AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 28, 1997
REGISTRATION NO. 333-34379
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ATLANTIC PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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DELAWARE 36-3898269
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1017 MAIN CAMPUS DRIVE, SUITE 3900
RALEIGH, NORTH CAROLINA 27606
(919) 513-7020
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices
JON D. LINDJORD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ATLANTIC PHARMACEUTICALS, INC.
1017 MAIN CAMPUS DRIVE, SUITE 3900
RALEIGH, NORTH CAROLINA 27606
(919) 513-7020
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
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COPIES TO:
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J. STEPHAN DOLEZALEK, ESQ.
BROBECK, PHLEGER & HARRISON LLP
TWO EMBARCADERO PLACE
2200 GENG ROAD
PALO ALTO, CALIFORNIA 94303
(415) 424-0160
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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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, as amended, check the following box: /x/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
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: / /
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed Maximum
Title of Shares Amount to be Aggregate Price Aggregate Offering Amount of
to be Registered(1) Registered Per Share(1) Price(1) Registration Fee(2)
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Common Stock, $0.001 par value per share ("Common Stock") 250,000 $7.00 $1,750,000 $531.00
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FOOTNOTES ON FOLLOWING PAGE
(1) Estimated solely for the purpose of calculating the registration fee. Fee
calculated upon the basis of the average of the high and low sales prices
of the Company's Common Stock as reported on the Nasdaq SmallCap Market on
August 22, 1997 of $7.00, which date is within five business days prior to
the date of the filing of this Registration Statement.
(2) Calculated pursuant to Rule 457(c) of the Securities Act based on an
estimate of the maximum offering price.
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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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PART I
INFORMATION REQUIRED IN PROSPECTUS
The information required in this Part I is contained in Part I of the
Company's Registration Statement on Form S-3 (Registration No. 333-34379), as
filed with the Securities and Exchange Commission on August 26, 1997, which
is incorporated herein by reference.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
All expenses incurred in connection with the issuance and distribution of
the securities being registered will be paid by the Registrant. The following
is an itemized statement of these expenses. All amounts are estimates except the
Securities and Exchange Commission registration fee and the Nasdaq listing fee.
SEC registration fee . . . . . . . . . . . . . . . . . $ 531
Nasdaq listing fee . . . . . . . . . . . . . . . . . . 5,000
Printing and Engraving . . . . . . . . . . . . . . . . 10,000
Legal fees and expenses of the Registrant. . . . . . . 30,000
Accounting fees and expenses . . . . . . . . . . . . . 5,000
Miscellaneous. . . . . . . . . . . . . . . . . . . . . 4,469
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Total. . . . . . . . . . . . . . . . . . . $ 55,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("Section 145")
authorizes a court to award or a corporation's Board of Directors to grant
indemnification to directors and officers in terms sufficiently broad to permit
such indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act. Article
Tenth of the Registrant's Certificate of Incorporation provides for mandatory
indemnification by the Registrant of all persons the Registrant may indemnify
under Section 145 to the maximum extent permitted by the Delaware General
Corporation Law. Article Ninth of the Registrant's Certificate of Incorporation
provides that the liability of its directors is eliminated to the fullest extent
permitted by the Delaware General Corporation Law. These provisions in the
Certificate of Incorporation do 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 the Registrant 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. Reference is made to Articles Ninth and
Tenth of the Registrant's Certificate of Incorporation and Article VII of the
Registrant's Bylaws, indemnifying the Registrant's directors and officers
against certain liabilities, and Section 1.10 of the Investors' Rights Agreement
dated July 1995, among the Registrant, Dr. Lindsay A. Rosenwald and VentureTek,
L.P., indemnifying certain of the Registrant's stockholders against certain
liabilities. The Registrant has obtained liability insurance for its directors
and officers. At the Registrant's 1997 Annual Meeting of Stockholders, the
stockholders of the Registrant approved a form of indemnification agreement to
be entered into by and between the Registrant and its directors and officers,
which agreements grant indemnification under certain circumstances to such
officers and directors for liabilities (including reimbursement for expenses
incurred) arising out of their duties as officers and directors of the
Registrant.
In addition, the Registrant has entered into financial advisory and other
agreements with Paramount Capital, Inc. ("Paramount"), a merchant banking and
venture capital firm specializing in biotechnology companies that is wholly
owned by a greater than five percent stockholder of the Registrant, pursuant to
which the Registrant will indemnify Paramount and its affiliates against
liabilities (including reimbursement for expenses incurred) arising out of its
provision of services to the Registrant.
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ITEM 16. EXHIBITS
Exhibit No. Description
3.1 (1) Certificate of Incorporation of the Registrant,
as amended to date.
