REGISTRATION NO. 333-45571
As filed with the Securities and Exchange Commission on August 11, 1998
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
PATHOGENESIS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 91-1542150
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
201 ELLIOTT AVENUE WEST
SEATTLE, WASHINGTON 98119
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
PATHOGENESIS CORPORATION 1997 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
CAMERON S. AVERY COPIES TO:
GENERAL COUNSEL WOON-WAH SIU
PATHOGENESIS CORPORATION BELL, BOYD & LLOYD
5215 OLD ORCHARD ROAD, SUITE 900 THREE FIRST NATIONAL PLAZA
SKOKIE, ILLINOIS 60077 CHICAGO, ILLINOIS 60602
(847) 583-8050 (312) 372-1121
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENTS FOR SERVICE)
--------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE
===================================== ================ ============== ============== ============
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share 1,035,495 Shares $30.07(2) $31,137,335(2) $ 9,436(2)
===================================== ================ ============== ============== ==========
Common Stock, par value
$.001 per share 964,505 Shares $36.31(3) $35,023,588(3) $10,614(3)
===================================== ================ ============== ============== ==========
<FN>
(1) Includes 200,000 Preferred Stock Purchase Rights evidenced by certificates
of shares of Common Stock that automatically trade with such Common Stock
("Rights"). The registration statement also includes an indeterminate
number of additional shares that may become issuable under the
antidilution and other adjustment provisions of the PathoGenesis
Corporation 1997 Stock Option Plan (the "1997 Plan") pursuant to
Rule 416(a) of the Securities Act of 1933, as amended, and a
corresonding number of Rights.
(2) Based on the weighted average exercise price of currently outstanding
options under the 1997 Plan. The filing fee was paid at the time of the
initial filing of this Registration Statement.
(3) In accordance with Rule 457(h), calculated on the basis of the high and
low sale prices of the Registrant's Common Stock as quoted in the
consolidated reporting system of the Nasdaq National Market on January 28,
1998, as reported by The Wall Street Journal (Midwest Edition). The filing
fee was paid at the time of the initial filing of this Registration
Statement.
===============================================================================
</FN>
</TABLE>
<PAGE>
EXPLANATORY NOTE
PathoGenesis Corporation has filed this Registration Statement to
register an aggregate of 2,000,000 shares (the "Shares") of its Common Stock
issuable under the PathoGenesis Corporation 1997 Stock Option Plan (the "1997
Plan"). This Registration Statement, as amended by this Post Effective Amendment
No. 1, covers the original issuance of the Shares as well as the reoffer and
resale of the Shares acquired by certain corporate officers or directors of
PathoGenesis Corporation (the "Selling Shareholders") upon exercise of options
granted under the 1997 Plan.
A prospectus meeting the requirements of Part I of Form S-3 which
covers the reoffer and resale by the Selling Stockholders of the Shares acquired
or to be acquired by them under the 1997 Plan is contained in this Registration
Statement.
We may refer to PathoGenesis Corporation in the first person or as
"PathoGenesis" or the "Company."
<PAGE>
PROSPECTUS
2,000,000 SHARES
PATHOGENESIS CORPORATION
COMMON STOCK
--------------
This Prospectus relates to the reoffer and resale by certain employees,
officers and directors of PathoGenesis Corporation (the "Selling Shareholders")
of up to 2,000,000 shares (the "Shares") of the Company's Common Stock, $0.001
par value per share, which have been or will be acquired by the Selling
Shareholders upon exercise of options granted under the PathoGenesis Corporation
1997 Stock Option Plan (the "1997 Plan").
The Selling Shareholders may offer and sell the Shares from time to
time in transactions on the Nasdaq National Market or in negotiated transactions
or otherwise at the prices prevailing at the time of sale. We will not receive
any proceeds from such sales but will receive the exercise price paid by the
Selling Shareholders upon exercise of their options. We will pay all expenses of
preparing and reproducing this Prospectus.
