form_s3a-040903
As filed with the Securities and Exchange Commission on May __, 2003
Registration No. 333-103196
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEDIX RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Colorado
(State or other jurisdiction of incorporation or organization)
84-1123311
(I.R.S. Employer Identification Number)
The Graybar Building
420 Lexington Avenue, Suite 1830
New York, New York 10170
(212) 697-2509
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Mark W. Lerner
The Graybar Building
420 Lexington Avenue, Suite 1830
New York, New York 10170
(212) 697-2509
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
With Copies to:
Peter H. Ehrenberg, Esq.
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
(973) 597-2500
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered pursuant
to a dividend or interest reinvestment plans, please check the following box:
[_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
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
registrations statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
---------------------------------------------------------------------------
Title of each Proposed Proposed
class of Amount to be maximum maximum Amount of
securities to registered offering aggregate registration
be registered (2)(3) price per offering fee(1)
unit (1) price (1)
---------------------------------------------------------------------------
Shares of 21,360,833 $.60 $12,816,500 $1,229
common stock,
par value
$.001 per share
---------------------------------------------------------------------------
(1) The offering price is being estimated solely for the purpose of calculating
the registration fee. In accordance with Rule 457(c), the price shown is based
upon the average of the high and low prices of Medix's common stock on February
10, 2003, as reported on the American Stock Exchange. The fee was paid on
February 12, 2003.
(2) Includes 11,684,583 shares of common stock covered by warrants issued (i) in
private placements and (ii) as fees to finders in private placements.
(3) Pursuant to Rule 416 under the Securities Act, such number of shares of
common stock registered hereby shall include an indeterminate number of shares
of common stock that may be issued in connection with a stock split, stock
dividend, recapitalization or similar event.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a),
may determine.
Subject to completion, dated May __, 2003.
PROSPECTUS
MEDIX RESOURCES, INC.
21,360,833 Shares of Common Stock
The securityholders of Medix Resources, Inc. named herein will have the
right to offer and sell up to an aggregate of 21,360,833 shares of our common
stock under this prospectus. The shares were purchased from Medix in private
placements or are covered by warrants that were issued (i) in private placements
or (ii) as fees to finders in private placements.
Medix will not receive directly any of the proceeds from the sale of these
shares by the selling securityholders. However, Medix will receive the proceeds
from the exercise of warrants to purchase some of the shares to be sold
hereunder. See "Use of Proceeds". Medix will pay the expenses of registration of
these shares.
Medix's common stock is traded on the American Stock Exchange under the
symbol "MXR". On April 30 , 2003, the closing price of our common stock was
reported as $0.31 .
The securities offered hereby involve a high degree of risk. See "Risk Factors"
beginning on page 3 for certain risks that should be considered by prospective
purchasers of the securities offered hereby.
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.
The date of this prospectus is May [__], 2003
The information in this prospectus is not complete and may be changed. No
dealer, salesman or other person has been authorized to give any information or
to make any representation not contained in or incorporated by reference in this
prospectus and, if given or made, such information or representation must not be
relied upon as having been authorized by us, the selling securityholders or any
other person. This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any of the securities offered hereby in any
jurisdiction to any person to whom it is unlawful to make such an offer in such
jurisdiction. Neither the delivery of this prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information herein is correct as of any time subsequent to the date hereof or
that there has been no change in our affairs since such date.
TABLE OF CONTENTS
SUMMARY
RECENT DEVELOPMENTS
RISK FACTORS
FORWARD-LOOKING STATEMENTS
THE COMPANY
USE OF PROCEEDS
SELLING SECURITYHOLDERS
DESCRIPTION OF THE SECURITIES
PLAN OF DISTRIBUTION
INDEMNIFICATION OF OFFICERS AND DIRECTORS
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
LEGAL MATTERS
EXPERTS
SUMMARY
The following summary highlights some information from this prospectus. It
is not complete and does not contain all of the information that you should
consider before making an investment decision. You should read this entire
prospectus, including the "Risk Factors" section and the financial statements,
related notes and the other more detailed information appearing elsewhere or
incorporated by reference in this prospectus. Unless otherwise indicated, "we",
"us", "our" and similar terms, as well as references to the "Company" and
"Medix", refer to Medix Resources, Inc. and its subsidiaries and not to the
selling securityholders. All industry statistics incorporated by reference in
this prospectus were obtained from data prepared or provided by recognized
industry sources.
This prospectus covers the offering and sale of 21,360,833 shares of our
common stock to the public by certain selling securityholders listed under the
heading selling securityholders in this prospectus, of which 9,676,250 shares
are issued and outstanding and 11,684,583 shares are covered by warrants held by
the selling securityholders. See "Selling Securityholders". The selling
securityholders purchased the shares of common stock and the warrants covering
shares of common stock from us in one or more private placements or received
warrants as fees for serving as finders in private placements. We received
aggregate proceeds in those private placements of $3,870,500. As part of the
private placements, we agreed to register the shares of common stock issued or
issuable pursuant to warrants under the Securities Act of 1933, as amended. We
also agreed to register the shares of common stock covered by warrants issued to
finders as fees in private placements. As of March 31, 2003 we had 80,767,065
shares of our common stock outstanding, and approximately 36,250,222 shares were
issuable upon the exercise of outstanding options, warrants or other rights, and
the conversion of outstanding preferred stock.
We develop, distribute and deploy connectivity products for Internet-based
communications and information management by medical service providers. We have
no revenues from current operations and are funding the development and
deployment of our products through the sales of our securities. See "The
Company" and "Risk Factors".
Because of our continuing losses, and the lack of certain sources of
capital to fund our development of connectivity products, our independent
accountants included a "going concern" uncertainty in their audit report on our
audited financial statements for the year ended December 31, 2002. The "going
concern" uncertainty signifies that significant questions exist about our
ability to continue in business. See "Risk Factors".
