As filed with the Securities and Exchange Commission on July 31, 2001
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PEREGRINE PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
14272 FRANKLIN AVENUE, SUITE 100
TUSTIN, CALIFORNIA 92780-7017
(714) 508-6000
(Name, address and telephone number of Registrant)
DELAWARE 95-3698422
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
PAUL J. LYTLE
14272 FRANKLIN AVENUE, SUITE 100
TUSTIN, CALIFORNIA 92780-7017
(714) 508-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With Copies To:
MARK R. ZIEBELL
JEFFERS, SHAFF & FALK, LLP
18881 VON KARMAN AVENUE, SUITE 1400
IRVINE, CALIFORNIA 92612
(949) 660-7700
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: From time to time
after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. | |
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, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. | |
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration 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. | |
The aggregate market value of the voting stock held by non-affiliates
of the Registrant was approximately $217,922,000 as of July 26, 2001, based upon
the price at which such stock was last sold in the principal market for such
stock as of such date.
CALCULATION OF REGISTRATION FEE
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGARE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 150,000 $2.25 $ 337,500 $ 84.38
$.001 par value(3)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 1,523,809 $2.25 $ 3,428,570 $ 857.14
$.001 par value(4)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 3,700,000 $3.00 $11,100,000 $2,775.00
$.001 par value(5)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 1,000,000 $5.00 $ 5,000,000 $1,250.00
$.001 par value (6)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 2,000,000 $2.25 $ 4,500,000 $1,125.00
$.001 par value(7)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 2,000,000 $2.25 $ 4,500,000 $1,125.00
$.001 par value(8)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 605,074 $2.25 $ 1,361,417 $ 340.35
$.001 par value(9)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 11,971 $2.25 $ 26,935 $ 6.73
$.001 par value(10)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 9,235 $2.707 $ 24,999 $ 6.25
$.001 par value(11)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 10,442 $2.68125 $ 27,998 $ 7.00
$.001 par value(12)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 9,158 $2.25 $ 20,606 $ 5.15
$.001 par value(13)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 6,734 $2.25 $ 15,152 $ 3.79
$.001 par value(14)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 15,151 $2.25 $ 34,090 $ 8.52
$.001 par value(15)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 8,417 $2.25 $ 18,938 $ 4.73
$.001 par value (16)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Total 11,049,991 $30,396,205 $7,599.04
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
(1) In the event of a stock split, stock dividend or similar transaction
involving our common stock, in order to prevent dilution, the number of
shares registered shall automatically be increased to cover the additional
shares in accordance with Rule 416(a) under the Securities Act of 1933, as
amended (the "Securities Act").
(2) In accordance with Rule 457(c), the aggregate offering price of shares of
our common stock is estimated solely for purposes of calculating the
registration fees payable pursuant hereto, using the average of the high
and low sales price reported by The Nasdaq SmallCap Market for our common
stock on July 26, 2001, which was $2.25 per share and, with respect to
shares of our common stock issuable upon exercise of outstanding warrants,
the higher of (i) such average sales price or (ii) the exercise price of
such warrants.
(3) Represents shares of our common stock that were issued to SuperGen, Inc. in
connection with a license agreement dated February 13, 2001 (the "License
Agreement"), pursuant to which SuperGen, Inc. purchased 150,000 shares of
our common stock at a purchase price of $4.00 per share.
(4) Represents shares of our common stock that were issued to Biotechnology
Development, Ltd. ("BTD"), pursuant to a Termination Agreement dated March
8, 1999 ("BTD Termination Agreement", which is hereby incorporated by
reference to Exhibit 10.53 filed with our Annual Report on Form 10-K for
the year ended April 30, 1999).
(5) Represents 3,700,000 shares of common stock issuable to BTD upon exercise
of an outstanding warrant, exercisable at any time until December 1, 2005
at an exercise price of $3.00 per share, issued to BTD on March 8, 1999, in
connection with the BTD Termination Agreement.
(6) Represents 1,000,000 shares of common stock issuable to BTD upon exercise
of an outstanding warrant, exercisable at any time until December 1, 2005,
at an exercise price of $5.00 per share, issued to BTD on March 8, 1999, in
connection with the BTD Termination Agreement.
(7) Represents 1,200,000 shares of our common stock issued to BTD, and 800,000
shares of our common stock issued to Swartz Investments, LLC, in connection
with a private placement we completed in January 2000 ("January 2000
Private Placement"). The shares of common stock issued to Swartz
Investments, LLC, were subsequently assigned to Eric S. Swartz (244,000
shares of common stock), Swartz Ventures, Inc. (236,000 shares of common
stock), Kendrick Ventures, Inc. (156,800 shares of common stock) and
Kendrick Capital Management, Inc. (163,200 shares of common stock). The
transaction documents for the January 2000 Private Placement are hereby
incorporated by reference to Exhibits 10.64 to 10.66 filed with our
Quarterly Report on Form 10-Q for the quarter ended January 31, 2000.
(8) Represents 1,200,000 shares of our common stock issuable to BTD, and
800,000 shares of our common stock issuable to Swartz Investments, LLC,
upon the exercise of warrants issued to them in connection with our January
2000 Private Placement. The warrants are exercisable at any time through
January 25, 2005 at an exercise price of $0.25 per share. The warrant
issued to Swartz Investments LLC was subsequently assigned to Eric S.
Swartz (as to 244,000 shares of common stock underlying the warrant),
Swartz Ventures, Inc. (as to 236,000 shares of common stock underlying the
warrant), Kendrick Ventures, Inc. (as to 156,800 shares of common stock
underlying the warrant) and Kendrick Capital Management, Inc. (as to
163,200 shares of common stock underlying the warrant).
(9) Represents 355,554 shares of our common stock owned by Eric S. Swartz, a
director of our Company, and 249,520 shares of our common stock owned by
Michael C. Kendrick. These shares originally were issued to Dunwoody
Brokerage Services, Inc. ("Dunwoody") pursuant to the terms of a Placement
Agent Agreement dated as of June 16, 1998 by and between us and Dunwoody,
as successor in interest to Swartz Investments, LLC, a Georgia limited
liability company, in connection with the issuance of shares of our common
stock to two institutional investors pursuant to the terms of a Regulation
D Common Stock Equity Line Subscription Agreement (the "Equity Line
Agreement") dated as of June 16, 1998, by and between us and the two
institutional investors, as follows: (i) 119,715 shares of common stock
were issued to Dunwoody on or about May 30, 2000 in connection with the
issuance of 1,197,156 shares of common stock to the two institutional
investors (the "May 2000 Issuance"); (ii) 92,352 shares of common stock
were issued to Dunwoody on or about June 19, 2000 in connection with the
issuance of 923,520 shares of common stock to the two institutional
investors (the "June 2000 Issuance"); (iii) 104,428 shares of common stock
were issued to Dunwoody on or about July 19, 2000 in connection with the
issuance of 1,044,288 shares of common stock to the two institutional
investors (the "July 2000 Issuance"); (iv) 91,582 shares of common stock
were issued to Dunwoody on or about September 29, 2000 in connection with
the issuance of 915,823 shares of common stock to the two institutional
investors (the "September 2000 Issuance"); (v) 67,340 shares of common
stock were issued to Dunwoody on or about April 26, 2001 in connection with
the issuance of 673,400 shares of common stock to the two institutional
investors (the "April 2001 Issuance"); (vi) 151,515 shares of common stock
were issued to Dunwoody on or about May 29, 2001 in connection with the
issuance of 1,515,151 shares of common stock to the two institutional
investors (the "May 2001 Issuance"); (vii) 84,175 shares of common stock
were issued to Dunwoody on or about June 28, 2001 in connection with the
issuance of 841,750 shares of common stock to the two institutional
investors (the "June 2001 Issuance"). Pursuant to a contractual
arrangement, one-half of the common shares issued to Dunwoody were
subsequently assigned to each of Eric S. Swartz and Michael C. Kendrick.
The Equity Line Agreement is hereby incorporated by reference to Exhibit
10.51 filed with our Registration Statement on Form S-3/A as filed with the
SEC on April 30, 1999.
(10) Represents shares of our common stock issuable to Dunwoody upon exercise of
outstanding warrants, exercisable at any time until December 31, 2004 at an
exercise price of $2.088 per share, originally issued to Dunwoody on or
about May 30, 2000 as a placement agent fee in connection with the May 2000
Issuance. Ownership of the Dunwoody warrant has been assigned to Eric. S.
Swartz and Michael C. Kendrick, with each receiving one-half of the
warrants.
(11) Represents shares of our common stock issuable to Dunwoody upon exercise of
outstanding warrants, exercisable at any time until December 31, 2004 at an
exercise price of $2.707 per share, issued to Dunwoody on or about June 19,
2000 as a placement agent fee in connection with the June 2000 Issuance.
Ownership of the Dunwoody warrant has been assigned to Eric S. Swartz and
Michael C. Kendrick, with each receiving one-half of the warrants.
(12) Represents shares of our common stock issuable to Dunwoody upon exercise of
outstanding warrants, exercisable at any time until December 31, 2004 at an
exercise price of $2.68125 per share, issued to Dunwoody on or about July
19, 2000 as a placement agent fee in connection with the July 2000
Issuance. Ownership of the Dunwoody warrant has been assigned to Eric S.
Swartz and Michael C. Kendrick, with each receiving one-half of the
warrants.
