As filed with the Securities and Exchange Commission on September 4, 2002
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PEREGRINE PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
14272 FRANKLIN AVENUE, SUITE 100
TUSTIN, CALIFORNIA 92780-7017
(714) 508-6000
(Name, address and telephone number of Registrant)
DELAWARE 95-3698422
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
PAUL J. LYTLE
14272 FRANKLIN AVENUE, SUITE 100
TUSTIN, CALIFORNIA 92780-7017
(714) 508-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With Copies To:
MARK R. ZIEBELL, ESQ.
FALK, SHAFF & ZIEBELL, 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 $76,840,000 as of August 16, 2002, 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
- ----------------------------- ----------------------- -------------------- --------------------- ---------------------
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED 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, 5,221,540 $0.58 $ 3,028,493 $ 278.62
$.001 par value(3)
- ----------------------------- ----------------------- -------------------- --------------------- ---------------------
Common stock, 5,514,712 $0.85 $ 4,687,505 $ 431.26
$.001 par value(4)
- ----------------------------- ----------------------- -------------------- --------------------- ---------------------
Common stock, 4,136,036 $0.75 $ 3,102,027 $ 285.39
$.001 par value(5)
- ----------------------------- ----------------------- -------------------- --------------------- ---------------------
Common stock, 7,613,945 $0.71 $ 5,405,901 $ 497.34
$.001 par value(6)
- ----------------------------- ----------------------- -------------------- --------------------- ---------------------
Total 22,486,233 $ 16,223,926 $ 1,492.61
- ----------------------------- ----------------------- -------------------- --------------------- ---------------------
(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 fee payable pursuant hereto, using the average of the high
and low sales price reported by The Nasdaq SmallCap Market for our
common stock on August 29, 2002, which was $0.58 per share and, with
respect to shares of our common stock issuable upon exercise of
outstanding debentures and warrants, the higher of (i) such average
sales price or (ii) the conversion or exercise price of such debentures
and warrants, respectively.
(3) Represents the number of shares of our common stock that are currently
outstanding and being offered for resale by certain of our
stockholders.
(4) Represents 125% of the number of shares of our common stock issuable
upon conversion of outstanding debentures, which may be converted at a
conversion price of $0.85 per share.
(5) Represents 125% of the number of shares of our common stock issuable
upon exercise of outstanding warrants, exercisable at any time after
the six-month anniversary of the date of issuance until August 8, 2006
at an exercise price of $0.75 per share.
(6) Represents 125% of the number of shares of our common stock issuable
upon exercise of an outstanding warrant, exercisable at any time after
the six-month anniversary of the date of issuance until August 8, 2006,
at an exercise price of $0.71 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. The
selling stockholders 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 the selling stockholders
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 4, 2002
PROSPECTUS
22,486,233 SHARES OF
COMMON STOCK
[PEREGRINE LOGO]
The selling stockholders identified on page 10 of this prospectus are
offering for resale up to the number of shares of our common stock set forth
opposite their respective names. The selling stockholders may sell the shares
from time to time in the public market at the prevailing market price, in
negotiated transactions, or as otherwise described in this prospectus under
"Plan of Distribution".
Our common stock is registered under Section 12(g) of the Securities
Exchange Act of 1934 and is listed on The Nasdaq SmallCap Market under the
symbol "PPHM". On August 29, 2002, the last reported sale price of our common
stock on The Nasdaq SmallCap Market was $0.60 per share.
INVESTING IN OUR COMMON STOCK INVOLVES SIGNIFICANT RISKS. SEE "RISK
FACTORS" BEGINNING ON PAGE 3 FOR A DESCRIPTION OF CERTAIN FACTORS THAT YOU
SHOULD CONSIDER BEFORE PURCHASING THE SHARES OFFERED BY THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is September 4, 2002
TABLE OF CONTENTS
PROSPECTUS SUMMARY.............................................................1
RISK FACTORS...................................................................3
FORWARD-LOOKING STATEMENTS.....................................................7
USE OF PROCEEDS................................................................8
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., located in Tustin, California, is a
biopharmaceutical company primarily engaged in the research, development,
manufacture and commercialization of cancer therapeutics and cancer diagnostics
through a series of proprietary platform technologies using monoclonal
antibodies. During January 2002, our Company formed a wholly-owned subsidiary,
Avid Bioservices, Inc., to provide an array of contract manufacturing services,
including contract manufacturing of antibodies and proteins, cell culture
development, process development, and testing of biologics for biopharmaceutical
and biotechnology companies under current Good Manufacturing Practices.
As used in this prospectus, the terms "we", "us", "our", "Company" and
"Peregrine" refers to Peregrine Pharmaceuticals, Inc., and our wholly-owned
subsidiaries, Avid Bioservices, Inc. and Vascular Targeting Technologies, 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 50 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 agent technologies are known as tumor necrosis
therapy, vascular targeting agents and vasopermeation enhancement agents, and
are discussed in greater detail in our Annual Report on Form 10-K for the year
ended April 30, 2002, which was filed with the Securities and Exchange
Commission on August 13, 2002.
