As filed with the Securities and Exchange Commission on March 21, 2003
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
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 $89,469,000 as of February 24, 2003, 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 PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE(1) PRICE FEE
- ------------------- --------------- ---------------- ------------------ --------------
Common stock, 10,000,000 $0.585 $5,850,000 $473.27
$.001 par value
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(1) Estimated solely for the purpose of computing the registration fee
required by Section 6(b) of the Securities Act and computed pursuant
to Rule 457(c) of the Securities Act, based on the average of the high
and low prices of our common stock on March 17, 2003 as reported on
The Nasdaq SmallCap Market.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH __, 2003
PROSPECTUS
10,000,000 SHARES
OF COMMON STOCK
[PEREGRINE LOGO]
This prospectus will allow us to issue, from time to time in one or
more offerings, up to 10,000,000 shares of our common stock. In this prospectus,
we sometimes refer to our common stock as the "securities." Each time we sell
securities:
o we will provide a prospectus supplement; and
o the prospectus supplement will inform you about the specific
terms of that offering and may also add, update or change
information contained in this document.
You should read this document and any prospectus supplement carefully
before you invest.
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 March 17, 2003, the last reported sale price of our common
stock on The Nasdaq SmallCap Market was $0.59 per share.
INVESTING IN OUR SECURITIES INVOLVES SIGNIFICANT RISKS. SEE "RISK
FACTORS" BEGINNING ON PAGE 4 FOR A DESCRIPTION OF CERTAIN FACTORS THAT YOU
SHOULD CONSIDER BEFORE PURCHASING THE SECURITIES 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 March __, 2003
TABLE OF CONTENTS
PROSPECTUS SUMMARY.....................................................................1
RISK FACTORS...........................................................................4
FORWARD-LOOKING STATEMENTS.............................................................9
USE OF PROCEEDS........................................................................9
DESCRIPTION OF COMMON STOCK............................................................9
PLAN OF DISTRIBUTION..................................................................10
LEGAL MATTERS.........................................................................12
EXPERTS...............................................................................12
WHERE TO LEARN MORE ABOUT US..........................................................12
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.......................................12
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES...13
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
The following summary is qualified in its entirety by reference to the
more detailed information and consolidated financial statements appearing
elsewhere or incorporated by reference in this prospectus. As used in this
prospectus, the terms "we", "us", "our", "Company" and "Peregrine" refers to
Peregrine Pharmaceuticals, Inc., and its wholly-owned subsidiaries, Avid
Bioservices, Inc., and Vascular Targeting Technologies, Inc.
ABOUT PEREGRINE PHARMACEUTICALS, INC.
Peregrine Pharmaceuticals, Inc., located in Tustin, California, is a
biopharmaceutical company engaged in the research and development and
commercialization of cancer therapeutics and cancer diagnostics through a series
of proprietary platform technologies using monoclonal antibodies.
In January 2002, we formed our wholly-owned subsidiary, Avid
Bioservices, Inc. ("Avid"), 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. Avid's manufacturing facility is located in Tustin, California,
adjacent to our offices.
With the addition of Avid, our business is now organized into two
reportable operating segments: (i) Peregrine, the parent company, is engaged in
the research and development of cancer therapeutics and cancer diagnostics
through a series of proprietary platform technologies using monoclonal
antibodies, and (ii) Avid, is engaged in providing contract manufacturing and
development of biologics to biopharmaceutical and biotechnology businesses.
Our main focus is on the development of its 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 molecule
that humans and other animals create in response to disease. In pre-clinical
and/or clinical studies, these collateral targeting 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 technologies are known as Tumor Necrosis Therapy
("TNT"), Vascular Targeting Agents ("VTA's") and Vasopermeation Enhancement
Agents ("VEA's"), and are discussed in greater detail in our Form 10-K for the
year ended April 30, 2002, which was filed with the Securities Exchange
Commission on August 13, 2002.
Our VTA and VEA technologies are currently in preclinical development.
Our first TNT-based product, Cotara(TM), is currently in a Phase I clinical
study at Stanford University Medical Center for the treatment of colorectal,
pancreatic and soft-tissue sarcoma cancers. In addition, during February 2003,
we received protocol approval from the U.S. Food and Drug Administration ("FDA")
to initiate our Phase III registration clinical study using Cotara(TM) for the
treatment of brain cancer. We do not anticipate treating any additional patients
in either the current Phase II brain cancer clinical study or under the approved
Phase III protocol while we actively seek a licensing partner for the Cotara(TM)
program.
In addition to collateral targeting agents, we have a direct
tumor-targeting antibody, Oncolym(R), for the treatment of Non-Hodgkins B-cell
Lymphoma. The clinical enrollment under the Phase I/II clinical trial was
suspended during August 2002 in an effort to focus our resources on our more
advanced Cotara(TM) program. We are actively seeking to license or partner the
Oncolym(R) technology.
Avid's main focus is 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 third
party customers.
1
Our principal executive offices are located at 14272 Franklin Avenue,
Suite 100, Tustin, California 92780-7017, and our telephone number is (714)
508-6000. Avid's manufacturing facility is located in Tustin, California,
adjacent to our offices.
RECENT DEVELOPMENTS
FINANCIAL RESOURCES. As of January 31, 2003, we had approximately
$3,932,000 in cash and cash equivalents and current receivables of $1,148,000.
Assuming we do not raise any additional capital from either financing activities
or under licensing arrangements, and assuming that Avid does not generate any
additional revenues beyond its two active contracts, we believe that we have
sufficient cash on hand to meet our obligations on a timely basis through at
least June 2003.
Given the uncertainty of the availability of cash from the capital
markets and the potential restrictions and limitations we have for equity or
debt financings, the Company is actively exploring various other sources of cash
by leveraging its many assets. The transactions being explored by the Company
for its technologies include licensing or partnering Cotara(TM), licensing,
partnering or divesting Oncolym(R), divesting all radiopharmaceutical based
technologies (Oncolym(R), Cotara(TM) (TNT based therapeutic and imaging uses))
and VTA based radiopharmaceuticals for therapeutic and imaging uses, licensing
or partnering the Company's lead VEA clinical candidate, NHS76/PEP and licensing
or partnering our various VTA based technologies. Currently, multiple third
parties are reviewing technology packages for each of the Company's
technologies.