(13) Represents shares of our common stock issuable to Dunwoody upon exercise of
outstanding warrants, exercisable at any time until December 31, 2004 at an
exercise price of $1.85625 per share, issued to Dunwoody on or about
September 29, 2000 as a placement agent fee in connection with the
September 2000 Issuance. Ownership of the Dunwoody warrant has been
assigned to Eric S. Swartz and Michael C. Kendrick, with each receiving
one-half of the warrants.
(14) Represents shares of our common stock issuable to Dunwoody upon exercise of
outstanding warrants, exercisable at any time until December 31, 2004 at an
exercise price of $1.04 per share, issued to Dunwoody on or about April 26,
2001 as a placement agent fee in connection with the April 2001 Issuance.
Ownership of the Dunwoody warrant has been assigned to Eric S. Swartz and
Michael C. Kendrick, with each receiving one-half of the warrants.
(15) Represents shares of our common stock issuable to Dunwoody upon exercise of
outstanding warrants, exercisable at any time until December 31, 2004 at an
exercise price of $0.99 per share, issued to Dunwoody on or about May 29,
2001 as a placement agent fee in connection with the May 2001 Issuance.
Ownership of the Dunwoody warrant has been assigned to Eric S. Swartz and
Michael C. Kendrick, with each receiving one-half of the warrants.
(16) Represents shares of our common stock issuable to Dunwoody upon exercise of
outstanding warrants, exercisable at any time until December 31, 2004 at an
exercise price of $1.782 per share, issued to Dunwoody on or about June 28,
2001 as a placement agent fee in connection with the June 2001 Issuance.
Ownership of the Dunwoody warrant has been assigned to Eric S. Swartz and
Michael C. Kendrick, with each receiving one-half of the warrants.
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION DATED JULY 31, 2001
PROSPECTUS
11,049,991 SHARES OF
COMMON STOCK
[PEREGRINE LOGO]
This prospectus relates to the resale of up to 11,049,991 shares of our
common stock by the selling stockholders. All or a portion of the shares offered
by this prospectus may be offered for sale, from time to time, by the selling
stockholders for their own benefit. The shares offered by this prospectus
include shares already issued by us and shares issuable upon the exercise of
warrants held by the selling stockholders. The total proceeds to us from the
exercise of warrants, if exercised in full on a cash basis, would be a maximum
of $16,600,000. We will receive no proceeds from the sale of our common stock by
the selling stockholders or from the exercise of warrants issued under the
Regulation D Common Stock Equity Line Subscription Agreement, which may be
exercised on a cashless basis only. See "Selling Stockholders" and "Plan of
Distribution."
Our common stock is registered under Section 12(g) of the Securities
Exchange Act of 1934 and is listed on The Nasdaq SmallCap Market under the
symbol "PPHM". On July 26, 2001, the last reported sale price of our common
stock on The Nasdaq SmallCap Market was $2.29 per share.
INVESTING IN OUR COMMON STOCK INVOLVES SIGNIFICANT RISKS. SEE "RISK
FACTORS" BEGINNING ON PAGE 3 FOR A DESCRIPTION OF CERTAIN FACTORS THAT YOU
SHOULD CONSIDER BEFORE PURCHASING THE SHARES OFFERED BY THIS PROSPECTUS.
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 INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
THIS PROSPECTUS IS INCLUDED IN THE REGISTRATION STATEMENT THAT WAS FILED BY
PEREGRINE PHARMACEUTICALS, INC. WITH THE SECURITIES AND EXCHANGE COMMISSION. THE
SELLING STOCKHOLDERS CANNOT SELL THEIR SHARES UNTIL THAT REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THE SHARES OR THE
SOLICITATION OF AN OFFER TO BUY THE SHARES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED.
The date of this Prospectus is July 31, 2001
TABLE OF CONTENTS
PEREGRINE PHARMACEUTICALS, INC...............................................1
RISK FACTORS.................................................................3
FORWARD-LOOKING STATEMENTS...................................................7
USE OF PROCEEDS..............................................................7
SELLING STOCKHOLDERS.........................................................8
PLAN OF DISTRIBUTION........................................................10
LEGAL MATTERS...............................................................11
EXPERTS.....................................................................11
WHERE TO LEARN MORE ABOUT US................................................11
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.............................12
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES......................................12
You should rely only on the information contained in this document or
to which we have referred you. We have not authorized anyone to provide you with
information that is different. This document may only be used where it is legal
to sell these securities. The information in this document may only be accurate
on the date of this document. However, in the event of a material change, this
prospectus will be amended or supplemented accordingly.
i
PEREGRINE PHARMACEUTICALS, INC.
Peregrine Pharmaceuticals, Inc. (formerly Techniclone Corporation),
located in Tustin, California, is a biopharmaceutical company engaged in the
development and commercialization of cancer therapeutics and cancer diagnostics
through a series of proprietary platform technologies using monoclonal
antibodies. As used in this prospectus, the terms "we", "us", "our", "Company"
and "Peregrine" refers to Peregrine Pharmaceuticals, Inc., and its wholly-owned
subsidiary, Vascular Targeting Technologies, Inc. (formerly Peregrine
Pharmaceuticals, Inc.).
Peregrine's main focus is on the development of its Collateral
Targeting Agent technologies. Collateral Targeting Agents typically use
antibodies that bind to or target stable structures found in most solid tumors,
such as structures found in the necrotic core of the tumor or markers found
specifically on tumor blood vessels. In pre-clinical and/or clinical studies,
these antibodies are capable of targeting and delivering therapeutic killing
agents that destroy cancerous tumor cells. Peregrine currently has exclusive
rights to over 40 issued U.S. and foreign patents protecting various aspects of
its technology and has additional pending patent applications that it believes
will further strengthen its position using Collateral Targeting Agents.
We have put together the following chart to assist you in understanding
how our three Collateral Targeting Agent technologies, Tumor Necrosis Therapy
("TNT"), Vascular Targeting Agents ("VTA's"), and Vasopermeation Enhancement
Agents ("VEA's"), function:
- --------------------------------------------------------------------------------
TNT |X| Binds to dead and dying cells found primarily at the necrotic
core of tumors.
|X| Since virtually all solid tumors have a necrotic core, a
single TNT agent can potentially target a number of different
solid tumors.
|X| Can be attached to killing agents, such as radiation or
cytokines, in order to kill living tumor cells near the
necrotic core.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
VTA'S |X| Bind to markers found selectively on tumor blood vessels and
blocks the flow of oxygen and nutrients to underlying tumor
tissue by activating a thrombotic pathway.
|X| Blocking blood vessels in a tumor can kill thousands to tens
of thousands of cancer cells, thus causing tumor death.
|X| Represent a very efficient method of killing tumors while
minimizing systemic toxicity.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
VEA'S |X| Use a targeting agent to deliver an effector that makes the
blood vessels inside the tumor more leaky (permeable).
|X| The increased permeability of the tumor blood vessels can make
it possible to deliver a higher concentration of killing
agents into the tumor potentially resulting in a better
anti-tumor effect.
- --------------------------------------------------------------------------------
1
In addition, the following chart summarizes the development status of
the Company's platform Collateral Targeting Agent technologies:
TECHNOLOGY STUDY INDICATION DEVELOPMENT STATUS
--------------------- --------------------------- ---------------------------------------------------
TNT / Cotara(TM) Brain Cancer Phase II
TNT / Cotara(TM) Colorectal Cancer Phase I
TNT / Cotara(TM) Advanced Soft-tissue Phase I
Sarcoma
TNT / Cotara(TM) Pancreatic Phase I
TNT / Cotara(TM) Liver Cancer Phase I
TNT / Cotara(TM) Pancreatic, Prostate, Phase I/II in Mexico City; closed for
Liver and Brain Cancers enrollment; clinical data used to initiate
additional trials in the U.S.
VTA Not applicable Pre-clinical in collaboration with OXiGENE, Inc.
VEA Not applicable Pre-clinical
In addition to Collateral Targeting Agents, we have a direct
tumor-targeting agent, Oncolym(R), for the treatment of Non-Hodgkins B-cell
Lymphoma ("NHL"). The Oncolym(R) antibody is linked to a radioactive isotope
(131I) and the combined molecule is injected into the blood stream of the
lymphoma patient where it recognizes and binds to the cancerous lymphoma tumor
sites, thereby delivering the radioactive isotope directly to the tumor site.
During June 2001, we assumed the rights previously licensed by Schering A.G. and
we will continue to enroll patients in a single dose Phase I/II clinical trial
that was developed by Schering A.G.
Our principal executive offices are located at 14272 Franklin Avenue,
Suite 100, Tustin, California 92780-7017, and our telephone number is (714)
508-6000.
2
RISK FACTORS
An investment in our common stock being offered for resale by the
selling stockholders is very risky. You should carefully consider the risk
factors described below, together with all other information in this prospectus
or incorporated herein by reference before making an investment decision.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also impair our business operations. If any of the
following risks actually occurs, our business, financial conditions or operating
results could be materially adversely affected. In such case, the trading price
of our common stock could decline, and you may lose all or part of your
investment.
IF WE CANNOT OBTAIN ADDITIONAL FUNDING, OUR PRODUCT DEVELOPMENT AND
COMMERCIALIZATION EFFORTS MAY BE REDUCED OR DISCONTINUED.
As of July 15, 2001, we had $7,073,000 in cash and cash equivalents. We
have expended substantial funds on the research, development and clinical trials
of our product candidates. As a result, we have had negative cash flows from
operations since inception and we expect the negative cash flows from operations
to continue until we are able to generate sufficient revenue from the sale
and/or licensing of our products. Although we have sufficient cash on hand to
meet our obligations on a timely basis through the next twelve (12) months, we
will continue to require additional funding to sustain our research and
development efforts, provide for additional clinical trials, expand our
manufacturing and product commercialization capabilities, and continue our
operations until we are able to generate sufficient revenue from the sale and/or
licensing of our products.
