-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ujggv2z0tTp84XPDJQtadxCo5uilLeUEq8mMXEhmQCxXO/YOV0h5oUsX0wqRJA/l S5myDHvVbnJeMAz1WD1R5g== 0001017062-02-001618.txt : 20020909 0001017062-02-001618.hdr.sgml : 20020909 20020909105616 ACCESSION NUMBER: 0001017062-02-001618 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20020909 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PACIFIC BIOMETRICS INC CENTRAL INDEX KEY: 0001020475 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH [8731] IRS NUMBER: 931211114 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-78351 FILM NUMBER: 02759221 BUSINESS ADDRESS: STREET 1: 23120 ALICA PARKWAY STREET 2: SUITE 200 CITY: MISSION VIEJO STATE: CA ZIP: 92692 BUSINESS PHONE: 9494559724 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SAIGENE CORP CENTRAL INDEX KEY: 0001030423 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH [8731] IRS NUMBER: 911736814 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1725 220TH ST, SE STREET 2: # 104 CITY: BOTHELL STATE: WA ZIP: 98021 BUSINESS PHONE: 2064855377 MAIL ADDRESS: STREET 1: 1725 220TH STREET SE STREET 2: #104 CITY: BOTHELL STATE: WA ZIP: 98021 SC 13D 1 dsc13d.htm SCHEDULE 13D Prepared by R.R. Donnelley Financial -- Schedule 13D
 
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
SCHEDULE 13D
 
Under the Securities Exchange Act of 1934
(Amendment No.                )*
 
Pacific Biometrics, Inc.
(Name of Issuer)
 
Common Stock, par value $0.01 per share
(Title of Class of Securities)
 
69403Q100
(CUSIP Number)
 
Mr. Ronald Helm, 220 W. Harrison Street, Seattle, Washington 98119 (206) 298-0068
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
 
August 28, 2002
(Date of Event which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ¨
 
Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
 
*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
 
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 
CUSIP NO.        69403Q100
 
1.


  
Names of Reporting Persons, I.R.S. Identification Nos. of above persons (entities only).
 
 
Saigene Corporation (91-1736814)
2.

  
Check the Appropriate Box if a Member of a Group (See Instructions)
 
(a)  ¨
(b)  ¨
3.
  
SEC Use Only
 
 
4.

  
Source of Funds (See Instructions)
 
OO
5.
  
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.

  
Citizenship or Place of Organization
 
Delaware
NUMBER OF
  
7.


  
Sole Voting Power
 
 
19,624,292
 
SHARES
 
BENEFICIALLY
 
OWNED BY
  
8.


  
Shared Voting Power
 
 
0
 
EACH
 
REPORTING
 
PERSON
  
9.


  
Sole Dispositive Power
 
 
19,624,292
 
WITH
  
10.


  
Shared Dispositive Power
 
 
0
11.


  
Aggregate Amount Beneficially Owned by Each Reporting Person
 
 
19,624,292
12.

  
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
¨
 
13.


  
Percent of Class Represented by Amount in Row (11)
 
 
77.69%
14.


  
Type of Reporting Person (See Instructions)
 
 
CO

 
Item 1.    Security and Issuer
 
This statement on Schedule 13D relates to the common stock, par value $0.01 per share of Pacific Biometrics, Inc., a Delaware corporation, whose principal executive office is located at 23120 Alicia Parkway, Suite 200, Mission Viejo, California 92692.
 
Item 2.    Identity and Background
 
The reporting person is Saigene Corporation (“Saigene”), a corporation incorporated under the laws of the State of Delaware, with a principal place of business at 220 West Harrison Street, Seattle, Washington 98119. Saigene’s principal business is development of genetic testing technologies. Within the past five years, Saigene has neither been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) nor been subject to a judgment, decree or final order enjoining future violations or, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
 
