As filed with the Securities and Exchange Commission on September 14, 2001
Registration No. 333-66350
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
AMENDMENT NO. 1 TO
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 $119,185,000 as of September 10, 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 AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 4,278,883 $ 2.25 $ 9,627,487 $ 2,406.87
$.001 par value(3)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 3,700,000 $ 3.00 $ 11,100,000 $ 2,775.00
$.001 par value(4)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 1,000,000 $ 5.00 $ 5,000,000 $ 1,250.00
$.001 par value (5)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 2,051,431 $ 2.25 $ 4,615,720 $ 1,153.92
$.001 par value(6)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 9,235 $ 2.707 $ 24,999 $ 6.25
$.001 par value(7)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Common stock, 10,442 $2.68125 $ 27,998 $ 7.00
$.001 par value(8)
- ----------------------------- ----------------------- -------------------- --------------------- -------------------
Total 11,049,991 $30,396,204 $ 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 are currently outstanding
and being offered for resale by certain of our stockholders.
(4) Represents shares of our common stock issuable upon exercise of an
outstanding warrant, exercisable at any time until December 1, 2005 at
an exercise price of $3.00 per share.
(5) Represents shares of our common stock issuable upon exercise of an
outstanding warrant, exercisable at any time until December 1, 2005,
at an exercise price of $5.00 per share.
(6) Represents shares of our common stock issuable upon the exercise of
outstanding warrants, with expiration dates ranging from December 31,
2004 to January 25, 2005, at exercise prices ranging from $0.25 per
share to $2.088 per share.
(7) Represents shares of our common stock issuable upon exercise of an
outstanding warrant, exercisable at any time until December 31, 2004,
at an exercise price of $2.707 per share
(8) Represents shares of our common stock issuable upon exercise of an
outstanding warrant, exercisable at any time until December 31, 2004,
at an exercise price of $2.68125 per share.
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 SEPTEMBER 14, 2001
PROSPECTUS
11,049,991 SHARES OF
COMMON STOCK
[PEREGRINE LOGO]
The selling stockholders identified on page 7 of this prospectus are
offering for resale up to 11,049,991 shares of our common stock.
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 September 10, 2001, the last reported sale price of our common
stock on The Nasdaq SmallCap Market was $1.24 per share.
INVESTING IN OUR COMMON STOCK INVOLVES SIGNIFICANT RISKS. SEE "RISK
FACTORS" BEGINNING ON PAGE 2 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 September 14, 2001
TABLE OF CONTENTS
PEREGRINE PHARMACEUTICALS, INC..............................................1
RISK FACTORS................................................................2
FORWARD-LOOKING STATEMENTS..................................................7
USE OF PROCEEDS.............................................................7
SELLING STOCKHOLDERS........................................................8
PLAN OF DISTRIBUTION.......................................................12
LEGAL MATTERS..............................................................13
EXPERTS....................................................................13
WHERE TO LEARN MORE ABOUT US...............................................13
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................14
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES.....................................14
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
PROSPECTUS SUMMARY
ABOUT 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 patented technologies.
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.).
Our main focus is on the development of our collateral targeting agent
technologies. Collateral targeting agents typically use antibodies that bind to
or target components found in or on most solid tumors. An antibody is a
naturally occurring molecule that humans and other animals create in response to
disease. In pre-clinical and/or clinical studies, these antibodies are capable
of targeting and delivering therapeutic killing agents that kill cancerous tumor
cells. We currently have exclusive rights to over 40 issued U.S. and foreign
patents protecting various aspects of our technology and have additional pending
patent applications that we believe will further strengthen our patent position.
Our three collateral targeting technologies are known as tumor necrosis therapy,
vascular targeting agents and vasopermeation enhancement agents, and are
discussed in greater detail in our Form 10-K for the year ended April 30, 2001,
which was filed with the Securities and Exchange Commission on July 27, 2001.
In addition to collateral targeting agents, we have a direct
tumor-targeting agent, Oncolym(R), for the treatment of non-Hodgkin's B-cell
lymphoma. The Oncolym(R) antibody is linked to radioactive iodine molecule and
the combined agent 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.
Our principal executive offices are located at 14272 Franklin Avenue,
Suite 100, Tustin, California 92780-7017, and our telephone number is (714)
508-6000.