We plan to obtain required financing through one or more methods
including, obtaining additional equity or debt financing and negotiating
additional licensing or collaboration agreements for our platform technologies.
There can be no assurances that we will be successful in raising such funds on
terms acceptable to us, or at all, or that sufficient additional capital will be
raised to complete the research, development, and clinical testing of our
product candidates.
We currently have access to equity funding under a Common Stock Equity
Line ("Equity Line") with two institutional investors. Under the amended terms
of the Equity Line, the Company may, in its sole discretion, and subject to
certain restrictions, periodically sell ("Put") shares of the Company's Common
Stock until all common shares previously registered under the Equity Line have
been exhausted. As of July 15, 2001, the Company had approximately 2,558,000
shares available for issuance under the Equity Line which are priced at a 17.5%
discount to market during the ten (10) day pricing period immediately preceding
the Put date, as defined in the agreement.
WE HAVE HAD SIGNIFICANT LOSSES AND WE ANTICIPATE FUTURE LOSSES.
All of our products are currently in development, preclinical studies
or clinical trials, and no revenues have been generated from commercial product
sales. To achieve and sustain profitable operations, we must successfully
develop and obtain regulatory approval for our products, either alone or with
others, and must also manufacture, introduce, market and sell our products. The
costs associated with clinical trials, contract manufacturing and contract
isotope combination services are very expensive and the time frame necessary to
achieve market success for our products is long and uncertain. We do not expect
to generate significant product revenues for at least the next 12 months. There
can be no guarantee that we will ever generate product revenues sufficient to
become profitable or to sustain profitability.
PROBLEMS IN PRODUCT DEVELOPMENT MAY CAUSE OUR CASH DEPLETION RATE TO INCREASE.
Our ability to obtain financing and to manage expenses and our cash
depletion rate is key to the continued development of product candidates and the
completion of ongoing clinical trials. Our cash depletion rate will vary
substantially from quarter to quarter as we fund non-recurring items associated
with clinical trials, product development, antibody manufacturing, isotope
combination services (radiolabeing), patent legal fees and various consulting
fees. If we encounter unexpected difficulties with our operations or clinical
trials, we may have to expend additional funds, which would increase our cash
depletion rate.
3
OUR PRODUCT DEVELOPMENT AND COMMERCIALIZATION EFFORTS MAY NOT BE SUCCESSFUL.
Since inception, we have been engaged in the development of drugs and
related therapies for the treatment of people with cancer. Our product
candidates have not received regulatory approval and are generally in clinical
and pre-clinical stages of development. If the results from any of the clinical
trials are poor, those results will adversely affect our ability to raise
additional capital, which will affect our ability to continue full-scale
research and development for our antibody technologies. In addition, our product
candidates may take longer than anticipated to progress through clinical trials
or patient enrollment in the clinical trials may be delayed or prolonged
significantly, thus delaying the clinical trials. Delays in patient enrollment
will result in increased costs and further delays. If we experience any such
difficulties or delays, we may have to reduce or discontinue development,
commercialization or clinical testing of some or all of our product candidates.
In addition, product candidates resulting from our research and development
efforts, if any, are not expected to be available commercially for at least the
next year. Also, our products currently in clinical trials represent a departure
from more commonly used methods for cancer treatment. These products, if
approved, may experience under-utilization by doctors who are unfamiliar with
their application in the treatment of cancer. As with any new drug, doctors may
be inclined to continue to treat patients with conventional therapies, such as
chemotherapy, rather than new alternative therapies. We or our marketing partner
may be required to implement an aggressive education and promotion plan with
doctors in order to gain market recognition, understanding and acceptance of our
products. In addition, our product candidates, if approved, may prove
impracticable to manufacture in commercial quantities at a reasonable cost
and/or with acceptable quality. Any of these factors could negatively affect our
financial position and results of operations. Accordingly, we cannot guarantee
that our product development efforts, including clinical trials, or
commercialization efforts will be successful or that any of our products, if
approved, can be successfully marketed.
OUR DEPENDENCY ON ONE RADIOLABELING SUPPLIER MAY NEGATIVELY IMPACT OUR ABILITY
TO COMPLETE CLINICAL TRIALS AND MARKET OUR PRODUCTS.
We currently procure, and intend in the future to procure, our antibody
radioactive isotope combination services ("radiolabeling") under a negotiated
contract with one entity for all clinical trials. We cannot guarantee that this
supplier will be able to continue to qualify its facility or label and supply
our antibody in a timely manner. Prior to commercial distribution of any of our
products, if approved, we will be required to identify and contract with a
company for commercial antibody manufacturing and radioactive isotope
combination services. We also currently rely on, and expect in the future to
rely on, our current suppliers for all or a significant portion of the raw
material requirements for our antibody products. An antibody that has been
combined with a radioactive isotope cannot be stockpiled against future
shortages. Accordingly, any change in our existing or future contractual
relationships with, or an interruption in supply from, any such third-party
service provider or antibody supplier could negatively impact our ability to
complete ongoing clinical trials and to market our products, if approved.
WE DO NOT HAVE A SALES FORCE TO MARKET OUR PRODUCTS, IF APPROVED.
At the present time, we do not have a sales force to market any of our
products, if approved. We intend to sell our products in the United States and
internationally in collaboration with one or more marketing partners. If we
receive approval from the United States Food and Drug Administration for our
initial product candidates, the marketing of these products will be contingent
upon our ability to either license or enter into a marketing agreement with a
large company or our ability to recruit, develop, train and deploy our own sales
force. We do not presently possess the resources or experience necessary to
market any of our product candidates and we cannot assure that we will be able
to enter into any such agreements in a timely manner or on commercially
favorable terms, if at all. Development of an effective sales force requires
significant financial resources, time and expertise. We cannot assure that we
will be able to obtain the financing necessary to establish such a sales force
in a timely or cost effective manner, if at all, or that such a sales force will
be capable of generating demand for our product candidates, if and when they are
approved.
4
WE MAINTAIN ONLY LIMITED PRODUCT LIABILITY INSURANCE AND MAY BE EXPOSED TO
CLAIMS IF OUR INSURANCE COVERAGE IS INSUFFICIENT.
The manufacture and sale of human therapeutic products involves an
inherent risk of product liability claims. We maintain limited product liability
insurance. We cannot assure that we will be able to maintain existing insurance
or obtain additional product liability insurance on acceptable terms or with
adequate coverage against potential liabilities. Product liability insurance is
expensive, difficult to obtain and may not be available in the future on
acceptable terms, if at all. Our inability to obtain sufficient insurance
coverage on reasonable terms or to otherwise protect against potential product
liability claims in excess of our insurance coverage, if any, or a product
recall could negatively impact our financial position and results of operations.
THE LIQUIDITY OF OUR COMMON STOCK WILL BE ADVERSELY AFFECTED IF OUR COMMON STOCK
IS DELISTED FROM THE NASDAQ SMALLCAP MARKET.
Our Common Stock is presently traded on The Nasdaq SmallCap Market. To
maintain inclusion on The Nasdaq SmallCap Market, we must continue to meet the
following six listing requirements:
1. Net tangible assets of at least $2,000,000 or market capitalization of
at least $35,000,000 or net income of at least $500,000 in either our
latest fiscal year or in two of our last three fiscal years;
2. Public float of at least 500,000 shares;
3. Market value of our public float of at least $1,000,000;
4. A minimum closing bid price of $1.00 per share of Common Stock,
without falling below this minimum bid price for a period of 30
consecutive trading days;
5. At least two market makers; and
6. At least 300 stockholders, each holding at least 100 shares of Common
Stock.
If we are delisted by the The Nasdaq SmallCap Market, the market value
of our Common Stock could fall and holders of our Common Stock would likely find
it more difficult to dispose of their Common Stock.
THE SALE OF SUBSTANTIAL SHARES OF OUR COMMON STOCK MAY DEPRESS OUR STOCK PRICE.
As of July 15, 2001, we had approximately 99,990,000 shares of Common
Stock outstanding. In addition, we could issue up to approximately 19,057,000
additional shares of Common Stock upon the exercise of outstanding options and
warrants at an average exercise price of $1.48 per share for proceeds of up to
approximately $28,017,000, if exercised on a 100% cash basis. In addition, we
have reserved for future issuance approximately 2,558,000 shares of Common Stock
under the Equity Line and 158,000 shares available for grant under the Company's
1996 Option Plan. All Common Shares issued under the Equity Line and all options
granted under the option 1996 Option Plan are at our sole discretion.
A portion of the outstanding options and warrants and the purchase
price for the shares of Common Stock and warrants to be issued under the Equity
Line are at a significant discount to the market price. The sale and issuance of
these shares of Common Stock, as well as subsequent sales of shares of Common
Stock in the open market, may cause the market price of our Common Stock to fall
and might impair our ability to raise additional capital through sales of equity
or equity-related securities, whether under the Equity Line or otherwise.
OUR HIGHLY VOLATILE STOCK PRICE AND TRADING VOLUME MAY ADVERSELY AFFECT THE
LIQUIDITY OF OUR COMMON STOCK.