Item 3.    Source and Amount of Funds or Other Consideration
 
On June 27, 2002, Pacific Biometrics, Inc., a Delaware corporation (“PBI”) and its wholly-owned subsidiary, Pacific Biometrics, Inc., a Washington corporation (“PBI-WA”), entered into an Asset Purchase Agreement (the “Asset Purchase Agreement”) with Saigene, providing for the purchase by PBI-WA of certain assets of Saigene in exchange for 19,624,292 shares of common stock, par value $0.01 per share, of PBI, which transaction occurred on August 28, 2002. The terms of the purchase and sale are described in detail in the Asset Purchase Agreement, filed as Exhibit 1 to PBI’s Current Report on Form 8-K filed on June 27, 2002, and Amendment Number One to Asset Purchase Agreement dated August 28, 2002, filed as Exhibit 1 to PBI’s Current Report on Form 8-K filed on September 6, 2002, each of which is incorporated herein in its entirety where such references and descriptions appear.
 
Item 4.    Purpose of Transaction
 
Upon consummation of the transactions contemplated under the Asset Purchase Agreement, Saigene became the controlling shareholder of PBI. As part of the transaction, there will be changes in the board of directors of the issuer, as set forth in the Asset Purchase Agreement and in the issuer’s Information Statement on Schedule 14F-1 filed on July 3, 2002, which are incorporated herein in their entirety where such references and descriptions appear. In addition, as part of the transactions contemplated under the Asset Purchase Agreement, Saigene Corporation and PBI entered into an Option Agreement which provides PBI an option to purchase certain additional assets of Saigene in exchange for either cash or an additional 5,147,118 shares of PBI common stock, at the election of PBI. The terms of the option are described in detail in the Option Agreement, filed as Exhibit 2.3 and incorporated herein in its entirety where such references and descriptions appear.

 
Item 5.    Interest in Securities of the Issuer
 
Under the Asset Purchase Agreement, Saigene acquired beneficial ownership of 19,624,292 shares of Common Stock of PBI, which constitute approximately 77.69% of the issued and outstanding shares of PBI common stock as of August 28, 2002. The reporting person will have the sole power to vote and dispose of all 19,624,292 shares and no shares will be subject to shared power to vote or dispose. Except as set forth in this statement, the reporting person has not engaged in any transactions in Common Stock of the issuer during the past sixty days.
 
Item 6.    Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
 
Not Applicable.
 
Item 7.    Material to Be Filed as Exhibits
 
Exhibit No.
   
Description
2.1
   
Asset Purchase Agreement dated as of June 27, 2002 by and among Pacific Biometrics, Inc., a Delaware corporation, its wholly-owned subsidiary, Pacific Biometrics, Inc., a Washington corporation, and Saigene Corporation, a Delaware corporation (incorporated by reference to Exhibit 1 of the Current Report on Form 8-K filed by Pacific Biometrics, Inc. on June 27, 2002).
2.2
   
Amendment Number One to Asset Purchase Agreement dated August 28, 2002, by and among Pacific Biometrics, Inc., a Delaware corporation, its wholly-owned subsidiary, Pacific Biometrics, Inc., a Washington corporation, and Saigene Corporation, a Delaware corporation (incorporated by reference to Exhibit 1 to PBI’s Current Report on Form 8-K filed on September 6, 2002).
2.3
   
Option Agreement dated August 28, 2002, by and among Pacific Biometrics, Inc., a Delaware corporation, its wholly-owned subsidiary, Pacific Biometrics, Inc., a Washington corporation, and Saigene Corporation, a Delaware corporation.

Signature
 
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
 
Dated:    September 6, 2002
/s/    Ronald Helm        
Ronald Helm
Chief Executive Officer
EX-2.3 3 dex23.htm OPTION AGREEMENT Prepared by R.R. Donnelley Financial -- Option Agreement
 
Exhibit 2.3
 
Option Agreement

 
OPTION AGREEMENT
 
This Option Agreement (this “Agreement”) is made and entered into effective this 28th day of August 2002, (the “Effective Date”), by and between Saigene Corporation, a Delaware corporation (“Saigene”), on the one hand, and Pacific Biometrics, Inc. a Delaware corporation (“Parent”), and Pacific Biometrics, Inc., a Washington corporation (“Subsidiary”), on the other hand.
 