In addition to licensing, partnering or divesting the Company's
technologies to raise capital, the Company is also exploring strategic
transactions related to its Avid Bioservices subsidiary. In this regard, the
Company has begun to explore the possibility of selling a portion or all of Avid
as a means of raising additional capital. The Company believes that Avid is a
valuable asset and would like to maintain a significant ownership in the
subsidiary, but there are significant advantages to partnering the Avid
subsidiary. Avid needs working and expansion capital to continue growing its
customer base and reach profitability. Partnering the facility can help to
ensure Avid survives and thrives as a stand alone business and takes advantage
of the current business opportunity for contract manufacturing organizations.
Partnering or selling Avid can potentially supply the Company and Avid with
additional working capital.
There can be no assurances that the Company will be successful in
raising sufficient capital on terms acceptable to it, or at all (from either
debt, equity or the licensing, partnering or sale of technology assets and/or
the sale of some or all of Avid), or that sufficient additional revenues will be
generated from Avid or under potential licensing agreements to sustain its
operations beyond June 2003. If the Company is unable to generate sufficient
capital in the near term through one of the methods described above, the Company
may be forced to take additional measures to reduce its monthly cash
expenditures, including but not limited to, the reduction of personnel and
related expenses, the postponement of our Phase I clinical trial, the reduction
of development efforts being performed in-house and by an outside university,
the reduction of patent fees and related expenses, and the reduction of other
general expenses. The Company is diligently working towards raising sufficient
capital so these drastic measures can be avoided. There can be no guarantees or
assurances that we will be successful in raising additional capital.
2
ABOUT THE OFFERING
Common stock offered in this prospectus 10,000,000 shares
Common stock outstanding after
this offering 129,600,501 shares (1)
Use of proceeds See "Use of Proceeds"
Nasdaq Small Cap Market symbol PPHM
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(1) Based on 119,600,501 shares outstanding as of March 17, 2003, and assumes
the issuance of common stock offered in this prospectus. The number set forth
above does not include approximately 30,337,000 shares of our common stock that,
as of the date of this prospectus, are issuable upon the exercise of outstanding
options and warrants. These options and warrants are exercisable at prices
ranging from $0.24 to $5.28 per share, with an average exercise price of $1.34
per share. In addition, the Company may issue up to approximately 2,818,000
shares of common stock upon conversion of $2,395,000 in convertible debt at a
conversion price of $0.85 per share.
3
RISK FACTORS
An investment in our securities being offered in this prospectus 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
occur, 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 CAPITAL, WE MAY NEED TO SELL OR DISCONTINUE
OPERATIONS OF OUR SUBSIDIARY AND/OR REDUCE OR DISCONTINUE OUR PRODUCT
DEVELOPMENT AND COMMERCIALIZATION EFFORTS.
As of January 31, 2003, we had approximately $3,932,000 in cash and
cash equivalents and current receivables of $1,148,000. Assuming we do not raise
any additional capital from either financing activities or under licensing
arrangements, and assuming that Avid does not generate any additional revenues
beyond its two active contracts, we believe that we have sufficient cash on hand
to meet our obligations on a timely basis through at least June 2003. We believe
we will be able to sustain our operations beyond June 2003 if we are able to (i)
execute additional manufacturing contracts for Avid (ii) license or sell our
technologies under development; specifically, Cotara (which has a recently
agreed protocol for a Phase III clinical trial) or Oncolym (iii) raise
additional capital under equity or debt arrangements (which may be difficult
given current market conditions and the rights of existing debenture and warrant
holders, as described below) (iv) spin-off or sell all or a portion of Avid. In
this regard, we are currently actively seeking the potential spin-off and sale
of a portion or all of Avid's operations.
If the Company is unable to generate sufficient capital in the near
term through one of the methods discussed above, the Company may be forced to
take additional measures to reduce its monthly burn rate, including but not
limited to, the reduction of personnel and related expenses, the postponement of
our Phase I clinical trial, the reduction of development efforts being performed
in-house and by an outside university, the reduction of patent fees and related
expenses, the reduction of other general expenses, or the cessation of Avid's
operations. The Company is diligently working towards raising sufficient capital
so these drastic measures can be avoided. There can be no guarantees or
assurances that we will be successful in raising additional capital.
WE HAVE HAD SIGNIFICANT LOSSES AND WE ANTICIPATE FUTURE LOSSES.
All of our products are currently in development, pre-clinical studies
or clinical trials, and no revenues have been generated from commercial product
sales. We have incurred net losses for the majority of years in business 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 January 31, 2003, we had an accumulated deficit of approximately
$138,138,000. While we generated $1,257,000 in contract manufacturing revenues
during the nine months ended January 31, 2003 from our contract manufacturing
services being provided by Avid, in order to achieve and sustain profitable
operations on a consolidated basis, we must significantly increase Avid's
revenues beyond its two major existing contracts and/or 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 and contract manufacturing services are very
expensive and the time frame necessary to achieve market success for our
products is long and uncertain. We do not expect to generate significant product
revenues for at least the next 2 years, and we may never generate product
revenues sufficient to become profitable or to sustain profitability.
4
OUR CURRENT AND FUTURE 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 we have the financial resources to
conduct additional clinical trials and the results from any of the clinical
trials are poor, those results will adversely affect our ability to raise
additional capital, which will affect our ability to continue full-scale
research and development for our antibody technologies. In addition, our product
candidates may take longer than anticipated to progress through clinical trials
or patient enrollment in the clinical trials may be delayed or prolonged
significantly, thus delaying the clinical trials. Patient enrollment is a
function of many factors, including the size of the patient population, the
nature of the protocol, the proximity of patients to the clinical sites, the
eligibility criteria for the study, the available financial resources of the
Company, and the availability of insurance coverage. In addition, because our
products currently in clinical trials represent a departure from more commonly
used methods for cancer treatment, potential patients and their doctors may be
inclined to use conventional therapies, such as chemotherapy, rather than enroll
in our study. These factors contributed to slower than planned patient
enrollment in our Phase II clinical study using Cotara(TM) for the treatment of
brain cancer. The potential for such delays during a Phase III clinical study
using Cotara(TM), may likely affect our ability to license or partner Cotara(TM)
with another company. If we have the financial resources to conduct additional
clinical studies, we would be exposed to such potential difficulties or delays
and at that time, we may have to reduce or discontinue development or clinical
testing. We are currently supporting one clinical study at Stanford University
and if we cannot generate additional capital to fund our operations, we may
discontinue all clinical testing of our products.