In addition to collateral targeting agents, we have a direct
tumor-targeting antibody, Oncolym(R), for the treatment of Non-Hodgkins B-cell
Lymphoma. Oncolym(R) is currently in a Phase I/II clinical trial, which was
developed and initiated by Schering A.G. Until recently, we continued to enroll
patients as part of the clinical trial plan developed and initiated by Schering
A.G. Based on our available financial resources, however, we have currently
suspended patient enrollment for this study as we seek to license or partner
Oncolym(R) and focus our financial resources on our more advanced clinical
trials.
Our principal executive offices are located at 14272 Franklin Avenue,
Suite 100, Tustin, California 92780-7017, and our telephone number is (714)
508-6000.
1
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 10. The shares
offered for resale by this prospectus include the following:
o 5,221,540 common shares that are presently outstanding and
owned by the selling stockholders,
o 11,749,981 common shares, which reflects a number that is 125%
of the number of shares that may be acquired by the selling
stockholders upon the exercise of outstanding warrants; and
o 5,514,712 shares, which reflects a number that is 125% of the
number of shares that may be acquired by the selling
stockholders upon the conversion of outstanding debentures.
The figures noted above with respect to the outstanding debentures and
warrants reflect an additional 25% of the shares of common stock currently
issuable upon conversion or exercise of the debentures and warrants,
respectively, because such additional shares are required to be included
pursuant to the terms of the registration rights agreements that we entered into
with the selling stockholders.
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 118,396,749 shares
o Common stock outstanding after this offering 132,208,499 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
August 29, 2002. The number of shares of common stock outstanding after this
offering includes (i) up to 9,399,982 shares of our common stock that may be
issued upon the exercise of outstanding warrants and (ii) up to 4,411,768 shares
of common stock that may be issued upon the conversion of outstanding debentures
that may be resold pursuant to this prospectus, but do not include the
additional 25% that we are required to include in the registration statement
pursuant to the relevant registration rights agreements. The warrants have
exercise prices of either $0.71 or $0.75 per share, and the conversion price of
the debentures is $0.85 per share.
The numbers set forth above do not include 21,834,804 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
$1.60 per share.
2
RISK FACTORS
An investment in our common stock being offered for resale by the
selling stockholders is very risky. You should carefully consider the risk
factors described below, together with all other information in this prospectus
or incorporated herein by reference before making an investment decision.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also impair our business operations. If any of the
following risks actually occurs, our business, financial conditions or operating
results could be materially adversely affected. In such case, the trading price
of our common stock could decline, and you may lose all or part of your
investment.
IF WE CANNOT OBTAIN ADDITIONAL FUNDING, OUR PRODUCT DEVELOPMENT AND
COMMERCIALIZATION EFFORTS MAY BE REDUCED OR DISCONTINUED.
At August 29, 2002, we had approximately $9.5 million in cash and cash
equivalents on hand. We have expended substantial funds on the research,
development and clinical trials of our product candidates. As a result, we have
historically experienced negative cash flows from operations since our inception
and we expect the negative cash flows from operations to continue for the
foreseeable future, unless and until we are able to generate sufficient revenues
from our contract manufacturing services provided by our subsidiary Avid
Bioservices, Inc. and/or from the sale and/or licensing of our products under
development. While we expect Avid to generate revenues during the foreseeable
future, we expect our monthly negative cash flow to continue for the foreseeable
future, due to our anticipated clinical trial activities using Cotara(TM), our
anticipated development costs associated with Vasopermeation Enhancement Agents
("VEA's") and Vascular Targeting Agents ("VTA's"), and expansion of our
manufacturing capabilities. Although we expect research and development expenses
to decrease over the next fiscal year primarily due to our available capital
resources, we have the ability to expand our research and development plans
based on potential capital resources obtained from future financing activities,
potential licensing arrangements, and the potential revenues generated from
Avid. We believe that we have sufficient cash on hand to meet our obligations on
a timely basis through at least the current fiscal year assuming (i) we entered
into no additional financing arrangements, (ii) we do not enter into any
licensing arrangements for our other product candidates and (iii) we do not
generate any other revenue from Avid except for amounts committed to under two
signed contracts.
In addition to the operations of Avid, we plan to obtain any necessary
financing through one or more methods including either equity or debt financing
and/or negotiating additional licensing or collaboration agreements for our
platform technologies. There can be no assurances that we will be successful in
raising such funds on terms acceptable to us, or at all, or that sufficient
additional capital will be raised to complete the research, development, and
clinical testing of our product candidates.
WE 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 sales have been generated from commercial product
sales. We have incurred net losses in most fiscal years since we began
operations in 1981. The following table represents net losses incurred during
the past three fiscal years:
Net Loss
--------
Fiscal Year 2002 $11,718,000
Fiscal Year 2001 $ 9,535,000
Fiscal Year 2000 $14,516,000
As of April 30, 2002, we had an accumulated deficit of $128,447,000.
