result in additional expenses.
Changing
laws, regulations and standards relating to corporate governance and public
disclosure, including the Sarbanes-Oxley Act of 2002, new SEC regulations and
NASDAQ Capital Market rules, are creating uncertainty for companies such as
ours. These new or changed laws, regulations and standards are subject to
varying interpretations in many cases due to their lack of specificity, and
as a
result, their application in practice may evolve over time as new guidance
is
provided by regulatory and governing bodies, which could result in continuing
uncertainty regarding compliance matters and higher costs necessitated by
ongoing revisions to disclosure and governance practices. We are committed
to
maintaining high standards of corporate governance and public disclosure. As
a
result, our efforts to comply with evolving laws, regulations and standards
have
resulted in, and are likely to continue to result in, increased general and
administrative expenses and a diversion of management time and attention from
revenue-generating activities to compliance activities. In particular, our
efforts to comply with Section 404 of the Sarbanes-Oxley Act of 2002 and
the related regulations regarding our required assessment of the effectiveness
of our internal control over financial reporting and our independent registered
public accounting firm’s audit of that assessment has required the commitment of
significant financial and managerial resources. We expect these efforts to
require the continued commitment of significant resources. Further, our board
members, chief executive officer and chief financial officer could face an
increased risk of personal liability in connection with the performance of
their
duties. As a result, we may have difficulty attracting and retaining qualified
board members and executive officers, which could harm our business. If our
efforts to comply with new or changed laws, regulations and standards differ
from the activities intended by regulatory or governing bodies due to
ambiguities related to practice, our reputation may be harmed.
Our
common stock currently does not meet the minimum bid price requirement to remain
listed on the Nasdaq Capital Market. If we were to be delisted, it would have
a
negative impact on us and our stockholders.
Our
common stock is traded on the Nasdaq Capital Market. There are various
quantitative listing requirements for a company to remain listed on the Nasdaq
Capital Market, including maintaining a minimum bid price of $1.00 per share
of
common stock. As of July 26, 2006, the bid price of our common stock had closed
below the minimum $1.00 per share price requirement for 28 days. If our bid
price remains below the minimum $1.00 per share price for thirty consecutive
business days, we will not be in compliance with the requirements for continued
inclusion under the Nasdaq Marketplace Rules.
Once
we
are notified by the Nasdaq of our non-compliance with the Nasdaq Capital Market
$1.00 minimum bid price rule, we will have one hundred and eighty days to regain
compliance. If at any time during this period the bid price of our common stock
closes at $1.00 or more per share for a minimum of ten consecutive business
days, Nasdaq will notify us that we are in compliance with the Rules. If we
do
not regain compliance within the allotted compliance period, including any
extensions that may be granted by Nasdaq, Nasdaq will notify us that our common
stock will be delisted from The Nasdaq Capital Market, eliminating the only
established trading market for our shares. We would then be entitled to appeal
this determination to a Nasdaq Listing Qualifications Panel and request a
hearing.
In
the
event we are delisted from the Nasdaq Capital Market, the Company and its
shareholders would be negatively impacted. Under the terms of the Securities
Purchase Agreement, dated June 23, 2006, if our common stock is not listed,
we
are required to pay monthly liquidated damages to the purchasers in an amount
equal to 2% of the aggregate purchase price paid by such purchasers. In
addition, we would be forced to list our shares on the OTC Electronic Bulletin
Board or some other quotation medium, such as the pink sheets, depending on
our
ability to meet the specific listing requirements of those quotation systems.
As
a result, an investor might find it more difficult to trade, or to obtain
accurate price quotations for, such shares. Delisting might also reduce the
visibility, liquidity, and price of our voting common stock.
If
we
lose key members of our personnel, our future success could be limited
Our
future success depends on our ability to attract and retain key management,
engineering, technical and other personnel. In addition, we must recruit
additional qualified management, engineering, technical and marketing and sales
and support personnel for our operations. Competition for this type of personnel
is intense, and we may not be successful in attracting or retaining personnel.
We do not maintain key person life insurance for any of our personnel. The
loss
of the services of one or more members of our management group or other key
employees or the inability to hire additional qualified personnel will limit
our
ability to grow our business.
Our
success is dependent upon our ability to adapt to technological changes, and
if
we fail to do so, our offerings may become obsolete
We
compete in a market characterized by rapidly changing technology, evolving
industry standards, frequent new service and product announcements,
introductions and enhancements and changing customer demands. These market
characteristics are intensified by the emerging nature of the Internet and
the
multitude of companies offering Internet-based products and services. Thus,
our
success depends on our ability to adapt to rapidly changing technologies, to
adapt our offerings to evolving industry standards and to continually improve
the performance, features and reliability of our offerings in response to
competitive products and shifting demands of the marketplace.
We
may not be successful in expanding our business into international markets
A
part of
our long-term strategy has been to expand into international markets. The
success of any additional foreign operations will be substantially dependent
upon our entering and succeeding in those markets, including through
distributors, joint ventures or other indirect strategies. We may experience
difficulty in managing international operations as a result of competition,
technical problems, distance, language or cultural differences.
As
we
manage our international efforts, we will be subject to a number of risks,
including the following:
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· failure
of foreign countries to rapidly adopt digital imaging or other required
technologies;
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· unexpected
changes in regulatory requirements;
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· slower
payment and collection of accounts receivable than in our domestic
market;
and
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· political
and economic instability.
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We
cannot
assure you that we will be able to successfully market our products in foreign
markets.