OUR DEPENDENCY ON ONE RADIOLABELING SUPPLIER MAY NEGATIVELY IMPACT OUR ABILITY
TO LICENSE OUR RADIOLABELED TECHNOLOGIES.
For the past five years we have procured, and intend in the future to
procure, our antibody radioactive isotope combination services ("radiolabeling")
under a negotiated contract with Iso-tex Diagnostics, Inc. for all clinical
trials. If this supplier is unable to continue to qualify its facility or label
and supply our antibody in a timely manner, our clinical trials and potential
licensing could be adversely affected and/or significantly delayed. While there
are other suppliers for radioactive isotope combination services, our clinical
trials would be delayed for up to six months because it would take that amount
of time to certify a new facility under Good Manufacturing Practices, plus we
would incur significant costs to transfer our technology to another vendor.
Prior to commercial distribution of any of our products, if approved, we will be
required to identify and contract with a company for commercial antibody
manufacturing and radioactive isotope combination services. An antibody that has
been combined with a radioactive isotope cannot be stockpiled against future
shortages because it must be used within one week of being radiolabeled to be
effective. Accordingly, any change in our existing or future contractual
relationships with, or an interruption in supply from, any such third-party
service provider or antibody supplier could negatively impact our ability to
complete ongoing clinical trials and to market our products, if approved.
WE MAY HAVE SIGNIFICANT PRODUCT LIABILITY EXPOSE BECAUSE WE MAINTAIN ONLY
LIMITED PRODUCT LIABILITY INSURANCE.
We face an inherent business risk of exposure to product liability
claims in the event that the administration of one of our drugs during a
clinical trial adversely affects or causes the death of a patient. Although we
maintain product liability insurance for clinical studies in the amount of
$5,000,000 per occurrence or $5,000,000 in the aggregate on a claims-made basis,
this coverage may not be adequate. Product liability insurance is expensive,
difficult to obtain and may not be available in the future on acceptable terms,
if at all. Our inability to obtain sufficient insurance coverage on reasonable
terms or to otherwise protect against potential product liability claims in
excess of our insurance coverage, if any, or a product recall, could negatively
impact our financial position and results of operations.
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 foreseeably cause adverse effects. 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 such indemnification
5
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 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 it might be exposed. A successful partially or completely uninsured claim
against Avid would have a material adverse effect on its and our 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, at a
minimum, the following six core 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.
Since August 5, 2002, we have been out of compliance with the $1.00
minimum closing bid price requirement. We subsequently received a letter from
The Nasdaq Stock Market, Inc. notifying us that our common stock has failed to
maintain a minimum bid price of $1.00 for 30 consecutive trading days as
required by The Nasdaq SmallCap Market listing requirements. The letter stated
that we would have 180-days 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, which we failed to do. In February 2003, we received notice from
Nasdaq informing us that we had an additional 180-day grace period, or until
August 15, 2003, within which to regain compliance with the minimum closing bid
price requirement. In January 2003, Nasdaq stated that it proposed to extend the
pilot program governing the minimum bid price rules, subject to approval of the
Securities Exchange Commission. In the event that the program is extended, and
assuming we cannot satisfy the minimum bid price requirement by the new date,
then, under the pilot program, if we can demonstrate net income of at least
$750,000 in either its latest fiscal year or in two of its last three fiscal
years, stockholders' equity of $5 million or a market capitalization of at least
$50 million, the Company will be given up to an additional 360-day grace period
or until August 2004 to regain compliance, subject to review every six months.
Although we cannot provide assurance that our market capitalization will be $50
million in August 2003, as of the date of this Report, our market capitalization
was in excess of $50 million.
If our common stock is delisted, we will apply to have our common
stock quoted on the over-the-counter electronic bulletin board. Upon being
delisted, however, our common stock will become subject to the regulations of
the Securities and Exchange Commission relating to the market for penny stocks.
Penny stock, as defined by the Penny Stock Reform Act, is any equity security
not traded on a national securities exchange or quoted on the NASDAQ National or
SmallCap Market, that has a market price of less than $5.00 per share. The penny
stock regulations generally require that a disclosure schedule explaining the
penny stock market and the risks associated therewith be delivered to purchasers
of penny stocks and impose various sales practice requirements on broker-dealers
who sell penny stocks to persons other than established customers and accredited
investors. The broker-dealer must make a suitability determination for each
purchaser and receive the purchaser's written agreement prior to the sale. In
addition, the broker-dealer must make certain mandated disclosures, including
the actual sale or purchase price and actual bid offer quotations, as well as
the compensation to be received by the broker-dealer and certain associated
persons. The regulations applicable to penny stocks may severely affect the
market liquidity for our common stock and could limit your ability to sell your
securities in the secondary market.
THE SALE OF SUBSTANTIAL SHARES OF OUR COMMON STOCK MAY DEPRESS OUR STOCK PRICE.
On March 17, 2003, we had approximately 119,600,501 shares of common
stock outstanding, and the last reported sales price of our common stock was
$0.59 per share. In addition, we could issue up to approximately 30,337,000
6
additional shares of common stock upon the exercise of all outstanding options
and warrants at an average exercise price of $1.34 per share for proceeds of up
to approximately $40.7 million, if exercised on a 100% cash basis. The following
table describes the number of options and warrants that are in-the-money
(exercise price is less than or equal to $0.59 per share) and the number of
options and warrants that are not in-the-money (exercise price exceeds $0.59 per
share) based on the closing price of $0.59 per share on March 17, 2003:
Number Average Price Range of
Outstanding Exercise Price Exercises Prices
-----------------------------------------------------
Option and warrants in-the-money 5,411,000 $0.33 $0.24 - $0.57
Option and warrants not in-the-money 24,926,000 $1.56 $0.60 - $5.28
-----------------------------------------------------
Total 30,337,000 $1.34 $0.24 - $5.28
=====================================================
In addition, we could issue up to approximately 2,818,000 shares of
common stock upon the conversion of $2,395,000 in convertible debt based on the
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 has generally been highly
volatile and is likely to continue to be highly volatile. The following table
shows the high and low sales price and trading volume of our common stock for
each quarter in the eleven quarters ended January 31, 2003:
COMMON STOCK
COMMON STOCK TRADING VOLUME
SALES PRICE (000'S OMITTED)
------ ------- ------- ------
HIGH LOW HIGH LOW
------ ------- ------- ------
FISCAL YEAR 2003
Quarter Ended January 31, 2003 $1.20 $0.50 3,619 59
Quarter Ended October 31, 2002 $0.93 $0.35 1,696 104
Quarter Ended July 31, 2002 $2.29 $0.66 1,686 113
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 The Company's available cash resources to develop its technologies;
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;
7
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. Most of these companies may have greater financial
resources, larger technical staffs, and larger research budgets than we have, as
well as greater experience in developing products and running clinical trials.