The market price of our Common Stock and the market prices of
securities of companies in the biotechnology sector has generally been highly
volatile and is likely to continue to be highly volatile. The trading volume of
our Common Stock has been highly volatile, ranging from as few as 91,000 shares
per day to as many as 3.7 million shares per day during the fiscal year ended
April 30, 2001, and is likely to continue to be highly volatile. The market
price of our Common Stock may be significantly impacted by many factors,
including, but not limited to:
|X| Announcements of technological innovations or new commercial products
by us or our competitors;
|X| Publicity regarding actual or potential clinical trial results relating
to products under development by us or our competitors;
|X| Our financial results or that of our competitors;
|X| Announcements of licensing agreements, joint ventures, strategic
alliances, and any other transaction that involves the sale or use of
our technologies or competitive technologies;
5
|X| Developments and/or disputes concerning our patent or proprietary
rights;
|X| Regulatory developments and product safety concerns;
|X| General stock trends in the biotechnology and pharmaceutical industry
sectors;
|X| Economic trends and other external factors, including but not limited
to, interest rate fluctuations, economic recession, inflation, foreign
market trends, national crisis, and disasters; and
|X| Health care reimbursement reform and cost-containment measures
implemented by government agencies.
These and other external factors have caused and may continue to cause
the market price and demand for our Common Stock to fluctuate substantially,
which may limit or prevent investors from readily selling their shares of Common
Stock and may otherwise negatively affect the liquidity of our Common Stock.
WE MAY NOT BE ABLE TO COMPETE WITH OUR COMPETITORS IN THE BIOTECHNOLOGY
INDUSTRY.
The biotechnology industry is intensely competitive. It is also subject
to rapid change and sensitive to new product introductions or enhancements. We
expect to continue to experience significant and increasing levels of
competition in the future. Some or all of these companies may have greater
financial resources, larger technical staffs, and larger research budgets than
we have, as well as greater experience in developing products and running
clinical trials. In addition, there may be other companies which are currently
developing competitive technologies and products or which may in the future
develop technologies and products which are comparable or superior to our
technologies and products. Accordingly, we cannot assure you that we will be
able to compete successfully with our existing and future competitors or that
competition will not negatively affect our financial position or results of
operations in the future.
WE MAY NOT BE SUCCESSFUL IF WE ARE UNABLE TO OBTAIN AND MAINTAIN PATENTS AND
LICENSES TO PATENTS.
Our success depends, in large part, on our ability to obtain or
maintain a proprietary position in our products through patents, trade secrets
and orphan drug designations. We have been granted several United States patents
and have submitted several United States patent applications and numerous
corresponding foreign patent applications, and have also obtained licenses to
patents or patent applications owned by other entities. However, we cannot
assure you that any of these patent applications will be granted or that our
patent licensors will not terminate any of our patent licenses. We also cannot
guarantee that any issued patents will provide competitive advantages for our
products or that any issued patents will not be successfully challenged or
circumvented by our competitors. Although we believe that our patents and our
licensors' patents do not infringe on any third party's patents, we cannot be
certain that we can avoid litigation involving such patents or other proprietary
rights. Patent and proprietary rights litigation entails substantial legal and
other costs, and we may not have the necessary financial resources to defend or
prosecute our rights in connection with any litigation. Responding to, defending
or bringing claims related to patents and other intellectual property rights may
require our management to redirect our human and monetary resources to address
these claims and may take years to resolve.
OUR PRODUCT DEVELOPMENT AND COMMERCIALIZATION EFFORTS MAY BE REDUCED OR
DISCONTINUED DUE TO DELAYS OR FAILURE IN OBTAINING REGULATORY APPROVALS.
We will need to do additional development and clinical testing prior to
seeking any regulatory approval for commercialization of our product candidates
as all of our products are in clinical and pre-clinical development. Testing,
manufacturing, commercialization, advertising, promotion, export and marketing,
among other things, of our proposed products are subject to extensive regulation
by governmental authorities in the United States and other countries. The
testing and approval process requires substantial time, effort and financial
resources and we cannot guarantee that any approval will be granted on a timely
basis, if at all. Companies in the pharmaceutical and biotechnology industries
have suffered significant setbacks in conducting advanced human clinical trials,
even after obtaining promising results in earlier trials. Furthermore, the
United States Food and Drug Administration may suspend clinical trials at any
time on various grounds, including a finding that the subjects or patients are
being exposed to an unacceptable health risk. Even if regulatory approval of a
product is granted, such approval may entail limitations on the indicated uses
for which it may be marketed. Accordingly, we may experience difficulties and
delays in obtaining necessary governmental clearances and approvals to market
our products, and we may not be able to obtain all necessary governmental
6
clearances and approvals to market our products. At least initially, we intend,
to the extent possible, to rely on licensees to obtain regulatory approval for
marketing our products. The failure by us or our licensees to adequately
demonstrate the safety and efficacy of any of our product candidates under
development could delay, limit or prevent regulatory approval of the product,
which may require us to reduce or discontinue development, commercialization or
clinical testing of some or all of our product candidates.
OUR MANUFACTURING AND USE OF HAZARDOUS AND RADIOACTIVE MATERIALS MAY RESULT IN
OUR LIABILITY FOR DAMAGES, INCREASED COSTS AND INTERRUPTION OF ANTIBODY
SUPPLIES.
The manufacturing and use of our products require the handling and
disposal of the radioactive isotope, I-131. We currently rely on, and intend in
the future to rely on, our current contract manufacturer to combine antibodies
with the radioactive isotope, I-131, in our products and to comply with various
local, state, national or international regulations regarding the handling and
use of radioactive materials. Violation of these regulations by these companies
or a clinical trial site could significantly delay completion of the trials.
Violations of safety regulations could occur with these manufacturers, so there
is also a risk of accidental contamination or injury. Accordingly, we could be
held liable for any damages that result from an accident, contamination or
injury caused by the handling and disposal of these materials, as well as for
unexpected remedial costs and penalties that may result from any violation of
applicable regulations. In addition, we may incur substantial costs to comply
with environmental regulations. In the event of any noncompliance or accident,
the supply of antibodies for use in clinical trials or commercial products could
also be interrupted.
OUR OPERATIONS AND FINANCIAL PERFORMANCE COULD BE NEGATIVELY AFFECTED IF WE
CANNOT ATTRACT AND RETAIN KEY PERSONNEL.
Our success is dependent, in part, upon a limited number of key
executive officers, technical personnel, and scientific consultants. We also
believe that our future success will depend largely upon our ability to attract
and retain highly-skilled research and development and technical personnel. We
face intense competition in our recruiting activities, including competition
from larger companies with greater resources. We do not know if we will be
successful in attracting or retaining skilled personnel. The loss of certain key
employees or our inability to attract and retain other qualified employees could
negatively affect our operations and financial performance.
FORWARD-LOOKING STATEMENTS
Except for historical information, the information contained in this
prospectus and in our reports filed with the SEC are "forward looking"
statements about our expected future business and financial performance. These
statements involve known and unknown risks, including, among others, risks
resulting from economic and market conditions, the regulatory environment in
which we operate, pricing pressures, accurately forecasting operating and
capital expenditures and clinical trial costs, competitive activities,
uncertainties of litigation and other business conditions, and are subject to
uncertainties and assumptions contained elsewhere in this prospectus. We base
our forward-looking statements on information currently available to us, and we
assume no obligation to update these statements. Our actual operating results
and financial performance may prove to be very different from what we have
predicted as of the date of this prospectus due to certain risks and
uncertainties. The risks described above in the section entitled "Risk Factors"
specifically address some of the factors that may affect our future operating
results and financial performance.
USE OF PROCEEDS
We will not receive any proceeds from the resale of our common stock by
the selling stockholder. We may receive proceeds from the exercise of the
warrants held by the selling stockholder, although they are not obligated to,
and we can give no assurance that they will, exercise the warrants. In addition,
the holder of each warrant has the ability to exercise the warrant on a cash or
cashless basis. If all warrants are exercised in full on a cash basis, excluding
the Dunwoody warrants which are exercisable on a cashless basis only, we
estimate that we will receive gross proceeds of $16,600,000. We intend to use
the proceeds received, if any, from the exercise of the warrants held by the
selling stockholders, for working capital purposes. Pending the use of any such
proceeds, we intend to invest these funds in short-term, interest bearing
investment-grade securities.
7
SELLING STOCKHOLDERS
The following table identifies the selling stockholders and indicates
(i) the nature of any position, office or other material relationship that each
selling stockholder has had with us during the past three years (or any of our
predecessors or affiliates) and (ii) the number of shares of common stock owned
by the selling stockholder prior to the offering, the number of shares to be
offered for the selling stockholder's account and the number of shares and
percentage of outstanding shares to be owned by the selling stockholder after
completion of the offering.