RECITALS:
 
WHEREAS, Saigene owns certain molecular technology and has entered into an Asset Purchase Agreement, dated as of June 27, 2002, by and among Saigene, Parent and Subsidiary (the “Asset Purchase Agreement,” to which this Agreement is attached as Exhibit E), whereby Saigene is selling certain assets to Subsidiary; and
 
WHEREAS, as part of the consideration for the Asset Purchase Agreement, Saigene is granting Subsidiary an option to purchase certain of Saigene’s other technology and related physical assets on the terms and conditions stated in this Agreement.
 
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
 
AGREEMENT:
 
1.0    Option to Purchase.
 
1.1    Grant of Option.  Subject to the terms and conditions of this Agreement, Saigene hereby grants Subsidiary an option (the “Option”) to purchase the technology and assets and assume the liabilities listed in Schedule 1.1. The technology and assets that are the subject of the Option are collectively referred to as the “Assets.” Saigene represents and warrants that at the time of the Closing (as hereinafter defined) (i) Saigene will have good and valid title to, or a valid and binding leasehold interest or license in, the Assets free and clear of any encumbrance, lien, claim, charge, security interest, mortgage, pledge, easement, conditional sale or other title retention agreement, covenant or other similar restrictions or third party rights affecting the Assets, (ii) the Assets constitute all of the assets, interests and rights necessary to exploit the technology and intellectual property transferred hereunder, and (iii) Saigene has, and as of the Closing, will have, complied with all obligations under all leases, licenses, covenants and agreements constituting or relating to any of the Assets or assumed liabilities, and all such leases, licenses, covenants and agreements will be in full force and effect and Saigene is and will be unaware of any defaults or breaches thereunder or circumstances that may give rise to any defaults or breaches thereunder.
 
1.2    Term of Option.  The Option granted by Saigene to Subsidiary in Section 1.1 will commence on the Effective Date and will terminate at 4:00 pm (local time in Seattle, Washington) on the first anniversary of the Effective Date (the “Option Period”), after which time it will be of no further force or effect; provided, however, that if Saigene does not remove all encumbrances on the Assets (including, without limitation, those encumbrances set forth on Schedule 1.2 attached hereto) by October 31, 2002, then the Option Period shall be extended by one day for each day in which said encumbrances remain on the Assets beyond October 31, 2002. At any time during the Option Period, PBI shall have the right, but shall not be obligated, to exercise the Option and assume liabilities in addition to those set forth on Schedule 1.1 in the event the encumbrances (including those set forth on Schedule 1.2) have not been removed at the time of exercise of the Option.

 
1.3    Consideration for Option.  The Purchase Price in the Asset Purchase Agreement is acknowledged to be adequate consideration paid by Parent and Subsidiary for the Option granted under this Agreement.
 
1.4    Exercise of Option.  In order to exercise the Option, Subsidiary must deliver written notice to Saigene during the Option Period stating Subsidiary’s exercise (without condition or qualification) of the Option (the “Option Notice”). In order to be timely, the Option Notice must be received by Saigene before the expiration of the Option Period. The Option Notice must state Subsidiary’s election to pay the Option Price (as defined in Section 1.5) in cash or PBI Stock (as defined in Section 1.5).
 
1.5    Option Price.  The purchase price (the “Option Price”) for the Assets is, at Subsidiary’s election, either (a) Five Million One Hundred Forty Seven Thousand One Hundred Eighteen Dollars ($5,147,118.00), or (b) Five Million One Hundred Forty Seven Thousand One Hundred Eighteen (5,147,118) shares of Parent’s common stock (“PBI Stock”). The Option Price will also include the assumption of all liabilities relating specifically to the Assets as set forth on Schedule 1.1, which will be assumed pursuant to an assumption agreement substantially in the form of Exhibit 1. The Option Price will be payable in full upon the Closing of the purchase of the Assets as described in this Agreement.
 
1.6    Failure to Exercise Option.  If Subsidiary does not properly and timely exercise the Option in accordance with the terms of this Agreement, then after the Option Period ends, Subsidiary will have no further rights under this Agreement including, without limitation, the right to purchase the Assets.
 
