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Registration No. 333-87615
As filed with the Securities and Exchange Commission on July 13, 2000
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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 1999 Stock Plan
(Full Title of the Plan)
Cameron S. Avery Copies to:
General Counsel Woon-Wah Siu
PathoGenesis Corporation Bell, Boyd & Lloyd LLC
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
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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
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Common Stock, par value $.001 per share 510,000 Shares $13.88 (2) $7,076,250 (2) $1,967 (2)
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Common Stock, par value $.001 per share 290,000 Shares $15.56 (3) $4,513,125 (3) $1,255 (3)
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(1) Includes 800,000 Preferred Stock Purchase Rights evidenced by certificates
of shares of common stock that automatically trade with such common stock.
Also includes an indeterminate number of additional shares, and the
associated Preferred Stock Purchase Rights, that may become issuable under
the antidilution and other adjustment provisions of the PathoGenesis
Corporation 1999 Stock Plan pursuant to Rule 416(a) of the Securities Act of
1933, as amended.
(2) Based on the weighted average exercise price of options outstanding under
the 1999 Stock Plan at the time of the initial filing of this Registration
Statement. The filing fee was paid at that time.
(3) In accordance with Rule 457(h), calculated on the basis of the average 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 September
20, 1999, 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.
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EXPLANATORY NOTE
PathoGenesis Corporation has filed this Registration Statement to register
an aggregate of 800,000 shares (the "Shares") of our Common Stock issuable under
the PathoGenesis Corporation 1999 Stock Plan (the "1999 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 1999 Plan.
A prospectus meeting the requirements of Part I of Form S-3 which covers
the reoffer and resale by the Selling Shareholders of the Shares acquired or to
be acquired by them under the 1999 Plan is contained in this Registration
Statement.
We may refer to PathoGenesis Corporation in the first person or as
"PathoGenesis" or "the company."
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PROSPECTUS
800,000 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 800,000 shares (the "Shares") of our 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 1999 Stock Plan
(the "1999 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 July 12, 2000, the closing price of the Common Stock, as reported
in The Wall Street Journal (Midwest Edition), was $29.125 per share.
_______________________
WE HAVE NOT AUTHORIZED ANYONE TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION
NOT CONTAINED IN THIS PROSPECTUS. IF ANYONE GIVES YOU SUCH INFORMATION OR MAKES
SUCH A REPRESENTATION TO YOU, YOU MUST NOT RELY ON IT AS HAVING BEEN AUTHORIZED
BY US. 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 IN THIS
PROSPECTUS 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 July 13, 2000.
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TABLE OF CONTENTS
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Page
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Available Information.............................................. 2
Important Information on Forward-looking Statements................ 2
Documents Incorporated by Reference................................ 3
The Company........................................................ 3
Recent Developments................................................ 4
Risk Factors....................................................... 4
Use of Proceeds.................................................... 8
Selling Shareholders............................................... 8
Plan of Distribution............................................... 8
Experts............................................................ 9
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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 our 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 our business, the markets for our drug candidates, our anticipated drug
candidate development, and other statements that are not statements of
historical fact. You may identify these forward-looking statements by the use of
such words as "believe," "anticipate," "expect," "plan" and "intend." Since
these statements are based on factors that involve risks and uncertainties, they
do not necessarily indicate what our actual future results will be. Factors that
could cause or contribute to differences between our actual results and the
results expressed or implied by the forward-looking statements include, but are
not limited to, those discussed in "Item 1. Business," "Item 7. Management's
Discussion and Analysis of Financial Condition and Results of Operations" of our
Form 10-K for 1999 and in Exhibit 99.1 to the Form 10-K, which is incorporated
by reference. These factors include, but are not limited to, uncertainties
related to the fact that PathoGenesis only began commercial operations in 1998,
its dependence on TOBI, the degree of penetration of its markets and frequency
of TOBI's use by patients, risks associated with marketing TOBI in international
markets, third party reimbursement and product pricing, seasonal impacts on
hospitalizations or exacerbations experienced by patients, variability in
wholesaler ordering patterns, drug development and clinical trials, uncertain
outcome of the U.S. and international drug approval process, competition and
alternative therapies. There can be no assurance that TOBI - which is currently
our only product - will penetrate markets as planned, that our development of
TOBI for other uses will succeed or occur within anticipated time frames, or
that we will develop any of our other drug candidates successfully.
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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 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, 1999 (SEC File No. 0-27150).