Our principal executive office is located at 420 Lexington Avenue, Suite
1830, New York, New York 10170, and our telephone number is (212) 697-2509.
RECENT DEVELOPMENTS
On March 4, 2003, we purchased from Comdisco Ventures, Inc. substantially
all of the assets formerly used by ePhysician, Inc. in its software and
technology business prior to its cessation of operations in 2002. We are
evaluating the newly acquired technology to determine how best to integrate our
Cymedix technology with the ePhysician technology, resulting in our merged
technology (the "Merged Technology"). From its formation in 1998, through its
cessation of operations in November 2002, ePhysician developed and provided
ePhysician Practice, a suite of software products that enables physicians to
prescribe medications, access drug reference data, schedule patients, view
formulary information, review critical patient information and capture charges
at the point of care using a Palm OS(R)-based handheld device and the Internet.
On March 5, 2003, we terminated our merger agreement with PocketScript,
LLC. We had entered into a non-binding Letter of Intent with PocketScript on
October 30, 2002 and had executed a definitive merger agreement on December 19,
2002 to acquire PocketScript subject to certain conditions of closing.
RISK FACTORS
An investment in our common stock involves a high degree of risk. You
should carefully consider the following risk factors and other information in
this prospectus before investing in our common stock. The trading price of our
common stock could decline due to any of these risks, and you may lose all or
part of your investment.
Our continuing losses endanger our viability as a going-concern and caused our
accountants to issue a "going concern" exception in their annual audit report.
We reported net losses of $9,014,000, $10,636,000 and $5,415,000 for the
years ended December 31, 2002, 2001 and 2000, respectively. At December 31,
2002, we had an accumulated deficit of $43,073,000 and a net working capital
deficit of $252,000. Our products are in the development and early deployment
stage and have not generated any revenue to date. We are funding our operations
through the sale of our securities. Our independent accountants have included a
"going concern" exception in their audit reports on our audited 2002, 2001 and
2000 financial statements.
Our need for additional financing is acute and failure to obtain adequate
financing could lead to the financial failure of our company.
We expect to continue to experience losses, in the near term, until such
time as the Merged Technology can be successfully deployed with physicians and
produce revenue. The continuing development, marketing and deployment of the
Merged Technology will depend upon our ability to obtain additional financing.
The Merged Technology is in the development stage and has not generated any
revenue to date. We are funding our operations now through the sale of our
securities. There can be no assurance that additional investments or financings
will be available to us on favorable terms or at all as needed to support the
development and deployment of the Merged Technology. Failure to obtain such
capital on a timely basis could result in lost business opportunities, the sale
of the Merged Technology at a distressed price or the financial failure of our
company.
We have a limited number of authorized shares of common stock for issuance, and
if our shareholders do not approve of an increase in the authorized number of
shares of our common stock, we will be unable to raise additional capital.
We currently have 125,000,000 shares of common stock authorized for
issuance under our certificate of incorporation, and as of March 31, 2003, have
80,767,065 outstanding shares of common stock and 36,250,222 shares of common
stock reserved for issuance under existing options, warrants and outstanding
shares of our convertible preferred stock. Thus, we only have 7,982,713 shares
of common stock that are available for issuance. We have requested that our
shareholders approve, at a special meeting of shareholders, an increase in the
number of shares of common stock that we are authorized to issue from
125,000,000 to 400,000,000 . However, we cannot predict the outcome of that
vote. If our shareholders do not approve of the increase in the number of shares
of common stock that we are authorized to issue, we will be unable to raise
additional capital.
We have frequent cash flow problems that often cause us to be delinquent in
making payments to our vendors and other creditors, which may cause damage to
our business relationships and cause us to incur additional expenses in the
payment of late charges and penalties.
During 2002, from time to time, our lack of cash flow caused us to delay
payment of our obligations as they came due in the ordinary course of our
business. In some cases, we were delinquent in making payments by the legally
required due dates. At our four office locations, we had 48 monthly rental
payments due in the aggregate during 2002. Two of those payments were late. Such
payments were paid within 30 days of their due date. All payments plus any
required penalties were ultimately paid with respect to our 2002 obligations. We
had 26 Federal withholding and other payment due dates. Of those, three due
dates were missed. The resulting delinquencies ranged from one to ten days
before the required payments were made. We paid the resulting penalties as they
were billed. We had state withholding obligations in five states, Colorado,
California, Georgia, New Jersey and New York. Although we were not late in
making withholding payments in those five states during 2002, we have been late
in prior periods. Similarly, although we were not late in making deposits of our
employees' 401(k) contributions during 2002, we have been late in making such
deposits in the past. During 2003, we may be delinquent from time to time in
meeting our obligations as they become due.
While we have had operations since 1988, we are better considered a development
stage company, which means our products and services have not yet proved
themselves commercially viable and therefore our future is uncertain.
Although we have had operations since 1988, because of our move away from
temporary healthcare staffing, we have a relatively short operating history and
limited financial data upon which you may evaluate our business and prospects,
and are better considered a development stage company. In addition, our business
model is likely to continue to evolve as we attempt to develop our product
offerings and enter new markets. As a result, our potential for future
profitability must be considered in light of the risks, uncertainties, expenses
and difficulties frequently encountered by development stage companies that are
attempting to move into new markets and continuing to innovate with new and
unproven technologies. We are still in the process of gaining experience in
marketing physician connectivity products, providing support services,
evaluating demand for products, financing a technology business and dealing with
government regulation of health information technology products. While we are
putting together a team of experienced executives, they have come from different
backgrounds and may require some time to develop an efficient operating
structure and corporate culture for our company.
We rely on healthcare professionals for the quality of the information that is
transmitted through our interconnectivity systems, and we may not be paid for
our services by third-party payors if that quality does not meet certain
standards.