While we expect to generate revenues from our contract manufacturing services to
be provided by Avid, in order 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
3
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 product revenues for at least the next
two 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 may 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 clinical study. These factors
contributed to slower than planned patient enrollment in our Phase II clinical
study using Cotara(TM) for the treatment of brain cancer. If we encounter
similar delays during our planned Phase III clinical study using Cotara(TM), we
will likely experience increased costs and delays in conducting the Phase III
trial. If we experience any such difficulties or delays with our other clinical
trials, we may have to reduce or discontinue development or clinical testing of
some or all of our product candidates currently under development.
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 our antibody radioactive
isotope combination services ("radiolabeling") 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 12 to 18 months because it would take that
amount of time to certify a new facility under current Good Manufacturing
Practices and qualify the product, 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, such as I-131, 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.
WE MAY HAVE SIGNIFICANT PRODUCT LIABILITY EXPOSURE 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.
In addition, the contract manufacturing services that we offer through
Avid expose us to an inherent risk of liability as the antibodies or other
substances manufactured by Avid, at the request and to the specifications of our
customers, could possibly cause adverse effects or have product defects. We
obtain agreements from our customers indemnifying and defending us from any
potential liability arising from such risk. There can be no assurance, however,
that we will be successful in obtaining such agreements in the future or that
4
such indemnification agreements will adequately protect us against potential
claims relating to such contract manufacturing services. Although Avid has
procured insurance coverage, there is no guarantee that we will be able to
maintain our existing coverage or obtain additional coverage on commercially
reasonable terms, or at all, or that such insurance will provide adequate
coverage against all potential claims to which we might be exposed. A successful
partially or completely uninsured claim against Avid would have a material
adverse effect on our consolidated 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.
During August 2002, we were notified by The Nasdaq Stock Market, Inc.
that we had fallen out of compliance with a listing requirement because the
closing bid price our common stock was less than $1.00 for a period of 30
consecutive trading days. We now have 180 days from the date of notice or until
February 18, 2003 to regain compliance by maintaining a minimum closing bid
price of $1.00 per share for 10 consecutive trading days while maintaining all
other listing requirements. Following this initial 180 calendar day grace
period, if we can demonstrate either net income of at least $750,000 in either
our latest fiscal year or in two of our last three fiscal years, stockholders'
equity of $5 million or a market capitalization of at least $50 million, we will
be afforded an additional 180 day grace period. We cannot guarantee that we will
be able to achieve the minimum bid price requirement or maintain any of the
other requirements in the future. If we fail to meet any of The Nasdaq SmallCap
Market listing requirements, the market value of our common stock could fall and
holders of common stock would likely find it more difficult to dispose of the
common stock.
If our common stock is delisted, we will apply to have our common stock
quoted on the over-the-counter electronic bulletin board, or any successor
exchange. 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.
As of August 29, 2002, we had approximately 118,397,000 shares of
common stock outstanding, and the last reported sales price of our common stock
was $0.60 per share. We could also issue up to approximately 31,235,000
additional shares of common stock upon the exercise of outstanding options and
warrants at an average exercise price of $1.33 per share for proceeds of up to
approximately $41.6 million, if exercised on a 100% cash basis. Of the total
warrants and options outstanding as of August 29, 2002, approximately 6,410,000
5
options and warrants would be considered dilutive to shareholders because we
would receive an amount per share which is less than the current market price of
our common stock. In addition to the above, we could issue approximately
4,412,000 additional shares of common stock upon the conversion of the
convertible debentures at the initial conversion price of $0.85 per share.
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 have generally been highly
volatile and are 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, 2002:
COMMON STOCK TRADING
COMMON STOCK VOLUME
SALES PRICE (000'S OMITTED)
---------------- --------------------
HIGH LOW HIGH LOW
---- --- ---- ---
FISCAL YEAR 2002
Quarter Ended April 30, 2002 $2.90 $1.50 751 135
Quarter Ended January 31, 2002 $4.00 $1.32 3,525 73
Quarter Ended October 31, 2001 $2.23 $0.81 4,265 117
Quarter Ended July 31, 2001 $3.50 $1.21 2,127 127
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
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.
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
6
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
COMPETITOR'S NAME INDICATION STATUS BALANCE PRODUCT STATUS
- ------------------------------------ --------------- ---------------- ----------------------- ------------------
Neurocrine Biosciences Brain Phase II $ 306,005,000 Phase II
NeoPharm Brain Phase I/II $ 118,157,000 Phase II
Genentech Colorectal Phase III $ 2,452,791,000 Phase I
Celgene Corporation Colorectal Phase III $ 301,825,000 Phase I
Titan Pharmaceuticals, Inc. Liver Phase I/II $ 96,013,000 Phase I
MGI Pharma Liver Phase II $ 75,822,000 Phase I
Imclone Systems, Inc. Pancreatic Phase II $ 414,739,000 Phase I
ImmunoGen, Inc. Pancreatic Phase I $ 144,002,000 Phase I
Vertex Pharmaceuticals, Inc. Soft-tissue Phase II $ 699,030,000 Phase I
sarcoma
Idec Pharmaceuticals Lymphoma Approved $ 876,411,000 Phase I/II
Corixa Corporation Lymphoma BLA submitted $ 94,870,000 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 and products in clinical trials, you can utilize the world
wide web and web sites such as http://www.biospace.com, http://biotech.about.com
and http://www.centerwatch.com. We do not vouch for the accuracy of the
information found at these web sites, 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 who are 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 Senior Vice President of Clinical and Regulatory Affairs, would
adversely affect our development efforts and clinical trial programs during the
six 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.