SEE "RISK FACTORS" COMMENCING ON PAGE 4 FOR A DISCUSSION OF CERTAIN
FACTORS THAT YOU SHOULD CONSIDER BEFORE PURCHASING THE SHARES.
The Common Stock is traded on the Nasdaq National Market under the
symbol "PGNS." On August 10, 1998, the closing price of the Common Stock, as
reported in The Wall Street Journal (Midwest Edition), was $27.50 per share.
----------------------
THE COMPANY HAS NOT AUTHORIZED ANYONE TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS. IF SUCH INFORMATION OR
REPRESENTATION IS GIVEN OR MADE, IT MUST NOT BE RELIED ON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. THIS PROSPECTUS IS NOT AN OFFER TO SELL OR
SOLICITATION OF AN OFFER TO BUY IN ANY STATE WHERE THE OFFER IS NOT PERMITTED.
THE DELIVERY OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION
CONTAINED IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF THE PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED 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 August 11, 1998.
<PAGE>
TABLE OF CONTENTS
PAGE
Available Information ........................................................2
Important Information on Forward-looking Statements...........................2
Documents Incorporated by Reference.......................................... 3
The Company...................................................................3
Risk Factors................................................................. 4
Use of Proceeds.............................................................. 6
Selling Shareholders......................................................... 7
Plan of Distribution..........................................................7
Experts.......................................................................7
AVAILABLE INFORMATION
We file periodic and current reports, proxy and information statements
and other information with the Securities and Exchange Commission as required by
the Securities Exchange Act of 1934. You may read and copy the reports or other
information we file at the public reference facilities of the SEC at Washington,
D.C., or its regional offices in Chicago, Illinois, and New York, New York. You
can request copies of these documents, upon payment of photocopying fees, by
writing to the SEC. For further information on the operation of the public
reference rooms, please call the SEC at 1-800-SEC-0330. Our filings are also
available to the public on the SEC's World Wide Web site at http://www.sec.gov
and can be inspected at the offices of the National Association of Securities
Dealers, Inc., 1735 K Street N.W., Washington, D.C.
We filed with the SEC a Registration Statement on Form S-8 under the
Securities Act of 1933 for the offering and sale of Shares of Common Stock
covered by this Prospectus. As permitted by SEC rules, this Prospectus omits
certain information contained or incorporated by reference in the Registration
Statement. For further information concerning the Company and the Common Stock,
please refer to the Registration Statement, including its exhibits. You can
inspect the Registration Statement and its exhibits at the offices of the SEC or
obtain copies as described in the above paragraph.
IMPORTANT INFORMATION ON
FORWARD LOOKING STATEMENTS
This Prospectus and the documents incorporated by reference contain
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. They include statements regarding the development
of the Company's business, the markets for the Company's drug candidates, the
Company's anticipated drug candidate development, and other statements that are
not statements of historical fact. These forward-looking statements are subject
to known and unknown risks, uncertainties or other factors which may cause the
actual results of the Company to be materially different from the historical
results or from any results expressed or implied by the forward-looking
statements. Factors that could cause actual results to differ materially
include, but are not limited to, those discussed under "Risk Factors." In
addition to statements that explicitly describe such risks and uncertainties,
the terms "believes," "belief," "expects," "plans," "anticipates," "intends" and
similar expressions identify forward-looking statements. All cautionary
statements made in this Prospectus should be read as being applicable to all
related forward-looking statements wherever they appear.
DOCUMENTS INCORPORATED BY REFERENCE
We are incorporating by reference in this Prospectus certain documents
we previously filed with the SEC. Incorporation by reference means that we are
making the documents listed below a part of this Prospectus by
2
<PAGE>
referring to them and declaring that you should consider them to be part of this
Prospectus as if they were fully copied in this Prospectus:
(a) Our annual report on Form 10-K for the year ended
December 31, 1997 (File No. 0-27150).