The success of our products and services in generating revenue may be
subject to the quality and completeness of the data that is generated and stored
by the physician or other healthcare professional and entered into our
interconnectivity systems, including the failure to input appropriate or
accurate information. Such failure may negatively affect our ability to generate
revenue and our reputation.
Our market, healthcare services, is rapidly changing and the introduction of
Internet connectivity services and products into that market has been slow,
which may cause us to be unable to develop a profitable market for our services
and products.
o As a developer of connectivity technology products, we will be
required to anticipate and adapt to evolving industry standards and
new technological developments. The market for the Merged Technology
is characterized by continued and rapid technological advances in both
hardware and software development, requiring ongoing expenditures for
research and development, and timely introduction of new products and
enhancements to existing products. The establishment of standards is
largely a function of user acceptance. Therefore, such standards are
subject to change. Our future success, if any, will depend in part
upon our ability to enhance existing products, to respond effectively
to technology changes, and to introduce new products and technologies
that are functional and meet the evolving needs of our clients and
users in the healthcare information systems market.
o The introduction of physician connectivity products in our market has
been slow due, in part, to the large number of small practitioners who
are resistant to change and the implicit costs associated with change,
particularly in a period of rising pressure to reduce costs in the
market. In addition, the integration of processes and procedures with
several payors and management intermediaries in a market area has
taken more time than anticipated. The resulting delays continue to
prevent the receipt of transaction fees and cause us to continue to
raise money by the sale of our securities to finance our operations.
o Our early-stage market approach concentrated product distribution
efforts in a single market (Atlanta, Georgia), thereby amplifying the
effect of localized market restrictions on our prospects, and delaying
large-scale distribution of our products. While we intend to mitigate
these local factors with a strategy to develop alternate distribution
channels in multiple markets, there can be no assurance that we will
be successful.
o We cannot assure you that we will successfully complete the
development of the Merged Technology in a timely fashion or at all or
that our current or future products will satisfy the needs of the
healthcare information systems market. Further, we cannot assure you
that products or technologies developed by others will not adversely
affect our competitive position or render our products or technologies
noncompetitive or obsolete.
As a provider of medical connectivity products and services, we may become
liable for product liability claims that could have a materially adverse effect
on our financial condition.
Certain of our products provide applications that relate to patient medical
histories and treatment plans. Any failure by our products to provide accurate,
secure and timely information could result in product liability claims against
us by our clients or their affiliates or patients. We are seeking product
liability coverage, which may be prohibitive in cost. There can be no assurance
that we will be able to obtain such coverage at an acceptable cost or that our
insurance coverage would adequately cover any claim asserted against us. Such a
claim could be in excess of the limits imposed by any policy we might be able to
obtain. A successful claim brought against us in excess of any insurance
coverage we might have could have a material adverse effect on our results of
operations, financial condition or business. Even unsuccessful claims could
result in the expenditure of funds in litigation, as well as diversion of
management time and resources.
Our industry, healthcare, continually experiences rapid change and uncertainty
that could result in issues for our business planning or operations that could
severely impact on our ability to become profitable.
The healthcare and medical services industry in the United States is in a
period of rapid change and uncertainty. Governmental programs have been
proposed, and some adopted, from time to time, to reform various aspects of the
U.S. healthcare delivery system. Some of these programs contain proposals to
increase government involvement in healthcare, lower reimbursement rates and
otherwise change the operating environment for our physician users and
customers. Particularly, the Health Insurance Portability and Accountability Act
and the regulations that are being promulgated under it are causing the
healthcare industry to change its procedures and incur substantial cost in doing
so. Although we expect these regulations to have the beneficial effect of
spurring adoption of our software products, we cannot predict with any certainty
what impact, if any, these and future healthcare reforms might have on our
business.
We rely on intellectual property rights, such as copyrights and trademarks, and
unprotected propriety technology in our business operations and to create value
in our companies; however, protecting intellectual property frequently requires
litigation and close legal monitoring and may adversely affect our ability to
become profitable.
o Our wholly owned subsidiary, Cymedix Lynx Corporation, has certain
intellectual property relating to its software business. These rights
have been assigned by our subsidiary to the parent company, Medix
Resources. The intellectual property legal issues for software
programs, such as the Cymedix(R)products, are complex and currently
evolving. Since patent applications are secret until patents are
issued, in the United States, or published, in other countries, we
cannot be sure that we are the first to file any patent application.
In addition, we cannot assure you that competitors, many of which have
far greater resources than we do, will not apply for and obtain
patents that will interfere with our ability to develop or market the
Merged Technology. Further, the laws of certain foreign countries do
not provide the protection to intellectual property that is provided
in the United States, and may limit our ability to market our products
overseas. While we have no prospects for marketing or operations in
foreign countries at this time, future opportunities for growth in
foreign markets, for that reason, may be limited. We cannot give any
assurance that the scope of the rights that we have been granted are
broad enough to fully protect the Merged Technology from infringement.
o Litigation or regulatory proceedings may be necessary to protect our
intellectual property rights, such as the scope of our patent rights.
In fact, the information technology and healthcare industries in
general are characterized by substantial litigation. Such litigation
and regulatory proceedings are very expensive and could be a
significant drain on our resources and divert resources from product
development. There is no assurance that we will have the financial
resources to defend our patent rights or other intellectual property
from infringement or claims of invalidity. A party has notified us
that it believes our pharmacy product may infringe on patents that it
holds. We have retained patent counsel who has made a preliminary
investigation and determined that our product does not infringe on the
identified patents. At this time no legal action has been instituted.
o We also rely upon unprotected proprietary technology and no assurance
can be given that others will not independently develop substantially
equivalent proprietary information and techniques or otherwise gain
access to or disclose our proprietary technology or that we can
meaningfully protect our rights in such unpatented proprietary
technology. We will use our best commercial efforts to protect such
information and techniques; however, we cannot assure you that such
efforts will be successful. The failure to protect our intellectual
property could cause us to lose substantial revenues and to fail to
reach our financial potential over the long term.