ABOUT THE OFFERING
We are registering the resale of our common stock by the selling
stockholders. The selling stockholders and the specific number of shares that
they each may resell through this prospectus are listed on page 7. The shares
offered for resale by this prospectus include the following:
o 4,278,883 shares that are presently outstanding and owned by the
selling shareholders, and
o 6,771,108 shares that may be acquired by the selling shareholders
upon the exercise of outstanding warrants.
INFORMATION ON OUTSTANDING SHARES
The number of shares of our common stock outstanding before and after
this offering are set forth below:
o Common stock outstanding before this offering 100,989,765 shares
o Common stock outstanding after this offering 107,760,873 shares
The numbers set forth above for the shares of common stock outstanding
before this offering is the number of shares of our common stock outstanding on
September 10, 2001. The number of shares of common stock outstanding after this
offering includes up to 6,771,108 shares of our common stock which may be issued
upon the exercise of outstanding warrants that may be resold pursuant to this
prospectus. The warrants have exercise prices which range from $0.25 to $5.00
per share.
1
The numbers set forth above do not include 12,272,693 shares of our
common stock that, as of the date of this prospectus, are issuable upon the
exercise of outstanding options and warrants other than those covered by this
prospectus. These additional options and warrants are exercisable at prices
ranging from $0.24 to $5.28 per share, with a weighted average exercise price of
$0.94 per share.
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 August 31, 2001, we had $7,221,000 in cash and cash equivalents.
Cash equivalents are highly liquid short-term investments with original
maturities of three months or less. 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. In
addition, our ability to manage our expenditures is key to the continued
development of product candidates and the completion of ongoing clinical trials.
Our cash expenditures may vary substantially from quarter to quarter as we fund
unanticipated or one-time costs associated with clinical trials, product
development, antibody manufacturing, isotope combination services
(radiolabeing), and patent prosecution. If we encounter unexpected difficulties
with our operations or clinical trials, we may have to expend additional funds,
which would increase the rate at which we expend our cash.
We currently have access to equity funding under a common stock equity
line with two institutional investors. Under the amended terms of the equity
line, we may, in our sole discretion, and subject to certain restrictions,
periodically sell shares of our common stock until all common shares previously
registered under the Equity Line have been exhausted. As of August 31, 2001, we
had approximately 1,512,000 shares available for issuance under the equity line.
These shares, when sold, will be priced at a 17.5% discount to market during the
ten (10) day pricing period immediately preceding the date of the applicable
sale. If we are able to sell all of the remaining shares available for sale
under the equity line, then we would receive proceeds of approximately $1.5
million (assuming a closing bid price of $1.40 per share), which would provide
us with over two additional months of cash based on our monthly cash used in
operations.
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 technologies. If we are
unsuccessful in raising such funds on terms acceptable to us, or at all, we may
not be able to complete the research, development, and clinical testing of our
product candidates.
2
WE HAVE HAD SIGNIFICANT LOSSES AND WE ANTICIPATE FUTURE LOSSES.
All of our products are currently in development, pre-clinical studies
or clinical trials, and no revenues have been generated from commercial product
sales. We have incurred net losses each year since we began operations in 1981.
The following table represents net losses incurred during the past three years:
Net Loss
------------
Fiscal Year 2001 $ 9,535,000
Fiscal Year 2000 $14,516,000
Fiscal Year 1999 $20,039,000
As of April 30, 2001, we had an accumulated deficit of $116,729,000. 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 2 years, and we may
never generate product revenues sufficient to become profitable or to sustain
profitability.
OUR PRODUCT DEVELOPMENT 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. Patient enrollment is a
function of many factors, including the size of the patient population, the
nature of the protocol, the proximity of patients to the clinical sites, the
eligibility criteria for the study, and the availability of insurance coverage.
In addition, because our products currently in clinical trials represent a
departure from more commonly used methods for cancer treatment, potential
patients and their doctors may be inclined to use conventional therapies, such
as chemotherapy, rather than enroll in our study. These factors have contributed
to slower than planned patient enrollment in our Phase II clinical study using
Cotara(TM) for the treatment of brain cancer. Continued 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 or clinical testing of some or all of our product candidates.