Conversion
of Series B Preferred Stock into Common Stock and the payment of accrued
dividends associated with such Preferred Stock could adversely affect
stockholders
The
holders of our Series B preferred stock may at their election convert each
share of preferred stock into approximately 9.2 shares of our registered common
stock. Accrued dividends on the preferred stock become due and payable upon
such
conversions. The holder of the preferred stock may elect to receive the
dividends in additional common stock or cash. As a result, these conversions
could require us to use available funds to finance dividends or dilute existing
shareholders by introducing new common stock into the market. As a result,
our
financial condition or the market price of our common stock could be adversely
affected.
The
conversion price of our outstanding Series B preferred stock and the exercise
price of some our outstanding warrants have been adjusted, and we may be
required to make further adjustments in the future.
The
conversion price for the senior notes and the exercise price of the warrants
issued on June 26, 2006 are below the then-applicable conversion price of our
outstanding Series B Preferred Stock and the applicable exercise price of some
of our outstanding warrants. As such, the conversion price or exercise price,
as
the case may be, of such securities has been adjusted downward and, as a result,
the amount of shares of common stock issuable upon conversion or exercise of
such securities has been increased. As a result of the foregoing, we will be
required to issue more shares of common stock upon the conversion or exercise
of
such securities, which will result in dilution of existing shareholders.
Furthermore, if the Company elects to satisfy its interest obligations under
the
senior notes with common stock at an effective price below the adjusted
conversion price or exercise price of such securities, the Company will need
to
make further downward adjustments, which would result in greater dilution to
existing shareholders.
Our
certificate of incorporation and bylaws contain anti-takeover provisions that
may make it more difficult or expensive to acquire us in the future, which
could
negatively affect our stock price
Our
amended and restated certificate of incorporation and amended and restated
bylaws and applicable provisions of Delaware law contain several provisions
that
may make it more difficult for a third party to acquire control of us without
the approval of our board of directors. In addition, in October of 2000, our
board of directors approved a stockholder rights plan that has the effect of
making an acquisition of us prohibitively expensive unless our board of
directors approves of the acquisition. The provisions of our certificate and
bylaws and the Delaware General Corporation Law may make it more difficult
or
expensive for a third party to acquire a majority of our outstanding voting
common stock or delay, prevent or deter a merger, acquisition, tender offer
or
proxy contest, which may negatively affect our stock price.
Our
market is highly competitive, and our business may suffer if we are unable
to
compete successfully
The
market for our immersive products is rapidly evolving. The market for immersive
products and services is also highly competitive. We compete with other
providers of immersive imaging technology who develop and market products and
services similar to ours. We expect additional competition from other emerging
and established companies. There can be no assurance that the Company’s current
and potential competitors will not develop products that are more effective
than
our current or future products, or that our products and technology will not
be
rendered obsolete by such developments. Some of our competitors have longer
operating histories, greater name recognition and significantly greater
financial, technical and marketing resources. As a result, they may be able
to
adapt more quickly to new or emerging technologies and changes in customer
requirements or devote greater resources to promotion and sale of their products
than us. Our business will suffer if we are unable to compete effectively.
Terrorist
activities and resulting military and other actions could adversely affect
our
business
Terrorist
attacks in recent years have disrupted commerce throughout the United States
and
other parts of the world. The continued threat of terrorism within the United
States and abroad, and the continued military action and heightened security
measures, may cost significant disruptions to global commerce. Such disruptions
could result in a general decrease in corporate spending on information
technology or our ability to effectively market and sell our products and
services. Such events could have material adverse affect on our business.
Use
of Proceeds
We
will
not receive any proceeds from the sale by any selling stockholder of the
13,000,000 shares of our common stock being offered in this prospectus. All
of
the proceeds will be received by the selling stockholders. If warrants that
were
issued to the selling stockholders to purchase 5,338,560 shares of our common
stock are exercised for cash, we will receive estimated proceeds of
approximately $5.289 million from the selling stockholders. All of such
proceeds would be used for general corporate purposes including working capital.
We will incur approximately $31,000 of expenses relating to the registration
of
the shares being offered and sold by the selling stockholders in this
registration statement, including the SEC registration fee and legal,
accounting, printing and other expenses of this offering.
Selling
Stockholders
The
maximum number of shares of Common Stock issuable by the Company pursuant to
this transaction if shareholder approval
is not
obtained is 5,529,027 shares, or 19.99% of the Company’s outstanding shares on
the closing date of the transaction. If shareholder approval is obtained, the
number of shares issuable by the Company pursuant to the transaction is
13,000,000,
which
are comprised of:
| · |
7,661,440
shares of our common stock, which consist of (i) 5,208,338 shares
issuable
upon conversion of senior convertible notes issued on June 26, 2006
to
accredited investors and (ii) up to an additional 2,453,102 shares
that
may be issued in lieu of monthly interest payments on the senior
convertible notes; and
|
| · |
5,338,560
shares of our common stock issuable upon the exercise of warrants
issued
on June 26, 2006.
|
The
following table sets forth certain information regarding the selling
stockholders and the shares offered by them in this prospectus. Beneficial
ownership is determined in accordance with the rules of the Securities and
Exchange Commission and generally includes voting or investment power with
respect to the securities, or the right to acquire voting or investment power
within 60 days through the exercise of an option, warrant or right, through
the conversion of a security, or through the power to revoke a trust. All shares
of our common stock registered in this offering represent shares issued to
each
selling stockholder or shares that have been or may be acquired within
60 days of July 1, 2006. The percentage ownership is calculated based on
32,985,896 shares, which represents the number of shares of our common stock
that were outstanding as of July 1, 2006. Except for our agreement to issue
additional shares of our common stock upon exercise of the warrants as described
above, none of the selling stockholders within the past three years has had
any
material relationship with us or any of our affiliates. To our knowledge,
subject to applicable community property laws, each person named in the table
has sole voting and investment power with respect to the shares of common stock
set forth opposite such person’s name, unless otherwise indicated in the table.