Because our business is highly competitive and there are many competitors who
are financially stronger than we are, we are at risk of being outperformed in
staffing, marketing, product development and customer services, which could
severely limit our ability to become profitable.
o eHealth Services. Competition can be expected to emerge from
established healthcare information vendors and established or new
Internet related vendors. The most likely competitors are companies
with a focus on clinical information systems and enterprises with an
Internet commerce or electronic network focus. Many of these
competitors will have access to substantially greater amounts of
capital resources than we have access to, for the financing of
technical, manufacturing and marketing efforts. Frequently, these
competitors will have affiliations with major medical product or
software development companies, who may assist in the financing of
such competitor's product development. We will seek to raise capital
to develop the Merged Technology in a timely manner, however, so long
as our operations remain under-funded, as they now are, we will be at
a competitive disadvantage.
o Personnel. The success of the development, distribution and deployment
of the Merged Technology is dependent to a significant degree on our
key management and technical personnel. We believe that our success
will also depend upon our ability to attract, motivate and retain
highly skilled, managerial, sales and marketing, and technical
personnel, including software programmers and systems architects
skilled in the computer languages in which the Merged Technology
operates. Competition for such personnel in the software and
information services industries is intense. The loss of key personnel,
or the inability to hire or retain qualified personnel, could have a
material adverse effect on our results of operations, financial
condition or business.
We have relied on the private placement exemption to raise substantial amounts
of capital, and could suffer substantial losses if that exemption was determined
not to have been properly relied upon.
We have raised substantial amounts of capital in private placements from
time to time. The securities offered in such private placements were not
registered with the SEC or any state agency in reliance upon exemptions from
such registration requirements. Such exemptions are highly technical in nature
and if we inadvertently failed to comply with the requirements of any of such
exemptive provisions, investors would have the right to rescind their purchase
of our securities or sue for damages. If one or more investors were to
successfully seek such rescission or institute any such suit, we could face
severe financial demands that could materially and adversely affect our
financial position.
The impact of shares of our common stock that may become available for sale in
the future may result in the market price of our stock being depressed.
As of March 31, 2003, we had 80,767,065 shares of common stock outstanding.
As of that date approximately 36,250,222 shares were issuable upon the exercise
of outstanding options, warrants or other rights, and the conversion of
preferred stock. Most of these shares will be immediately saleable upon exercise
or conversion under registration statements we have filed with the SEC. The
exercise prices of options, warrants or other rights to acquire common stock
presently outstanding range from $.25 per share to $4.97 per share. During the
respective terms of the outstanding options, warrants, preferred stock and other
outstanding derivative securities, the holders are given the opportunity to
profit from a rise in the market price of the common stock, and the exercise of
any options, warrants or other rights may dilute the book value per share of our
common stock and put downward pressure on the price of the common stock. The
existence of the options, conversion rights, or any outstanding warrants may
adversely affect the terms on which we may obtain additional equity financing.
Moreover, the holders of such securities are likely to exercise their rights to
acquire common stock at a time when we would otherwise be able to obtain capital
on terms more favorable than could be obtained through the exercise or
conversion of such securities. We have requested that our shareholders
approve, at a special meeting of shareholders, an increase in the number of
shares of common stock that we are authorized to issue from 125,000,000 to
400,000,000. If our shareholders approve of that increase, the possibility
exists that shareholders of our common stock will be greatly diluted in the
future when we issue additional shares and the price of our common stock may
decrease as a result.
Because of dilution to our outstanding common stock from the below market
pricing features of financings that are available to us, the market price of our
stock may be depressed.
Financings that may be available to us under current market conditions
frequently involve below market sales, as well as the issuance of warrants or
convertible debt that require exercise or conversion prices that are calculated
in the future at a discount to the then market price of our common stock. Any
agreement to sell, or convert debt or equity securities into, common stock at a
future date and at a price based on the then current market price will provide
an incentive to the investor or third parties to sell the common stock short to
decrease the price and increase the number of shares they may receive in a
future purchase, whether directly from us or in the market. The issuance of our
common stock in connection with such exercise or conversion may result in
substantial dilution to the common stock holdings of other holders of our common
stock.
Because of market volatility in our stock price, investors may find that they
have a loss position if emergency sales become necessary.
Historically, our common stock has experienced significant price
fluctuations. One or more of the following factors influence these fluctuations:
o unfavorable announcements or press releases relating to the technology
sector;
o regulatory, legislative or other developments affecting our company or
the healthcare industry generally;
o conversion of our preferred stock and convertible debt into common
stock at conversion rates based on current market prices or discounts
to market prices, of our common stock and exercise of options and
warrants at below current market prices;
o sales by those financing our company through an equity line of credit
or convertible securities which have been registered with the SEC and
may be sold into the public market immediately upon receipt; and
o market conditions specific to technology and Internet companies, the
healthcare industry and general market conditions.
In addition, in recent years the stock market has experienced significant price
and volume fluctuations. These fluctuations, which are often unrelated to the
operating performance of specific companies, have had a substantial effect on
the market price for many healthcare related technology companies. Factors such
as those cited above, as well as other factors that may be unrelated to our
operating performance, may adversely affect the price of our common stock.
The application of the "penny stock" rules to our common stock may depress the
market for our stock.
Trading of our common stock may be subject to the penny stock rules under
the Securities Exchange Act of 1934, as amended, unless an exemption from such
rules is available. Broker-dealers making a market in our common stock will be
required to provide disclosure to their customers regarding the risks associated
with our common stock, the suitability for the customer of an investment in our
common stock, the duties of the broker-dealer to the customer and information
regarding bid and asked prices for our common stock, and the amount and
description of any compensation the broker-dealer would receive in connection
with a transaction in our common stock. The application of these rules may
further result in fewer market makers making a market in our common stock and
further restrict the liquidity of our common stock.