OUR DEPENDENCY ON ONE RADIOLABELING SUPPLIER MAY NEGATIVELY IMPACT OUR ABILITY
TO COMPLETE CLINICAL TRIALS AND MARKET OUR PRODUCTS.
For the past four years we have procured, and intend in the future to
procure, our antibody radioactive isotope combination services ("radiolabeling")
under a negotiated contract with Iso-tex Diagnostics, Inc. for all clinical
trials. If this supplier is unable to continue to qualify its facility or label
and supply our antibody in a timely manner, our clinical trials could be
adversely affected and significantly delayed. While there are other suppliers
for radioactive isotope combination services, our clinical trials would be
delayed for up to six months because it would take that amount of time to
certify a new facility under Good Manufacturing Practices, plus we would incur
significant costs to transfer our technology to another vendor. 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. An antibody that has been combined
with a radioactive isotope cannot be stockpiled against future shortages because
it must be used within one week of being radiolabeled to be effective.
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.
3
WE MAY HAVE SIGNIFICANT PRODUCT LIABILITY EXPOSE BECAUSE WE MAINTAIN ONLY
LIMITED PRODUCT LIABILITY INSURANCE.
We face an inherent business risk of exposure to product liability
claims in the event that the administration of one of our drugs during a
clinical trial adversely affects or causes the death of a patient. Although we
maintain product liability insurance for clinical studies in the amount of
$5,000,000 per occurrence or $5,000,000 in the aggregate on a claims-made basis,
this coverage may not be adequate. 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.
Although we are currently in compliance with the above listing
requirements, as recently as November 1999, we were at risk of being delisted
for failing to comply with the minimum closing bid price requirement. In the
future, should we fail to satisfy one of the above requirements, our common
stock could be delisted by The Nasdaq SmallCap Market.
If our common stock is delisted, we will apply to have our common stock
quoted on the over-the-counter electronic bulletin board. Upon being delisted,
however, our common stock will become subject to the regulations of the
Securities and Exchange Commission relating to the market for penny stocks.
Penny stock, as defined by the Penny Stock Reform Act, is any equity security
not traded on a national securities exchange or quoted on the NASDAQ National or
SmallCap Market, that has a market price of less than $5.00 per share. The penny
stock regulations generally require that a disclosure schedule explaining the
penny stock market and the risks associated therewith be delivered to purchasers
of penny stocks and impose various sales practice requirements on broker-dealers
who sell penny stocks to persons other than established customers and accredited
investors. The broker-dealer must make a suitability determination for each
purchaser and receive the purchaser's written agreement prior to the sale. In
addition, the broker-dealer must make certain mandated disclosures, including
the actual sale or purchase price and actual bid offer quotations, as well as
the compensation to be received by the broker-dealer and certain associated
persons. The regulations applicable to penny stocks may severely affect the
market liquidity for our common stock and could limit your ability to sell your
securities in the secondary market.
THE SALE OF SUBSTANTIAL SHARES OF OUR COMMON STOCK MAY DEPRESS OUR STOCK PRICE.
On September 10, 2001, we had approximately 100,990,000 shares of
common stock outstanding, and the last reported sales price of our common stock
was $1.24 per share. In addition, we could issue up to approximately 19,044,000
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 million, if exercised on a 100% cash basis. If all such
4
options and warrants were exercised presently, the issuance of the underlying
shares of our common stock and their sale into the market would not necessarily
depress our stock price and be dilutive to shareholders because the average
exercise price of such options and warrants exceeds our current stock price. As
our stock price increases above $1.48, however, the exercise of such options and
warrants may be dilutive to shareholders because we would receive an amount per
share which is less than the market price of our common stock.