- --------------------------------- -------------------------------- --------------------- ----------------------------
NAME OF REGISTERED SHARES BENEFICIALLY OWNED MAXIMUM NUMBER OF SHARES BENEFICIALLY OWNED
SHAREHOLDER PRIOR TO OFFERING(1) SHARES TO BE SOLD AFTER OFFERING(2)
- --------------------------------- ----------------- -------------- --------------------- -------------- -------------
Number Percent Number Percent
- --------------------------------- ----------------- -------------- --------------------- -------------- -------------
SuperGen, Inc. (3) 150,000 * 150,000 0 0%
4140 Dublin Blvd., Suite 200
Dublin, CA 64568
- --------------------------------- ----------------- -------------- --------------------- -------------- -------------
Biotechnology 9,718,738 9.1% 8,623,809 1,094,929 1.03%
Development, Ltd. (4)
222 South Rainbow Street
Suite 218
Las Vegas, NV 89128
- --------------------------------- ----------------- -------------- --------------------- -------------- -------------
Eric S. Swartz (5) 1,750,263 1.7% 879,108 871,155 *
300 Colonial Center Pkwy
Suite 300
Roswell, GA 30076
- --------------------------------- ----------------- -------------- --------------------- -------------- -------------
Swartz Ventures, Inc. (6) 655,750 * 472,000 183,750 *
300 Colonial Center Pkwy
Suite 300
Roswell, GA 30076
- --------------------------------- ----------------- -------------- --------------------- -------------- -------------
Kendrick Ventures, Inc. (7) 497,350 * 313,600 183,750 *
300 Colonial Center Pkwy
Suite 300
Roswell, GA 30076
- --------------------------------- ----------------- -------------- --------------------- -------------- -------------
Kendrick Capital 517,650 * 326,400 191,250 *
Management, Inc. (8)
300 Colonial Center Pkwy
Suite 300
Roswell, GA 30076
- --------------------------------- ----------------- -------------- --------------------- -------------- -------------
Michael C. Kendrick (9) 354,977 * 285,074 69,903 *
300 Colonial Center Pkwy
Suite 300
Roswell, GA 30076
- --------------------------------- ----------------- -------------- --------------------- -------------- -------------
- ----------------------
* Represents less than 1%.
(1) Based on an aggregate of 99,989,766 shares of common stock issued and
outstanding as of July 26, 2001.
(2) Assumes that all selling stockholders will resell all of the offered
shares.
(3) SuperGen, Inc. has not had a material relationship with us or any of
our affiliates within the past three years, other than as a result of
the negotiation and execution of the License Agreement with us dated
February 13, 2001.
(4) Of the 8,623,809 shares of our common stock being offered by
Biotechnology Development, Ltd., (i) 2,723,809 shares are currently
issued and outstanding, with 1,523,809 shares having been issued to BTD
pursuant to a Termination Agreement dated March 8, 1999, and 1,200,000
shares having been purchased by BTD in a private placement we completed
in January 2000 (the "January 2000 Private Placement"), and (ii) up to
5,900,000 shares may be issued to BTD upon its exercise of three
outstanding warrants, of which up to 3,700,000 shares are issuable at
an exercise price of $3.00 per share, up to 1,000,000 shares are
issuable at an exercise price of $5.00 per share, and up to 1,200,000
8
shares are issuable at an exercise price of $0.25 per share. Ownership
includes 594,929 shares of common stock held in the name of Mr. Edward
Legere. BTD is a Nevada limited partnership controlled by Mr. Edward
Legere, the President, Chief Executive Officer and a Director of our
Company.
(5) Of the 879,108 shares of our common stock being offered by Eric S.
Swartz, (i) 599,554 shares are currently issued and outstanding, with
244,000 shares originally having been purchased by Swartz Investments,
LLC in our January 2000 Private Placement, and subsequently assigned to
Mr. Swartz, and 355,554 shares originally having been issued to
Dunwoody Brokerage Services, Inc. ("Dunwoody") pursuant to the Equity
Line Agreement, and subsequently assigned to Mr. Swartz, and (ii) and
up to 279,554 shares are issuable upon the exercise of outstanding
warrants, of which 244,000 shares are issuable upon the exercise of an
outstanding warrant at an exercise price of $0.25 per share, which
warrant originally was issued to Swartz Investments, LLC, in connection
with our January 2000 Private Placement and subsequently assigned to
Mr. Swartz, and 35,554 shares are issuable upon the exercise of
outstanding warrants at exercise prices ranging from $0.99 to $2.707
per share, which warrants originally were issued to Dunwoody pursuant
to the Equity Line Agreement, and subsequently assigned to Mr. Swartz.
Mr. Swartz is a Director of our Company. Ownership does not include any
of the shares of our common stock being offered hereby by Swartz
Ventures, Inc. Mr. Swartz has sole control over Swartz Ventures, Inc.
(6) Of the 472,000 shares of our common stock being offered by Swartz
Ventures, Inc., 236,000 shares are currently issued and outstanding and
up to 236,000 shares may be issued upon the exercise of outstanding
warrants at an exercise price of $0.25 per share. The common shares and
common shares issuable upon the exercise of the warrants originally
were issued to Swartz Investments, LLC, in connection with the January
2000 Private Placement, and subsequently assigned to Swartz Ventures,
Inc. Mr. Swartz, a Director of our Company, has sole control over
Swartz Ventures, Inc. Ownership does not include any of the shares of
our common stock being offered hereby by Mr. Eric S. Swartz.
(7) Of the 313,600 shares of our common stock being offered by Kendrick
Ventures, Inc., 156,800 shares are currently issued and outstanding and
up to 156,800 shares may be issued upon the exercise of outstanding
warrants at an exercise price of $0.25 per share. The common shares
issuable upon the exercise of the warrants were originally issued to
Swartz Investments, LLC, in connection with the January 2000 Private
Placement, and subsequently assigned to Kendrick Ventures, Inc.
Ownership does not include any of the shares of our common stock being
offered hereby by Kendrick Capital Management, Inc. or Michael C.
Kendrick, who has sole control over each of Kendrick Ventures, Inc. and
Kendrick Capital Management, Inc.
(8) Of the 326,400 shares of our common stock being offered by Kendrick
Capital Management, Inc., 163,200 shares are currently issued and
outstanding and up to 163,200 shares may be issued upon the exercise of
outstanding warrants at an exercise price of $0.25 per share. The
common shares and common shares issuable upon the exercise of the
warrants originally were issued to Swartz Investments, LLC, in
connection with the January 2000 Private Placement, and subsequently
assigned to Kendrick Capital Management, Inc. Ownership does not
include any of the shares of our common stock being offered hereby by
Kendrick Ventures, Inc. or Michael C. Kendrick.
(9) Of the 285,074 shares of our common stock being offered by Michael C.
Kendrick, (i) 249,520 shares are currently issued and outstanding,
originally having been issued to Dunwoody pursuant to the Equity Line
Agreement, and subsequently assigned to Mr. Kendrick, and (ii) and up
to 35,554 shares are issuable upon the exercise of outstanding
warrants, at exercise prices ranging from $0.99 to $2.707 per share,
which warrants originally were issued to Dunwoody pursuant to the
Equity Line Agreement, and subsequently assigned to Mr. Kendrick.
Ownership does not include any of the shares of our common stock being
offered hereby by Kendrick Ventures, Inc. or Kendrick Capital
Management, Inc.
9
PLAN OF DISTRIBUTION
As used in this section, the term "selling stockholders" includes the
selling stockholders listed in the "Selling Stockholders" section of this
prospectus, as well as their respective donees, pledgees, transferees and other
successors in interest selling shares received from a selling stockholder after
the date of this prospectus. Sales of shares may be effected by the selling
stockholders at various times in one or more private or negotiated transactions,
in open market transactions on The Nasdaq SmallCap Market, in settlement of
short sale transactions, in settlement of option transactions, or otherwise, or
a combination of these methods, at prices and terms then obtainable, at fixed
prices, at prices then prevailing at the time of sale, at prices related to such
prevailing prices, or at negotiated prices or otherwise. The selling
stockholders may effect these transactions by selling the shares of common stock
offered by this prospectus directly to one or more purchasers or to or through
other broker-dealers or agents including: (a) in a block trade in which the
broker or dealer so engaged will attempt to sell the shares as agent, but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) in purchases by another broker or dealer and resale by such
broker or dealer as a principal for its account; (c) in ordinary brokerage
transactions; and (d) in transactions in which the broker solicits purchasers.
The compensation to a particular underwriter, broker-dealer or agent may be in
excess of customary commissions.
To our knowledge, the selling stockholders have made no arrangement
with any brokerage firm for the sale of the shares of our common stock offered
by this prospectus. There is not an underwriter or coordinating broker acting in
connection with the proposed sale of shares by the selling stockholders.
Concurrently with sales under this prospectus, the selling stockholders may
effect other sales of the shares of our common stock offered by this prospectus
under Rule 144 or other exempt resale transactions. There can be no assurance
that the selling stockholders will sell any or all of the shares of common stock
offered by this prospectus.
Selling stockholders and any other broker-dealers or agents who act in
connection with the sale of the shares of our common stock offered by this
prospectus may be deemed to be "underwriters" within the meaning of Section
2(a)(11) of the Securities Act of 1933, as amended, in connection with the sale
of the shares of common stock offered by this prospectus. Profits on any resale
by selling stockholders of the shares of common stock offered by this prospectus
and any discounts, commissions or concessions received by any such
broker-dealers or agents may be deemed to be underwriting discounts and
commissions under the Securities Act.
Any broker-dealer participating in such transactions as agent may
receive commissions from the selling stockholders (and, if they act as agent for
the purchaser of such shares, from such purchaser). Broker-dealers may agree
with the selling stockholders to sell a specified number of shares of common
stock offered by this prospectus at a stipulated price per share and, to the
extent such a broker-dealer is unable to do so acting as agent for any selling
stockholder to purchase as principal any unsold shares of common stock at the
price required to fulfill the broker-dealer commitment to that selling
stockholder. Broker-dealers who acquire shares of common stock offered by this
prospectus as principal may thereafter resell such shares from time to time in
transactions (which may involve crosses and block transactions and which may
involve sales to and through other broker-dealers, including transactions of the
nature described above) in the over-the-counter market, in negotiated
transactions or otherwise at market prices prevailing at the time of sale or at
negotiated prices, and in connection with such resales may pay to or receive
from the purchasers of such shares commissions computed as described above. To
the extent required under the Securities Act, a supplemental prospectus will be
filed, disclosing (a) the name of any such broker-dealers; (b) the number of
shares of common stock involved; (c) the price at which such shares are to be
sold; (d) the commissions paid or discounts or concessions allowed to such
broker-dealers, where applicable; (e) that such broker-dealers did not conduct
any investigation to verify the information set out or incorporated by reference
in this prospectus, as supplemented; and (f) other facts material to the
transaction.