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
7
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 stockholders. We may receive proceeds from the exercise of the
warrants held by the selling stockholders, although they are not obligated to,
and we can give no assurance that they will, exercise the warrants. The warrants
are exercisable on a cash basis unless the resale of the shares under this
registration statement is not effective at the time the warrant is exercised, in
which case the holder may exercise the warrant on a cashless basis. If all
warrants are exercised in full on a cash basis, we estimate that we will receive
gross proceeds of $6,806,340. We intend to use such proceeds, if any, 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.
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 our 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.
Beneficial ownership is determined in accordance with Rule 13d-3
promulgated by the Securities and Exchange Commission, and generally includes
voting or investment power with respect to securities. Except as indicated in
the footnotes to the table, we believe each holder possesses sole voting and
investment power with respect to all of the shares of common stock owned by that
holder, subject to community property laws where applicable. In computing the
number of shares beneficially owned by a holder and the percentage ownership of
that holder, shares of common stock subject to options or warrants or underlying
debentures held by that holder that are currently exercisable or convertible or
are exercisable or convertible within 60 days after the date of the table are
deemed outstanding. Those shares, however, are not deemed outstanding for the
purpose of computing the percentage ownership of any other person or group.
The terms of the debentures and the warrants whose underlying shares of
common stock are included for resale under this prospectus prohibit conversion
of the debentures or exercise of the warrants to the extent that conversion of
the debentures would result in the holder, together with its affiliates,
beneficially owning in excess of 4.999% or 9.999% of our outstanding shares of
common stock, and to the extent that exercise of the warrants would result in
the holder, together with its affiliates, beneficially owning in excess of
4.999% or 9.999% of our outstanding shares of common stock. These limitations do
not preclude a holder from converting or exercising a debenture or warrant,
respectively, and selling shares underlying the debenture or warrant in stages
over time where each stage does not cause the holder and its affiliates to
beneficially own shares in excess of the limitation amounts. The footnotes to
the table describe beneficial ownership adjustments required by these
limitations, if any.
In addition to the above restrictions, the outstanding debentures and
warrants each contain a provision which precluded us from issuing, in connection
with the transactions described below, and at prices less than the greater of
book or market value of our common stock, a number of shares of our common stock
which, in the aggregate for such transactions, would exceed in excess of 19.99%
of our common stock outstanding as of the date we consummated such transactions.
The foregoing limitation will cease to apply in the event that we obtain, prior
to any such prohibited issuance, approval of our stockholders under applicable
Nasdaq Marketplace Rules to issue in connection with these transactions an
aggregate number of shares equal to or in excess of 20% or outstanding shares of
common stock. Consequently, we have determined that, although not presently
required, it is more efficient and cost effective to solicit stockholder
approval in connection with our annual stockholder meeting to be held on October
22, 2002, as opposed to call a special meeting of stockholders in the event that
we later become required to seek such approval. You should refer to our
definitive proxy statement on Form 14A, which was filed with the SEC on August
28, 2002, which contains the proposal in question.
8
All of the shares of our common stock being offered under this
prospectus were issued or are issuable upon exercise or conversion of warrants
or debentures, respectively, that were issued in the following two private
placement transactions:
FIRST SECURITIES PURCHASE AGREEMENT
CONVERTIBLE DEBT ISSUANCE. On August 9, 2002, we entered into a private
placement with four of the selling stockholders under a Securities Purchase
Agreement, whereby we issued convertible debentures for aggregate gross proceeds
equal to $3,750,000 ("Debenture"). The Debentures earn interest at a rate of 6%
per annum, payable in cash semi-annually. Under the terms of the Debenture, the
principal amount is convertible, at the option of the holder (or automatically
upon our common stock trading at a certain price level for a certain period of
time), into a number of shares of our common stock calculated by dividing the
unpaid principal amount of the Debenture by the conversion price of $0.85 per
share ("Conversion Price"). If we enter into any financing transactions (with
certain defined exceptions) within 18 months following the date this
registration statement is declared effective by the SEC ("Reset Period"), at a
per share price less than the Conversion Price, the Conversion Price will be
reset to the lower price for all outstanding Debentures. The Debentures are
secured by generally all assets of the Company.