| |
|
Shares
of Common Stock Beneficially Owned Prior to the
Offering
|
|
Number
of Shares of Common Stock To Be Offered
|
|
Shares
of Common Stock Beneficially Owned After the Offering (1)
|
|
|
Name
of Selling Stockholder
|
|
Number
|
|
Percentage
|
|
|
Number
|
|
Percentage
|
|
Iroquois
Master Fund, Ltd. (2)
|
|
|
1,559,995
(17
|
)
|
|
4.99%(17
|
)
|
|
2,989,991
|
|
|
0
|
|
|
*
|
|
|
Rockmore
Investment Master Fund Ltd (3)
|
|
|
1,559,995
(17
|
)
|
|
4.99%(17
|
)
|
|
1,690,000
|
|
|
0
|
|
|
*
|
|
|
Bonanza
Master Fund Ltd. (4)
|
|
|
1,299,998
|
|
|
3.94
|
%
|
|
1,299,998
|
|
|
0
|
|
|
*
|
|
|
Crescent
International Ltd. (5)
|
|
|
779,997
|
|
|
2.36
|
%
|
|
779,997
|
|
|
0
|
|
|
*
|
|
|
Hudson
Bay Fund LP (6)
|
|
|
311,999
|
|
|
0.95
|
%
|
|
311,999
|
|
|
0
|
|
|
*
|
|
|
Hudson
Bay Overseas Fund LTD (7)
|
|
|
78,003
|
|
|
0.24
|
%
|
|
78,003
|
|
|
0
|
|
|
*
|
|
|
Knott
Partners, L.P (8)
|
|
|
626,601
|
|
|
1.90
|
%
|
|
626,601
|
|
|
0
|
|
|
*
|
|
|
Matterhorn
Offshore Fund, Ltd. (9)
|
|
|
930,798
|
|
|
2.82
|
%
|
|
930,798
|
|
|
0
|
|
|
*
|
|
|
Common
Fund Hedged Equity Co. (10)
|
|
|
75,407
|
|
|
0.23
|
%
|
|
75,407
|
|
|
0
|
|
|
*
|
|
|
Shoshone
Partners, L.P. (11)
|
|
|
397,804
|
|
|
1.21
|
%
|
|
397,804
|
|
|
0
|
|
|
*
|
|
|
Good
Steward Trading Co. SPC (12)
|
|
|
23,405
|
|
|
0.07
|
%
|
|
23,405
|
|
|
0
|
|
|
*
|
|
|
Finderne
LLC (13)
|
|
|
26,001
|
|
|
0.08
|
%
|
|
26,001
|
|
|
0
|
|
|
*
|
|
|
Nite
Capital LP (14)
|
|
|
1,559,995
|
|
|
4.99
|
%
|
|
1,559,995
|
|
|
0
|
|
|
*
|
|
|
C.E.
Unterberg, Towbin Capital Partners I, L.P. (15)
|
|
|
1,559,995
(17
|
)
|
|
4.99%(17
|
)
|
|
1,690,000
|
|
|
0
|
|
|
*
|
|
|
Bristol
Investment Fund, Ltd. (16)
|
|
|
520,001
|
|
|
1.58
|
%
|
|
520,001
|
|
|
0
|
|
|
*
|
|
*
Less
than
1%.
(1) Because
the selling stockholders may choose not to sell any of the shares offered by
this prospectus, and because there are currently no agreements, arrangements
or
undertakings
with respect to the sale of any of the shares of common stock, we cannot
estimate the number of shares that any of the selling stockholders will hold
after completion of this
offering. For purposes of this table, we have assumed that each of the selling
stockholders will have sold all of the shares covered by this prospectus upon
the completion of this
offering.
(2) Joshua
Silverman has voting and investment control over the securities held by Iroquois
Master Fund, Ltd. Mr. Silverman disclaims beneficial ownership of such
shares.
(3)
Bruce
Bernstein and Brian Daly have voting control and investment discretion over
the
shares owned by Rockmore Investment Master Fund Ltd. Messrs. Bernstein and
Daly
disclaim beneficial ownership of such shares.
(4) Bernay
Box has voting control and investment discretion over the shares owned by
Bonanza Master Fund Ltd. Mr. Box disclaims beneficial ownership of such
shares.
(5) Maxi
Brezzi and Bachir Taleb - Ibrahimi, in their capacity as managers of Cantara
(Switzerland) SA, the investment advisor to Crescent International Ltd., have
voting control and
investment discretion over the shares owned by Crescent International Ltd.
Messrs. Brezzi and Taleb-Ibrahimi disclaim beneficial ownership of such
shares.
(6)
Yoav
Roth
and John Doscas share voting and investment discretion over the shares owned
by
Hudson Bay Fund, L.P. Messers. Roth and Doscas disclaim beneficial ownership
of
such shares.
(7)
Yoav
Roth
and John Doscas share voting and investment discretion over the shares owned
by
Hudson Bay Overseas Fund, Ltd. Messers. Roth and Doscas disclaim
beneficial
ownership of such shares.
(8)
David
M.
Knott has voting control and investment discretion over the shares owned by
Knott Partners, LP. Mr. Knott disclaims beneficial ownership of such
shares.
(9) David
M.
Knott has voting control and investment discretion over the shares owned by
Matterhorn Offshore Fund, Ltd. Mr. Knott disclaims beneficial ownership of
such
shares.
(10)
David
M.
Knott has voting control and investment discretion over the shares owned by
Common Fund Hedged Equity Co. Mr. Knott disclaims beneficial ownership of
such
shares.
(11)
David
M.
Knott has voting control and investment discretion over the shares owned by
Shoshone Partners, L.P. Mr. Knott disclaims beneficial ownership of such
shares.