(b) Our quarterly report on Form 10-Q for the three months ended
March 31, 2000 (SEC 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 filed on February 25, 1997
(Registration No. 333-22297).
(d) The description of our Preferred Stock Purchase Rights in our
registration statement on Form 8-A filed on July 10, 1997, for the
registration of the Rights under Section 12(g) of the Exchange Act, as
amended by amendment on Form 8 A/A filed on April 15, 1999 (SEC 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 consolidated financial statements and the related
notes appearing elsewhere in this Prospectus or incorporated by reference in
this Prospectus.
We develop and market drugs to treat infectious diseases - particularly
serious lung infections - where there is a significant need for improved
therapy.
Our drug TOBI(R) (tobramycin solution for inhalation) was initially tested
and approved for cystic fibrosis (CF) patients with Pseudomonas aeruginosa lung
infections. TOBI has been on the market in the U.S. since January 1998. Sales
are growing as market penetration of the drug increases in the U.S. and other
countries where TOBI has been approved for sale. According to industry data,
pseudomonal bacteria infect the lungs of about 60% of the 70,000 people
worldwide with CF. Our market surveys indicate that TOBI also is being used by
non-CF patients with similar respiratory infections.
In 2000, we intend to make significant investments in research and
development (R&D) to enhance our future sales potential, both in CF and in new
markets. Our planned R&D programs include:
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. conducting or co-sponsoring clinical trials of TOBI in a variety of groups,
including CF, bronchiectasis, ventilator-associated pneumonia (VAP) and
lung transplant patients.
. pursuing development and registration of a product combining TOBI and the
portable AeroDose Inhaler, a hand-held, portable delivery device made by
AeroGen, Inc. Our goal is to deliver TOBI to the lungs in 5-10 minutes or
less versus the current 15-20 minutes.
. beginning Phase I clinical trials of PA-1806 for inhalation. This drug
candidate was licensed from Bristol-Myers Squibb and has a different
mechanism of action from TOBI, potentially allowing it to be used for
treating serious lung infections in combination with TOBI or in alternating
cycles.
. initiating preclinical development of at least one additional antibiotic
for inhalation to address broader respiratory infection markets.
. collaborating with Chiron Corp. to develop new antibiotics with new
mechanisms of action to better address serious medical needs, particularly
concerns about drug resistance. The collaboration was formed to combine our
strengths in identifying novel antibiotic targets, assays and drug
development and knowledge of the P. aeruginosa genome (DNA or genetic code)
with Chiron's strong combinatorial chemistry library and expertise in high-
throughput screening.
The company was incorporated in 1991 as a Delaware corporation. Our
executive offices are located at 201 Elliott Avenue West, Seattle, Washington
98119. Our telephone number is (206) 467-8100.
RECENT DEVELOPMENTS
On June 5, 2000 PathoGenesis announced that the company has engaged Goldman
Sachs & Co. and other advisors to explore strategic options for enhancing
shareholder value.
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.
(i) We have a limited operating history and we may not be profitable in the
future.
We began the commercial sale of our first drug product, TOBI, in January
1998. Before then, we had no sources of operating revenues from any of our drug
candidates and limited sources of revenue from grants and royalties. We had an
accumulated deficit of $107,504,021 as of March 31, 2000. Our future
profitability will depend on, among other things, the success of TOBI and our
ability to develop and market other products. In addition, because of our
limited sales experience with TOBI, we may be unable to predict or assess the
effect of seasonality, weather, medical reimbursement programs, price changes,
business cycles, national or geographic healthcare matters, wholesaler ordering
patterns, patient use patterns, and similar factors affecting sales patterns and
volatility. There can be no assurance that one or more of the factors discussed
below, or other, unforeseen factors, will not adversely affect our future
operating results and financial condition.
(ii) We currently depend solely on revenues from TOBI sales to fund our
development of additional drug products.
We do not expect our drug candidates other than TOBI to be commercially
available for at least several years. We may not be successful in developing
other drug products commercially. Meanwhile, we must depend on revenues
generated from TOBI sales to fund our product development program. However,
market acceptance of TOBI for cystic fibrosis may remain level or even decline
under certain circumstances, such as competition from alternative therapies or
adverse pricing changes. See "Third party reimbursement and product pricing
affect market acceptance of our products" and "We have many competitors." We
have 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)
administration. These generic
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formulations of tobramycin can be modified by pharmacists, physicians or
patients for inhalation. Although this 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, we could incur substantial
costs in asserting any rights to prevent such uses under the Orphan Drug Act.