Under this Securities Purchase Agreement, the selling stockholders who
purchased debentures were also granted warrants to purchase an aggregate of
3,308,827 shares of our common stock, which was calculated, as to each selling
stockholder, as follows: 75% of the quotient obtained by dividing the aggregate
principal amount of the selling stockholder's Debenture by the initial
Conversion Price. The warrants have a 4-year term and are exercisable six months
after the date of issuance at an exercise price of $0.75 per share. The Exercise
Price of the warrants may also be reduced to a lower price if, during the Reset
Period, we enter into a financing transaction at a per share price less than the
Exercise Price.
COMMON STOCK PURCHASE. Under the same Securities Purchase Agreement, we
sold an aggregate of 1,923,078 shares of our common stock to two selling
stockholders for gross proceeds of $1,250,000. In conjunction with the sale of
our common stock, we issued warrants to the two selling stockholders to purchase
up to an aggregate of 1,442,309 shares of common stock. The warrants have a
4-year term and are exercisable six months after the date of issuance at an
exercise price of $0.71 per share. The exercise price of these warrants is
subject to a reset provision that is similar to that of the above described
warrants issued in connection with the debentures. In addition, if we enter into
any financing transaction during the Reset Period at a per share price less than
the common stock purchase price of $0.65 per share ("Adjusted Purchase Price"),
then each applicable selling stockholder will receive an adjustment warrant
equal to (1) the number of shares of our common stock that would have been
issued to such selling stockholder on the closing date at the Adjusted Purchase
Price less (2) the number of shares of our common stock actually issued to such
selling stockholder on the closing date. The adjustment warrant, if issued, will
be priced at an exercise price of $0.001 per share and will expire 4 years from
the closing date. If we issue any adjustment warrant, we are required to file an
additional registration statement covering the resale of the shares of our
common stock issuable upon exercise of such adjustment warrant.
SECOND SECURITIES PURCHASE AGREEMENT
COMMON STOCK PURCHASE. Also on August 9, 2002, pursuant to a second
Securities Purchase Agreement, we sold 3,298,462 shares of our common stock at a
negotiated price of $0.65 per share in exchange for gross proceeds of $2,144,000
to selling stockholder. In conjunction with this offering, we issued a warrant
to purchase up to an aggregate 4,648,846 shares of our common stock. The warrant
has a 4-year term and is exercisable six months after the date of issuance at an
exercise price of $0.71 per share. This warrant contains an exercise price reset
provision similar to those described above. In addition, if we enter into any
financing transaction within 18 months following the date this registration
statement is declared effective by the SEC at a per share price less than the
purchase price of $0.65 per share ("Adjusted Price"), then the selling
stockholder will receive an adjustment warrant equal to (1) the number of shares
of our common stock that would have been issued to such selling stockholder on
9
the closing date at the Adjusted Price less (2) the number of shares of our
common stock actually issued to such selling stockholder on the closing date.
The adjustment warrant, if issued, will be at an exercise price of $0.001 per
share and will expire 4 years from the closing date. If we issue any adjustment
warrant, we are required to file an additional registration statement covering
the resale of the shares of our common stock issuable upon exercise of such
adjustment warrant.
We entered into a Registration Rights Agreement with the selling
stockholders under each of the Securities Purchase Agreements pursuant to which
we agreed to register the resale of no less than 125% of the number of shares of
our common stock issued or to be issued upon exercise of the warrants or
conversion of the debentures. The figures below for each selling stockholder
include the additional 25% of shares of common stock that we are required to
include in the registration statement.
SHARES BENEFICIALLY
OWNED PRIOR TO SHARES BENEFICIALLY OWNED
OFFERING(1) MAXIMUM NUMBER OF AFTER OFFERING
NAME OF REGISTERED -------------------------- SHARES TO BE ----------------------------
SHAREHOLDER NUMBER PERCENT SOLD(2) NUMBER PERCENT
- ----------------------------------------- --------------- ---------- -------------------- ---------------- -----------
Otato L.P. (3) 470,589 * 823,531 0 0%
c/o OTA Limited Partnership
One Manhattanville Road
Purchase, NY 10577
- ----------------------------------------- --------------- ---------- -------------------- ---------------- -----------
SDS Merchant Fund, L.P. (4) 882,353 * 1,544,118 0 0%
c/o SDS Capital Partners
53 Forest Avenue, 2nd Floor
Old Greenwich, CT 06870
- ----------------------------------------- --------------- ---------- -------------------- ---------------- -----------
Xmark Fund, L.P. (5) 778,530 * 1,362,428 0 0%
152 W. 57th Street, 21st Floor
New York, NY 10019
- ----------------------------------------- --------------- ---------- -------------------- ---------------- -----------
Xmark Fund, Ltd. (6) 2,162,648 1.8% 3,784,634 0 0%
152 W. 57th Street, 21st Floor
New York, NY 10019
- ----------------------------------------- --------------- ---------- -------------------- ---------------- -----------
Cleveland Overseas Limited (7) 117,648 * 205,884 0 0%
St. Markusgazza 19
FL-9490 Vaduz, Liechtenstein
- ----------------------------------------- --------------- ---------- -------------------- ---------------- -----------
Cranshire Capital, L.P. (8) 1,384,616 1.2% 2,423,078 0 0%
666 Dundee Road, Suite 1901
Northbrook, IL 60062
- ----------------------------------------- --------------- ---------- -------------------- ---------------- -----------
Alpha Capital Aktiengesellschaff (9) 538,462 * 942,309 0 0%
160 Central Park South, Suite 2701
New York, NY 10019
- ----------------------------------------- --------------- ---------- -------------------- ---------------- -----------
ZLP Master Fund, Ltd. (10) 3,298,462 2.8% 7,947,308 0 0%
Goldman Sachs (Cayman) Trust, Ltd.