Under applicable rules and regulations under the Securities Exchange
Act of 1934, any person engaged in a distribution of the shares of our common
stock offered by this prospectus may not simultaneously engage in market making
activities with respect to the shares for a period beginning when such person
becomes a distribution participant and ending upon such person's completion of
participation in the distribution. Such activities include stabilization
activities in our common stock to effect covering transactions, imposing penalty
bids or effecting passive market making bids. In addition, in connection with
transactions in the shares of common stock offered by this prospectus, we and
10
the selling stockholders may be subject to applicable provisions of the Exchange
Act, and its rules and regulations, including, Rule 10b-5 of the Exchange Act.
If our Company and selling stockholders are deemed to be distribution
participants, we and they may also be subject to Regulation M and Rules 100,
101, 102, 103, 104 and 105 of the Exchange Act. All of the foregoing may affect
the marketability of the shares of common stock offered by this prospectus.
The selling stockholders have agreed that they will not engage in any
trading practice or activity for the purpose of manipulating the price of our
common stock or otherwise engage in any trading practice or activity that
violates the rules and regulations of the SEC.
Selling stockholders will pay all commissions, transfer taxes and other
expenses associated with the sales of shares of our common stock by them. The
shares of our common stock offered by this prospectus are being registered in
compliance with our contractual obligations to the selling stockholders, and we
have agreed to pay the expenses of the preparation of this prospectus. We have
also agreed to indemnify the selling stockholders against certain liabilities,
including, without limitation, liabilities arising under the Securities Act of
1933, as amended.
In order to comply with the securities laws of certain states, if
applicable, the shares of our common stock offered by this prospectus may be
sold in these jurisdictions only through registered or licensed brokers or
dealers. In addition, in certain states the shares of our common stock offered
by this prospectus may not be sold unless such shares have been registered or
qualified for sale in these states or an exemption from registration or
qualification is available and complied with.
Our common stock is currently traded on The Nasdaq SmallCap Market
under the symbol "PPHM."
LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus
will be passed upon for us by Jeffers, Shaff & Falk, LLP, Irvine, California.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended April 30, 2001, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our consolidated financial statements and schedule are incorporated
by reference in reliance on Ernst & Young LLP's report, given on their authority
as experts in accounting and auditing.
WHERE TO LEARN MORE ABOUT US
We have filed with the SEC a registration statement on Form S-3 under
the Securities Act of 1933, relating to the shares of our common stock being
offered by this prospectus. For further information pertaining to our common
stock and the shares of common stock being offering by this prospectus,
reference is made to such registration statement. This prospectus constitutes
the prospectus we filed as a part of the registration statement and it does not
contain all information in the registration statement, certain portions of which
have been omitted in accordance with the rules and regulations of the SEC. In
addition, we are subject to the informational requirements of the Securities
Exchange Act of 1934, and, in accordance with such requirements, files reports,
proxy statements and other information with the SEC relating to its business,
financial statements and other matters. Reports and proxy and information
statements filed under Section 14(a) and 14(c) of the Securities Exchange Act of
1934 and other information filed with the SEC as well as copies of the
registration statement can be inspected and copied at the public reference
facilities maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the SEC's Midwest Regional Offices
at 500 West Madison Street, Chicago, Illinois 60606 and Northeast Regional
Office at 7 World Trade Center, New York, New York 10048. Copies of such
material can also be obtained at prescribed rates from the Public Reference
Section of the SEC at its principal office at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549. Such material may also be obtained electronically
by visiting the SEC's web site on the Internet at http://www.sec.gov. Our common
stock is traded on The Nasdaq SmallCap Market under the symbol "PPHM." Reports,
proxy statements and other information concerning our Company may be inspected
at the National Association of Securities Dealers, Inc., at 1735 K Street, N.W.,
Washington D.C. 20006.
11
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" into this prospectus
the documents we file with them, which means that we can disclose important
information to you by referring you to these documents. The information that we
incorporate by reference into this prospectus is considered to be part of this
prospectus, and information that we file later with the SEC automatically
updates and supersedes any information in this prospectus. We incorporate by
reference into this prospectus the documents listed below:
1. Annual Report on Form 10-K for the fiscal year ended April 30,
2001, as filed with the SEC on July 27, 2001, under Section
13(a) of the Securities Exchange Act of 1934;
2. Current Report on Form 8-K, as filed with the SEC on April 17,
2001;
3. Definitive Proxy Statement with respect to the Annual Meeting
of Stockholders held on October 24, 2000, as filed with the
SEC on August 28, 2000;
4. The description of our common stock contained in our
Registration Statement on Form 8-A and Form 8-B (Registration
of Successor Issuers) filed under the Securities Exchange Act
of 1934, including any amendment or report filed for the
purpose of updating such description; and
5. All other reports filed by us under Section 13(a) of 15(d) of
the Securities Exchange Act of 1934 since the end of our
fiscal year ended April 30, 2001.
All documents we have filed with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of the initial
registration statement and prior to the effective date of the registration
statement or subsequent to the date of this prospectus and prior to the filing
of a post-effective amendment indicating that all securities offered have been
sold (or which re-registers all securities then remaining unsold), are deemed to
be incorporated in this prospectus by this reference and to be made a part of
this prospectus from the date of filing of such documents.
We will provide, without charge, upon written or oral request of any
person to whom a copy of this prospectus is delivered, a copy of any or all of
the foregoing documents and information that has been or may be incorporated in
this prospectus by reference, other than exhibits to such documents. Requests
for such documents and information should be directed to Attention: Paul J.
Lytle, Vice President, Finance and Accounting, 14272 Franklin Avenue, Suite 100,
Tustin, California 92780-7017, telephone number (714) 508-6000. See also "Where
to Learn More About Us."
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR
SECURITIES ACT LIABILITIES
Our Bylaws provide that we will indemnify our directors and officers
and may indemnify our employees and other agents to the fullest extent permitted
by law. We believe that indemnification under our Bylaws covers at least
negligence and gross negligence by indemnified parties, and permits us to
advance litigation expenses in the case of stockholder derivative actions or
other actions, against an undertaking by the indemnified party to repay such
advances if it is ultimately determined that the indemnified party is not
entitled to indemnification. We have liability insurance for our directors and
officers.
In addition, our Certificate of Incorporation provides that, under
Delaware law, our directors shall not be liable for monetary damages for breach
of the directors' fiduciary duty as a director to us and our stockholders. This
provision in the Certificate of Incorporation does not eliminate the directors'
fiduciary duty, and in appropriate circumstances equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under
Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to our Company for acts
12
or omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
Provisions of our Bylaws require us, among other things, to indemnify
them against certain liabilities that may arise by reason of their status or
service as directors or officers (other than liabilities arising from actions
not taken in good faith or in a manner the indemnitee believed to be opposed to
our best interests) to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified and to obtain
directors' insurance if available on reasonable terms. To the extent that
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers or persons controlling our Company as discussed
in the foregoing provisions, we have been informed that in the opinion of the
SEC, such indemnification is against public policy as expressed in the
Securities Act of 1933, and is therefore unenforceable. We believe that our
Certificate of Incorporation and Bylaw provisions are necessary to attract and
retain qualified persons as directors and officers.
We have in place a directors' and officers' liability insurance policy
that, subject to the terms and conditions of the policy, insures our directors
and officers against losses arising from any wrongful act (as defined by the
policy) in his or her capacity as a director or officer. The policy reimburses
us for amounts, which we lawfully indemnifies or is required or permitted by law
to indemnify its directors and officers.
13
================================================================================
YOU SHOULD RELY ONLY ON THE INFORMATION
CONTAINED IN THIS DOCUMENT OR TO WHICH WE
HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED PEREGRINE
ANYONE TO PROVIDE YOU WITH INFORMATION THAT ---------------------
IS DIFFERENT. THIS DOCUMENT MAY ONLY BE USED PHARMACEUTICALS, INC.
WHERE IT IS LEGAL TO SELL THESE SECURITIES.
THE INFORMATION IN THIS DOCUMENT MAY ONLY BE
ACCURATE COMMON STOCK ON THE DATE OF THIS DOCUMENT.
---------------------------------- COMMON STOCK
TABLE OF CONTENTS
PEREGRINE PHARMACEUTICALS, INC. 1
RISK FACTORS 3
FORWARD-LOOKING STATEMENTS 7
USE OF PROCEEDS 7 _________________
SELLING STOCKHOLDERS 8
PLAN OF DISTRIBUTION 10 PROSPECTUS
LEGAL MATTERS 11 _________________
EXPERTS 11
WHERE TO LEARN MORE ABOUT US 11
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE 12
DISCLOSURE OF COMMISSION
POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES 12
DATED JULY 31, 2001
================================================================================
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCES AND DISTRIBUTION
The following table sets forth the estimated expenses in connection
with the offering described in this registration statement:
SEC registration fee.......................... $ 7,599
Printing and engraving expenses............... 2,500
Legal fees and expenses....................... 15,000
Accounting fees and expenses.................. 10,000
Miscellaneous................................. 5,000
---------------
Total......................................... $ 40,099
===============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Certificate of Incorporation (the "Certificate") and Bylaws include
provisions that eliminate the directors personal liability for monetary damages
to the fullest extend possible under Delaware Law or other applicable law (the
"Director Liability Provision"). The Director Liability Provision eliminates the
liability of directors to us and our stockholders for monetary damages arising
out of any violation by a director of his fiduciary duty of due care. However,
the Director Liability Provision does not eliminate the personal liability of a
director for (i) breach of the director's duty of loyalty, (ii) acts or
omissions not in good faith or involving intentional misconduct or knowing
violation of law, (iii) payment of dividends or repurchases or redemption of
stock other than from lawfully available funds, or (iv) any transactions from
which the director derived an improper benefit. The Director Liability Provision
also does not affect a director's liability under the federal securities laws or
the recovery of damages by third parties. Furthermore, under Delaware Law, the
limitation liability afforded by the Director Liability Provision does not
eliminate a director's personal liability for breach of the director's duty of
due care. Although the directors would not be liable for monetary damages to us
or our stockholders for negligent acts or omissions in exercising their duty of
due care, the directors remain subject to equitable remedies, such as actions
for injunction or rescission, although these remedies, whether as a result of
timeliness or otherwise, may not be effective in all situations. With regard to
directors who also are officers of our company, these persons would be insulated
from liability only with respect to their conduct as directors and would not be
insulated from liability for acts or omissions in their capacity as officers.