(12)
David
M.
Knott has voting control and investment discretion over the shares owned by
Good
Steward Trading Company SPC. Mr. Knott disclaims beneficial ownership of
such
shares.
(13)
David
M.
Knott has voting control and investment discretion over the shares owned by
Finderne LLC. Mr. Knott disclaims beneficial ownership of such
shares.
(14) Keith
Goodman, Manager of the General Partner of Nite Capital, LP, exercises
investment and voting control over the shares owned by Nite Capital, LP.
Mr. Goodman disclaims
beneficial ownership of the securities owned by Nite Capital, LP.
(15)
Andrew
Arno, a managing member of the General Partners of C.E. Unterberg, Towbin
Capital Partners, I. L.P., exercises investment and voting control over the
shares owned by
C.E. Unterberg, Towbin Capital Partners, I. L.P. Mr. Arno disclaims
beneficial ownership of the securities owned by C.E. Unterberg, Towbin Capital
Partners, I. L.P.
(16)
Paul
Kesser, the manager of Bristol Capital Advisors, LLC, which is the investment
manager of Bristol Invesment Fund, Ltd., exercises investment and voting control
over the
shares owned by Bristol Investment Fund, Ltd. Mr. Kesser disclaims beneficial
ownership of the securities owned by Bristol Investment Fund, Ltd.
(17) Iroquois
Master Fund, Ltd., Rockmore Investment Master Fund Ltd. and by C.E. Unterberg,
Towbin Capital Partners, I. L.P., are subject to a maximum ownership interest
of
4.99%
of
the outstanding shares of IPIX. Without such a restriction, Iroquois Master
Fund, Ltd., Rockmore Investment Master Fund Ltd. and by C.E. Unterberg, Towbin
Capital Partners,
I. L.P. would exercise investment and voting control over 2,989,991, 1,690,000
and 1,690,000 shares respectively, representing a 9.06%, 5.12% and 5.12%
interest respectively.
Plan
of Distribution
The
selling stockholders may, from time to time, sell any or all of their shares
of
common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling stockholders may use any one or more of the
following methods when selling shares:
| · |
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
| · |
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
| · |
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
| · |
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
| · |
privately
negotiated transactions;
|
| · |
broker-dealers
may agree with the selling stockholders to sell a specified number
of such
shares at a stipulated price per
share;
|
| · |
a
combination of any such methods of sale;
and
|
| · |
any
other method permitted pursuant to applicable
law.
|
The
selling stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
The
selling stockholders may also engage in short sales against the box, puts and
calls and other transactions in our securities or derivatives of our securities
and may sell or deliver shares in connection with these trades.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
selling stockholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved. Any profits on the
resale of shares of common stock by a broker-dealer acting as principal might
be
deemed to be underwriting discounts or commissions under the Securities Act.
Discounts, concessions, commissions and similar selling expenses, if any,
attributable to the sale of shares will be borne by a selling stockholder.
The
selling stockholders may agree to indemnify any agent, dealer or broker-dealer
that participates in transactions involving sales of the shares if liabilities
are imposed on that person under the Securities Act.
The
selling stockholders may from time to time pledge or grant a security interest
in some or all of the shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties
may offer and sell the shares of common stock from time to time under this
prospectus after we have filed an amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act of 1933 amending
the list of selling stockholders to include the pledgee, transferee or other
successors in interest as selling stockholders under this
prospectus.
The
selling stockholders also may transfer the shares of common stock in other
circumstances, in which case the transferees, pledgees or other successors
in
interest will be the selling beneficial owners for purposes of this prospectus
and may sell the shares of common stock from time to time under this prospectus
after we have filed an amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act of 1933 amending the list
of
selling stockholders to include the pledgee, transferee or other successors
in
interest as selling stockholders under this prospectus.
The
selling stockholders and any broker-dealers or agents that are involved in
selling the shares of common stock may be deemed to be "underwriters" within
the
meaning of the Securities Act in connection with such sales. In such event,
any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares of common stock purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
We
are
required to pay all fees and expenses incident to the registration of the shares
of common stock. We have agreed to indemnify the selling stockholders against
certain losses, claims, damages and liabilities, including liabilities under
the
Securities Act.
The
selling stockholders have advised us that they have not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares of common stock, nor is there
an underwriter or coordinating broker acting in connection with a proposed
sale
of shares of common stock by any selling stockholder. If we are notified by
any
selling stockholder that any material arrangement has been entered into with
a
broker-dealer for the sale of shares of common stock, if required, we will
file
a supplement to this prospectus. If the selling stockholders use this prospectus
for any sale of the shares of common stock, they will be subject to the
prospectus delivery requirements of the Securities Act.
The
anti-manipulation rules of Regulation M under the Securities Exchange Act of
1934 may apply to sales of our common stock and activities of the selling
stockholders.
Legal
Matters
The
validity of the issuance of the shares offered in this prospectus will be passed
upon for us by Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Memphis,
Tennessee.
Experts
The
consolidated financial statements as of December 31, 2005 and 2004 and for
the
years then ended, the related consolidated financial statement schedules and
management’s assessment of the effectiveness of internal control over financial
reporting appearing in our Annual Report on Form 10-K for the year ended
December 31, 2005 have been audited by Armanino McKenna LLP, independent
registered public accounting firm, as set forth in their reports dated March
21,
2006 (which contains an explanatory paragraph referring to the uncertainty
of
the Company’s ability to continue as a going concern as described in Note 3 to
the consolidated financial statements), which is incorporated by reference
in
this Form S-3. Such consolidated financial statements and related consolidated
financial statement schedule and management’s assessment are incorporated by
reference in this prospectus in reliance upon such reports given on the
authority of Armanino McKenna LLP as experts in accounting and
auditing.