In addition, we have reserved for future issuance approximately
1,512,000 shares of common stock under our equity line. While all common shares
issued under the equity line are at our sole discretion, the shares issued under
the equity line are issued at a significant discount to our common stock's
market price at the time of issuance. The issuance of these shares at such a
discount 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 following table
shows the high and low sales price and trading volume of our common stock for
each quarter in the two years ended April 30, 2001:
COMMON STOCK COMMON STOCK TRADING
SALES PRICE VOLUME (000'S OMITTED)
----------------- ---------------------
HIGH LOW HIGH LOW
------- ------- ------- --------
FISCAL YEAR 2001
Quarter Ended April 30, 2001 $2.00 $1.06 705 91
Quarter Ended January 31, 2001 $2.88 $0.38 2,380 191
Quarter Ended October 31, 2000 $3.84 $1.94 3,387 200
Quarter Ended July 31, 2000 $4.75 $2.50 3,742 391
FISCAL YEAR 2000
Quarter Ended April 30, 2000 $16.63 $2.56 25,148 842
Quarter Ended January 31, 2000 $5.56 $0.25 29,139 276
Quarter Ended October 31, 1999 $1.13 $0.28 3,952 76
Quarter Ended July 31, 1999 $2.00 $0.94 10,000 157
The market price of our common stock may be significantly impacted by
many factors, including, but not limited to:
o Announcements of technological innovations or new commercial
products by us or our competitors;
o Publicity regarding actual or potential clinical trial results
relating to products under development by us or our competitors;
o Our financial results or that of our competitors;
o Announcements of licensing agreements, joint ventures, strategic
alliances, and any other transaction that involves the sale or use
of our technologies or competitive technologies;
o Developments and/or disputes concerning our patent or proprietary
rights;
o Regulatory developments and product safety concerns;
o General stock trends in the biotechnology and pharmaceutical
industry sectors;
o 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
o 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.
5
WE MAY NOT BE ABLE TO COMPETE WITH OUR COMPETITORS IN THE BIOTECHNOLOGY INDUSTRY
BECAUSE MANY OF THEM HAVE GREATER RESOURCES THAN WE DO AND THEY ARE FURTHER
ALONG IN THEIR DEVELOPMENT EFFORTS.
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. Our competitors with respect to various cancer
indications include the companies identified in the following table. Due to the
significant number of companies attempting to develop cancer treating products,
the following table is not intended to be a comprehensive listing of such
competitors, nor is the inclusion of a company intended to be a representation
that such company's drug will be approved.
---------------------------- --------------- ---------------- ------------------------ ------------------
MOST RECENT REPORTED
CANCER PRODUCT CASH & INVESTMENTS PEREGRINE'S
COMPETITORS NAME INDICATION STATUS BALANCE PRODUCT STATUS
---------------------------- --------------- ---------------- ------------------------ ------------------
Neurocrine Biosciences Brain Phase III $ 144,308,000 Phase II
NeoPharm Brain Phase I/II $ 135,456,000 Phase II
Genentech Colorectal Phase II/III $ 2,601,111,000 Phase I
Celgene Corporation Colorectal Phase II $ 298,424,000 Phase I
Matrix Pharmaceuticals Liver Phase II $ 41,272,000 Phase I
MGI Pharma Liver Phase II $ 49,512,000 Phase I
Imclone Systems, Inc. Pancreatic Phase II $ 191,014,000 Phase I
ImmunoGen, Inc. Pancreatic Phase I $ 155,830,000 Phase I
Cell Therapeutics, Inc. Soft-tissue Phase II $ 274,943,000 Phase I
sarcoma
Idec Pharmaceuticals Lymphoma Approved $ 821,549,000 Phase I/II
Corixa Corporation Lymphoma BLA submitted $ 156,045,000 Phase I/II
The above information was gathered from the most recent filings with
the Securities and Exchange Commission for the above companies. For a listing of
other competitors, you should consult the Internet web site
http://www.biospace.com which identifies by indication numerous other companies
conducting clinical trials for cancer drugs. We do not vouch for the accuracy of
the information found at this web site, nor do we intend to incorporate by
reference its contents.
IF WE LOSE QUALIFIED MANAGEMENT AND SCIENTIFIC PERSONNEL OR ARE UNABLE TO
ATTRACT AND RETAIN SUCH PERSONNEL, WE MAY BE UNABLE TO SUCCESSFULLY DEVELOP OUR
PRODUCTS OR WE MAY BE SIGNIFICANTLY DELAYED IN DEVELOPING OUR PRODUCTS.