These provisions may cover actions undertaken by the Board of Directors, which
may serve as the basis for a claim against us under the federal and state
securities laws. We have been advised that it is the position of the SEC that
insofar as the foregoing provisions may be involved to disclaim liability for
damages arising under the Securities Act of 1933, as amended (the "Securities
Act"), such provisions are against public policy as expressed in the Securities
Act and are therefore unenforceable.
Delaware law provides a detailed statutory framework covering
indemnification of our directors, officers, employees or agents against
liabilities and expenses arising out of legal proceedings brought against them
by reason of their status or service as directors, officers, employees or
agents. Section 145 of the Delaware General Corporation Law ("Section 145")
provides that a director, officer, employee or agent of a corporation (i) shall
be indemnified by the corporation for expenses actually and reasonably incurred
in defense of any action or proceeding if such person is sued by reason of his
service to the corporation, to the extent that such person has been successful
in defense of such action or proceeding, or in defense of any claim, issue or
matter raised in such litigation, (ii) may, in actions other than actions by or
in the right of the corporation (such as derivative actions), be indemnified for
expenses actually and reasonably incurred, judgments, fines and amounts paid in
settlement of such litigation, even if he is not successful on the merits, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation (and in a criminal proceeding,
if he did not have reasonable cause to believe his conduct was unlawful), and
(iii) may be indemnified by the corporation for expenses actually and reasonably
incurred (but not judgments or settlements) in any action by the corporation or
of a derivative action (such as a suit by a stockholder alleging a breach by the
director or officer of a duty owed to the corporation), even if he is not
successful, provided that he acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation,
provided that no indemnification is permitted without court approval if the
director has been adjudged liable to the corporation.
II-1
Delaware Law also permits a corporation to elect to indemnify its
officers, directors, employees and agents under a broader range of circumstances
than that provided under Section 145. The Certificate contains a provision that
takes full advantage of the permissive Delaware indemnification laws (the
"Indemnification Provision") and provides that we are required to indemnify our
officers, directors, employees and agents to the fullest extent permitted by
law, including those circumstances in which indemnification would otherwise be
discretionary, provided, however, that prior to making such discretionary
indemnification, we must determine that the person acted in good faith and in a
manner he or she believed to be in the best interests of the corporation and, in
the case of any criminal action or proceeding, the person had no reason to
believe his or her conduct was unlawful.
In furtherance of the objectives of the Indemnification Provision, we
have also entered into agreements to indemnify our directors and executive
officers, in addition to the indemnification provided for in our Certificate and
Bylaws (the "Indemnification Agreements"). We believe that the Indemnification
Agreements are necessary to attract and retain qualified directors and executive
officers. Pursuant to the Indemnification Agreements, an indemnitee will be
entitled to indemnification to the extent permitted by Section 145 or other
applicable law. In addition, to the maximum extent permitted by applicable law,
an indemnitee will be entitled to indemnification for any amount or expense
which the indemnitee actually and reasonably incurs as a result of or in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, preparing to be a witness, or otherwise participating in any
threatened, pending or completed claim, suit, arbitration, inquiry or other
proceeding (a "Proceeding") in which the indemnitee is threatened to be made or
is made a party or participant as a result of his or her position with our
company, provided that the indemnitee acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to our best interests and had no
reasonable cause to believe his or her conduct was unlawful. If the Proceeding
is brought by or in the right of our company and applicable law so provides, the
Indemnification Agreement provides that no indemnification against expenses
shall be made in respect of any claim, issue or matter in the Proceeding as to
which the indemnitee shall have been adjudged liable to us.
Insofar as indemnification for liabilities arising under the Securities
Act, may be permitted to our directors, officers or controlling persons pursuant
to the foregoing provisions, we have 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.
ITEM 16. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Exhibit
Index commencing at page EX-1 hereof.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total 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 SEC pursuant to Rule 424 (b) if,
in the aggregate, the changes in volume and price present no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement;
II-2
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post- effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes 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 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 the 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 Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Tustin, State of California, on July 31, 2001.
PEREGRINE PHARMACEUTICALS, INC.
By: /s/ Edward J. Legere
----------------------------------------
Edward J. Legere,
President and Chief Executive Officer,
Director
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Edward J. Legere President and Chief Executive July 30, 2001
- ----------------------------- Officer, Director
Edward J. Legere
/s/ Paul J. Lytle Vice President of Finance and Accounting and July 30, 2001
- ----------------------------- Principal Accounting Officer
Paul J. Lytle
/s/ Carlton M. Johnson Director July 30, 2001
- -----------------------------
Carlton M. Johnson
/s/ Eric S. Swartz Director July 30, 2001
- -----------------------------
Eric S. Swartz
Director _____________
- -----------------------------
Clive R. Taylor, M.D., Ph.D.
II-4
EXHIBIT INDEX DESCRIPTION
3.1 Certificate of Incorporation of Techniclone Corporation, a Delaware
corporation (Incorporated by reference to Exhibit B to the Company's 1996
Proxy Statement as filed with the Commission on or about August 20, 1996)
3.2 Bylaws of Peregrine Pharmaceuticals, Inc. (formerly Techniclone
Corporation), a Delaware corporation (Incorporated by reference to Exhibit
C to the Company's 1996 Proxy Statement as filed with the Commission on or
about August 20, 1996)
3.3 Certificate of Designation of 5% Adjustable Convertible Class C Preferred
Stock as filed with the Delaware Secretary of State on April 23, 1997.
(Incorporated by reference to Exhibit 3.1 contained in Registrant's
Current Report on Form 8-K as filed with the Commission on or about May
12, 1997)
3.4 Certificate of Amendment to Certificate of Incorporation of Techniclone
Corporation to effect the name change to Peregrine Pharmaceuticals, Inc.,
a Delaware corporation (Incorporated by reference to Exhibit 3.4 contained
in the Registrant's Annual Report on Form 10-K for the year ended April
30, 2001, as filed with the Commission on July 30, 2001)
4.1 Form of Certificate for Common Stock (Incorporated by reference to the
exhibit of the same number contained in Registrant's Annual Report on Form
10-K for the year end April 30, 1988)
4.7 5% Preferred Stock Investment Agreement between Registrant and the
Investors (Incorporated by reference to Exhibit 4.1 contained in
Registrant's Current Report on Form 8-K as filed with the Commission on or
about May 12, 1997)
4.8 Registration Rights Agreement between the Registrant and the holders of
the Class C Preferred Stock (Incorporated by reference to Exhibit 4.2
contained in Registrant's Current Report on Form 8-K as filed with the
Commission on or about May 12, 1997)
4.9 Form of Stock Purchase Warrant to be issued to the holders of the Class C
Preferred Stock upon conversion of the Class C Preferred Stock
(incorporated by reference to Exhibit 4.3 contained in Registrant's
Current Report on Form 8-K as filed with the Commission on or about May
12, 1997)
4.10 Regulation D Common Equity Line Subscription Agreement dated June 16, 1998
between the Registrant and the Equity Line Subscribers named therein
(Incorporated by reference to Exhibit 4.4 contained in Registrant's
Current Report on Form 8-K dated as filed with the Commission on or about
June 29, 1998)
4.11 Form of Amendment to Regulation D Common Stock Equity Line Subscription
Agreement (Incorporated by reference to Exhibit 4.5 contained in
Registrant's Current Report on Form 8-K filed with the Commission on or
about June 29, 1998)
4.12 Registration Rights Agreement between the Registrant and the Subscribers
(Incorporated by reference to Exhibit 4.6 contained in Registrant's
Current Report on Form 8-K as filed with the Commission on or about June
29, 1998)
4.13 Form of Stock Purchase Warrant to be issued to the Equity Line Subscribers
pursuant to the Regulation D Common Stock Equity Subscription Agreement
(Incorporated by reference to Exhibit 4.7 contained in Registrant's
Current Report on Form 8-K as filed with the Commission on or about June
29, 1998).