In addition, there may be other companies which are currently developing
competitive technologies and products or which may in the future develop
technologies and products which are comparable or superior to our technologies
and products. Our competitors with respect to various cancer indications include
the companies identified in the following table. Due to the significant number
of companies attempting to develop cancer treating products, the following table
is not intended to be a comprehensive listing of such competitors, nor is the
inclusion of a company intended to be a representation that such company's drug
will be approved.
----------------------- --------------- ---------------- ---------------- --------------
MOST RECENT
REPORTED CASH &
COMPETITOR'S CANCER PRODUCT SHORT-TERM PEREGRINE'S
NAME INDICATION STATUS INVESTMENTS PRODUCT STATUS
----------------------- --------------- ---------------- ---------------- --------------
Neurocrine Biosciences Brain Phase II $ 244,710,000 Phase III*
NeoPharm Brain Phase I/II $ 101,905,000 Phase III*
Genentech Colorectal Phase III $ 1,034,572,000 Phase I*
Celgene Corporation Colorectal Phase II $ 288,944,000 Phase I*
Imclone Systems, Inc. Pancreatic Phase II $ 293,081,000 Phase I*
ImmunoGen, Inc. Pancreatic Phase I $ 120,868,000 Phase I*
Idec Pharmaceuticals Lymphoma Approved $ 947,374,000 Phase I/II*
Corixa Corporation Lymphoma BLA submitted $ 88,557,000 Phase I/II*
- ---------------
* During February 2003, we received protocol approval from the U.S. Food and
Drug Administration ("FDA") to initiate our Phase III registration clinical
study using Cotara(TM) for the treatment of brain cancer. We do not
anticipate treating any additional patients in either the current Phase II
brain cancer clinical study or under the FDA approved Phase III protocol
while we actively seek a licensing partner for the Cotara(TM) program. In
addition, we have halted enrollment in our Oncolym(R) clinical study for the
treatment of non-Hodgkin's Lymphoma while we seek to sell or license the
Oncolym(R) technology.
The above information was gathered from the most recent filings with
the Securities and Exchange Commission for the above companies. We do not vouch
for the accuracy of the information found at the web site www.sec.gov, nor do we
intend to incorporate by reference its contents.
IF WE LOSE QUALIFIED MANAGEMENT AND SCIENTIFIC PERSONNEL OR ARE UNABLE TO
ATTRACT AND RETAIN SUCH PERSONNEL, WE MAY BE UNABLE TO SUCCESSFULLY DEVELOP OUR
PRODUCTS OR WE MAY BE SIGNIFICANTLY DELAYED IN DEVELOPING OUR PRODUCTS.
Our success is dependent, in part, upon a limited number of key
executive officers, each of whom is an at-will employee, and our scientific
researchers. For example, because of his extensive understanding of our
technologies and product development programs, the loss of Mr. Steven King, our
President and CEO, would adversely affect our development efforts and clinical
trial programs during the 6 to 12 month period we estimate it would take to find
and train a qualified replacement. Further, because of their extensive
8
understanding and experience in the manufacturing of monoclonal antibodies, the
loss of Mr. King, Mr. Simh, or Mr. Richieri would significantly affect the
ability of Avid to attract new customers and maintain existing customers.
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 Commission are "forward looking"
statements about our expected future business and financial performance. These
statements involve known and unknown risks, including, among others, risks
resulting from economic and market conditions, the regulatory environment in
which we operate, pricing pressures, accurately forecasting operating and
capital expenditures and clinical trial costs, competitive activities,
uncertainties of litigation and other business conditions, and are subject to
uncertainties and assumptions contained elsewhere in this prospectus. We base
our forward-looking statements on information currently available to us, and, in
accordance with the requirements of federal securities laws, we will disclose to
you material developments affecting such statements. Our actual operating
results and financial performance may prove to be very different from what we
have predicted as of the date of this prospectus due to certain risks and
uncertainties. The risks described above in the section entitled "Risk Factors"
specifically address some of the factors that may affect our future operating
results and financial performance.
USE OF PROCEEDS
Except as otherwise provided in the applicable prospectus supplement,
we will use the net proceeds from the sale of the securities for general
corporate purposes, which may include research and development expenses,
clinical trial expenses, expansion of our contract manufacturing capabilities
and increasing our working capital. Pending the application of the net proceeds,
we expect to invest the proceeds in investment grade, interest bearing
securities.
The principal purposes of this offering are to increase our operating
and financial flexibility. As of the date of this prospectus, we cannot specify
with certainty all of the particular uses for the net proceeds we will have upon
completion of this offering. Accordingly, our management will have broad
discretion in the application of net proceeds, if any.
DESCRIPTION OF COMMON STOCK
As of the date of the prospectus, we are authorized to issue up to
175,000,000 shares of common stock, $.001 par value per share. As of March 17,
2003, 119,600,501 shares of our common stock were outstanding.
DIVIDENDS
Our Board of Directors may, out of funds legally available, at any
regular or special meeting, declare dividends to the holders of shares of our
common stock as and when they deem expedient, subject to the rights of holders
of the preferred stock, if any.
VOTING
Each share of common stock entitles the holders to one vote per share
on all matters requiring a vote of the stockholders, including the election of
directors. No holders of shares of common stock shall have the right to vote
such shares cumulatively in any election for the Board of Directors.
9
RIGHTS UPON LIQUIDATION
In the event of our voluntary or involuntary liquidation, dissolution,
or winding up, the holders of our common stock will be entitled to share equally
in our assets available for distribution after payment in full of all debts and
after the holders of preferred stock, if any, have received their liquidation
preferences in full.