2nd Floor, Harbour Centre
Georgetown, Cayman Islands, B.W.I.
- ----------------------------------------- --------------- ---------- -------------------- ---------------- -----------
TOTAL 9,633,308 8.14% 19,033,290 0 0%
- ----------------------------------------- --------------- ---------- -------------------- ---------------- -----------
- ----------------------
* Represents less than 1%.
(1) Based on an aggregate of 118,396,749 shares of common stock issued and
outstanding as of August 29, 2002.
(2) Assumes that all selling stockholders will resell all of the offered
shares.
(3) Includes (i) up to 470,589 shares which may be issued to Otato L.P.
upon conversion of a 6% convertible debenture issued in connection with
a Securities Purchase Agreement dated August 9, 2002, at a conversion
price of $0.85 per share and (ii) up to 352,942 shares which may be
10
issued to Otato L.P. upon exercise of an outstanding warrant issued in
connection with the Securities Purchase Agreement. The exercise price
of the warrant is $0.75 per share. Otato L.P. has not had a material
relationship with us or any of our affiliates within the past three
years.
(4) Includes (i) up to 882,353 shares which may be issued to SDS Merchant
Fund, LP upon conversion of a 6% convertible debenture issued in
connection with a Securities Purchase Agreement dated August 9, 2002,
at a conversion price of $0.85 per share and (ii) up to 661,765 shares
which may be issued to SDS Merchant Fund, LP upon exercise of an
outstanding warrant issued in connection with the Securities Purchase
Agreement. The exercise price of the warrant is $0.75 per share. SDS
Merchant Fund, LP has not had a material relationship with us or any of
our affiliates within the past three years.
(5) Includes (i) up to 778,530 shares which may be issued to Xmark Fund,
L.P. upon conversion of a 6% convertible debenture issued in connection
with a Securities Purchase Agreement dated August 9, 2002, at a
conversion price of $0.85 per share and (ii) up to 583,898 shares which
may be issued to Xmark Fund, L.P. upon exercise of an outstanding
warrant issued in connection with the Securities Purchase Agreement.
The exercise price of the warrant is $0.75 per share. Xmark Fund, L.P.
has not had a material relationship with us or any of our affiliates
within the past three years.
(6) Includes (i) up to 2,162,648 shares which may be issued to Xmark Fund,
Ltd. upon conversion of a 6% convertible debenture issued in connection
with a Securities Purchase Agreement dated August 9, 2002, at a
conversion price of $0.85 per share and (ii) up to 1,621,986 shares
which may be issued to Xmark Fund, Ltd. upon exercise of an outstanding
warrant issued in connection with the Securities Purchase Agreement.
The exercise price of the warrant is $0.75 per share. Xmark Fund, Ltd.
has not had a material relationship with us or any of our affiliates
within the past three years.
(7) Includes (i) up to 117,648 shares which may be issued to Cleveland
Overseas Limited upon conversion of a 6% convertible debenture issued
in connection with a Securities Purchase Agreement dated August 9,
2002, at a conversion price of $0.85 per share and (ii) up to 88,236
shares which may be issued to Cleveland Overseas Limited upon exercise
of an outstanding warrant issued in connection with the Securities
Purchase Agreement. The exercise price of the warrant is $0.75 per
share. Cleveland Overseas Limited has not had a material relationship
with us or any of our affiliates within the past three years.
(8) Includes (i) 1,384,616 shares issued to Cranshire Capital, L.P. in
connection with a Securities Purchase Agreement dated August 9, 2002,
at a purchase price of $0.65 per share and (ii) up to 1,038,462 shares
which may be issued to Cranshire Capital, L.P. upon exercise of an
outstanding warrant issued in connection with the Securities Purchase
Agreement. The exercise price of the warrant is $0.71 per share.
Cranshire Capital, L.P. has not had a material relationship with us or
any of our affiliates within the past three years.
(9) Includes (i) 538,462 shares issued to Alpha Capital Aktiengesellschaff
in connection with a Securities Purchase Agreement dated August 9,
2002, at a purchase price of $0.65 per share and (ii) up to 403,847
shares which may be issued to Alpha Capital Aktiengesellschaff upon
exercise of an outstanding warrant issued in connection with the
Securities Purchase Agreement. The exercise price of the warrant is
$0.71 per share. Alpha Capital Aktiengesellschaff has not had a
material relationship with us or any of our affiliates within the past
three years.