(b) Our quarterly report on Form 10-Q for the three months
ended March 31, 1998, as amended by Amendment No. 1 on Form 10-Q/A
(File No. 0-27150).
(c) The description of the Common Stock under the caption
"Description of Capital Stock -- Common Stock" in our prospectus that
forms a part of the registration statement on Form S-1 (Reg. No.
333-22297), filed on February 25, 1997.
(d) The description of the Company's Preferred Stock Purchase
Rights in our registration statement on Form 8-A filed on July 10,
1997, for the registration of said Rights under Section 12(g) of the
Exchange Act (File No. 0-27150).
We also incorporate by reference all documents we subsequently file
under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act before termination
of the offering of the Shares covered by this Prospectus from the date of their
filing. For purposes of this Prospectus, you should consider any statement
contained in a document incorporated by reference in this Prospectus to be
modified or superseded to the extent that a statement contained in this
Prospectus or in any other subsequently filed document which also is
incorporated by reference in this Prospectus modifies or replaces such
statement. You should not consider any statement so modified or superseded,
except as so modified or superseded, to be a part of this Prospectus.
We will provide you, without charge, a copy of any of the documents
incorporated by reference in this Prospectus (other than exhibits unless the
exhibits are specifically incorporated by reference into those documents).
Please submit requests in writing or by telephone to Investor Relations,
PathoGenesis Corporation, 201 Elliott Avenue West, Seattle, Washington 98119,
telephone (206) 467-8100.
THE COMPANY
The following summary is qualified in its entirety by reference to the
more detailed information and the financial statements and the related notes
appearing elsewhere in this Prospectus or incorporated by reference in this
Prospectus.
PathoGenesis Corporation develops novel drugs to treat serious, chronic
human infectious diseases where there is a significant need for improved
therapy. In December 1997, the United States Food and Drug Administration (the
"FDA") approved our first drug, TOBI(TM) (tobramycin solution for inhalation).
TOBI is a stable, premixed, proprietary formulation of the antibiotic tobramycin
for delivery by inhalation using a nebulizer. The drug is indicated for the
management of cystic fibrosis patients with Pseudomonas aeruginosa. We began
marketing TOBI in the U.S. in January 1998. In March 1998, we filed for approval
to market TOBI to cystic fibrosis patients in Canada. We expect to apply for
regulatory approval in the United Kingdom in the fourth quarter of 1998.
Currently, we are investigating TOBI in patients with bronchiectasis (a
form of severe chronic bronchitis) and tuberculosis and are developing a second
drug candidate, PA-1648, an oral drug candidate that may be a potential
replacement for the antibiotic rifampin in tuberculosis treatment. We hope to
report the results of all three trials by year-end. In addition, we are
developing other inhaled and oral drug candidates for lung infections.
Our principal executive offices are located at 201 Elliott Avenue West,
Seattle, Washington 98119; our telephone number is (206) 467-8100, and our
Internet address is www.pathogenesis.com.
3
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RISK FACTORS
An investment in the Common Stock is highly speculative and involves a
high degree of risk. Before deciding whether to invest in the Common Stock, you
should carefully consider the following factors and the other information
contained or incorporated by reference in this Prospectus.
UNCERTAINTY OF FUTURE PROFITABILITY. The Company commenced the
commercial sale of its first drug product, TOBI, in January 1998. Before then,
the Company had no sources of operating revenues from any of its drug candidates
and limited sources of revenue from grants and royalties. At March 31, 1998, the
Company had an accumulated deficit of $99.8 million. The Company's ability to
achieve profitability will depend on its ability to successfully commercialize
TOBI. There can be no assurance that the Company will achieve long-term
profitability from its operations, although it did earn a modest profit in the
first quarter of 1998.
DEPENDENCE ON TOBI. The Company's drug candidates other than TOBI are
not expected to be commercially available for at least several years, if at all.