3.2 (1) Bylaws of the Registrant, as amended to date.
3.3 (5) Certificate of Designations of Series A
Convertible Preferred Stock.
3.4* Certificate of Increase of Series A Convertible
Preferred Stock.
4.2 (1) Form of Unit certificate.
4.3 (1) Specimen Common Stock certificate.
4.4 (1) Form of Redeemable Warrant certificate.
4.5 (1) Form of Redeemable Warrant Agreement, by and
between the Registrant and Continental Stock
Transfer & Trust Company.
4.6 (1) Form of Underwriter's Warrant certificate.
4.7 (1) Form of Underwriter's Warrant Agreement by and
between the Registrant and Joseph Stevens &
Company, L.P
4.8 (1) Form of Subscription Agreement, by and between
the Registrant and the Selling Securityholders.
4.9 (1) Form of Bridge Note.
4.10 (1) Form of Bridge Warrant.
4.11 (2) Investors' Rights Agreement by and among the
Registrant, Dreyfus Growth and Value Funds,
Inc. and Premier Strategic Growth Fund.
4.12 (2) Common Stock Purchase Agreement by and among
the Registrant, Dreyfus Growth and Value Funds,
Inc. and Premier Strategic Growth Fund
5.1* Opinion of Brobeck, Phleger & Harrison LLP.
10.1 (1) The Registrant's 1995 Stock Option Plan.
10.2 (1) Employment Agreement, dated July 7, 1995,
between the Registrant and Jon D. Lindjord.
10.3 (1) Employment Agreement, dated September 21, 1995,
between the Registrant and Dr. Stephen R.
Miller.
10.4 (1) Employment Agreement, dated September 21, 1995,
between the Registrant and Margaret A. Schalk.
10.5 (1) Letter Agreement, dated August 31, 1995,
between the Registrant and Dr. H. Lawrence
Shaw.
10.6 (1) Consulting Agreement, dated January 1, 1994,
between the Registrant and John K.A.
Prendergast.
10.7 (1) (Reserved)
10.8 (1) Investors' Rights Agreement, dated July, 1995,
between the Registrant, Dr. Lindsay A.
Rosenwald and VentureTek, L.P.
10.9 (1) License and Assignment Agreement, dated March
25, 1994, between Optex Ophthalmologics, Inc.,
certain inventors and NeoMedix Corporation, as
amended.
10.10 (1) License Agreement, dated May 5, 1994, between
Gemini Gene Therapies, Inc. and The Cleveland
Clinic Foundation.
10.11 (1) + License Agreement, dated June 16, 1994, between
Channel Therapeutics, Inc., the University of
Pennsylvania and certain inventors, as amended.
10.12 (1) + License Agreement, dated March 28, 1994,
between Channel Therapeutics, Inc. and Dr.
Sumner Burstein.
10.13 (1) Form of Financial Advisory and Consulting
Agreement by and between the Registrant and
Joseph Stevens & Company, L.P.
10.14 (1) Employment Agreement, dated November 3, 1995,
between the Registrant and Shimshon Mizrachi.
II-2
10.15 (3) Financial agreement between the Registrant and
Paramount dated September 4, 1996 (effective
date of April 15, 1996).
10.16 (3) Financial agreement between the Registrant,
Paramount and UI USA dated June 23, 1996.
10.17 (3) Consultancy agreement between the Registrant
and Dr. Yuichi Iwaki dated July 31, 1996.
10.18 (3) 1995 Stock Option Plan, as amended.
10.19 (3) Warrant to purchase 25,000 shares of Common
Stock issued to Paramount Capital, Inc.
10.20 (3) Warrant to purchase 25,000 shares of Common
Stock issued to Paramount Capital, Inc.
10.21 (3) Warrant to purchase 12,500 shares of Common
Stock issued to Paramount Capital, Inc.
10.22 (4) Letter of Agreement between the Registrant and
Paramount Capital, Inc. dated February 26,
1997.
10.23 (4) Agreement and Plan of Reorganization by and
among Atlantic Pharmaceuticals, Inc., Channel
Therapeutics, Inc. and New Channel, Inc. dated
February 20, 1997.
10.24 (4) Warrant issued to John Prendergast to purchase
37,500 shares of the Registrant's Common Stock.
10.25 (4) Warrant issued to Ms. Dian Griesel to purchase
24,000 shares of the Registrant's Common Stock.
21.1 (1) Subsidiaries of the Registrant.
23.1 Consent of KPMG Peat Marwick LLP.
23.2* Consent of Brobeck, Phleger & Harrison LLP
(included in the opinion filed as Exhibit 5.1).