The
financial statements as of December 31, 2003 incorporated in this Prospectus
by
reference to the Annual Report on Form 10-K for the year ended December 31,
2005
have been so incorporated in reliance on the report (which contains an
explanatory paragraph relating to the Company’s ability to continue as a going
concern as described in Note 3 to the financial statements) of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
Where
You Can Find More Information
We
file
annual and quarterly, proxy statements and other information with the SEC.
You
may read and copy any document we file at the public reference facilities
maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please
call the SEC at 1-800-SEC-0330 for further information on the public reference
rooms.. These filings and other information may also be inspected without charge
at a Web site maintained by the SEC. The address of the site is
http://www.sec.gov.
This
prospectus provides you with a general description of the common stock being
registered. The prospectus is part of the registration statement that we have
filed with the SEC. To see more detail, you should read the exhibits and
schedules filed with our registration statement. You may obtain copies of the
registration statement and the exhibits and schedules to the registration
statement as described above.
Statements
contained herein as to the contents of any contract or any other document
referred to are not necessarily complete, and where such contract or other
document is an exhibit to a document we have filed with the SEC, each such
statement is qualified in all respects by the provisions of such exhibit, to
which reference is now made.
Incorporation
of Certain Documents by Reference
The
documents listed in paragraphs (1) through (4) below have been filed
with the Securities and Exchange Commission (the “SEC”) and are hereby
incorporated by reference into this Registration Statement. All documents that
we subsequently file pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 (the “Exchange Act”), prior to the filing of a
post-effective amendment which indicates that all securities offered herein
have
been sold or which deregisters all securities then remaining unsold, shall
be
deemed to be incorporated by reference into this Registration Statement and
to
be a part hereto from the date of filing of such documents. In no event,
however, will any information that we furnish under any Item of any Current
Report on Form 8-K or other information that we may from time-to-time furnish
to
the SEC (rather than file) be incorporated by reference into, or otherwise
become a part of, this prospectus.
|
(1)
|
our
Annual Report on Form 10-K for the year ended December 31, 2005,
filed
with the SEC on March 21, 2006, as amended by Amendment No. 1 on
Form
10-K/A filed with the SEC on May 1, 2006, as further amended by Amendment
No. 2 of Form 10-K/A filed with the SEC of May 10,
2006;
|
|
|
|
|
(2)
|
our
Quarterly Report on Form 10-Q for the period ended March 31, 2006,
filed
with the SEC on May 10, 2006;
|
|
|
|
|
(3)
|
our
Current Reports on Form 8-K filed with the SEC on March 3, 2006,
March 16,
2006, June 26, 2006, July 11, 2006 and July 19, 2006;
|
|
|
|
|
(4)
|
the
description of our common stock contained in our Registration Statement
on
Form 8-A, as filed with the SEC on June 14, 1999, including any amendment
or report filed for the purpose of updating such
description.
|
You
may
request a copy of any or all of the filings listed above and incorporated by
reference into this prospectus (including exhibits to such filings), at no
cost,
upon written or oral request to our executive offices at the following
address:
IPIX
Corporation
12120
Sunset Hills Road, Suite 410
Reston,
Virginia 20190
Attention:
Robert Emery
Telephone:
(703) 674-4100
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14. Other
Expenses of Issuance and Distribution.
The
following table sets forth the costs and expenses payable by the Registrant
in
connection with this offering, other than underwriting commissions and
discounts, all of which are estimated except for the SEC registration fee.
|
Item
|
|
Amount
|
|
|
SEC
registration fee
|
|
$
|
778.96
|
|
|
Legal
fees and expenses
|
|
|
10,000
|
|
|
Accounting
fees and expenses
|
|
|
15,000
|
|
|
Miscellaneous
expenses
|
|
|
5,000
|
|
|
Total
|
|
$
|
30,778.96
|
|
|
|
|
|
|
|
Item 15. Indemnification
of Directors and Officers.
Under
Section 145 of the General Corporation Law of the State of Delaware, we can
indemnify our directors and officers against liabilities they may incur in
such
capacities, including liabilities under the Securities Act of 1933, as amended
(the “Securities Act”). Our certificate of incorporation provides that, pursuant
to Delaware law, our directors shall not be liable for monetary damages for
breach of the directors’ fiduciary duty of care to us and our stockholders.
This
provision in the certificate of incorporation does not eliminate the duty of
care, and in appropriate circumstances equitable remedies such as injunctive
or
other forms of nonmonetary relief will remain available under Delaware law.
In
addition, each director will continue to be subject to liability for breach
of
the director’s duty of loyalty to us or our stockholders, for acts or omissions
not in good faith or involving intentional misconduct or knowing violations
of
the law, for actions leading to improper personal benefit to the director,
and
for payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Delaware law. The provision also does not affect a director’s
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
Our
bylaws provide for the indemnification of our directors to the fullest extent
permitted by the Delaware General Corporation Law. Our bylaws further provide
that our Board of Directors has sole discretion to indemnify our officers and
other employees. We may limit the extent of such indemnification by individual
contracts with our directors and executive officers, but have not done so.
We
are not, however, required to indemnify any director or executive officer in
connection with any proceeding initiated by us and approved by a majority of
our
Board of Directors, that alleges (a) unlawful misappropriation of corporate
assets, (b) disclosure of confidential information or (c) any other
willful breach of such director or executive officer’s duty to us or our
stockholders. We are required to advance, prior to the final disposition of
any
proceeding, promptly on request, all expenses incurred by any director or
executive officer in connection with that proceeding on receipt of an
undertaking by or on behalf of that director or executive officer to repay
those
amounts if it should be determined ultimately that he or she is not entitled
to
be indemnified under our bylaws or otherwise.