The Company must depend on successfully marketing its only product, TOBI, in
order to generate revenues to fund development of additional drug candidates.
However, TOBI for cystic fibrosis may not achieve market acceptance. Certain
drug companies are developing alternative therapies for treatment of cystic
fibrosis, which efforts, if successful, may adversely affect the market for
TOBI. In addition, the Company may not be successful in developing other drug
candidates as commercial products.
Because TOBI has been designated by the FDA as an "orphan drug" under
the Orphan Drug Act, the Company has seven years of marketing exclusivity for
TOBI in the U.S. from the time of TOBI's approval in December 1997. However,
tobramycin also has been approved by the FDA for intravenous and intrathecal
(injection into spinal fluid) use. These generic formulations of tobramycin can
be modified by pharmacists, physicians or patients for inhalation use. Although
that practice is not approved by the FDA, it may continue and may have a
material adverse effect on reimbursement levels, sales and market acceptance of
TOBI. Furthermore, the Company could incur substantial costs in asserting any
rights to prevent such uses under the Orphan Drug Act.
See also "--Uncertain Ability to Protect Patents and Proprietary
Technology," "--Technological Change" and "--Competition" below.
UNCERTAINTY OF THIRD PARTY REIMBURSEMENT AND PRODUCT PRICING. How
successfully the Company can commercialize its products may depend, in part, on
the extent to which reimbursement for the cost of such products will be
available from third party payors, such as private health insurers, Medicare or
Medicaid in the U.S. Adequate reimbursement in the U.S. or foreign countries may
not be available for any products the Company has developed or will develop. If
adequate coverage and reimbursement levels are not provided by government and
third-party payors for use of the Company's products, the market acceptance of
those products would be adversely affected.
LIMITED SALES AND MARKETING CAPABILITIES. The Company only recently
established a sales force. The sales, marketing and distribution capabilities
may not be sufficient or successful.
LIMITED MANUFACTURING CAPABILITY; DEPENDENCE ON SUPPLIERS. The Company
relies on others to supply raw materials and manufacture TOBI according to the
FDA's requirements. There can be no assurance that the Company will be able to
obtain future supplies of bulk tobramycin on favorable terms, that contract
manufacturers will be able to provide the Company with sufficient quantities of
TOBI, or that the products supplied will meet the Company's and the FDA's
specifications. The Company obtains bulk powdered PA-1648 from Kaneka
Corporation, currently the only known manufacturer of the bulk powdered drug.
The Company has no alternative supply source, although it believes that it has
sufficient quantities of PA-1648 to complete Phase II testing.
4
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UNCERTAIN ABILITY TO PROTECT PATENTS AND PROPRIETARY TECHNOLOGY. The
Company's ability to compete effectively depends on its ability to protect its
proprietary technology in the U.S. and abroad. The Company intends to file
applications as appropriate for patents covering formulation, composition of
matter, or uses of its drug candidates, its proprietary processes and any
significant gene sequences that it discovers. However, the Company may not
obtain any patents for which it applies. Even if obtained, these patents may be
challenged, invalidated or circumvented, or may not provide any competitive
advantage. The Company also relies on trade secrets, know-how and continuing
technological advancement to maintain its competitive position. The Company has
entered into confidentiality and invention agreements with its employees and
consultants, but there can be no assurance that each of those agreements will be
honored. Moreover, the Company may not be able to effectively protect its
patents or its rights to unpatented trade secrets, or others may independently
develop substantially equivalent proprietary information.
GOVERNMENT REGULATION. The Company's research, clinical trials, drug
production and marketing are subject to regulation by numerous governmental
agencies in the U.S. and other countries. The effect of government regulation,
or a change in the regulations, may be to increase product development costs,
delay marketing of the Company's proposed products, or furnish a competitive
advantage to the Company's competitors. Regulatory authorities may not approve
any product candidates developed by the Company on a timely basis or at all. In
addition, noncompliance with regulatory requirements could result in fines,
injunctions, seizures of products, total or partial suspension of product
marketing, withdrawal of marketing approvals, or criminal prosecution, among
other outcomes. Compliance with regulations may be burdensome.