Our success is dependent, in part, upon a limited number of key
executive officers, each of whom is an at-will employee, and our scientific
researchers. For example, because of their extensive understanding of our
technologies and product development programs, the loss of either Mr. Steven
King, our Vice President of Technology and Product Development, or Dr. Terrence
Chew, our Vice President of Clinical and Regulatory Affairs, would adversely
affect our development efforts and clinical trial programs during the 6 to 12
month period we estimate it would take to find and train a qualified
replacement.
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.
6
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, in
accordance with the requirements of federal securities laws, we will disclose to
you material developments affecting such 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
certain warrants originally issued to Dunwoody Brokerage Services, Inc., 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)
4140 Dublin Blvd., Suite 200 150,000 * 150,000 0 0%
Dublin, CA 64568
- -------------------------------- ----------------- -------------- ---------------------- -------------- -------------
Edward J. Legere (4) 9,718,738 9.1% 8,623,809 1,094,929 1.03%
14272 Franklin Ave.
Suite 100
Tustin, CA 92780
- -------------------------------- ----------------- -------------- ---------------------- -------------- -------------
Eric S. Swartz (5)(7) 2,456,013 2.4% 1,351,108 1,104,905 1.0%
300 Colonial Center Pkwy
Suite 300
Roswell, GA 30076
- -------------------------------- ----------------- -------------- ---------------------- -------------- -------------
Michael C. Kendrick (6)(7) 1,419,976 1.3% 925,074 494,902 *
300 Colonial Center Pkwy
Suite 300
Roswell, GA 30076
- -------------------------------- ----------------- -------------- ---------------------- -------------- -------------
- ----------------------
* Represents less than 1%.
(1) Based on an aggregate of 100,989,765 shares of common stock issued and
outstanding as of September 10, 2001.
(2) Assumes that all selling stockholders will resell all of the offered
shares.
(3) Dr. Joseph Rubinfeld, the President & Chief Executive Officer of
SuperGen, Inc., has voting and investment control with respect to these
shares of our common stock. Dr. Rubinfeld disclaims beneficial
ownership of such shares. 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) Mr. Legere is our President and Chief Executive Officer, and a director
of our Company. Shares beneficially owned includes 3,318,738 shares
currently issued and outstanding, and up to 6,400,000 shares which are
issuable upon the exercise of outstanding warrants.
Of the 3,318,738 shares currently issued and outstanding:
o 1,523,809 shares were issued to Biotechnology Development,
Ltd., a Nevada limited partnership (BTD) controlled by Mr. Legere,
pursuant to a Termination Agreement dated March 8, 1999 (the "BTD
Termination Agreement", which is hereby incorporated by reference
Exhibit 10.53 filed with our Annual Report on Form 10-k for the year
ended April 30, 1999). BTD is the selling shareholder with respect to
these shares;
o 1,200,000 shares were purchased by BTD in a private
placement we completed in January 2000 (the "January 2000 Private
Placement", the transaction documents for which 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). BTD is the
selling shareholder with respect to these shares; and
o 594,929 shares are held of record by Mr. Legere. The resale
of these shares is not being registered hereby.
8
Of the 6,400,000 shares which may be issued upon the exercise of
outstanding warrants:
o up to 3,700,000 shares are issuable on or before December 1,
2005, at an exercise price of $3.00 per share, upon the exercise of a
warrant issued to BTD in connection with the BTD Termination Agreement.
BTD is the selling shareholder with respect to these underlying shares;
o up to 1,000,000 shares are issuable on or before December 1,
2005, at an exercise price of $5.00 per share, upon the exercise of a
warrant issued to BTD in connection with the BTD Termination Agreement.
BTD is the selling shareholder with respect to these underlying shares;
o up to 1,200,000 shares are issuable on or before January 25,
2005, at an exercise price of $0.25 per share, upon the exercise of a
warrant issued to BTD in connection with the January 2000 Private
Placement. BTD is the selling shareholder with respect to these
underlying shares; and
o up to 500,000 shares are issuable on or before March 31,
2003, at an exercise price of $1.00 per share, upon the exercise of a
warrant issued to Mr. Legere. The resale of these shares is not being
registered hereby.
(5) Mr. Eric S. Swartz has been a director in our company since November
1999. Shares beneficially owned includes 1,491,010 shares currently
issued and outstanding, and up to 965,003 shares which are issuable
upon the exercise of outstanding warrants.