24.1* Power of Attorney (included in Part II of this
Registration Statement under the caption
"Signatures").
27.1* Financial Data Schedule.
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* Previously filed.
(1) Incorporated by reference to exhibits of the Registrant's Registration
Statement on Form SB-2, No. 33-98478, as filed with the Securities and
Exchange Commission (the "Commission") on October 24, 1995, and as amended
by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4 and
Amendment No. 5, as filed with the Commission on November 9, 1995,
December 5, 1995, December 12, 1995, December 13, 1995 and December 14,
1995, respectively.
(2) Incorporated by reference to exhibits of the Registrant's Current Report on
Form 8-KSB, as filed with the Commission on August 30, 1996.
(3) Incorporated by reference to exhibits of the Registrant's Quarterly Report
on Form 10-QSB for the period ended September 30, 1996.
(4) Incorporated by reference to exhibits of the Registrant's Quarterly Report
on Form 10-QSB for the period ended March 31, 1997.
(5) Incorporated by reference to exhibits of the Registrant's Report on Form
8-KSB, as filed with the Commission on June 9, 1997.
+ Confidential treatment has been granted with respect to certain portions of
this Exhibit.
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ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes that it will:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information in the
Registration Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value
of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective Registration Statement;
and
(iii) Include any additional or changed material information on
the plan of distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of such securities at that time to be the initial
BONA FIDE offering.
(3) File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
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 Delaware General Corporation Law, the Certificate of
Incorporation or the Bylaws of the Registrant, 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 hereunder, 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 of whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The Registrant hereby undertakes that:
(1) For determining any liability under the Securities Act, treat the
information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time the Commission declared it effective.
(2) For determining any liability under the Securities Act, treat
each post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of the securities at that time as the initial
BONA FIDE offering of those securities.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and authorized this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Raleigh, State of North Carolina, on this 27th day of
August, 1997.
ATLANTIC PHARMACEUTICALS, INC.
By: /s/ Jon D. Lindjord
---------------------------------
Jon D. Lindjord
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the persons whose signatures
appear below, which persons have signed such Registration Statement in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Jon D. Lindjord President and Chief Executive August 27, 1997
- ---------------------------------- Officer (Principal Executive
Jon D. Lindjord Officer) and a Director
* Controller (Principal Financial August 27, 1997
- ---------------------------------- and Accounting Officer)
Shimshon Mizrachi
* Director August 27, 1997
- ----------------------------------
John K.A. Prendergast, Ph.D.
Director August , 1997
- ----------------------------------
Steve H. Kanzer
* Director August 27, 1997
- ----------------------------------
Yuichi Iwaki, M.D.
By: /s/ Jon D. Lindjord
-------------------------------
Jon D. Lindjord
(Attorney-in-Fact)
II-5
EXHIBIT INDEX
Exhibit No. Description Page Number
3.1 (1) Certificate of Incorporation of the Registrant,
as amended to date.
3.2 (1) Bylaws of the Registrant, as amended to date.
3.3 (5) Certificate of Designations of Series A
Convertible Preferred Stock.
3.4* Certificate of Increase of Series A Convertible
Preferred Stock.
4.2 (1) Form of Unit certificate.
4.3 (1) Specimen Common Stock certificate.
4.4 (1) Form of Redeemable Warrant certificate.
4.5 (1) Form of Redeemable Warrant Agreement, by and
between the Registrant and Continental Stock
Transfer & Trust Company.
4.6 (1) Form of Underwriter's Warrant certificate.
4.7 (1) Form of Underwriter's Warrant Agreement by
and between the Registrant and Joseph Stevens &
Company, L.P
4.8 (1) Form of Subscription Agreement, by and between
the Registrant and the Selling Securityholders.
4.9 (1) Form of Bridge Note.
4.10 (1) Form of Bridge Warrant.
4.11 (2) Investors' Rights Agreement by and among the
Registrant, Dreyfus Growth and Value Funds, Inc.
and Premier Strategic Growth Fund.
4.12 (2) Common Stock Purchase Agreement by and among the
Registrant, Dreyfus Growth and Value Funds, Inc.
and Premier Strategic Growth Fund
5.1* Opinion of Brobeck, Phleger & Harrison LLP.
10.1 (1) The Registrant's 1995 Stock Option Plan.
10.2 (1) Employment Agreement, dated July 7, 1995, between
the Registrant and Jon D. Lindjord.
10.3 (1) Employment Agreement, dated September 21, 1995,
between the Registrant and Dr. Stephen R. Miller.
10.4 (1) Employment Agreement, dated September 21, 1995,
between the Registrant and Margaret A. Schalk.