UNCERTAINTY OF DRUG DEVELOPMENT AND CLINICAL TRIALS. Results of initial
studies of drug candidates are not necessarily indicative of results that will
be obtained from subsequent or more extensive preclinical and clinical testing
or long-term efficacy studies. Adverse or inconclusive clinical trial results
could significantly delay regulatory filings or result in a filing for a
narrower indication. There can be no assurance that the Company's research and
development, preclinical testing, clinical trials, or long-term safety and
efficacy studies will be successfully completed. The Company may not obtain
regulatory approvals or may obtain approvals that are not as broad as sought.
Even if the Company succeeds in obtaining the desired regulatory approval for a
drug candidate, it may not be able to produce the drug candidates in commercial
quantities at reasonable costs. Furthermore, products may not achieve market
acceptance.
TECHNOLOGICAL CHANGE. The pharmaceutical business is characterized by
extensive research efforts and rapid technological progress. New developments in
molecular biology, medicinal pharmacology, recombinant DNA technology and other
fields of biology and pharmaceutical chemistry are expected to continue at a
rapid pace in industry and academia. Research and discoveries by others may
render some or all of the Company's programs or drug candidates noncompetitive
or obsolete.
COMPETITION. Many companies, including well-known pharmaceutical
companies, chemical companies and specialized genetic engineering companies, are
engaged in developing pharmaceuticals for human therapeutic applications. Many
of these companies have substantially greater financial, research and
development, manufacturing, marketing and human resources than the Company and
represent significant competition. Such companies may succeed in developing
products that are more effective or less costly than any that may be developed
by the Company and may also be more successful than the Company in manufacturing
and marketing.
PRODUCT LIABILITY. The Company's business exposes it to potential
product liability risks which are inherent in the testing, manufacturing and
marketing of human therapeutic products. The Company maintains insurance against
product liability and defense costs in the amount of $25 million per occurrence
and $25 million in the aggregate. There can be no assurance that product
liability claims will not occur, that the Company will be able to obtain or
maintain product liability insurance on acceptable terms, or that such insurance
will provide adequate coverage against any potential claims.
5
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USE OF HAZARDOUS MATERIALS. The Company's research and development
involve the controlled use of hazardous, infectious and radioactive materials.
The Company is subject to stringent federal, state and local laws, rules,
regulations and policies governing the use, generation, manufacture, storage,
air emission, effluent discharge, handling and disposal of certain materials and
wastes. The Company may incur significant costs to comply with environmental
laws, rules, regulations and policies. The business, financial position or
results of operations of the Company may be materially and adversely affected by
current or future environmental laws, rules, regulations and policies or by any
releases or discharges of materials which could be hazardous. The Company does
not maintain a separate insurance policy to cover the risk of accidental injury
or contamination from these materials.
DEPENDENCE ON QUALIFIED PERSONNEL. In view of the intense competition
for qualified personnel in the pharmaceutical field, the Company may not be able
to continue to attract and retain the qualified personnel necessary for the
development of its business. The unexpected loss of the services of existing
personnel, as well as the failure to recruit additional key scientific,
technical and managerial personnel in a timely manner, would be detrimental to
the Company's research and development programs and to its business.
DEPENDENCE ON OTHERS. The Company's strategy for the research,
development and commercialization of its drug candidates and proprietary
technologies may require it to enter into various arrangements with corporate
and academic collaborators, licensors, licensees and others. There can be no
assurance that any revenues or profits will be derived from such arrangements,
or that the Company will be able to enter into future collaborations.
STOCK PRICE VOLATILITY. The market price of the Common Stock has
fluctuated significantly, and is likely to do so in the future, as is typical
for publicly traded emerging growth companies and biopharmaceutical companies.