MISCELLANEOUS
No holders of shares of our common stock shall have any preemptive
rights to subscribe for, purchase or receive any shares of any class, whether
now or hereafter authorized, or any options or warrants to purchase any such
shares, or any securities convertible into or exchanged for any such shares,
which may at any time be issued, sold or offered for sale by us.
PLAN OF DISTRIBUTION
We may sell the securities from time to time pursuant to underwritten
public offerings, negotiated transactions, block trades or a combination of
these methods. We may sell the securities (1) through underwriters or dealers,
(2) through agents, and/or (3) directly to one or more purchasers. We may
distribute the securities from time to time in one or more transactions at:
o a fixed price or prices, which may be changed;
o market prices prevailing at the time of sale;
o prices related to the prevailing market prices; or
o negotiated prices.
We may solicit directly offers to purchase the securities being offered
by this prospectus. We may also designate agents to solicit offers to purchase
the securities from time to time. We will name in a prospectus supplement any
agent involved in the offer or sale of our securities.
If we utilize a dealer in the sale of the securities being offered by
this prospectus, we will sell the securities to the dealer, as principal. The
dealer may then resell the securities to the public at varying prices to be
determined by the dealer at the time of resale.
If we utilize an underwriter in the sale of the securities being
offered by this prospectus, we will execute an underwriting agreement with the
underwriter at the time of sale and we will provide the name of any underwriter
in the prospectus supplement which the underwriter will use to make resales of
the securities to the public. In connection with the sale of the securities, we,
or the purchasers of securities for whom the underwriter may act as agent, may
compensate the underwriter in the form of underwriting discounts or commissions.
The underwriter may sell the securities to or through dealers, and the
underwriter may compensate those dealers in the form of discounts, concessions
or commissions.
With respect to underwritten public offerings, negotiated transactions
and block trades, we will provide in the applicable prospectus supplement any
compensation we pay to underwriters, dealers or agents in connection with the
offering of the securities, and any discounts, concessions or commissions
allowed by underwriters to participating dealers. Underwriters, dealers and
agents participating in the distribution of the securities may be deemed to be
underwriters within the meaning of the Securities Act of 1933, as amended, and
any discounts and commissions received by them and any profit realized by them
on resale of the securities may be deemed to be underwriting discounts and
commissions. We may enter into agreements to indemnify underwriters, dealers and
agents against civil liabilities, including liabilities under the Securities
Act, or to contribute to payments they may be required to make in respect
thereof.
Shares of common stock sold pursuant to the registration statement of
which this prospectus is a part will be authorized for quotation and trading on
10
The Nasdaq SmallCap Market. To facilitate the offering of securities, certain
persons participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities. This may include
over-allotments or short sales of the securities, which involve the sale by
persons participating in the offering of more securities than we sold to them.
In these circumstances, these persons would cover such over-allotments or short
positions by making purchases in the open market or by exercising their
over-allotment option. In addition, these persons may stabilize or maintain the
price of the securities by bidding for or purchasing securities in the open
market or by imposing penalty bids, whereby selling concessions allowed to
dealers participating in the offering may be reclaimed if securities sold by
them are repurchased in connection with stabilization transactions. The effect
of these transactions may be to stabilize or maintain the market price of the
securities at a level above that which might otherwise prevail in the open
market. These transactions may be discontinued at any time.
The underwriters, dealers and agents may engage in other transactions
with us, or perform other services for us, in the ordinary course of their
business.
In order to comply with the securities laws of certain states, if
applicable, the securities offered by this prospectus may be sold in these
jurisdictions only through registered or licensed brokers or dealers. In
addition, in certain states the securities offered by this prospectus may not be
sold unless such securities 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."
11
LEGAL MATTERS
The validity of the securities offered by this prospectus has been
passed upon for us by Falk, Shaff & Ziebell, LLP, Irvine, California, counsel to
Peregrine Pharmaceuticals, Inc. Certain legal matters will be passed upon for
any agents or underwriters by counsel for such agents or underwriters identified
in the applicable prospectus supplement.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K/A
Amendment No. 2 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 Commission a registration statement on Form S-3
under the Securities Act of 1933, relating to the securities being offered by
this prospectus. For further information pertaining to our securities 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 Commission. In addition, we are
subject to the informational requirements of the Securities Exchange Act of
1934, and, in accordance with such requirements, files reports, proxy statements
and other information with the Commission relating to its business, financial
statements and other matters. Reports and proxy and information statements filed
under Section 14(a) and 14(c) of the Securities Exchange Act of 1934 and other
information filed with the Commission as well as copies of the registration
statement can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission'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
Commission 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 Commission'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.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission 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
Commission 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 and amended on a Form 10-K/A Amendment No. 2, as filed with
the Commission on March 21, 2003, under Section 13(a) of the
Securities Exchange Act of 1934;
2. Quarterly Reports on Form 10-Q for the quarters ended:
(i) July 31, 2002, filed with the Commission on September 16,
2002;
(ii) October 31, 2002, filed with the Commission on December 16,
2002; and
12
(iii) January 31, 2003, filed with the Commission on March 17,
2003;
3. Current Report on Form 8-K, filed with the Commission on August
22, 2002;
4. Definitive Proxy Statement with respect to the Annual Meeting of
Stockholders held on October 22, 2002, as filed with the
Commission on August 28, 2002;
5. 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
6. 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 Commission 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, Chief Financial Officer, 14272 Franklin Avenue, Suite 100, Tustin,
California 92780-7017, telephone number (714) 508-6000. See also "Where to Learn
More About Us."
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR
SECURITIES ACT LIABILITIES
Our Bylaws provide that we will indemnify our directors and officers
and may indemnify our employees and other agents to the fullest extent permitted
by law. We believe that indemnification under our Bylaws covers at least
negligence and gross negligence by indemnified parties, and permits us to
advance litigation expenses in the case of stockholder derivative actions or
other actions, against an undertaking by the indemnified party to repay such
advances if it is ultimately determined that the indemnified party is not
entitled to indemnification. We have liability insurance for our directors and
officers.
In addition, our Certificate of Incorporation provides that, under
Delaware law, our directors shall not be liable for monetary damages for breach
of the directors' fiduciary duty as a director to us and our stockholders. This
provision in the Certificate of Incorporation does not eliminate the directors'
fiduciary duty, and in appropriate circumstances equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under
Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to our Company for acts
or omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
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
13
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
Commission, such indemnification is against public policy as expressed in the
Securities Act of 1933, and is therefore unenforceable. We believe that our
Certificate of Incorporation and Bylaw provisions are necessary to attract and
retain qualified persons as directors and officers.