We
also
have directors’ and officers’ liability insurance.
Item 16. Exhibits.
|
Exhibit
|
|
|
Number
|
Description
|
|
3.1
|
Amended
and Restated Certificate of Incorporation of the Registrant (incorporated
herein by reference to Form S-1 as declared effective on
August 25, 1999 (File No. 333-80639)).
|
|
3.1(a)
|
Amendment
to the Amended and Restated Certificate of Incorporation of the Registrant
(incorporated herein by reference to Form S-1 as filed with the
Commission on March 17, 2000).
|
|
3.2
|
Amended
and Restated Bylaws of the Registrant (incorporated herein by reference
to
Form 10-Q as filed with the Commission on November 14, 2000).
|
|
3.3
|
Certificate
of Designations of Series A Junior Participating Preferred Stock
(incorporated herein by reference to Form 8-A as filed with the
Commission on November 2, 2000).
|
|
3.3
|
Amended
Certificate of Designations of Series B Preferred Stock (incorporated
herein by reference to Form 8-K as filed with the Commission on
October 3, 2001).
|
|
4.1
|
Form
of certificate representing the common stock, $.001 par value per
share of
IPIX Corporation (incorporated herein by reference to Form 10-K as
filed
with the Commission on March 29, 2000).
|
|
4.2
|
Rights
Agreement dated October 31, 2000 between IPIX Corporation and EquiServe
(incorporated herein by reference to Form 8-A as filed with the Commission
on November 2, 2000).
|
|
4.3
|
Registration
Rights Agreement dated May 14, 2001 between IPIX Corporation and
Image Investors Portfolio, a separate series of Memphis Angels, LLC
(incorporated herein by reference to Form 8-K as filed with the
Commission on May 29, 2001).
|
|
4.4
|
Registration
Rights Agreement dated April 4, 2004 between IPIX Corporation and
institutional investors named therein (incorporated by reference
to
Form 8-K as filed with the Commission on April 7, 2004).
|
|
4.5
|
Form
of Note, dated as of June 26, 2006, by and among IPIX Corporation
and the
Purchasers (incorporated by reference to Form 8-K as filed with the
Commission on June 26, 2006).
|
|
4.6
|
Form
of Warrant A, dated as of June 26, 2006, by and among IPIX Corporation
and
the Purchasers (incorporated by reference to Form 8-K as filed with
the Commission on June 26, 2006).
|
|
4.7
|
Form
of Warrant B, dated as of June 26, 2006, by and among IPIX Corporation
and
the Purchasers (incorporated by reference to Form 8-K as filed with
the Commission on June 26, 2006).
|
|
5.1#
|
Opinion
of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC regarding
legality of securities
|
|
10.1*
|
Employment
Agreement dated July 1, 2001, between IPIX Corporation and Donald W.
Strickland (incorporated herein by reference to Form 10-Q as filed
with the Commission on August 14, 2001).
|
|
10.2*
|
Employment
Agreement dated July 1, 2001, between IPIX Corporation and Paul A.
Farmer (incorporated herein by reference to Form 10-Q as filed with
the Commission on August 14, 2001).
|
|
10.3*
|
Employment
Agreement dated July 1, 2001 between IPIX Corporation and Sarah Pate
(incorporated herein by reference to Form 10-K as filed with the
Commission on March 31, 2003).
|
|
10.4
|
Reserved
|
|
10.5*
|
Amended
and Restated IPIX Corporation 2001 Equity Incentive Plan (incorporated
herein by reference to Form S-8 as filed with the Commission on
January 16, 2002).
|
|
10.6*
|
Amended
and Restated 1997 Equity Compensation Plan (incorporated herein by
reference to Form S-4 as declared effective on December 16, 1999
(File No. 91139).
|
|
10.7*
|
Amended
and Restated 1998 Employee, Director and Consultant Stock Plan
(incorporated herein by reference to Form S-4 as declared effective
on December 16, 1999 (File No. 91139)).
|
|
10.8*
|
1999
Employee Stock Purchase Plan (incorporated herein by reference to
Form S-4 as declared effective on December 16, 1999 (File
No. 91139)
|
|
10.9*
|
2000
Equity Incentive Plan (incorporated herein by reference to Form S-8
as
declared effective on June 27, 2000 (File No. 333-40160).
|
|
10.10*
|
PictureWorks
Technology, Inc. 1994 Stock Option Plan (incorporated herein by reference
to Form S-8 as declared effective on May 2, 2000 (File
No. 333-36068))
|
|
10.11*
|
PictureWorks
Technology, Inc. 1996 Stock Option Plan (incorporated herein by reference
to Form S-8 as declared effective on May 2, 2000 (File
No. 333-36068))
|
|
10.12*
|
PictureWorks
Technology, Inc. 1997 Stock Option Plan (incorporated herein by reference
to Form S-8 as declared effective on May 2, 2000 (File
No. 333-36068))
|
|
10.13
|
Form
of Indemnification Agreement between the Registrant and each of its
directors and officers (incorporated herein by reference to Form
S-1 as
declared effective on August 25, 1999 (File
No. 333-80639)).
|
|
10.14*
|
Separation
Agreement dated September 16, 2004, between IPIX Corporation and
Donald W. Strickland (incorporated by reference to Form 8-K as filed
with the Commission on September 21, 2004).
|
|
10.15
*
|
Employment
Agreement dated September 16, 2004 between IPIX Corporation and Clara
M. Conti (incorporated herein by reference to Form 10-Q as filed with
the Commission on November 15, 2004).
|
|
10.16*
|
Separation
Agreement dated January 25, 2005, between IPIX Corporation and Paul
A. Farmer (incorporated herein by reference to Form 8-K as filed with
the Commission on January 31, 2005).