Factors such as results of clinical trials, announcements of new products by the
Company or its competitors, regulatory actions, developments or disputes
concerning patent or proprietary rights, and period-to-period fluctuations in
the Company's financial results could have a significant impact on the market
price of the Common Stock.
ACCESS TO CAPITAL. The Company may need to raise substantial additional
capital to fund its future operations. The Company may seek such additional
funding through public or private financings or collaborative, licensing and
other arrangements with corporate partners. If additional funds are raised by
issuing equity securities, dilution to existing stockholders will result and
future investors may be granted rights superior to those of existing
stockholders. There can be no assurance, however, that additional financing will
be available on acceptable or affordable terms when or if needed.
CERTAIN ANTI-TAKEOVER PROVISIONS. The Company's Certificate of
Incorporation and By-laws include provisions that may have the effect of
discouraging a change in control of the Company. These provisions include
super-majority vote requirements for certain amendments to the Certificate of
Incorporation or By-laws. In addition, the Preferred Stock Purchase Rights
adopted by the Company may delay, defer or prevent a change in control of the
Company, even if the change would be beneficial to shareholders.
The board of directors is divided into three classes, elected for
staggered three-year terms. A staggered board may affect shareholders' ability
to cause a change in control.
NO DIVIDENDS. The Company has not declared or paid dividends on the
Common Stock since incorporation and does not expect to declare or pay any
dividends to shareholders in the foreseeable future.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares.
However, the Company expects to use the proceeds from exercise of the options
under the 1997 Plan for working capital and other general corporate purposes.
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SELLING SHAREHOLDERS
The Selling Shareholders may use this Prospectus for the reoffer and
resale to the public of shares of Common Stock to be issued under the 1997 Plan.
Those Shares have been registered under the Securities Act pursuant to the
Registration Statement of which this Prospectus is a part. Certain of the
Selling Shareholders may be deemed to be in a control relationship with the
Company within the meaning of the Securities Act and its rules, and their Shares
may be deemed to be "control securities" within the meaning of General
Instruction C to Form S-8. The control securities may also be resold under Rule
144 of the Securities Act or in other transactions exempt from registration
under that Act.
The Company will include the names of the Selling Shareholders, their
relationship to the Company, the number of shares of Common Stock that they
beneficially own and the amount of Shares owned by each of them that are
available for resale under this Prospectus in a supplement to this Prospectus at
the time of sale. Neither the statements in this Prospectus or the Registration
Statement nor the delivery of this Prospectus in connection with a sale or other
disposition by any Selling Shareholder is an admission by the Company or any
Selling Shareholder that any Selling Shareholder is in a control relationship
with the Company.
The Company does not know whether any of the Selling Shareholders will
use this Prospectus to sell any Shares or, if this Prospectus is so used, how
many Shares will be offered or sold.
PLAN OF DISTRIBUTION
Up to 2,000,000 Shares may be offered by this Prospectus. The Selling
Shareholders may sell Shares from time to time in one or more transactions on
the Nasdaq National Market (which may involve block transactions), in special
offerings, in negotiated transactions or otherwise, at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Selling Shareholders may engage one or more
broker-dealers to act as principal or agent in making sales, who may receive
discounts or commissions from the Selling Shareholders and/or the purchasers of
the Shares for whom such broker-dealers may act as agent in amounts to be
negotiated (which may be more or less than customary commissions).
The Company will pay all expenses of filing the Registration Statement
and preparing and reproducing this Prospectus. The Selling Shareholders will pay
any selling expenses incurred in their sale of any Shares covered by this
Prospectus.
EXPERTS
The consolidated financial statements of PathoGenesis Corporation and
subsidiary as of December 31, 1997 and 1996, and for each of the years in the
three-year period ended December 31, 1997 and for the period from December 10,
1991 (inception) through December 31, 1997 have been incorporated by reference
herein from the Company's annual report on Form 10-K for 1997 in reliance upon
the report of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of such firm as experts
in auditing and accounting.