Of the 1,491,010 shares currently issued and outstanding:
o 244,000 shares were originally purchased by Swartz
Investments, LLC in our January 2000 Private Placement, and
subsequently assigned to Mr. Swartz, who has a 60% ownership interest
in Swartz Investments, LLC. Mr. Swartz is the selling shareholder with
respect to these shares;
o 236,000 shares were originally purchased by Swartz
Investments, LLC, in our January 2000 Private Placement, and
subsequently assigned to Swartz Ventures, Inc., which is controlled by
Mr. Swartz. Swartz Ventures, Inc. is the selling shareholder with
respect to these shares;
o 355,554 shares were originally issued to Dunwoody Brokerage
Services, Inc. ("Dunwoody") subsequent to May 1, 2000 as placement
agent fees under our equity line agreement with two institutional
investors, and subsequently assigned to Mr. Swartz, who has a
contractual right to one-half of the shares issued to Dunwoody under
the equity line. Mr. Swartz is the selling shareholder with respect to
these shares;
o 610,001 shares were originally issued to Dunwoody prior to
May 1, 2000 as placement agent fees under our equity line agreement,
and subsequently assigned to Mr. Swartz. The resale of these shares is
not being registered hereby.
o 45,455 shares were issued to Dunwoody during August 2001 as
placement agent fees under our equity line agreement. Mr. Swartz has a
contractual right to one-half of the shares issued to Dunwoody under
the equity line. The resale of these shares is not being registered
hereby.
Of the 965,003 shares which may be issued upon the exercise of
outstanding warrants:
o up to 244,000 shares are issuable on or before January 25,
2005, at an exercise price of $0.25 per share, upon the exercise of a
warrant originally issued to Swartz Investments, LLC, in connection
with our January 2000 Private Placement and subsequently assigned to
Mr. Swartz. Mr. Swartz is the selling shareholder with respect to these
underlying shares;
o up to 236,000 shares are issuable on or before January 25,
2005, at an exercise price of $0.25 per share, upon the exercise of a
warrant originally issued to Swartz Investments, LLC, in connection
with our January 2000 Private Placement and subsequently assigned to
Swartz Ventures, Inc. Swartz Ventures, Inc. is the selling shareholder
with respect to these underlying shares;
o up to 35,554 shares are issuable on or before December 31,
2004, at exercise prices ranging from $0.99 to $2.707 per share, upon
the exercise of warrants originally issued to Dunwoody subsequent to
May 1, 2000 pursuant to the equity line agreement, and subsequently
assigned to Mr. Swartz who has a contractual right to one-half of the
warrants issued to Dunwoody. Mr. Swartz is the selling shareholder with
respect to these underlying shares;
o up to 69,904 shares are issuable on or before December 31,
2004, at exercise prices ranging from $0.2375 to $3.403 per share, upon
the exercise of warrants originally issued to Dunwoody prior to May 1,
2000 pursuant to the equity line agreement, and subsequently assigned
to Mr. Swartz. The resale of these shares is not being registered
hereby;
9
o up to 4,545 shares are issuable on or before December 31,
2004, at exercise price of $1.65 per share, upon the exercise of
warrants issued to Dunwoody during August 2001, pursuant to the equity
line agreement. Mr. Swartz has a contractual right to one-half of the
shares issued to Dunwoody under the equity line. The resale of these
shares is not being registered hereby;
o up to 191,250 shares are issuable on or before November 19,
2004, at an initial exercise price of $0.46875 per share, upon the
exercise of a warrant originally issued to Swartz Private Equity, LLC
on November 19, 1999, and subsequently assigned to Mr. Swartz, who has
a contractual right to one-half of the warrants issued to Swartz
Private Equity. The resale of these shares is not being registered
hereby; and
o up to 183,750 shares are issuable on or before November 19,
2004, at an initial exercise price of $0.46875 per share, upon the
exercise of a warrant originally issued to Swartz Private Equity, LLC
on November 19, 1999, and subsequently assigned to Swartz Ventures,
Inc. The resale of these shares is not being registered hereby.
(6) Mr. Michael C. Kendrick has not had a material relationship with us or
any of our affiliates within the past three years, other than as a
result of his affiliation with Swartz Investments, LLC, and Dunwoody.