1.7    Purchase Contract. If Subsidiary timely and properly exercises the Option, then Saigene, Subsidiary, and Parent will immediately begin negotiating in good faith the terms and conditions (in addition to those contained in this Agreement which the parties hereby agree to) of an agreement (the “Purchase Contract”) whereby Subsidiary will purchase all of the Assets from Saigene for the Option Price, payable in full at the Closing (as hereinafter defined); provided, however, that irrespective of the parties entering into a definitive Purchase Contract, Saigene shall be obligated to sell the Assets to Subsidiary for the Option Price. The term “Closing” will mean the date, as specified in the Purchase Contract, on which Saigene transfers the Assets to Subsidiary in exchange for the payment in full of the Option Price (in cash or PBI Stock, evidenced by stock certificate(s) issued by Parent). Upon the Closing, Saigene will deliver a Bill of Sale substantially in the form of Exhibit 2.
 
2.0    Terms of Purchase Contract. The parties acknowledge that the terms of the Purchase Contract set forth in this Agreement (e.g., purchase price, etc.) are agreed upon terms that will be included in the Purchase Contract. The Purchase Contract will also contain typical representations and warranties of the parties concerning the sale of the Assets; however, Parent and Subsidiary acknowledge that because they are simultaneously entering into the Asset Purchase Agreement, which contains full representations and warranties from Saigene about its operations and assets, and Parent and Subsidiary will have the ability to conduct due

 
diligence during the Option Period, the parties will negotiate in good faith regarding the representations and warranties that Saigene will make in the Purchase Contract concerning the Assets; provided, however, that such representations and warranties should not be materially different from those contained in the Asset Purchase Agreement. With regard to the Option Price, any PBI Stock issued to Saigene as part of the Option Price must be fully-paid, non-assessable, and free and clear of all liens and encumbrances (except those imposed by federal and state securities laws).
 
3.0    General Provisions.
 
3.1    Integration; Modification; Waiver.  This Agreement, including all exhibits and schedules attached hereto which are incorporated herein, and the Asset Purchase Agreement constitutes and contains the entire agreement and understanding concerning the subject matter between the parties, sets forth all inducements made by any party to any other party with respect to any of the subject matter, and supersedes and replaces all prior and contemporaneous negotiations, proposed agreements or agreements, whether written or oral. Each of the parties acknowledges to each of the other parties that no other party nor any agent or attorney of any other party has made any promise, representation or warranty whatsoever, express or implied, written or oral, not contained herein concerning the subject matter hereof to induce it to execute this Agreement, and each of the parties acknowledges that it has not executed this Agreement in reliance on any promise, representation or warranty not contained herein. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by all the parties. No action or failure to act will constitute a waiver of any right or duty under this Agreement, nor will any action or failure to act constitute an approval of, or acquiescence in, any breach. No waiver of any of the provisions of this Agreement will be deemed, or will constitute, a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the party making the waiver.
 
3.2    No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall (a) confer on any person other than the parties hereto and their respective successors or assigns any rights (including third-party beneficiary rights), remedies, obligations or liabilities under or by reason of this Agreement, or (b) constitute the parties hereto as partners or as participants in a joint venture. This Agreement will not provide third parties with any remedy, claim, liability, reimbursement, cause of action or other right in excess of those existing without reference to the terms of this Agreement. No third party will have any right, independent of any right that exists irrespective of this Agreement, under or granted by this Agreement, to bring any suit at law or equity for any matter governed by or subject to the provisions of this Agreement.
 
3.3    Assignment; Binding Effect; Severability.  This Agreement may not be assigned by any party hereto without the other party’s written consent; provided, that after the Closing Date a party may transfer its rights and obligations hereunder in connection with a merger or sale of all or substantially all of its assets. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors, legal representatives and permitted assigns of each party hereto. The provisions of this Agreement are severable, and in the event that any one or more provisions are deemed illegal or unenforceable the remaining provisions shall remain in full force and effect unless the deletion of such provision shall cause this Agreement to become materially adverse to either party, in which event the parties shall use reasonable commercial efforts to arrive at an accommodation that best preserves for the parties the benefits and obligations of the offending provision.