FORWARD-LOOKING STATEMENTS
Certain information contained in this prospectus and the documents
incorporated by reference into this prospectus include forward-looking
statements (as defined in Section 27A of the Securities Act and Section 21E of
the Securities Exchange Act), which mean that they relate to events or
transactions that have not yet occurred, our expectations or estimates for our
future operations, our growth strategies or business plans or other facts that
have not yet occurred. Such statements can be identified by the use of
forward-looking terminology such as "might," "may," "will," "could," "expect,"
"anticipate," "estimate," "likely," "believe," or "continue" or the negative
thereof or other variations thereon or comparable terminology. The above risk
factors contain discussions of important factors that should be considered by
prospective investors for their potential impact on forward-looking statements
included in this prospectus and in the documents incorporated by reference into
this prospectus. These important factors, among others, may cause actual results
to differ materially and adversely from the results expressed or implied by the
forward-looking statements.
THE COMPANY
General
We develop and intend to market communication technologies for use in the
healthcare industry primarily at the point of care. We have focused on
electronic prescribing of drugs, laboratory orders and laboratory results
because these represent the majority of the transactions performed at the point
of care, and remain largely a paper-based starting point for transferring
information in the healthcare system. Our goal is to close the gap in electronic
or automated processing by providing technologies and workflow processes at the
point of care. Our technologies would enable point-of-care providers ("POCs")
(i.e. physician or caretaker) to connect with other participants in the
healthcare system. At this time, we are focused primarily on healthcare value
chain intermediaries ("HVCIs") (e.g. pharmacy, lab, pharmacy benefit managers,
pharmaceutical companies, etc.). Our products are designed to improve the
accuracy and the efficiency of the processes of drug prescribing and the
ordering of laboratory tests and the receiving of laboratory results.
When we shifted to this business in 2000, our plan was initially to deploy
the technology in a single market. We began to test this approach in April 2002
with a small, local sales and installation team in Georgia that deployed the
Cymedix technology to physician practices. By August 2002 it was clear to us
that although the technology worked and physicians were using the system, this
approach was not going to be commercially viable for several reasons including
slow adoption by physicians unless there was an economic incentive, limited
support by major HVCIs, and the high cost of marketing, sales, installation and
service associated with serving individual and small medical practices. Based on
these results, the initial deployment in Georgia was halted in August 2002.
At that time, we evaluated the business of automating the transaction at
the point of care and concluded that a viable business could be built, but a
different approach would be required than originally anticipated. Based on this
evaluation, in September 2002, our Board recruited certain new senior managers
including a new chief executive officer to assist us in pursuing alternative
approaches to developing and deploying technology at the point of care.
Our current plan for the commercialization of our technology is to target
physician practices and other POC centers that have the following
characteristics: sufficient patient volume; clear economic incentive, such as
administrative savings and time savings; commitment to electronic transfer of
point of care information; and HVCI or other healthcare participant support for
the rollout of the technology. Subject to the above criteria, our goal remains
to connect from the point of care to the various segments of the healthcare
industry that meet these criteria, such as health plans, insurers, skilled
nursing facilities, pharmacy benefit management companies ("PBMs"), pharmacies
and pharmaceutical companies.
We believe that it is important to deploy technologies that are easy to
adopt or already have established markets. As such, on March 4, 2003 we acquired
assets from Comdisco Ventures, Inc. that were formerly used by ePhysician, Inc.
in its software and technology business prior to its cessation of operations in
2002. ePhysician point-of-care technologies enable physicians to securely access
and send information to pharmacies, billing service companies, and practice
management systems via the Palm OS(R)-based handheld device and the Internet,
meeting our objective of deploying a recognized technology. Our goal is the
integration of the Cymedix and e-Physician technologies and to market them on a
commercial basis.
We have been in business since 1988. We decided in 2000 to dispose of the
temporary healthcare staffing business to focus on the healthcare software and
connectivity solutions industry. The development of technology and the future
marketing of connectivity solutions is our sole business at this time. Our net
operating loss is due to this transition and the ongoing efforts to build a
commercially viable business in point-of-care automation. We currently do not
have any active users of our products.
We are currently a Colorado corporation, but have requested that our
shareholders approve, at a special meeting of shareholders, a reincorporation
merger in Delaware with our wholly owned subsidiary.
Our principal executive office is located at The Graybar Building, 420
Lexington Avenue, Suite 1830, New York, New York 10170, and our telephone number
is (212) 697-2509. We have closed our California and Colorado offices, and we
are actively pursuing an exit to our leases in Georgia and California.
USE OF PROCEEDS
The selling securityholders will receive the net proceeds from the sale of
shares. We will not receive any of the proceeds from any sale of the shares by
the selling securityholders. However, we will receive the proceeds from the
exercise of warrants to purchase certain of the shares offered hereunder. If all
warrants covered hereby are exercised, we would receive proceeds of $5,842,292.
Any such proceeds will be used for working capital purposes.
SELLING SECURITYHOLDERS
The table below sets forth information as of April 30 , 2003, with respect to
the selling securityholders, including names, holdings of shares of common stock
prior to the offering of the shares, including shares covered by warrants, the
number of shares being offered for each account, and the number and percentage
of shares of common stock to be owned by the selling securityholders immediately
following the sale of the shares, assuming all of the offered shares are sold.
The selling securityholders acquired the shares of common stock and warrants
covering shares of our common stock in private placement transactions or as fees
for serving as finders in connection with our private placements.