Shares beneficially owned includes 665,974 shares currently issued and
outstanding, and up to 754,002 shares which are issuable upon the
exercise of outstanding warrants.
Of the 665,974 shares currently issued and outstanding:
o 163,200 shares were originally purchased by Swartz
Investments, LLC in our January 2000 Private Placement, and
subsequently assigned to Kendrick Capital Management, Inc., which is
controlled by Mr. Kendrick. Kendrick Capital Management, Inc. is the
selling shareholder with respect to these shares;
o 156,800 shares were originally purchased by Swartz
Investments, LLC in our January 2000 Private Placement, and
subsequently assigned to Kendrick Ventures, Inc., which is controlled
by Mr. Kendrick. Kendrick Ventures, Inc. is the selling shareholder
with respect to these shares;
o 249,520 shares were originally issued to Dunwoody Brokerage
Services, Inc. ("Dunwoody") subsequent to May 1, 2000 as placement
agent under our equity line agreement with two institutional investors,
and subsequently assigned to Mr. Kendrick, who has a contractual right
to one-half of the shares issued to Dunwoody. Mr. Kendrick is the
selling shareholder with respect to these shares;
o 51,000 shares are held in the name of Kendrick Capital
Management, Inc. These shares were issued upon the exercise of a
warrant originally issued to Swartz Private Equity, LLC on November 19,
1999, and subsequently assigned to Kendrick Capital Management, Inc.
The resale of these shares is not being registered hereby; and
o 45,454 shares were issued to Dunwoody during August 2001 as
placement agent fees under our equity line agreement. Mr. Kendrick has
a contractual right to one-half of the shares issued to Dunwoody under
the equity line. The resale of these shares is not being registered
hereby.
Of the 754,002 shares which may be issued upon the exercise of
outstanding warrants:
o up to 163,200 shares are issuable on or before January 25,
2005, at an exercise price of $0.25 per share, upon the exercise of a
warrant originally issued to Swartz Investments, LLC, in connection
with our January 2000 Private Placement and subsequently assigned to
Kendrick Capital Management, Inc. Kendrick Capital Management, Inc. is
the selling shareholder with respect to these underlying shares;
o up to 156,800 shares are issuable on or before January 25,
2005, at an exercise price of $0.25 per share, upon the exercise of a
warrant originally issued to Swartz Investments, LLC, in connection
with our January 2000 Private Placement and subsequently assigned to
Kendrick Ventures, Inc. Kendrick Ventures, Inc. is the selling
shareholder with respect to these underlying shares;
o up to 35,554 shares are issuable on or before December 31,
2004, at exercise prices ranging from $0.99 to $2.707 per share, upon
the exercise of warrants originally issued to Dunwoody subsequent to
May 1, 2000 pursuant to the equity line agreement, and subsequently
assigned to Mr. Kendrick, who has a contractual right to one-half of
the warrants issued to Dunwoody. Mr. Kendrick is the selling
shareholder with respect to these underlying shares;
o up to 69,903 shares are issuable on or before December 31,
2004, at exercise prices ranging from $0.2375 to $3.403 per share, upon
the exercise of warrants originally issued to Dunwoody prior to May 1,
2000 pursuant to the equity line agreement, and subsequently assigned
to Mr. Kendrick. The resale of these shares is not being registered
hereby;
10
o up to 140,250 shares are issuable on or before November 19,
2004, at an initial exercise price of $0.46875 per share, upon the
exercise of a warrant originally issued to Swartz Private Equity, LLC
on November 19, 1999, and subsequently assigned to Kendrick Capital
Management, Inc. Mr. Kendrick has a contractual right to one-half of
the warrants issued to Swartz Private Equity. The resale of these
shares is not being registered hereby;
o up to 183,750 shares are issuable on or before November 19,
2004, at an initial exercise price of $0.46875 per share, upon the
exercise of a warrant originally issued to Swartz Private Equity, LLC
on November 19, 1999, and subsequently assigned to Kendrick Ventures,
Inc. The resale of these shares is not being registered hereby; and
o up to 4,545 shares are issuable on or before December 31,
2004, at exercise price of $1.65 per share, upon the exercise of
warrants issued to Dunwoody during August 2001, pursuant to the equity
line agreement. Mr. Kendrick has a contractual right to one-half of the
shares issued to Dunwoody under the equity line. The resale of these
shares is not being registered hereby.