 
3.4    Time of the Essence.  All times stated in this Agreement are of the essence.
 
3.5    Notices.  All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given upon receipt if (1) mailed by certified or registered mail, return receipt requested, (2) sent by Federal Express or other express carrier, fee prepaid, (3) sent via facsimile with receipt confirmed, or (4) delivered personally, addressed as follows or to such other address or addresses of which the respective party shall have notified the other.
 
(a)    
  
If to Saigene, to:

  
Saigene Corporation
Attn: Mr. Ronald R. Helm
220 West Harrison Street
Seattle, WA 98119
Facsimile: (206) 298-9838
 
   
With a copy to:

  
Burkhalter, Michaels, Kessler
& George LLP
Attn: Alton G. Burkhalter, Esq.
4 Park Plaza, Suite 850
Irvine, CA 92614
Facsimile: (949) 975-7501
 
(b)
  
If to Parent or Subsidiary, to:    

  
Pacific Biometrics, Inc.
Attn: Mr. Paul Kanan
23120 Alicia Parkway #200
Mission Viejo, CA 92692
Facsimile: (949) 588-2788
 
   
With a copy to:
  
Westerman Ball Ederer Miller
& Sharfstein LLP
Attn: Neil S. Belloff, Esq.
170 Old Country Road, 4th Floor
Mineola, NY 11501
Facsimile: (516) 622-9212
 
3.6    Headings.  The subject headings of the sections and subsections of this Agreement are included for convenience of reference only, do not form a part of this Agreement and will not in any way affect the meaning or interpretation of this Agreement or any of its provisions.

 
3.7    Authority.  The undersigned individuals execute this Agreement on behalf of the respective parties, and represent that they are authorized to enter into and execute this Agreement on behalf of such parties.
 
3.8    Further Assurances.  The parties agree to execute all instruments and documents of further assurance and will do any and all such acts as may be reasonably required to carry out their obligations and to consummate the transactions contemplated herein.
 
3.9    Governing Law; Jurisdiction; Venue.  This Agreement will be construed, interpreted, and enforced in accordance with, and governed by, the laws of the State of Delaware without regard to conflicts of laws provisions thereof.
 
3.10    Interpretation; Gender.  In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Whenever in this Agreement the context may so require, the masculine gender will be deemed to refer to and include the feminine and neuter, and the singular will refer to and include the plural, and vice versa.
 
3.11    Attorneys’ Fees.  If any party brings an action, arbitration or other proceeding arising out of or relating to this Agreement (whether founded in tort, contract or equity, or to declare rights hereunder), the Prevailing Party (as hereinafter defined) will be entitled to recover its reasonable attorneys’ fees and other costs incurred in the arbitration, action or proceeding (including all appeals and re-trials), in addition to any other relief to which the Prevailing Party may be entitled. The term “Prevailing Party” will include, without limitation, a party who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other party of its claim or defense. The attorneys’ fees award will not be computed in accordance with any court fee schedule, but will be such as to fully reimburse all attorneys’ fees reasonably incurred.
 
3.12    Cumulative Rights and Remedies.  The rights and remedies in this Agreement will be cumulative, and in addition to, any duties, obligations, rights and remedies otherwise provided by law.
 
3.13    Counterparts/Facsimile Signatures.  This Agreement may be executed in any number of counterparts, using facsimile signatures, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
 
3.14    Advice of Counsel.  Each party acknowledges and agrees that it has given mature and careful thought to this Agreement and that it has been given the opportunity to independently review this Agreement with its own independent legal counsel.
 
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]

 
IN WITNESS WHEREOF, the parties have executed this Option Agreement on the day and year first above written.
 
SAIGENE
 
Saigene Corporation,
a Delaware corporation
 
By:
  
/s/    Allan G. Cochrane
   
Allan G. Cochrane
President
 
PARENT
 
Pacific Biometrics, Inc.,
a Delaware corporation
 
By:
  
/s/    Paul Kanan
   
Paul Kanan
President
 
 
SUBSIDIARY
 
Pacific Biometrics, Inc.,
a Washington corporation
 
By:
  
/s/    Paul G. Kanan
   
Paul G. Kanan
President
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