-------------------------------------------------------------------------------
Name of Selling Shares of Shares of Shares of Shares of Percentage
Stockholder Common Stock Common Common Common of Common
Beneficially Stock Stock Stock to be Stock to
Owned Before Covered By Being Beneficially be
the Warrants Offered(1) Owned After Beneficially
Offering(1) the Offering Owned
After the
Offering
-------------------------------------------------------------------------------
Aaron 1,000,000 500,000 1,000,000 0 -
Investments 2
-------------------------------------------------------------------------------
AIG DKR 500,000 250,000 500,000 0 -
Soundshore
Private
Investors
Holding Fund
Limited
-------------------------------------------------------------------------------
Alpha Capital AG 2,500,000 1,250,000, 2,500,000 0 -
-------------------------------------------------------------------------------
Bartran, 125,000 62,500 125,000 0 -
William D.
-------------------------------------------------------------------------------
Berardo, Thomas 20,000 10,000 20,000 0 -
& Patricia
-------------------------------------------------------------------------------
Berrey, Dan and 106,875 71,250 106,875 0 -
Fran
-------------------------------------------------------------------------------
BHNV Holdings 250,000 125,000 250,000 0 -
LLC
-------------------------------------------------------------------------------
Black Hills 1,398,625 623,000 1,148,625 250,000 -
Investment Corp.
-------------------------------------------------------------------------------
Blue Water 500,000 150,000 300,000 200,000 -
Trading, Inc. 2
-------------------------------------------------------------------------------
Bollander, 168,750 106,250 168,750 0 -
William P.
-------------------------------------------------------------------------------
Brelea 17,500 17,500 17,500 0 -
Ventures, LLC
-------------------------------------------------------------------------------
Brighton 30,625 30,625 30,625 0 -
Capital Ltd.
-------------------------------------------------------------------------------
Brown, Andrew 1,048,000 250,000 500,000 548,000 -
-------------------------------------------------------------------------------
Cavell 1,000,000 500,000 1,000,000 0 -
Investment Ltd.
-------------------------------------------------------------------------------
Dabbah, Kami 150,000 75,000 150,000 0 -
Ofir
-------------------------------------------------------------------------------
Eisenberg 500,000 250,000 500,000 0 -
Family
Foundation
-------------------------------------------------------------------------------
Frankson, Carl 2 100,000 50,000 100,000 0 -
-------------------------------------------------------------------------------
Geary Partners, 320,000 160,000 320,000 0 -
LP
-------------------------------------------------------------------------------
Intercoastal 196,175 196,175 196,175 0 -
Financial
Services Corp. 2
-------------------------------------------------------------------------------
Jeffries, 1,755,000 250,000 500,000 1,255,000 1.6%
Patrick
-------------------------------------------------------------------------------
Kassab, Marianne 80,000 40,000 80,000 0 -
-------------------------------------------------------------------------------
Legend Merchant 5,500 5,500 5,500 0 -
Group 2
-------------------------------------------------------------------------------
Lerner, Claire 25,000 12,500 25,000 0 -
-------------------------------------------------------------------------------
Lerner, Mark 184,375 25,000 50,000 134,375 -
-------------------------------------------------------------------------------
Levine, Beth 250,000 125,000 250,000 0 -
-------------------------------------------------------------------------------
Lousberg, Dean 250,000 62,500 125,000 125,000 -
K.
-------------------------------------------------------------------------------
Marjorie E. 125,000 62,500 125,000 0 -
Goddard TTEE
Marjorie E.
Goddard Rev,
TST DTD
November 5, 1999 2
-------------------------------------------------------------------------------
Markham 500,000 250,000 500,000 0 -
Holdings Limited
-------------------------------------------------------------------------------
Mayer & 276,500 276,500 276,500 0 -
Associates LLC
-------------------------------------------------------------------------------
McCullogh Jr., 125,000 62,500 125,000 0 -
Robert F.
-------------------------------------------------------------------------------
Meade Jr., 625,000 250,000 500,000 125,000 -
Thomas J.
-------------------------------------------------------------------------------
Merriman, 225,000 112,500 225,000 0 -
Jonathan 2
-------------------------------------------------------------------------------
Nordic, Gary E. 250,000 125,000 250,000 0 -
-------------------------------------------------------------------------------
Otape, LLC 2 750,000 375,000 750,000 0 -
-------------------------------------------------------------------------------
Palladino, 125,000 62,500 125,000 0 -
Giampiero
-------------------------------------------------------------------------------
Platinum 2,250,000 625,000 1,250,000 1,000,000 1.3%
Partners LP
-------------------------------------------------------------------------------
Presidio 680,000 340,000 680,000 0 -
Partners, LP
-------------------------------------------------------------------------------
Prudential 125,000 62,500 125,000 0 -
Securities IRA
Custodian for
Margaret
Galdorise
-------------------------------------------------------------------------------
Puttick, 500,000 250,000 500,000 0 -
Kenneth G.
-------------------------------------------------------------------------------
RoyCap, Inc. 2,555,283 1,930,283 2,555,283 0 -
-------------------------------------------------------------------------------
Rudinsky, Moshe 1,375,000 687,500 1,375,000 0 -
-------------------------------------------------------------------------------
Saker, Wayne 750,000 250,000 500,000 250,000 -
-------------------------------------------------------------------------------
Stephen S. 1,000,000 500,000 1,000,000 0 -
Jamal, SSJ
Enterprises, LLC
-------------------------------------------------------------------------------
Stifel Nicolaus 100,000 50,000 100,000 0 -
& Co. Inc.
Custodian FBO
Barry Ollman
IRA R/O 2
-------------------------------------------------------------------------------
WEC Asset 375,000 125,000 250,000 125,000 -
Management LLC
-------------------------------------------------------------------------------
Yanowitz, Gerald 180,000 90,000 180,000 0 -
-------------------------------------------------------------------------------
(1) Includes shares of common stock covered by warrants that are included in
this prospectus.