See "Our success depends on our ability to protect patents and proprietary
technology."
(iii) Third party reimbursement and product pricing affect market acceptance of
our products.
One factor that may significantly affect how successfully we can
commercialize our products is the extent to which reimbursement for the cost of
such products will be available from third party payors, such as private health
insurers or Medicaid in the U.S. Adequate reimbursement in the U.S. or other
countries may not be available for any products we have developed or will
develop. If government and third-party payors do not provide adequate coverage
and reimbursement for use of our products, the market acceptance of those
products would be likely to decline.
(iv) International markets involve additional risks.
We or our distributors recently began marketing TOBI in Canada,
Argentina, the U.K. and Israel, and we intend to market TOBI in other
international markets as soon as we have received the appropriate regulatory
approvals. In addition to the same risks in the U.S. market, we face certain
risks unique to international operations. The prices of our products may be
restricted by price controls imposed by local governments and healthcare
providers in some countries. Price controls can cause significant differences in
prices between different markets. The existence of price controls can limit the
revenues from sales of our products outside the U.S. and may adversely affect
our business and results of operations. Currency fluctuations also may cause or
aggravate the adverse effects.
(v) We have limited sales and marketing capabilities.
Our sales, marketing and distribution capabilities in the U.S. were
established relatively recently in anticipation of TOBI's launch in 1998. We are
establishing sales, marketing and distribution capabilities in other countries
where we have received, or expect to receive in the near future, regulatory
approval to market TOBI. As a company, we have limited experience in these
areas. These capabilities may not be sufficient or successful for the longer
term.
(vi) We have only limited manufacturing capability and we are dependent on
suppliers.
We rely on others to supply raw materials and to manufacture TOBI
according to regulatory requirements. Although we believe either one of our two
suppliers of bulk powdered tobramycin will be able to supply sufficient
quantities to meet our current needs, we have not entered into long-term supply
contracts with the suppliers. We have an agreement for the formulation and
packaging of TOBI for a minimum term of 10 years. There can be no assurance that
we will be able to obtain future supplies of bulk tobramycin on favorable terms,
that contract manufacturers will be able to provide us with sufficient
quantities of TOBI, or that the products supplied will meet specifications.
(vii) Our success depends on our ability to protect patents and proprietary
technology.
Our ability to compete effectively depends on our ability to protect our
proprietary technology in the U.S. and internationally, preserve our trade
secrets and know-how, and maintain technological advantages. We intend to file
applications as appropriate for patents covering formulation, composition of
matter, uses of our drug candidates, our proprietary processes and any
significant gene sequences that our scientists discover. We can incur
substantial costs in proceedings before the U.S. Patent and Trademark Office and
other regulatory authorities, and we may not obtain any patents we apply for.
Even if obtained, these patents may be challenged, invalidated or circumvented,
or may not provide any competitive advantage. We also rely on trade secrets,
know-how and other unpatented proprietary information in our business. We have
entered into confidentiality and invention agreements with our employees and
consultants, but there can be no assurance that each of these agreements will be
honored. Moreover,
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we may not be able to effectively protect our patents or our
rights to unpatented trade secrets, or others may independently develop
substantially equivalent proprietary information.
(viii) We are subject to substantial government regulations and our products
are subject to regulatory approval.
Our 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 our proposed
products, or give a competitive advantage to our competitors. Regulatory
authorities may not approve any products we develop 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.
(ix) Our drug development efforts and clinical trials may not be
successful.
Before approving a drug for commercial sale as a treatment for a
disease, the FDA and other regulatory authorities generally require that the
safety and efficacy of the drug be supported by results from clinical trials.
Certain of those authorities may require post-marketing testing and
surveillance. 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
our research and development, preclinical testing, clinical trials, or long-term
safety and efficacy studies will be successfully completed or, if completed,
will have the desired results. We may not obtain regulatory approvals or may
obtain approvals that are not as broad as sought. Even if we succeed in
obtaining the desired regulatory approval for a drug, we may not be able to
produce the drug candidates in commercial quantities at reasonable costs.
Furthermore, products may not achieve market acceptance.
(x) Technological change may render our products noncompetitive or
obsolete.
The pharmaceutical business is characterized by extensive research
efforts and rapid technological progress. New developments in molecular biology,
medicinal pharmacology, and other fields are expected to continue at a rapid
pace in academia and industry. Research and discoveries by others may render
some or all of our programs or drug candidates noncompetitive or obsolete.