7
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be included herewith.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be included herewith.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company incorporates by reference the following documents
previously filed with the SEC (File No. 0-27150) in this registration statement:
(a) The Company's annual report on Form 10-K for the year
ended December 31 ,1997.
(b) The Company's quarterly report on Form 10-Q for the three
months ended March 31, 1998, as amended by Amendment No. 1 on Form
10-Q/A.
(c) The description of the Company's Common Stock under the
caption "Description of Capital Stock -- Common Stock" in the Company's
prospectus constituting a part of the registration statement on Form
S-1 (Reg. No. 333-22297), filed on February 25, 1997.
(d) The description of the Company's Preferred Stock Purchase
Rights in the Company's registration statement on Form 8-A filed on
July 10, 1997, for the registration of said Rights under Section 12(g)
of the Exchange Act.
All documents subsequently filed by the Company under Section 13(a),
13(c), 14 or 15(d) of the Exchange Act before the termination of the offering of
Common Stock covered by this registration statement shall be deemed to be
incorporated by reference into, and to be part of, this registration statement
from the date of their filing. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated by reference herein modifies or replaces such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a
Delaware corporation to indemnify any director or officer against expenses,
judgments, fines and settlements actually and reasonably incurred by such person
in connection with any action, suit or proceeding, if such director or officer
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful, except that no indemnification shall be made in connection
with any action by or in the right of the corporation if such person is adjudged
to be liable to the corporation, unless the court determines that despite the
adjudication of liability such person is fairly and reasonably entitled to
indemnity for such expense that the court shall deem proper. Said section
further provides that to the extent that any such person is successful on the
merits or otherwise in defense of any action such director or officer shall be
indemnified against expenses actually and reasonably incurred by him or her. In
addition, a Delaware corporation is authorized to purchase insurance on behalf
of its directors and officers against liabilities whether or not in the
circumstances the corporation would have the power to indemnify against such
liabilities under said section.
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The Company's Amended and Restated Certificate of Incorporation
provides for indemnification of the Company's directors, officers, employees and
agents, to the fullest extent permitted by the Delaware General Corporation Law,
against all expense, liability and loss reasonably incurred or suffered by each
such person in connection with any action, suit, or proceeding to which such
person was or is made a party or is threatened to be a party by reason of the
fact that such person is a director, officer, employee or agent of the Company;
provided, however, except as provided in the Amended and Restated Certificate of
Incorporation with respect to proceedings to enforce rights to indemnification,
the Company shall indemnify any such person in connection with a proceeding
initiated by such person if the proceeding was authorized by the board of
directors of the Company. The Company has obtained directors and officers
insurance covering its directors and executive officers.
The Company's Amended and Restated Certificate of Incorporation
eliminates, to the fullest extent permitted by Delaware law, liability of a
director to the Company or its stockholders for monetary damages for breach of
the director's fiduciary duty of care except for liability where the director
(a) breaches his or her duty of loyalty to the Company or its shareholders, (b)
fails to act in good faith or engages in intentional misconduct or knowing
violation of law, (c) authorized a payment of an illegal dividend or stock
repurchase, or (d) obtains an improper personal benefit. While liability for
monetary damages has been eliminated, equitable remedies such as injunctive
relief or rescission remain available. In addition, a director is not relieved
of his or her responsibilities under any other law, including the federal
securities laws.
Insofar as indemnification by the Company for liabilities arising under
the Securities Act, may be permitted to directors, officers, and controlling
persons of the Company pursuant to the foregoing, the Company 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this registration statement are listed in the Exhibit
Index which appears elsewhere in this registration statement and is hereby
incorporated by reference.
ITEM 9. UNDERTAKINGS.
(a) The Company 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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(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
9
<PAGE>
by the Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 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 this registration statement 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.