(2) Aaron Investments, Blue Water Trading, Inc., Carl Frankson, Intercoastal
Financial Services Corp., Legend Merchant Group, Marjorie E. Goddard, Jonathan
Merriman, Barry Ollman and Otape, LLC advised us that they are affiliated with
broker-dealers. Each of the foregoing purchased the covered securities from in
private placements and previously confirmed to us that the covered securities
were acquired solely for investment purposes and for the account of the selling
securityholder, and not with a view to or for the resale or distribution of such
securities.
Relationship Between Medix and the Selling Securityholders
The selling securityholders have purchased their shares from us, or will
acquire the shares of common stock indicated above upon the exercise of
warrants, in private placements. None of the persons listed above are affiliates
or controlled by our affiliates, except the following officer and directors who
purchased securities on the same terms as other investors in the private
placement: Patrick Jeffries and Mark Lerner. We have separate contractual
obligations to file this registration with each of the selling securityholders.
DESCRIPTION OF THE SECURITIES
Our authorized capital consists of 125,000,000 shares of common stock, par
value $.001 per share, and 2,500,000 shares of preferred stock, par value $.001
per share. As of March 31, 2003, we had outstanding 80,767,065 shares of common
stock, 1 share of 1996 Preferred Stock and 75 shares of 1999 Series C Preferred
Stock. As of such date, our common stock was held of record by approximately 460
persons and beneficially owned by approximately 10,000 persons. We have
requested that our shareholders approve, at a special meeting of shareholders,
an increase in the number of shares of common stock that we are authorized to
issue from 125,000,000 to 400,000,000.
Common Stock
Each share of common stock is entitled to one vote at all meetings of
stockholders. Stockholders are not permitted to cumulate votes in the election
of directors. Currently, the Board of Directors consists of five directors, who
serve for staggered terms of three years, with at least two directors elected at
every annual meeting. We also currently have two vacancies on our Board of
Directors that we intend to fill. All shares of common stock are equal to each
other with respect to liquidation rights and dividend rights. There are no
preemptive rights to purchase any additional shares of common stock. In the
event of our liquidation, dissolution or winding up, holders of the common stock
will be entitled to receive on a pro rata basis all of our assets remaining
after satisfaction of all liabilities and preferences of the outstanding
preferred stock. The outstanding shares of common stock and the shares of common
stock issuable upon conversion or exercise of derivative securities are or will
be, as the case may be, duly and validly issued, fully paid and non-assessable.
Transfer Agent and Registrar
We have retained Computershare Trust Company, Inc., 350 Indiana Street,
Suite 800, Golden, Colorado 80401, as Transfer Agent and Registrar, for our
common stock. Computershare Trust Company's telephone number is (303) 262-0600.
PLAN OF DISTRIBUTION
The selling securityholders and any of their pledgees, donees, assignees
and successors-in-interest 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. These sales may be at fixed or negotiated prices.
The selling securityholders may use any one or more of the following methods
when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o 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;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o short sales;
o broker-dealers may agree with the selling securityholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The selling securityholders may also sell shares under Rule 144 under the
Securities Act of 1933, as amended (the "Securities Act"), if available, rather
than under this prospectus.
The selling securityholders 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. The
selling securityholders may pledge their shares to their brokers under the
margin provisions of customer agreements. If a selling stockholder defaults on a
margin loan, the broker may, from time to time, offer and sell the pledged
shares. We believe ^ that the selling securityholders have not entered
into any agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares other than ordinary course
brokerage arrangements, nor is there an underwriter or coordinating broker
acting in connection with the proposed sale of shares by the selling
securityholders.
Broker-dealers engaged by the selling securityholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling securityholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling securityholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
Selling securityholders and any broker-dealers or agents that are involved
in selling the shares 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 purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. If the selling securityholders are deemed
to be underwriters, the selling securityholders may be subject to certain
statutory and regulatory liabilities, including liabilities imposed pursuant to
Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Exchange
Act.
We are required to pay all fees and expenses incident to the registration
of the shares. Otherwise, all discounts, commissions or fees incurred in
connection with the sale of the common stock offered hereby will be paid by the
selling securityholders.
Upon our being notified by a selling stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such selling stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such shares were sold, (iv) the commissions paid or discounts
or concessions allowed to such broker-dealer(s), where applicable, (v) that such
broker-dealer(s) did not conduct any investigation to verify the information set
out or incorporated by reference in this prospectus, and (vi) other facts
material to the transaction.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions, if required, only
through registered or licensed brokers or dealers. In addition, in certain
states the shares may not be sold unless the shares have been registered or
qualified for sale in such state or an exemption from registration or
qualification is available and complied with.
We advised the selling securityholders that the anti-manipulative
provisions of Regulation M promulgated under the Exchange Act may apply to their
sales of the shares offered hereby.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Article 109 of the Colorado Business Corporation Act generally provides
that we may indemnify our directors, officers, employees and agents against
liabilities in any action, suit or proceeding whether civil, criminal,
administrative or investigative and whether formal or informal (a "Proceeding"),
by reason of being or having been a director, officer, employee, fiduciary or
agent of Medix, if such person acted in good faith and reasonably believed that
his conduct, in his official capacity, was in the best interests of Medix (or,
with respect to employee benefit plans, was in the best interests of the
participants of the plan), and in all other cases that his conduct was at least
not opposed to Medix's best interests. In the case of a criminal proceeding, the
director, officer, employee or agent must have had no reasonable cause to
believe that his conduct was unlawful. Under Colorado Law, we may not indemnify
a director, officer, employee or agent in connection with a proceeding by or in
the right of Medix if the director is adjudged liable to Medix, or in a
proceeding in which the directors, officer employee or agent is adjudged liable
for an improper personal benefit.