We have in place a directors' and officers' liability insurance policy
that, subject to the terms and conditions of the policy, insures our directors
and officers against losses arising from any wrongful act (as defined by the
policy) in his or her capacity as a director or officer. The policy reimburses
us for amounts, which we lawfully indemnifies or is required or permitted by law
to indemnify its directors and officers.
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.
---------------------------------
COMMON STOCK
TABLE OF CONTENTS
PROSPECTUS SUMMARY 1
RISK FACTORS 4 ------------------
FORWARD-LOOKING STATEMENTS 9
USE OF PROCEEDS 9 PROSPECTUS
DESCRIPTION OF COMMON STOCK 9
PLAN OF DISTRIBUTION 10 ------------------
LEGAL MATTERS 12
EXPERTS 12
WHERE TO LEARN MORE ABOUT US 12
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE 12
DISCLOSURE OF COMMISSION
POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES 13
DATED MARCH __, 2003
================================================================================
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.............................. $ 473
Printing and engraving expenses................... 2,500 *
Legal fees and expenses........................... 5,000 *
Accounting fees and expenses...................... 10,000 *
Miscellaneous..................................... 5,000 *
---------
Total............................................. $ 22,973
=========
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Certificate of Incorporation (the "Certificate") and Bylaws include
provisions that eliminate the directors personal liability for monetary damages
to the fullest extend possible under Delaware Law or other applicable law (the
"Director Liability Provision"). The Director Liability Provision eliminates the
liability of directors to us and our stockholders for monetary damages arising
out of any violation by a director of his fiduciary duty of due care. However,
the Director Liability Provision does not eliminate the personal liability of a
director for (i) breach of the director's duty of loyalty, (ii) acts or
omissions not in good faith or involving intentional misconduct or knowing
violation of law, (iii) payment of dividends or repurchases or redemption of
stock other than from lawfully available funds, or (iv) any transactions from
which the director derived an improper benefit. The Director Liability Provision
also does not affect a director's liability under the federal securities laws or
the recovery of damages by third parties. Furthermore, under Delaware Law, the
limitation liability afforded by the Director Liability Provision does not
eliminate a director's personal liability for breach of the director's duty of
due care. Although the directors would not be liable for monetary damages to us
or our stockholders for negligent acts or omissions in exercising their duty of
due care, the directors remain subject to equitable remedies, such as actions
for injunction or rescission, although these remedies, whether as a result of
timeliness or otherwise, may not be effective in all situations. With regard to
directors who also are officers of our company, these persons would be insulated
from liability only with respect to their conduct as directors and would not be
insulated from liability for acts or omissions in their capacity as officers.
These provisions may cover actions undertaken by the Board of Directors, which
may serve as the basis for a claim against us under the federal and state
securities laws. We have been advised that it is the position of the Commission
that insofar as the foregoing provisions may be involved to disclaim liability
for damages arising under the Securities Act of 1933, as amended (the
"Securities Act"), such provisions are against public policy as expressed in the
Securities Act and are therefore unenforceable.
Delaware law provides a detailed statutory framework covering
indemnification of our directors, officers, employees or agents against
liabilities and expenses arising out of legal proceedings brought against them
by reason of their status or service as directors, officers, employees or
agents. Section 145 of the Delaware General Corporation Law ("Section 145")
provides that a director, officer, employee or agent of a corporation (i) shall
be indemnified by the corporation for expenses actually and reasonably incurred
in defense of any action or proceeding if such person is sued by reason of his
service to the corporation, to the extent that such person has been successful
in defense of such action or proceeding, or in defense of any claim, issue or
matter raised in such litigation, (ii) may, in actions other than actions by or
in the right of the corporation (such as derivative actions), be indemnified for
expenses actually and reasonably incurred, judgments, fines and amounts paid in
settlement of such litigation, even if he is not successful on the merits, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation (and in a criminal proceeding,
if he did not have reasonable cause to believe his conduct was unlawful), and
(iii) may be indemnified by the corporation for expenses actually and reasonably
incurred (but not judgments or settlements) in any action by the corporation or
of a derivative action (such as a suit by a stockholder alleging a breach by the
director or officer of a duty owed to the corporation), even if he is not
successful, provided that he acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation,
provided that no indemnification is permitted without court approval if the
director has been adjudged liable to the corporation.
Delaware Law also permits a corporation to elect to indemnify its
officers, directors, employees and agents under a broader range of circumstances
than that provided under Section 145. The Certificate contains a provision that
takes full advantage of the permissive Delaware indemnification laws (the
"Indemnification Provision") and provides that we are required to indemnify our
officers, directors, employees and agents to the fullest extent permitted by
law, including those circumstances in which indemnification would otherwise be
discretionary, provided, however, that prior to making such discretionary
indemnification, we must determine that the person acted in good faith and in a
manner he or she believed to be in the best interests of the corporation and, in
the case of any criminal action or proceeding, the person had no reason to
believe his or her conduct was unlawful.
In furtherance of the objectives of the Indemnification Provision, we
have also entered into agreements to indemnify our directors and executive
officers, in addition to the indemnification provided for in our Certificate and
Bylaws (the "Indemnification Agreements"). We believe that the Indemnification
Agreements are necessary to attract and retain qualified directors and executive
officers. Pursuant to the Indemnification Agreements, an indemnitee will be
entitled to indemnification to the extent permitted by Section 145 or other
applicable law. In addition, to the maximum extent permitted by applicable law,
an indemnitee will be entitled to indemnification for any amount or expense
which the indemnitee actually and reasonably incurs as a result of or in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, preparing to be a witness, or otherwise participating in any
threatened, pending or completed claim, suit, arbitration, inquiry or other
proceeding (a "Proceeding") in which the indemnitee is threatened to be made or
is made a party or participant as a result of his or her position with our
company, provided that the indemnitee acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to our best interests and had no
reasonable cause to believe his or her conduct was unlawful. If the Proceeding
is brought by or in the right of our company and applicable law so provides, the
Indemnification Agreement provides that no indemnification against expenses
shall be made in respect of any claim, issue or matter in the Proceeding as to
which the indemnitee shall have been adjudged liable to us.