|
|
10.17
|
Lease
dated February 3, 2005, between IPIX Corporation and Oak Ridge
Technical Center Partners — One, LP
|
|
10.18
|
Patent
Purchase, License and Repurchase Agreement dated February 11, 2005,
between IPIX Corporation and AdMission Corporation (incorporated
by
reference to Form 8-K filed with the Commission on February 17,
2005).
|
|
10.19
|
Trademark/Service
Mark License Agreement dated February 11, 2005, between IPIX
Corporation and AdMission Corporation (incorporated by reference
to
Form 8-K filed with the Commission on February 17, 2005).
|
|
10.20
|
Letter
Agreement dated October 25, 2004, between IPIX Corporation and Kara
Brand (incorporated by reference to Form 8-K filed with the
Commission on April 4, 2005).
|
|
10.21
|
Letter
Agreement dated March 29, 2005, between IPIX Corporation and Kara
Brand (incorporated by reference to Form 8-K filed with the
Commission on April 4, 2005).
|
|
10.22
|
Employment
Agreement effective April 1, 2005, between IPIX Corporation and Charles
A.
Crew (incorporated by reference to Form 8-K filed with the Commission
on April 4, 2005).
|
|
10.23
|
Lease
Agreement dated February 15, 2000, by and between R.E.C. Partners,
L.P. and Thomas Group, Inc. (incorporated by reference to Form 10-Q
filed with the Commission on May 10, 2005).
|
|
10.24
|
Sublease
Agreement dated April 18, 2005, between Thomas Group, Inc. and IPIX
Corporation (incorporated by reference to Form 10-Q filed with the
Commission on May 10, 2005).
|
|
10.25
|
Securities
Purchase Agreement dated June 21, 2005, among IPIX Corporation and
each of
the purchasers (incorporated by reference to Form 8-K filed with the
Commission on June 23, 2005).
|
|
10.26
|
Separation
Agreement dated February 27, 2006, between IPIX Corporation and Charles
A.
Crew (incorporated by reference to Form 8-K filed with the Commission
on March 3, 2006).
|
|
10.27
|
Amendment
A Termination of Lease dated March 13, 2006, by and between IPIX
Corporation and Oak Ridge Technical Center Partners - One, L.P.
(incorporated by reference to Form 8-K filed with the Commission
on March
16, 2006).
|
|
10.28
|
Securities
Purchase Agreement, dated as of June 23, 2006, by and among IPIX
Corporation and the Purchasers (incorporated by reference to Form 8-K
as filed with the Commission on June 26, 2006).
|
|
10.29
|
Security
Agreement, dated as of June 23, 2006, by and among IPIX Corporation
and
the Purchasers (incorporated by reference to Form 8-K as filed with
the Commission on June 26, 2006).
|
|
14.1
|
Code
of Ethics for Chief Executive Officer and Senior Financial Officers
(incorporated by reference to Form 10-K filed with the Commission on
March 30, 2004)
|
|
14.2
|
Code
of Business Conduct and Ethics (incorporated by reference to Form
10-K
filed with the Commission on March 30, 2004)
|
|
16.1
|
Letter
dated June 15, 2004 regarding change in certifying accountant
(incorporated by reference to Form 8-K filed with the Commission on
June 18, 2004).
|
|
21.1
|
Subsidiaries
of the Registrant (incorporated herein by reference to Form 10-K
filed with the Commission on March 31, 2004).
|
|
23.1**
|
Consent
of PricewaterhouseCoopers LLP
|
|
23.2**
|
Consent
of Armanino McKenna LLP
|
|
23.3#
|
Consent
of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (contained in
Exhibit 5.1)
|
|
24.1#
|
Power
of Attorney (included on signature page)
|
|
*
|
Executive
Compensation Plan or Agreement
|
|
#
|
Filed
Herewith
|
|
**
|
To
be filed by amendment
|
Item 17. Undertakings
(a) Each
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, as amended (the “Securities Act”);
(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 any decrease in volume of securities offered (if
the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) promulgated
under the Securities Act
if, in
the aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however,
that
paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) shall
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 such registrant pursuant to Section 13 or Section 15(d) of
the
Exchange Act that are incorporated by reference in this registration
statement,
or is
contained in a form of prospectus filed pursuant to Rule 424(b) promulgated
under the Securities Act that is part of the registration
statement.
(2) That,
for
the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide
offering
thereof.
(3) To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That,
for
the purpose of determining liability under the Securities Act to any
purchaser:
(i) If
the
registrant is relying on Rule 430B promulgated under the Securities
Act:
(A)
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) promulgated under
the Securities Act 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
(B)
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
promulgated under the Securities Act as part of a registration statement in
reliance on Rule 430B promulgated under the Securities Act relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) promulgated under
the
Securities Act for the purpose of providing the information required by section
10(a) of the Securities Act 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
314
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;
or
(ii)
If
the
registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) promulgated under the Securities Act as part of a registration statement
relating to an offering, other than registration statements relying on Rule
430B
promulgated under the Securities Act or other than prospectuses filed in
reliance on Rule 430A promulgated under the Securities Act shall be deemed
to be
part of and included in the registration statement as of the date it is first
used after effectiveness.
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 first use, 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 date of first
use.
(5) That,
for
the purpose of determining liability of the registrant under the Securities
Act
to any purchaser in the initial distribution of the securities, each undersigned
registrant undertakes that in a primary offering of securities of each
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, each 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 each undersigned registrant relating
to
the offering required to be filed pursuant to Rule 424 promulgated under the
Securities Act;
(ii) Any
free
writing prospectus relating to the offering prepared by or on behalf of each
undersigned registrant or used or referred to by each undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about each undersigned registrant or its securities
provided by or on behalf of each undersigned registrant; and
(iv) Any
other
communication that is an offer in the offering made by each undersigned
registrant to the purchaser.
