<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 9, 2000
REGISTRATION NO. 333-44470
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
AEROGEN, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 3845 33-0488580
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
1310 ORLEANS DRIVE
SUNNYVALE, CALIFORNIA 94089
(408) 543-2400
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
JANE E. SHAW, PH.D.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
AEROGEN, INC.
1310 ORLEANS DRIVE
SUNNYVALE, CALIFORNIA 94089
(408) 543-2400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
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<S> <C>
ROBERT J. BRIGHAM, ESQ. JAMES R. TANENBAUM, ESQ.
KEITH D. PISANI, ESQ. ANNA T. PINEDO, ESQ.
Cooley Godward LLP Stroock & Stroock & Lavan LLP
Five Palo Alto Square 180 Maiden Lane
3000 El Camino Real New York, NY 10038-4982
Palo Alto, California 94306 Phone: (212) 806-5400
Phone: (650) 843-5000 Facsimile: (212) 806-6006
Facsimile: (650) 849-7400
</TABLE>
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the Securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. /X/
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all costs and expenses, other than the
underwriting discounts and commissions, payable by the company in connection
with the sale of common stock being registered hereby. All of the amounts shown
are estimates except the SEC registration fee and the NASDAQ National Market
listing fee.
<TABLE>
<CAPTION>
AMOUNT
TO BE
PAID
----------
<S> <C>
SEC registration fee........................................ $ 16,395
NASD filing fee............................................. 6,250
NASDAQ listing fee.......................................... 95,000
Accounting fees and expenses................................ 450,000
Legal fees and expenses..................................... 500,000
Printing and engraving expenses............................. 350,000
Transfer Agent and registrar fees........................... 11,500
Miscellaneous............................................... 70,855
----------
Total..................................................... $1,500,000
==========
</TABLE>
------------------------
* To be completed by amendment
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Delaware law, our amended and restated certificate of
incorporation provides that no director of ours will be personally liable to us
or our stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability for any breach of duty of loyalty to us or to our
stockholders;
- for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
- for unlawful payment of dividends or unlawful stock repurchases or
redemptions under Section 174 of the Delaware General Corporation Law; or
- for any transaction from which the director derived an improper personal
benefit.
Our amended and restated certificate of incorporation further provides that
we must indemnify our directors and executive officers and may indemnify our
other officers and employees and agents to the fullest extent permitted by
Delaware law. We believe that indemnification under our amended and restated
certificate of incorporation covers negligence and gross negligence on the part
of indemnified parties.
We intend to enter into indemnification agreements with each of our
directors and officers. These agreements, among other things, will require us to
indemnify each director and officer for certain expenses including attorneys'
fees, judgments, fines and settlement amounts incurred by any such person in any
action or proceeding, including any action by or in the right of AeroGen,
arising out of the person's services as our director or officer, any subsidiary
of ours or any other company or enterprise to which the person provides services
at our request.
II-1
<PAGE>
The underwriting agreement (Exhibit 1.1) will provide for indemnification by
the underwriters of AeroGen, our directors, our officers who sign the
registration statement, and our controlling persons for some liabilities,
including liabilities arising under the Securities Act.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since July 1997, we have sold and issued the following unregistered
securities:
(1) From July 1997 through October 30, 2000, AeroGen has granted stock options
to purchase 1,986,136 shares of common stock to employees, consultants and
directors pursuant to its 1994 Stock Option Plan and 1996 Stock Option
Plan. Of these options, 321,079 have been canceled without being exercised,
656,391 have been exercised, 7,187 have been repurchased, and 1,246,502
shares remain outstanding.
(2) From April 1997 through November 1997, AeroGen issued 9,245,300 shares of
Series C preferred stock to 17 investors, including 14 institutional
investors and three individuals at a purchase price of $1.00 per share for
an aggregate purchase price of $9,245,300. Shares of Series C preferred
stock are convertible into shares of common stock at the rate of one share
of common stock for each three shares of Series C preferred stock owned.
(3) In October 1997, AeroGen issued warrants to purchase up to 130,000 shares
of Series C preferred stock at an exercise price of $1.00 per share to two
equipment leasing companies, Venture Lending & Leasing, Inc. and Venture
Lending & Leasing II, Inc. Shares of Series C preferred stock are
convertible into shares of common stock at the rate of one share of common
stock for each three shares of Series C preferred stock owned.
(4) In January 1998, AeroGen issued 466,666 shares of common stock to Jane E.
Shaw at $0.30 per share, for a purchase price of $140,000.