Insofar as indemnification for liabilities arising under the Securities
Act, may be permitted to our directors, officers or controlling persons pursuant
to the foregoing provisions, we have been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
ITEM 16. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Exhibit
Index commencing at page EX-1 hereof.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total value
of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission 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;
(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.
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 March 19, 2003.
PEREGRINE PHARMACEUTICALS, INC.
By: /s/ Steven W. King
--------------------------------------
Steven King,
President and Chief Executive Officer,
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints, Steven King 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.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Steven W. King President and Chief March 19, 2003
- ---------------------------- Executive Officer
Steven W. King
/s/ Paul J. Lytle Chief Financial Officer and March 19, 2003
- ---------------------------- Corporate Secretary
Paul J. Lytle
/s/ Carlton M. Johnson Director March 19, 2003
- ----------------------------
Carlton M. Johnson
/s/ Edward J. Legere Director March 19, 2003
- ----------------------------
Edward J. Legere
/s/ Eric S. Swartz Director March 19, 2003
- ----------------------------
Eric S. Swartz
/s/ Clive R. Taylor Director March 19, 2003
- ----------------------------
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 Jeffers, Shaff & Falk, LLP*
10.23 Incentive Stock Option, Nonqualified Stock Option and Restricted Stock
Purchase Plan - 1986 (Incorporated by reference to Exhibit 10.23 contained in
Registrant's Registration Statement on Form S-8 (File No. 33-15102))
10.24 Cancer Biologics Incorporated Incentive Stock Option, Nonqualified
Stock Option and Restricted Stock Purchase Plan 1987 (Incorporated by reference
as Exhibit 10.24 as contained in Registrant's Registration Statement on Form S-8
(File No. 33-8664))
10.26 Amendment to 1986 Stock Option Plan dated March 1, 1988 (Incorporated
by reference to Exhibit 10.26 contained in Registrant's Annual Report on Form
10-K for the year ended April 30, 1988)
10.31 Agreement dated February 5, 1996, between Cambridge Antibody
Technology, Ltd. and Registrant (Incorporated by reference to Exhibit 10.1
contained in Registrant's Current Report on Form 8-K dated February 5, 1996, as
filed with the Commission on or about February 8, 1996)
10.32 Distribution Agreement dated February 29, 1996, between Biotechnology
Development, Ltd. and Registrant (Incorporated by reference to Exhibit 10.1
contained in Registrant's Current Report on Form 8-K dated February 29, 1996, as
filed with the Commission on or about March 7, 1996)
10.33 Option Agreement dated February 29, 1996, by and between Biotechnology
Development, Ltd. and Registrant (Incorporated by reference to Exhibit 10.2
contained in Registrant's Current Report on Form 8-K dated February 29, 1996, as
filed with the Commission on or about March 7, 1996)
10.40 1996 Stock Incentive Plan (Incorporated by reference to Exhibit 4.1
contained in Registrant's Registration Statement in form S-8 (File No.
333-17513) as filed with the Commission on December 9, 1996)
10.41 Stock Exchange Agreement dated as of January 15, 1997 among the
stockholders of Peregrine Pharmaceuticals, Inc. and Registrant (Incorporated by
reference to Exhibit 2.1 to Registrant's Quarterly Report on Form 10-Q for the
quarter ended January 31, 1997)
10.42 First Amendment to Stock Exchange Agreement among the Stockholders of
Peregrine Pharmaceuticals, Inc. and Registrant (Incorporated by reference to
Exhibit 2.1 contained in Registrant's Current Report on Form 8-K as filed with
the Commission on or about May 12, 1997)
EX-2
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 Commission on or about December 15,
1998)
10.47 Real Estate Purchase Agreement by and between Techniclone Corporation
and 14282 Franklin Avenue Associates, LLC dated December 24, 1998 (Incorporated
by reference to Exhibit 10.47 to Registrant's Quarterly Report on Form 10-Q for
the quarter ended January 31, 1999)
10.48 Lease and Agreement of Lease between TNCA, LLC, as Landlord, and
Techniclone Corporation, as Tenant, dated as of December 24, 1998 (Incorporated
by reference to Exhibit 10.48 to Registrant's Quarterly Report on Form 10-Q for
the quarter ended January 31, 1999)
10.49 Promissory Note dated as of December 24, 1998 between Techniclone
Corporation (Payee) and TNCA Holding, LLC (Maker) for $1,925,000 (Incorporated
by reference to Exhibit 10.49 to Registrant's Quarterly Report on Form 10-Q for
the quarter ended January 31, 1999)
10.50 Pledge and Security Agreement dated as of December 24, 1998 for
$1,925,000 Promissory Note between Grantors and Techniclone Corporation (Secured
Party) (Incorporated by reference to Exhibit 10.50 to Registrant's Quarterly
Report Form 10-Q for the quarter ended January 31, 1999)
10.51 Final fully-executed copy of the Regulation D Common Stock Equity Line
Subscription Agreement dated as of June 16, 1998 between the Registrant and the
Subscribers named therein (Incorporated by reference to Exhibit 10.51 contained
in the Registrants' Registration Statement on Form S-3/A as filed with the
Commission on April 30, 1999)
10.53 Termination Agreement dated as of March 8, 1999 by and between
Registrant and Biotechnology Development Ltd. (Incorporated by reference to
Exhibit 10.53 to Registrant's Annual Report on Form 10-K for the year ended
April 30, 1999)
10.54 Secured Promissory Note for $3,300,000 dated March 8, 1999 between
Registrant and Biotechnology Development Ltd. (Incorporated by reference to
Exhibit 10.54 to Registrant's Annual Report on Form 10-K for the year ended
April 30, 1999)
10.55 Security Agreement dated March 8, 1999 between Registrant and
Biotechnology Development Ltd. (Incorporated by reference to Exhibit 10.52 to
Registrant's Annual Report on Form 10-K for the year ended April 30, 1999)
10.56 License Agreement dated as of March 8, 1999 by and between Registrant
and Schering A.G., Germany (Incorporated by reference to Exhibit 10.56 to