(b) Each
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of such registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is
incorporated by reference in the registration statement shall be deemed to
be a
new registration statement relating to the securities offered therein, and
the
offering of such securities at that time shall be deemed to be the initial
bona
fide
offering
thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of each registrant,
each registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a registrant
of expenses incurred or paid by a director, officer or controlling person of
such 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, each 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.
(d) Each
undersigned registrant hereby undertakes that,
(i) for
purposes of determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in 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.
(ii) for
the
purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to
be a new registration statement relating to the securities offered therein,
and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the Registrant certifies that it
has
reasonable grounds to believe that it meets all of the requirements of filing
on
Form S-3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the city of Reston,
state of Virginia, on July 26, 2006.
IPIX
CORPORATION
By:
/s/
CLARA M. CONTI
Clara
M.
Conti
President,
Chief Executive Officer and
Interim
Chief Financial Officer
POWER
OF ATTORNEY
We,
the
undersigned officers and directors of IPIX Corporation, do hereby severally
constitute and appoint Clara M. Conti, Robert Emery and Matthew S. Heiter and
each of them our true and lawful attorneys-in-fact and agents, each with full
power of substitution and resubstitution, for him and his name, place and stead,
in any and all capacities, to sign any and all amendments to this Registration
Statement (including any post-effective amendments), and to file the same,
with
exhibits thereto, 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 or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby,
ratifying and confirming that each of said attorneys-in-fact and agents, or
his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has
been
signed below by the following persons in the capacities and on the dates
indicated.
|
|
|
|
|
|
|
SIGNATURE
|
|
TITLE
|
|
DATE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
CLARA M. CONTI
|
|
Director,
President, Chief Executive Officer and Interim Chief Financial
Officer
|
|
|
|
Clara
M. Conti
|
|
(Principal
Executive Officer and Interim Principal Accounting Officer)
|
|
|
| |
|
|
|
|
|
/s/
JAMES H. HUNT
|
|
|
|
|
|
James
H. Hunt
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
EXHIBIT
INDEX
|
Exhibit
|
|
|
Number
|
Description
|
|
5.1
|
Opinion
of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC regarding
legality of securities
|
|
23.1
|
Consent
of PricewaterhouseCoopers LLP*
|
|
23.2
|
Consent
of Armanino McKenna LLP*
|
|
23.3
|
Consent
of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (contained in
Exhibit 5.1)
|
|
24.1
|
Power
of Attorney (included on signature
page)
|
*To
be
filed by amendment.
EXHIBIT
5.1
[BAKER
DONELSON BEARMAN CALDWELL & BERKOWITZ, PC LETTERHEAD]
July
26,
2006
Board
of
Directors
IPIX
Corporation
12120
Sunset Hills Road, Suite 410
Reston,
Virginia 20190
RE:
Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have
acted as counsel for IPIX Corporation, a Delaware corporation (the "Company"),
in connection with a Registration Statement on Form S-3 (the "Registration
Statement") filed with the Securities and Exchange Commission (the "SEC") under
the Securities Act of 1933 (the "1933 Act") for the registration for resale
by
selling stock holders of 13,000,000 shares (the "Shares") of common stock,
par
value $.001 per share (the "Common Stock"), of the Company, which consists
of
(i) 5,208,338 shares issuable upon conversion of senior convertible notes issued
on June 26, 2006 to accredited investors (the “Conversion Shares”), (ii) up to
an additional 2,453,102 shares that may be issued in lieu of monthly interest
payments upon the conversion of the senior convertible (the “Interest Shares”),
and 5,338,560 shares of our common stock issuable upon the exercise of warrants
issued on June 26, 2006 (the “Warrant Shares”). The Conversion Shares, Interest
Shares and the Warrant Shares were originally issued in a private placement
completed on June 26, 2006. We are furnishing this opinion letter pursuant
to Item 16 of Form S-3 and Item 601(b)(5) of the SEC’s Regulation
S-K.
For
purposes of rendering that opinion, we have examined the Registration Statement,
the Company's Certificate of Incorporation, as amended, and Bylaws, as amended,
and the corporate action of the Company that authorizes the issuance of the
Shares, and we have made such other investigation as we have deemed appropriate.
We have examined and relied upon certificates of public officials. In rendering
our opinion, we also have made the assumptions that are customary in opinion
letters of this kind. We have not verified any of those
assumptions.
Our
opinion set forth below is limited in all respects to the General Corporation
Law of the State of Delaware, and we do not express any opinion herein
concerning any other laws.
Based
upon and subject to the foregoing, it is our opinion that (i) the Conversion
Shares will be validly issued, fully paid and non-assessable when the Senior
Notes validly converted and such Conversion Shares have been issued in
accordance with the terms of the Senior Notes, (ii) the Interest Shares will
be
validly issued, fully paid and non-assessable when the Interest Shares have
been
issued in accordance with the terms of the Senior Notes and (iii) the Warrant
Shares will be validly issued, fully paid and non-assessable upon payment of
the
exercise price in accordance with the terms of the Warrants.
We
hereby
consent to the filing of this opinion as Exhibit 5 to the Registration Statement
and to the use of the name of our firm under the heading "Legal Matters" in
the
Prospectus forming a part of the Registration Statement. In giving such consent,
we do not thereby admit that we are within the category of persons whose consent
is required under Section 7 of the 1933 Act or the rules and regulations of
the
SEC thereunder.
Yours
truly,
/s/
BAKER
DONELSON BEARMAN CALDWELL & BERKOWITZ, PC