(c)-(g) Not applicable.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
(i)-(j) Not applicable.
10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Skokie, State of
Illinois, on August 11, 1998.
PATHOGENESIS CORPORATION
By /s/ ALAN R. MEYER
------------------------------
Alan R. Meyer
Executive Vice President
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 date indicated.
/S/ Alan R. Meyer Executive Vice President, Chief August 11, 1998
Alan R. Meyer Financial Officer and Director
(Principal Financial and
Accounting Officer)
Wilbur H. Gantz Chairman, Chief Executive )
Officer, President and )
Director (Principal Executive)
Officer) )
)
John Gordon Director )
)
)
Elizabeth M. Greetham Director ) By:/S/ ALAN R. MEYER
-----------------
) Alan R. Meyer
) Attorney-in-Fact
Michael J. Montgomery Director ) August 11, 1998
)
)
Talat M. Othman Director )
)
)
Eugene L. Step Director )
)
)
Fred Wilpon Director )
(Being the principal executive officer, the principal financial and accounting
officer and all of the directors of PathoGenesis Corporation.)
ORIGINAL POWERS OF ATTORNEY AUTHORIZING WILBUR H. GANTZ AND ALAN R. MEYER TO
EXECUTE THIS REGISTRATION STATEMENT, AND AMENDMENT THERETO, FOR EACH OF
MS. GREETHAM AND MESSRS. GANTZ, GORDON, MEYER, MONTGOMERY, OTHMAN, STEP AND
WILPON HAVE BEEN EXECUTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
11
INDEX TO EXHIBITS
The following are filed as part of this registration statement.
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
4.0 Composite Certificate of Incorporation of the
Company, as amended through July 7, 1997
(incorporated by reference to Exhibit 3.1(d) to the
Company's quarterly report on Form 10-Q for the three
months ended March 31, 1998, File No. 0-27150).
4.1(a) Amended and Restated Certificate of Incorporation of
the Company (incorporated by reference to Exhibit 3.1
to the Company's registration statement on Form S-1,
Registration No. 333-22297).
4.1(b) Certificate of Amendment of Amended and
Restated Certificate of
Incorporation of the Company.*
4.2 By-laws of the Company, as amended through
January 30, 1998 (incorporated by reference to
Exhibit 3.2 to the Company's annual report on
Form 10-K for 1997, File No. 0-27150).
4.3 Certificate of Designations.*
4.4 PathoGenesis Corporation 1997 Stock Option Plan
(incorporated by reference to Annex A to the
Company's proxy statement dated April 29, 1997, File
No.
0-27150).
4.5 Rights Agreement, dated as of June 26, 1997, between
the Company and Harris Trust and Savings Bank as
Rights Agent (incorporated by reference to Exhibit
No. 1 to the Company's registration statement on Form
8-A, File No.
0-27150).
4.5(a) First Amendment, dated as of March 8, 1998, to
Rights Agreement between the Company and Harris Trust
and Savings Bank, as Rights Agent (incorporated by
reference to Exhibit 4.1(bb) to the Company's annual
report on Form 10-K for 1997, File No. 0-27150).
5 Opinion of Bell, Boyd & Lloyd.*
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Bell, Boyd & Lloyd (included in
Exhibit 5).*
24 Original Powers of Attorney authorizing Wilbur H.
Gantz or Alan R. Meyer to execute this registration
statement.*
* Previously filed.
12
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
PathoGenesis Corporation
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated January 23, 1998, relating to the consolidated
balance sheets of PathoGenesis Corporation (a development stage enterprise) and
subsidiary as of December 31, 1997 and 1996, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1997, and for the period from
December 10, 1991 (inception) through December 31, 1997, which report appears in
the December 31, 1997, annual report on Form 10-K of PathoGenesis Corporation
and to the reference to our firm under the heading "experts" in the registration
statement.
KPMG Peat Marwick LLP
Seattle, Washington
August 11, 1998