(xi) We have many competitors.
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 we have and represent
significant competition. Such companies may succeed in developing products that
are more effective or less costly than any that we may develop and also may be
more successful in manufacturing and marketing.
(xii) We are exposed to product liability risks which may exceed our
existing coverage.
Our business exposes us to potential product liability risks that are
inherent in the testing, manufacturing and marketing of human therapeutic
products. We maintain 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 we
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.
(xiii) Our use of hazardous materials subjects us to environmental
regulations.
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Our research and development involve the controlled use of hazardous,
infectious and radioactive materials. We are 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. We may incur significant costs to
comply with environmental laws, rules, regulations and policies. Our business,
financial position or results of operations 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.
We do not maintain a separate insurance policy to cover the risk of accidental
injury or contamination from these materials.
(xiv) We depend on our key personnel and attracting qualified personnel.
In view of the intense competition for qualified personnel in the
pharmaceutical field, we may not be able to continue to attract and retain the
qualified personnel necessary for the development of our 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 our programs and business.
(xv) We depend on some collaborative relationships with third parties and
those third parties may not continue to work with us.
Our strategy for the research, development and commercialization of
our drug candidates and proprietary technologies may require us 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 we will be able to enter into
collaboration arrangements with others in the future.
(xvi) Our stock price has been volatile.
The market price of our common stock has fluctuated significantly, and
is likely to do so in the future, as is typical for publicly traded emerging
pharmaceutical companies. Factors such as results of clinical trials,
announcements of new products by PathoGenesis or our competitors, regulatory
actions, developments or disputes concerning patent or proprietary rights and
period-to-period fluctuations in our financial results could have a significant
impact on the market price of the common stock.
(xvii) Our continued access to capital is not assured.
We may need to raise substantial additional capital to fund future
operations. We 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 shareholders will result and future investors may be granted rights
superior to those of existing shareholders. There can be no assurance, however,
that additional financing will be available to us on acceptable or affordable
terms when needed.
(xviii) We are subject to litigation risks.
We are a party to various lawsuits and claims arising in the ordinary
course of business or otherwise from time to time. Litigation brought against
PathoGenesis could have a material adverse effect on the company by disrupting
operations, distracting management, affecting employee morale, and resulting in
costs or liabilities not covered or not fully covered by applicable insurance.
(xix) Provisions in our corporate charter and our corporate structure may
have the effect of delaying, deferring or preventing takeover
transactions.
Certain provisions of our Certificate of Incorporation and by-laws may
have the effect of delaying, deferring or preventing a change in control of the
company, even if such a change would be beneficial to many shareholders. These
provisions include a staggered board and super-majority shareholder vote for a
change in the number of directors below the minimum or the maximum established
in the by-laws. In addition, the board has the
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authority, without further action by the shareholders, to issue up to one
million shares of preferred stock in one or more series and to fix their rights,
preferences, privileges and restrictions, and to issue authorized but unissued
shares of common stock. The issuance of preferred stock or additional shares of
common stock could have the effect of delaying, deferring or preventing a change
in control of PathoGenesis. The shareholder rights plan also may have the effect
of discouraging a change in control. Further, the company has not opted out of
the provision under Delaware law that imposes certain restrictions on any
business combination between the company and an "interested stockholder" as
defined in the Delaware statute.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the Shares. However,
we expect to use the proceeds from exercise of the options under the 1999 Plan
for working capital and other general corporate purposes.
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 1999 Plan.
We have registered those Shares under the Securities Act pursuant to the
Registration Statement of which this Prospectus is a part. Some of the Selling
Shareholders may be deemed to be in a control relationship with us 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 Selling Shareholders may also resell those control securities under Rule 144
of the Securities Act or in other transactions exempt from registration under
that Act.
We will include the names of the Selling Shareholders, their
relationship to us, 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 us or any Selling Shareholder that
any Selling Shareholder is in a control relationship with us.
We do 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 800,000 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. The broker-dealers may
receive discounts or commissions from the Selling Shareholders and/or the
purchasers of the Shares for whom the broker-dealers may act as agent in amounts
to be negotiated (which may be more or less than customary commissions).
We 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.