4.14 Placement Agent Agreement dated as of June 16, 1998, by and between the
Registrant and Swartz Investments LLC, a Georgia limited liability company
d/b/a Swartz Institutional Finance (Incorporated by reference to the
exhibit contained in Registration's Registration Statement on Form S-3
(File No. 333-63773))
EX-1
4.15 Second Amendment to Regulation D Common Stock Equity Line Subscription
Agreement dated as of September 16, 1998, by and among the Registrant, The
Tail Wind Fund, Ltd. and Resonance Limited (Incorporated by reference to
the exhibit contained in Registration's Registration Statement on Form S-3
(File No. 333-63773))
4.16 Form of Non-Qualified Stock Option Agreement by and between Registrant,
Director and certain consultants dated December 22, 1999 (Incorporated by
reference to the exhibit contained in Registrant's Registration Statement
of Form S-3 (File No. 333-40716))
5.1 Opinion of Jeffers, Shaff & Falk, LLP*
10.23 Incentive Stock Option, Nonqualified Stock Option and Restricted Stock
Purchase Plan - 1986 (Incorporated by reference to the exhibit contained
in Registrant's Registration Statement on Form S-8 (File No. 33-15102))
10.24 Cancer Biologics Incorporated Incentive Stock Option, Nonqualified Stock
Option and Restricted Stock Purchase Plan 1987 (Incorporated by reference
to the exhibit contained in Registrant's Registration Statement on Form
S-8 (File No. 33-8664))
10.26 Amendment to 1986 Stock Option Plan dated March 1, 1988 (Incorporated by
reference to the exhibit of the same number contained in Registrant's
Annual Report on Form 10-K for the year ended April 30, 1988)
10.31 Agreement dated February 5, 1996, between Cambridge Antibody Technology,
Ltd. and Registrant (Incorporated by reference to Exhibit 10.1 contained
in Registrant's Current Report on Form 8-K dated February 5, 1996, as
filed with the Commission on or about February 8, 1996)
10.32 Distribution Agreement dated February 29, 1996, between Biotechnology
Development, Ltd. and Registrant (Incorporated by reference to Exhibit
10.1 contained in Registrant's Current Report on Form 8-K dated February
29, 1996, as filed with the Commission on or about March 7, 1996)
10.33 Option Agreement dated February 29, 1996, by and between Biotechnology
Development, Ltd. and Registrant (Incorporated by reference to Exhibit
10.2 contained in Registrant's Current Report on Form 8-K dated February
29, 1996, as filed with the Commission on or about March 7, 1996)
10.40 1996 Stock Incentive Plan (Incorporated by reference to the exhibit
contained in Registrant's Registration Statement in form S-8 (File No.
333-17513))
10.41 Stock Exchange Agreement dated as of January 15, 1997 among the
stockholders of Peregrine Pharmaceuticals, Inc. and Registrant
(Incorporated by reference to Exhibit 2.1 to Registrant's Quarterly Report
on Form 10-Q for the quarter ended January 31, 1997)
10.42 First Amendment to Stock Exchange Agreement among the Stockholders of
Peregrine Pharmaceuticals, Inc. and Registrant (Incorporated by reference
to Exhibit 2.1 contained in Registrant's Current Report on Form 8-K as
filed with the Commission on or about May 12, 1997)
10.43 Termination and Transfer Agreement dated as of November 14, 1997 by and
between Registrant and Alpha Therapeutic Corporation (Incorporated by
reference to Exhibit 10.1 contained in Registrant's Current Report on Form
8-K as filed with the commission on or about November 24, 1997)
10.46 Option Agreement dated October 23, 1998 between Biotechnology Development
Ltd. and the Registrant (Incorporated by reference to the exhibit
contained in Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended October 31, 1998, as filed with the SEC on or about December
15, 1998)
10.47 Real Estate Purchase Agreement by and between Techniclone Corporation and
14282 Franklin Avenue Associates, LLC dated December 24, 1998
(Incorporated by reference to Exhibit 10.47 to Registrant's Quarterly
Report on Form 10-Q for the quarter ended January 31, 1999)
EX-2
10.48 Lease and Agreement of Lease between TNCA, LLC, as Landlord, and
Techniclone Corporation, as Tenant, dated as of December 24, 1998
(Incorporated by reference to Exhibit 10.48 to Registrant's Quarterly
Report on Form 10-Q for the quarter ended January 31, 1999)
10.49 Promissory Note dated as of December 24, 1998 between Techniclone
Corporation (Payee) and TNCA Holding, LLC (Maker) for $1,925,000
(Incorporated by reference to Exhibit 10.49 to Registrant's Quarterly
Report on Form 10-Q for the quarter ended January 31, 1999)
10.50 Pledge and Security Agreement dated as of December 24, 1998 for $1,925,000
Promissory Note between Grantors and Techniclone Corporation (Secured
Party) (Incorporated by reference to Exhibit 10.50 to Registrant's
Quarterly Report Form 10-Q for the quarter ended January 31, 1999)
10.51 Final fully-executed copy of the Regulation D Common Stock Equity Line
Subscription Agreement dated as of June 16, 1998 between the Registrant
and the Subscribers named therein (Incorporated by reference to exhibit
10.51 contained in the Registrants' Registration Statement on Form S-3/A
as filed with the Commission on April 30, 1999).
10.53 Termination Agreement dated as of March 8, 1999 by and between Registrant
and Biotechnology Development Ltd. (Incorporated by reference to Exhibit
10.53 to Registrant's Annual Report on Form 10-K for the year ended April
30, 1999)
10.54 Secured Promissory Note for $3,300,000 dated March 8, 1999 between
Registrant and Biotechnology Development Ltd. (Incorporated by reference
to Exhibit 10.54 to Registrant's Annual Report on Form 10-K for the year
ended April 30, 1999)
10.55 Security Agreement dated March 8, 1999 between Registrant and
Biotechnology Development Ltd. (Incorporated by reference to Exhibit 10.52
to Registrant's Annual Report on Form 10-K for the year ended April 30,
1999)
10.56 License Agreement dated as of March 8, 1999 by and between Registrant and
Schering A.G., Germany (Incorporated by reference to Exhibit 10.56 to
Registrant's Annual Report on Form 10-K for the year ended April 30, 1999)
10.57 Patent License Agreement dated October 8, 1998 between Registrant and the
Board of Regents of the University of Texas System for patents related to
Targeting the Vasculature of Solid Tumors (Vascular Targeting Agent
patents) (Incorporated by reference to Exhibit 10.57 to Registrant's
Quarterly Report on Form 10-Q for the quarter ended July 31, 1999)
10.58 Patent License Agreement dated October 8, 1998 between Registrant and the
Board of Regents of the University of Texas System for patents related to
the Coagulation of the Tumor Vasculature (Vascular Targeting Agent
patents) (Incorporated by reference to Exhibit 10.58 to Registrant's
Quarterly Report on Form 10-Q for the quarter ended July 31, 1999)
10.59 License Agreement between Northwestern University and Registrant dated
August 4, 1999 covering the LYM-1 and LYM-2 antibodies (Oncolym(R))
(Incorporated by reference to Exhibit 10.59 to Registrant's Quarterly
Report on Form 10-Q for the quarter ended July 31, 1999)
10.63 Change in Control Agreement dated September 27, 1999 between Registrant
and Terrence Chew, V.P of Clinical and Regulatory Affairs (Incorporated by
reference to Exhibit 10.63 to Registrant's Quarterly Report on Form 10-Q
for the quarter ended October 31, 1999)
10.64 Regulation D Subscription Agreement dated January 6, 2000 between
Registrant and Subscribers, Swartz Investments, LLC and Biotechnology
Development, LTD. (Incorporated by reference to Exhibit 10.64 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended January
31, 2000)
EX-3
10.65 Registration Right Agreement dated January 6, 2000 between Registrant and
Subscribers of the Regulation D Subscription Agreement dated January 6,
2000 (Incorporated by reference to Exhibit 10.65 to Registrant's Quarterly
Report on Form 10-Q for the quarter ended January 31, 2000)
10.66 Form of Warrant to be issued to subscribers pursuant to the Regulation D
Subscription Agreement dated January 6, 2000 (Incorporated by reference to
Exhibit 10.66 to Registrant's Quarterly Report on Form 10-Q for the
quarter ended January 31, 2000)
10.67 Warrant to purchase 750,000 shares of Common Stock of Registrant issued to
Swartz Private Equity, LLC dated November 19, 1999 (Incorporated by
reference to Exhibit 10.67 to Registrant's Quarterly Report on Form 10-Q
for the quarter ended January 31, 2000)
10.68 Amendment Agreement dated June 14, 2000 to the License Agreement dated
March 8, 1999 by and between Registrant and Schering A.G. (Incorporated by
reference to Exhibit 10.68 to Registrant's Registration Statement on Form
S-3 (File No. 333-40716))
10.69 Waiver Agreement by and between Registrant and Biotechnology Development
Ltd. effective December 29, 1999 (Incorporated by reference to Exhibit
10.69 to Registrant's Registration Statement on Form S-3 (File No.
333-40716))
10.70 Joint Venture Agreement by and between Registrant and OXiGENE, Inc. dated
May 11, 2000 (Incorporated by reference to Exhibit 10.70 to Registrant's
Registration Statement on Form S-3 (File No. 333-40716))
10.71 Third Amendment to Regulation D Common Stock Equity Line Subscription
Agreement dated June 2, 2000 by and among the Registrant, the Tail Wind
Fund, Ltd. and Resonance Limited (Incorporated by reference to Exhibit
10.71 to Registrant's Quarterly Report on Form 10-Q for the quarter ended
July 31, 2000)
10.72 Amendment to 1996 Stock Incentive Plan dated March 14, 2001 (Incorporated
by reference to the exhibit contained in Registrant's Registration
Statement on Form S-8 (File No. 333-57046))
23.1 Consent of Jeffers, Shaff & Falk, LLP (contained in Exhibit 5.1)*
23.2 Consent of Independent Auditors*
- ----------------
* Filed herewith
EX-4