Our Articles of Incorporation and Bylaws provide that we shall indemnify
our directors, and officers, employees and agents to the extent and in the
manner permitted by the provisions of the laws of the State of Colorado, as
amended from time to time, subject to any permissible expansion or limitation of
such indemnification, as may be set forth in any stockholders' or directors'
resolution or by contract.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling Medix pursuant to
the foregoing provisions, we have been informed that in the opinion of the
Securities and Exchange Commission (the "Commission"), such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file reports, proxy statements, information statements and other
information with the SEC. You may read and copy this information, for a copying
fee, at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more information on its
public reference rooms. Our SEC filings are also available to the public from
commercial document retrieval services, from the American Stock Exchange and at
the web site maintained by the SEC at http://www.sec.gov.
We have filed a registration statement under the Securities Act, with
respect to the securities offered pursuant to this prospectus. This prospectus
does not contain all of the information set forth in the registration statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For further information, reference is made to the
registration statement and the exhibits filed as a part thereof, which may be
found at the locations and website referred to above.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Securities and Exchange Commission (the "SEC") allows us to
"incorporate by reference" into this prospectus the information we file with the
SEC, which means that we can disclose important information to you by referring
to those documents. The information incorporated by reference is an important
part of this prospectus. We incorporate by reference the following documents we
filed with the SEC:
o Our Annual Report on Form 10-K for the fiscal year ended December 31,
2002;
o Our Current Report on Form 8-K, dated January 13, 2003;
o Our Current Report on Form 8-K, dated January 21, 2003;
o Our Current Report on Form 8-K, dated February 3, 2003;
o Our Current Report on Form 8-K, dated February 6, 2003;
o Our Current Report on Form 8-K, dated February 10, 2003; and
o Our Current Report on Form 8-K, dated March 6, 2003; and
o Our Current Report on Form 8-K, dated April 14, 2003 .
We are also incorporating by reference additional documents that we may
file with the Commission under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act prior to the termination of this offering.
If you are a stockholder, we may have sent you some of the documents
incorporated by reference, but you can obtain any of them through the Commission
or us. Documents incorporated by reference are available from us without charge,
except exhibits, unless we have specifically incorporated by reference an
exhibit into a document that this prospectus incorporates. Stockholders may
obtain documents incorporated by reference into this prospectus by requesting
them in writing or by telephone from:
Medix Resources, Inc.
Investor Relations Department
The Graybar Building
420 Lexington Ave., Suite 1830
New York, New York 10170
(212) 697-2509
LEGAL MATTERS
The validity of the shares offered hereby is being passed upon for us by
Lyle B. Stewart, P.C., Denver, Colorado. Such firm has acted as special counsel
to the Company for certain Colorado law matters, but has not represented the
Company generally in connection with the registration of the shares offered
hereby. Lyle B. Stewart, P.C. has been granted options to purchase 25,000 shares
of Medix common stock at an exercise price of $0.26 per share, and Mr. Stewart,
individually, has been granted options to purchase 100,000 and 75,000 shares of
Medix common stock at exercise prices of $3.38 and $0.92 per share,
respectively.
EXPERTS
Our consolidated financial statements as of December 31, 2002 and 2001, and
for each of the three years in the period ended December 31, 2002 appearing in
our 2002 Form 10-K have been audited by Ehrhardt Keefe Steiner & Hottman P.C.,
independent auditors, as stated in their report appearing therein, and have been
incorporated herein by reference in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a list of the estimated expenses to be incurred by the
Registrant in connection with the issuance and distribution of the shares being
registered hereby.
Securities and Exchange Commission registration fee. $1,229
Printing and engraving expenses.................... 1,000
Legal fees and expenses............................ 15,000
Accounting fees and expenses....................... 50,000
Transfer Agent and Trustee fees and expenses....... 1,000
Miscellaneous...................................... 20,000
-------
Total.............................................. $88,229
=======
Item 15. Indemnification of Directors and Officers.
See "INDEMNIFICATION OF OFFICERS AND DIRECTORS" in the prospectus.
Item 16. Exhibits.
Exhibit
Number Description
5.1 Opinion of Lyle B. Stewart, P.C.
23.1 Consent of Ehrhardt Keefe Steiner & Hottman P.C.
23.2 Consent of Lyle B. Stewart, P.C. (included in Exhibit 5.1)
24.1* Power of Attorney
* Previously filed.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933,
(b) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement,
(c) 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 clauses (a) and (b) do not apply if the information
required to be included in a post-effective amendment by such clauses is
contained in periodic reports filed with or furnished to the Securities and
Exchange Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed 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 purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this 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.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities, other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding, is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement 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) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on May 5 , 2003.
MEDIX RESOURCES, INC.
By: /s/Darryl R. Cohen
Darryl R. Cohen
President and CEO
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/Darryl R. Cohen President, Chief Executive May 5 , 2003
Darryl R. Cohen Officer and Director
(Principal Executive Officer)
Executive Vice President, May [__], 2003
Mark W. Lerner Chief Financial Officer and
-------------------------- ** Secretary (Principal Financial
and Accounting Officer)
Director May [__], 2003
--------------------------**
Patrick W. Jeffries
Director May [__], 2003
--------------------------**
Samuel H. Havens
Director May [__], 2003
--------------------------**
Joan E. Herman
Director May __, 2003
--------------------------
Guy L. Scalzi
**By Darryl R. Cohen, as attorney-in-fact
EXHIBIT INDEX
Exhibit
Number Description
5.1 Opinion of Lyle B. Stewart, P.C.
23.1 Consent of Ehrhardt Keefe Steiner & Hottman P.C.
23.2 Consent of Lyle B. Stewart, P.C. (included in Exhibit 5.1)
24.1* Power of Attorney
* Previously filed.