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EXPERTS
The consolidated financial statements and schedule of PathoGenesis
Corporation and subsidiary as of December 31, 1999 and 1998, and for each of the
years in the three-year period ended December 31, 1999 have been incorporated by
reference herein and in the Registration Statement from our annual report on
Form 10-K for 1999 in reliance upon the reports of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
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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 (SEC File No. 0-27150) in this registration
statement:
(a) Our annual report on Form 10-K for the year ended December
31 ,1999 (SEC File No. 0-27150).
(b) Our quarterly report on Form 10-Q for the three months
ended March 31, 2000 (SEC File No. 0-27150).
(c) The description of our Common Stock under the caption
"Description of Capital Stock -- Common Stock" in our prospectus
constituting a part of the registration statement on Form S-1
(Registration No. 333-22297), filed on February 25, 1997.
(d) The description of our 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,
as amended by amendment on Form 8-A/A filed on April 15, 1999 (SEC
File No. 0-27150).
All documents we subsequently file 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.
10
<PAGE>
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.
Our Amended and Restated Certificate of Incorporation provides for
indemnification of our 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 PathoGenesis; provided,
however, except as provided in the Amended and Restated Certificate of
Incorporation with respect to proceedings to enforce rights to indemnification,
we shall indemnify any such person in connection with a proceeding initiated by
such person if the proceeding was authorized by our board of directors. We have
obtained directors and officers insurance covering our directors and executive
officers.
Our Amended and Restated Certificate of Incorporation eliminates, to
the fullest extent permitted by Delaware law, liability of a director to our
company or our 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 PathoGenesis 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 us, for liabilities arising under the
Securities Act, may be permitted to directors, officers, and controlling persons
of PathoGenesis pursuant to the foregoing, 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 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) PathoGenesis hereby undertakes:
11
<PAGE>
(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 by PathoGenesis 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) PathoGenesis hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of our
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 our directors, officers and
controlling persons pursuant to the foregoing provisions, or otherwise, 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 of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by us of
expenses incurred or paid by a director, officer or controlling person of our
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, we will, unless in the opinion of our counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by us 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.
12
<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 July 13,
2000.
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.
<TABLE>
<S> <C> <C>
/s/ Alan R. Meyer Executive Vice President, Chief July 13, 2000
------------------------------
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
Michael J. Montgomery Director ) Attorney-in-Fact
) July 13, 2000
Arthur W. Nienhuis Director )
)
Talat M. Othman Director )
)
Eugene L. Step Director )
)
James R. Tobin Director )
)
Fred Wilpon Director )
</TABLE>
(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, NIENHUIS, OTHMAN, STEP,
TOBIN AND WILPON HAVE BEEN EXECUTED AND FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION.
13
<PAGE>
Index to Exhibits
The following are filed as part of this registration statement.
<TABLE>
<CAPTION>
Exhibit Number Description of Document
-------------
<S> <C>
4.0 Composite Certificate of Incorporation of the Company, as amended through July 7, 1997
(incorporated by reference to Exhibit 3.1(d) to quarterly report on Form 10-Q for the
three months ended March 31, 1998, SEC File No. 0-27150).
4.1(a) Amended and Restated Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to 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 (incorporated by reference to Exhibit 4.1(b) to registration statement on Form
S-8, Registration No. 333-45571).
4.2 By-laws of the Company, as amended through June 3, 1999 (incorporated by reference to
Exhibit 3.2 to quarterly report on Form 10-Q for the three months ended June 30, 1999,
SEC File No. 0-27150).
4.3 Certificate of Designations (incorporated by reference to Exhibit 4.1(b) to registration
statement on Form S-8, Registration No. 333-45571.
4.4 PathoGenesis Corporation 1999 Stock Plan (incorporated by reference to Appendix to notice
and proxy statement dated April 19, 1999, SEC File No. 0-27150).
4.4(a) Form of Stock Option Agreement for 1999 Stock Plan (incorporated by reference to Exhibit
4.10 to quarterly report on Form 10-Q for the three months ended June 30, 1999, SEC 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 our
registration statement on Form 8-A, SEC 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 our annual report on Form 10-K for 1997, SEC File No. 0-27150).
4.5(b) Amendment of Rights Plan, dated as of April 13, 1999, between PathoGenesis Corporation
and Harris Trust and Savings Bank as Rights Agent (incorporated by reference to Exhibit
4.1(bbb) to amendment to registration statement on Form 8-A/A, filed on April 15, 1999,
SEC File No. 0-27150).
5 Opinion of Bell, Boyd & Lloyd.*
23.1 Consent of KPMG 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.*
</TABLE>
* Previously filed.
14