10.5 (1) Letter Agreement, dated August 31, 1995, between
the Registrant and Dr. H. Lawrence Shaw.
10.6 (1) Consulting Agreement, dated January 1, 1994,
between the Registrant and John K.A. Prendergast.
10.7 (1) (Reserved)
10.8 (1) Investors' Rights Agreement, dated July, 1995,
between the Registrant, Dr. Lindsay A. Rosenwald
and VentureTek, L.P.
10.9 (1) License and Assignment Agreement, dated
March 25, 1994, between Optex Ophthalmologics,
Inc., certain inventors and NeoMedix Corporation,
as amended.
10.10 (1) License Agreement, dated May 5, 1994, between
Gemini Gene Therapies, Inc. and The Cleveland
Clinic Foundation.
10.11 (1) + License Agreement, dated June 16, 1994,
between Channel Therapeutics, Inc., the University
of Pennsylvania and certain inventors, as amended.
10.12 (1) + License Agreement, dated March 28, 1994, between
Channel Therapeutics, Inc. and Dr. Sumner Burstein.
10.13 (1) Form of Financial Advisory and Consulting Agreement
by and between the Registrant and Joseph Stevens &
Company, L.P.
10.14 (1) Employment Agreement, dated November 3, 1995,
between the Registrant and Shimshon Mizrachi.
10.15 (3) Financial agreement between the Registrant
and Paramount dated September 4, 1996 (effective
date of April 15, 1996).
10.16 (3) Financial agreement between the Registrant, Paramount
and UI USA dated June 23, 1996.
II-6
10.17 (3) Consultancy agreement between the Registrant and
Dr. Yuichi Iwaki dated July 31, 1996.
10.18 (3) 1995 Stock Option Plan, as amended.
10.19 (3) Warrant to purchase 25,000 shares of Common Stock
issued to Paramount Capital, Inc.
10.20 (3) Warrant to purchase 25,000 shares of Common Stock
issued to Paramount Capital, Inc.
10.21 (3) Warrant to purchase 12,500 shares of Common Stock
issued to Paramount Capital, Inc.
10.22 (4) Letter of Agreement between the Registrant and
Paramount Capital, Inc. dated February 26, 1997.
10.23 (4) Agreement and Plan of Reorganization by and among
Atlantic Pharmaceuticals, Inc., Channel Therapeutics,
Inc. and New Channel, Inc. dated February 20, 1997.
10.24 (4) Warrant issued to John Prendergast to purchase 37,500
shares of the Registrant's Common Stock.
10.25 (4) Warrant issued to Ms. Dian Griesel to purchase
24,000 shares of the Registrant's Common Stock.
21.1 (1) Subsidiaries of the Registrant.
23.1 Consent of KPMG Peat Marwick LLP.
23.2* Consent of Brobeck, Phleger & Harrison LLP (included
in the opinion filed as Exhibit 5.1).
24.1* Power of Attorney (included in Part II of this
Registration Statement under the caption
"Signatures").
27.1* Financial Data Schedule.
- --------------------
* Previously filed.
(1) Incorporated by reference to exhibits of the Registrant's Registration
Statement on Form SB-2, No. 33-98478, as filed with the Securities and
Exchange Commission (the "Commission") on October 24, 1995, and as amended
by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4 and
Amendment No. 5, as filed with the Commission on November 9, 1995,
December 5, 1995, December 12, 1995, December 13, 1995 and December 14,
1995, respectively.
(2) Incorporated by reference to exhibits of the Registrant's Current Report on
Form 8-KSB, as filed with the Commission on August 30, 1996.
(3) Incorporated by reference to exhibits of the Registrant's Quarterly Report
on Form 10-QSB for the period ended September 30, 1996.
(4) Incorporated by reference to exhibits of the Registrant's Quarterly Report
on Form 10-QSB for the period ended March 31, 1997.
(5) Incorporated by reference to exhibits of the Registrant's Report on Form
8-KSB, as filed with the Commission on June 9, 1997.
+ Confidential treatment has been granted with respect to certain portions of
this Exhibit.
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EXHIBIT 23.1
We consent to the use of our reports incorporated herein by
reference and to the reference to our firm under the heading "Experts" in the
prospectus.
Our report dated March 11, 1997, contains an explanatory paragraph
that states that the Company has suffered recurring losses from operations
and has limited capital resources, which raise substantial doubt about its
ability to continue as a going concern. The consolidated financial statements
do not include any adjustments that might result from the outcome of that
uncertainty.
/s/ KPMG PEAT MARWICK, LLP
Raleigh, North Carolina
August 27, 1997