Registrant's Annual Report on Form 10-K for the year ended April 30, 1999)
10.57 Patent License Agreement dated October 8, 1998 between Registrant and
the Board of Regents of the University of Texas System for patents related to
Targeting the Vasculature of Solid Tumors (Vascular Targeting Agent patents)
(Incorporated by reference to Exhibit 10.57 to Registrant's Quarterly Report on
Form 10-Q for the quarter ended July 31, 1999)
10.58 Patent License Agreement dated October 8, 1998 between Registrant and
the Board of Regents of the University of Texas System for patents related to
the Coagulation of the Tumor Vasculature (Vascular Targeting Agent patents)
(Incorporated by reference to Exhibit 10.58 to Registrant's Quarterly Report on
Form 10-Q for the quarter ended July 31, 1999)
EX-3
10.59 License Agreement between Northwestern University and Registrant dated
August 4, 1999 covering the LYM-1 and LYM-2 antibodies (Oncolym(R))
(Incorporated by reference to Exhibit 10.59 to Registrant's Quarterly Report on
Form 10-Q for the quarter ended July 31, 1999)
10.63 Change in Control Agreement dated September 27, 1999 between Registrant
and Terrence Chew, V.P. of Clinical and Regulatory Affairs (Incorporated by
reference to Exhibit 10.63 to Registrant's Quarterly Report on Form 10-Q for the
quarter ended October 31, 1999)
10.64 Regulation D Subscription Agreement dated January 6, 2000 between
Registrant and Subscribers, Swartz Investments, LLC and Biotechnology
Development, LTD. (Incorporated by reference to Exhibit 10.64 to Registrant's
Quarterly Report on Form 10-Q for the quarter ended January 31, 2000)
10.65 Registration Right Agreement dated January 6, 2000 between Registrant
and Subscribers of the Regulation D Subscription Agreement dated January 6, 2000
(Incorporated by reference to Exhibit 10.65 to Registrant's Quarterly Report on
Form 10-Q for the quarter ended January 31, 2000)
10.66 Form of Warrant to be issued to subscribers pursuant to the Regulation
D Subscription Agreement dated January 6, 2000 (Incorporated by reference to
Exhibit 10.66 to Registrant's Quarterly Report on Form 10-Q for the quarter
ended January 31, 2000)
10.67 Warrant to purchase 750,000 shares of common stock of Registrant issued
to Swartz Private Equity, LLC dated November 19, 1999 (Incorporated by reference
to Exhibit 10.67 to Registrant's Quarterly Report on Form 10-Q for the quarter
ended January 31, 2000)
10.68 Amendment Agreement dated June 14, 2000 to the License Agreement dated
March 8, 1999 by and between Registrant and Schering A.G. (Incorporated by
reference to Exhibit 10.68 to Registrant's Registration Statement on Form S-3
(File No. 333-40716))
10.69 Waiver Agreement by and between Registrant and Biotechnology
Development Ltd. effective December 29, 1999 (Incorporated by reference to
Exhibit 10.69 to Registrant's Registration Statement on Form S-3 (File No.
333-40716))
10.70 Joint Venture Agreement by and between Registrant and OXiGENE, Inc.
dated May 11, 2000 (Incorporated by reference to Exhibit 10.70 to Registrant's
Registration Statement on Form S-3 (File No. 333-40716))
10.71 Third Amendment to Regulation D Common Stock Equity Line Subscription
Agreement dated June 2, 2000 by and among the Registrant, the Tail Wind Fund,
Ltd. and Resonance Limited (Incorporated by reference to Exhibit 10.71 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended July 31, 2000)
10.73 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).
EX-4
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 (Incorporated by reference to Exhibit 10.77 to
Registrant's Registration Statement on Form S-3, as filed with the Commission on
September 4, 2002).
10.78 Form of Convertible Debentures issued to Purchasers pursuant to
Securities Purchase Agreement dated August 9, 2002 (Incorporated by reference to
Exhibit 10.78 to Registrant's Registration Statement on Form S-3, as filed with
the Commission on September 4, 2002).
10.79 Registration Rights Agreement dated August 9, 2002 between Registrant
and Purchasers of Securities Purchase Agreements dated August 9, 2002
(Incorporated by reference to Exhibit 10.78 to Registrant's Registration
Statement on Form S-3, as filed with the Commission on September 4, 2002).
10.80 Form of Warrant to be issued to Purchasers pursuant to Securities
Purchase Agreement dated August 9, 2002 (Incorporated by reference to Exhibit
10.78 to Registrant's Registration Statement on Form S-3, as filed with the
Commission on September 4, 2002).
10.81 Form of Warrant issued to Debenture holders pursuant to Securities
Purchase Agreement dated August 9, 2002 (Incorporated by reference to Exhibit
10.78 to Registrant's Registration Statement on Form S-3, as filed with the
Commission on September 4, 2002).
10.82 Form of Adjustment Warrant issued to Investors pursuant to Securities
Purchase Agreement dated August 9, 2002 (Incorporated by reference to Exhibit
10.78 to Registrant's Registration Statement on Form S-3, as filed with the
Commission on September 4, 2002).
10.83 Securities Purchase Agreement dated as of August 9, 2002 between
Registrant and ZLP Master Fund, Ltd(Incorporated by reference to Exhibit 10.78
to Registrant's Registration Statement on Form S-3, as filed with the Commission
on September 4, 2002).
10.84 Registration Rights Agreement dated August 9, 2002 between Registrant
and ZLP Master Fund, Ltd.(Incorporated by reference to Exhibit 10.78 to
Registrant's Registration Statement on Form S-3, as filed with the Commission on
September 4, 2002).
10.85 Form of Warrant to be issued to ZLP Master Fund, Ltd. pursuant to
Securities Purchase Agreement dated August 9, 2002 (Incorporated by reference to
Exhibit 10.78 to Registrant's Registration Statement on Form S-3, as filed with
the Commission on September 4, 2002).
10.86 Form of Adjustment Warrant issued to ZLP Master Fund, Ltd. pursuant to
Securities Purchase Agreement dated August 9, 2002 (Incorporated by reference to
Exhibit 10.78 to Registrant's Registration Statement on Form S-3, as filed with
the Commission on September 4, 2002).
23.1 Consent of Falk, Shaff & Ziebell, LLP (contained in Exhibit 5.1)*
23.2 Consent of Independent Auditors*
24.1 Power of Attorney (included on the Signature Page).
- --------------
* Filed herewith.
EX-5