(10) Includes (i) 3,298,462 shares issued to ZLP Master Fund, Ltd. in
connection with a Securities Purchase Agreement dated August 9, 2002,
at a purchase price of $0.65 per share and (ii) up to 4,648,846 shares
which may be issued to ZLP Master Fund, Ltd. upon exercise of an
outstanding warrant issued in connection with the Securities Purchase
Agreement. The exercise price of the warrant is $0.71 per share. ZLP
Master Fund, Ltd. has not had a material relationship with us or any of
our affiliates within the past three years.
11
PLAN OF DISTRIBUTION
The Selling Stockholders and any of their pledges, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The Selling Stockholders may use any one or more of the
following methods when selling shares:
o Ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o Block trades in which the broker-dealer will attempt to sell
the shares as agent but may position and resell a portion of
the block as principal to facilitate the transactions;
o Purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o An exchange distribution in accordance with the rules of the
applicable exchange;
o Privately negotiated transactions;
o Short sales;
o Broker-dealers may agree with the Selling Stockholders to sell
a specified number of such shares at a stipulated price per
share;
o A combination of any such methods of sale; and
o Any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for
other broker-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any broker-dealer
acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The Selling Stockholders may from time to time pledge or grant a
security interest in some or all of the shares of common stock or warrants owned
by them and, if they default in the performance of their secured obligations,
the pledges or secured parties may offer and sell the shares of common stock
from time to time under this prospectus, or under any amendment to this
prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act amending the list of Selling Stockholders to include the pledgee, transferee
or other successors in interest as Selling Stockholders under this prospectus.
The Selling Stockholders also may transfer the shares of common stock
in other circumstances, in which case the transferees, pledges or other
successors in interest will be the selling beneficial owners for purposes of
this prospectus.
The Selling Stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each Selling Stockholder has
informed our Company that it does not have any agreement or understanding,
directly or indirectly, with any person to distribute the common stock.
The Selling Stockholders may enter into hedging transactions with third
parties, which may in turn engage in short sales of the securities in the course
of hedging the position they assume. The Selling Stockholders may also enter
into short positions or other derivative transactions relating to the
securities, or interests in the securities, and deliver the securities, or
interests in the securities, to close out their short or other positions or
otherwise settle short sales or other transactions, or loan or pledge the
securities, or interests in the securities, to third parties that in turn may
dispose of these securities.
12
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.
Our Company is required to pay all fees and expenses incident to the
registration of the shares. We have agreed to indemnify the Selling Stockholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.
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
has been passed upon for us by Falk, Shaff & Ziebell, 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, 2002, 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, 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 Exchange Act, 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 Exchange Act 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. 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,
2002, as filed with the SEC on August 13, 2002, under Section
13(a) of the Securities Exchange Act of 1934;
2. Amendment No. 1 to the Annual Report on Form 10-K for the
fiscal year ended April 30, 2002, as filed with the SEC on
August 14, 2002, under Section 13(a) of the Securities
Exchange Act of 1934;
3. Current Report on Form 8-K, as filed with the SEC on August
12, 2002;
4. Current Report on Form 8-K, as filed with the SEC on August
13, 2002;
5. Current Report on Form 8-K, as filed with the SEC on August
22, 2002;
6. Definitive Proxy Statement with respect to the Annual Meeting
of Stockholders to be held on October 22, 2002, as filed with
the SEC on August 28, 2002;
7. 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
8. 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, 2002.
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
14
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.
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 indemnify or are required or permitted by law
to indemnify our 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 ON THE DATE OF THIS DOCUMENT.
__________________________________ COMMON STOCK
TABLE OF CONTENTS
PROSPECTUS SUMMARY 1 _________________
RISK FACTORS 3
FORWARD-LOOKING STATEMENTS 7 PROSPECTUS
USE OF PROCEEDS 8 _________________
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
SEPTEMBER 4, 2002
================================================================================
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............................$ 1,493
Printing and engraving expenses................. 10,000
Legal fees and expenses......................... 20,000
Accounting fees and expenses.................... 15,000
Miscellaneous................................... 5,000
--------------
Total...........................................$ 51,493
==============
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 or her 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
or her 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 or she is not
successful on the merits, if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation (and in a criminal proceeding, if he or she did not have reasonable
cause to believe his or her 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 or she is not successful,
provided that he or she 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 ("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 3,
2002.
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.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints, Edward J. Legere and Paul J.
Lytle, and each of them, as his attorney-in-fact, each with full power of
substitution, for him in any and all capacities, to sign any and all amendments
to this Registration Statement (including post-effective amendments), and any
and all Registration Statements filed pursuant to Rule 462 under the Securities
Act of 1933, as amended, in connection with or related to the Offering
contemplated by this Registration Statement and its amendments, if any, and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorney to any and
all amendments to said Registration Statement.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Edward J. Legere President and Chief Executive September 3, 2002
- -------------------------------- Officer, Director
Edward J. Legere
/s/ Paul J. Lytle Vice President of Finance and Accounting and September 3, 2002
- -------------------------------- Principal Accounting Officer
Paul J. Lytle
/s/ Carlton M. Johnson Director September 3, 2002
- --------------------------------
Carlton M. Johnson
/s/ Eric S. Swartz Director September 3, 2002
- --------------------------------
Eric S. Swartz
/s/ Clive R. Taylor, M.D., Ph.D Director September 3, 2002
- --------------------------------
Clive R. Taylor, M.D., Ph.D.