(7) On June 16, 1998, we entered into a Regulation D Common Stock Equity
Line Subscription Agreement ("Equity Line") with two institutional
investors. At this time we also entered into a Placement Agent
Agreement and engaged the services of Swartz Investments, LLC, a
Georgia limited liability company, as placement agent in connection
with the placement of our common stock with the two institutional
investors under the Equity Line. Swartz Investments, LLC subsequently
assigned and conveyed all of its rights under the Placement Agent
Agreement and a related Registration Rights Agreement to Dunwoody and
also transferred to Dunwoody all of the shares of common stock and
warrants to purchase shares of common stock previously issued to Swartz
Investments, LLC. However, under an additional agreement, Eric S.
Swartz, who subsequently became a director of our Company in November
1999, and Michael Kendrick each have a contractual right to 50% of our
common shares issued or to be issued to Dunwoody under the Placement
Agent Agreement. With the exception of it acting as our placement agent
under the Equity Line, we have not had any other relationship with
Dunwoody.
Mr. Swartz and Mr. Kendrick have a 60% and 40% ownership interest,
respectively, in Swartz Investments, LLC. With the exception of our
January 2000 Private Placement, we have had not had any other
relationship with Swartz Investments, LLC. With the exception of their
ownership of shares of our common stock as a result of the above noted
transfers, we have not had any relationship with Swartz Ventures, Inc.,
Kendrick Capital Management, Inc. or Kendrick Ventures, Inc.
11
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
12
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
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.
13
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 to be held on October 24, 2001, as filed with the SEC
on August 27, 2001;
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
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.
14
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.
15
================================================================================
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
COMMON STOCK ON THE DATE OF THIS DOCUMENT.
----------------------------------
TABLE OF CONTENTS
PEREGRINE PHARMACEUTICALS, INC. 1
RISK FACTORS 2
FORWARD-LOOKING STATEMENTS 7
USE OF PROCEEDS 7
SELLING STOCKHOLDERS 8
PLAN OF DISTRIBUTION 12
LEGAL MATTERS 13
EXPERTS 13
WHERE TO LEARN MORE ABOUT US 13
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE 14
DISCLOSURE OF COMMISSION
POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES 14
Peregrine Pharmaceuticals, Inc. [logo]
Common Stock
-----------------------
PROSPECTUS
-----------------------
DATED SEPTEMBER 14, 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 September 14,
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 September 14, 2001
- -------------------------------- Officer, Director
Edward J. Legere
/s/ Paul J. Lytle Vice President of Finance and Accounting and September 14, 2001
- -------------------------------- Principal Accounting Officer
Paul J. Lytle
/s/ Carlton M. Johnson Director September 14, 2001
- --------------------------------
Carlton M. Johnson
/s/ Eric S. Swartz Director September 14, 2001
- --------------------------------
Eric S. Swartz
/s/ Clive R. Taylor Director September 14, 2001
- --------------------------------
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 4.1 contained in Registrant's Annual Report on Form 10-K for the
year ended 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
Exhibit 4.14 contained in Registrant' s Registration Statement on Form
S-3 (File No. 333-63773) as filed with the Commission on September 18,
1998)
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 Exhibit 4.15 contained in the Registrant's Registration Statement on
Form S-3 (File No. 333-63773) as filed with the Commission on September
18, 1998)
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 Exhibit 4.16 contained in Registrant's Registration
Statement of Form S-3 (File No. 333-40716) as filed with the Commission
on July 3, 2000)
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 as Exhibit 10.23
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
as Exhibit 10.24 as 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 Exhibit 10.26 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 Exhibit 4.1
contained in Registrant's Registration Statement in form S-8 (File No.
333-17513) as filed with the Commission on December 9, 1996)
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 Exhibit 10.46
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)
23.1 Consent of Jeffers, Shaff & Falk, LLP (contained in Exhibit 5.1)*
23.2 Consent of Independent Auditors
- -------------------
* Filed with Form S-3, No. 333-66350, on July 31, 2001.
EX-4