(5) In August 1998, AeroGen issued 10,285,714 shares of Series D preferred
stock to 20 investors including 15 institutional investors, three
individuals and two trusts at a purchase price $1.75 per share for an
aggregate purchase price of $17,999,999. Shares of Series D preferred stock
are convertible into shares of common stock at the rate of one share of
common stock for each three shares of Series D preferred stock owned.
(6) In November 1998, AeroGen issued 90,000 shares of common stock to
Casper L. de Clercq at $0.60 per share, for a purchase price of $54,000.
(7) From March 2000 through May 2000, AeroGen issued 1,923,078 shares of
Series E preferred stock to two purchasers, PathoGenesis Corporation and
Becton, Dickinson and Company, at a purchase price of $2.60 per share for
an aggregate purchase price of $5,000,002. Shares of Series E preferred
stock are convertible into shares of common stock at the rate of one share
of common stock for each three shares of Series E preferred stock owned.
(8) In April 2000, AeroGen issued 180,000 shares of common stock to two
purchasers, Michael A. Klimowicz and Deborah K. Karlson, at prices of $0.30
and $0.60 per share, for an aggregate purchase price of $106,000.
(9) In May 2000, AeroGen issued 1,725,000 shares of Series E preferred stock in
exchange for all voting shares of stock of Cerus Limited, held by 20
individuals, in connection with the acquisition of Cerus by AeroGen,
whereby Cerus became a subsidiary of AeroGen. Shares of Series E preferred
stock are convertible into shares of common stock at the rate of one share
of common stock for each three shares of Series E preferred stock owned.
(10) In July 2000, AeroGen issued 7,498,223 shares of Series F preferred stock
to 30 investors including 20 institutional investors, six individuals and
four trusts at a purchase price of $2.25 per share for an
II-2
<PAGE>
aggregate purchase price of $16,871,001. Shares of Series F Preferred
Stock are convertible into shares of common stock at the rate of one share
of common stock for each three shares of Series F Preferred Stock owned.
The sales and issuances of securities described in paragraph (1) above were
deemed to be exempt from registration under the Securities Act by virtue of
Rule 701 of the Securities Act in that they were offered and sold either
pursuant to a written compensatory benefit plan or pursuant to a written
contract relating to compensation, as provided by Rule 701. The sales and
issuances of securities described in paragraphs (2), (5), (7) and (10) above
were deemed to be exempt from registration under the Securities Act in reliance
upon Regulation D. The sales and issuances of securities described in
paragraphs (3), (4), (6) and (8) above were deemed to be exempt from
registration under the Securities Act in reliance upon Rule 4(2). The issuance
of securities described in paragraph (9) above was deemed to be exempt from
registration under the Securities Act in reliance upon Regulation S.
Appropriate legends are affixed to the stock certificates issued in the
aforementioned transactions. Similar legends were imposed in connection with any
subsequent sales of any such securities. All recipients either received adequate
information about AeroGen or had access, through employment or other
relationships, to such information.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ ------------------------------------------------------------
<C> <S>
1.1+ Form of Underwriting Agreement
3.1+ Amended and Restated Certificate of Incorporation of AeroGen
3.2+ Amended and Restated Certificate of Incorporation of AeroGen
to be effective upon the closing of the offering
3.3+ Bylaws of AeroGen
3.4+ Amended and Restated Bylaws of the AeroGen to be effective
upon the closing of the offering
4.1+ Specimen Common Stock Certificate
4.2+ Fourth Amended & Restated Information and Registration
Rights Agreement dated July 7, 2000 between AeroGen and
holders of AeroGen Series A, Series B, Series C, Series D,
Series E, and Series F preferred stock and holders of
warrants to purchase AeroGen common stock or Series C
preferred stock
4.3+ Warrant, dated June 20, 1995, to purchase common stock of
AeroGen issued to Venture Lending & Leasing, Inc.
4.4+ Warrant, dated October 14, 1997, to purchase Series C
preferred stock of AeroGen issued to Venture Lending &
Leasing II, Inc.
4.5+ Warrant, dated October 14, 1997, to purchase Series C
preferred stock of AeroGen issued to Venture Lending &
Leasing, Inc.