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 27, 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 on Form S-3 (File No. 333-40716) as filed with the Commission
on July 3, 2000)
5.1 Opinion of Falk, Shaff & Ziebell, 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 to 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)
EX-2
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)
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 Registrant's 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)
EX-3
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)
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 the Registrant
issued to Swartz Private Equity, LLC dated November 19, 1999
(Incorporated by reference to Exhibit 10.67 to Registrant's Quarterly
Report on Form 10-Q for the quarter ended January 31, 2000)
10.68 Amendment Agreement dated June 14, 2000 to the License Agreement dated
March 8, 1999 by and between Registrant and Schering A.G. (Incorporated
by reference to Exhibit 10.68 to Registrant's Registration Statement on
Form S-3 (File No. 333-40716))
10.69 Waiver Agreement by and between Registrant and Biotechnology
Development Ltd. effective December 29, 1999 (Incorporated by reference
to Exhibit 10.69 to Registrant's Registration Statement on Form S-3
(File No. 333-40716))
10.70 Joint Venture Agreement by and between Registrant and OXiGENE, Inc.
dated May 11, 2000 (Incorporated by reference to Exhibit 10.70 to
Registrant's Registration Statement on Form S-3 (File No. 333-40716))
10.71 Third Amendment to Regulation D Common Stock Equity Line Subscription
Agreement dated June 2, 2000 by and among the Registrant, the Tail Wind
Fund, Ltd. and Resonance Limited (Incorporated by reference to Exhibit
10.71 to Registrant's Quarterly Report on Form 10-Q for the quarter
ended July 31, 2000)
10.73 Common Stock Purchase Agreement to purchase up to 6,000,000 shares of
Common Stock of Registrant issued to ZLP Master Fund, LTD, ZLP Master
Technology Fund, LTD, Eric Swartz, Michael C. Kendrick, Vertical
Ventures LLC and Triton West Group, Inc. dated November 16, 2001
(Incorporated by reference to Exhibit 10.73 to Registrant's Current
Report on Form 8-K dated November 19, 2001, as filed with the
Commission on November 19, 2001).
10.74 Form of Warrant to be issued to Investors pursuant to the Common Stock
Purchase Agreement dated November 16, 2001 (Incorporated by reference
to Exhibit 10.74 to Registrant's Current Report on Form 8-K dated
November 19, 2001, as filed with the Commission on November 19, 2001).
10.75 Common Stock Purchase Agreement to purchase 1,100,000 shares of Common
Stock of Registrant issued to ZLP Master Fund, LTD and Vertical Capital
Holdings, Ltd. dated January 28, 2002 (Incorporated by reference to
Exhibit 10.75 to Registrant's Current Report on Form 8-K dated January
31, 2002, as filed with the Commission on February 5, 2002).
10.76 Form of Warrant to be issued to Investors pursuant to the Common Stock
Purchase Agreement dated January 28, 2002 (Incorporated by reference to
Exhibit 10.76 to Registrant's Current Report on Form 8-K dated January
31, 2002, as filed with the Commission on February 5, 2002).
10.77 Securities Purchase Agreement dated as of August 9, 2002 between
Registrant and Purchasers. *
10.78 Form of Convertible Debentures issued to Purchasers pursuant to
Securities Purchase Agreement dated August 9, 2002. *
EX-4
10.79 Registration Rights Agreement dated August 9, 2002 between Registrant
and Purchasers of Securities Purchase Agreements dated August 9, 2002.*
10.80 Form of Warrant to be issued to Purchasers pursuant to Securities
Purchase Agreement dated August 9, 2002. *
10.81 Form of Warrant issued to Debenture holders pursuant to Securities
Purchase Agreement dated August 9, 2002. *
10.82 Form of Adjustment Warrant issued to Investors pursuant to Securities
Purchase Agreement dated August 9, 2002. *
10.83 Securities Purchase Agreement dated as of August 9, 2002 between
Registrant and ZLP Master Fund, Ltd. *
10.84 Registration Rights Agreement dated August 9, 2002 between Registrant
and ZLP Master Fund, Ltd. *
10.85 Form of Warrant to be issued to ZLP Master Fund, Ltd. pursuant to
Securities Purchase Agreement dated August 9, 2002. *
10.86 Form of Adjustment Warrant issued to ZLP Master Fund, Ltd. pursuant to
Securities Purchase Agreement dated August 9, 2002. *
23.1 Consent of Falk, Shaff & Ziebell, LLP (contained in Exhibit 5.1).*
23.2 Consent of Independent Auditors.*
- -------------------
* Filed herewith.
EX-5