4.6+ Stock Purchase Agreement between AeroGen and PathoGenesis
Corporation, dated March 13, 2000
4.7+++ Stock Purchase Agreement between AeroGen and Becton,
Dickinson and Company, dated May 10, 2000
5.1 Opinion of Cooley Godward LLP
10.1+ Form of Indemnity Agreement
10.2+ 1994 Stock Option Plan
10.3+ 1996 Stock Option Plan
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ ------------------------------------------------------------
<C> <S>
10.4+ 2000 Equity Incentive Plan
10.5+ 2000 Non-Employee Directors' Stock Option Plan
10.6+ 2000 Employee Stock Purchase Plan
10.7+ Sublease between AeroGen and MicroBar dated April 3, 1997
10.8+ Sublease between AeroGen and MicroBar dated August 9, 1999
10.9++ Development & Supply Agreement between AeroGen and
PathoGenesis Corporation dated March 13, 2000
10.10+++ Development Agreement between Becton, Dickinson and Company
and AeroGen, dated May 10, 2000
10.11+ Settlement Agreement between Bespak plc and AeroGen and
Tenax Corporation, dated March 4, 1999
10.12+ Agreement for the Acquisition By Way of Exchange of the
Entire Issued "A" Share Capital of Cerus Limited, dated May
25, 2000
10.13+ Amended and Restated 1996 Stock Option Plan
10.14+ AeroGen, Inc. Executive Severance Benefit Plan
21.1+ Subsidiaries of AeroGen
23.1+ Consent of PricewaterhouseCoopers LLP, independent
accountants
23.2+ Consent of PricewaterhouseCoopers, independent accountants
23.3+ Consent of Cooley Godward LLP. Reference is made to Exhibit
5.1
23.4+ Consent of IMS HEALTH
23.5+ Consent of Front Line Strategic Management Consulting, Inc.
24.1+ Power of Attorney. Reference is made to Page II-6
27.1+ Financial Data Schedule
</TABLE>
------------------------
++ Confidential treatment requested as to specific portions, which portions
are omitted and filed separately with the Securities and Exchange
Commission.
+ Previously filed.
(b) Financial Statement Schedules
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS.
The registrant hereby undertakes to provide to the Underwriters at the
closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification by the registrant for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions referenced in Item 14 of
this Registration Statement or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the registrant will, unless in the opinion of its counsel
the matter
II-4
<PAGE>
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 and will be governed by the final
adjudication of such issue.
The registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
Prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of Prospectus 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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Sunnyvale,
State of California, on the 14th day of November, 2000.
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<S> <C> <C>
AEROGEN, INC.
By: *
-----------------------------------------
Jane E. Shaw, Ph.D.
Chairman and Chief Executive Officer
(Principal Executive Officer)
</TABLE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman and Chief November 14, 2000
------------------------------- Executive Officer and
Jane E. Shaw, Ph.D. Director (Principal
Executive Officer)
* Chief Financial Officer November 14, 2000
------------------------------- (Principal Financial and
Deborah K. Karlson Accounting Officer)
* Chief Technical Officer and November 14, 2000
------------------------------- Director
Yehuda Ivri
* Director November 14, 2000
-------------------------------
Thomas R. Baruch
* Director November 14, 2000
-------------------------------
Jean-Jacques Bienaime
* Director November 14, 2000
-------------------------------
Phyllis I. Gardner, M.D.
* Director November 14, 2000
-------------------------------
Susan D. Desmond-Hellmann
* Director November 14, 2000
-------------------------------
Philip M. Young
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ CAROL GAMBLE
----------------------------------
Carol Gamble
Attorney-in-fact
</TABLE>
II-6
<PAGE>
AEROGEN, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
----------------------- -----------
<C> <S>
1.1+ Form of Underwriting Agreement
3.1+ Amended and Restated Certificate of Incorporation of AeroGen
3.2+ Amended and Restated Certificate of Incorporation of AeroGen
to be effective upon the closing of the offering
3.3+ Bylaws of AeroGen
3.4+ Amended and Restated Bylaws of AeroGen to be effective upon
the closing of the offering
4.1+ Specimen Common Stock Certificate
4.2+ Fourth Amended & Restated Information and Registration
Rights Agreement dated July 7, 2000 between AeroGen and
holders of AeroGen Series A, Series B, Series C, Series D,
Series E, and Series F preferred stock and holders of
warrants to purchase AeroGen common stock or Series C
preferred stock
4.3+ Warrant, dated June 20, 1995, to purchase common stock of
AeroGen issued to Venture Lending & Leasing, Inc.
4.4+ Warrant, dated October 14, 1997, to purchase Series C
preferred stock of AeroGen issued to Venture Lending &
Leasing II, Inc.
4.5+ Warrant, dated October 14, 1997, to purchase Series C
preferred stock of AeroGen issued to Venture Lending &
Leasing, Inc.
4.6+ Stock Purchase Agreement between AeroGen and PathoGenesis
Corporation, dated March 13, 2000
4.7+++ Stock Purchase Agreement between AeroGen and Becton,
Dickinson and Company, dated May 10, 2000
5.1 Opinion of Cooley Godward LLP
10.1+ Form of Indemnity Agreement
10.2+ 1994 Stock Option Plan
10.3+ 1996 Stock Option Plan
10.4+ 2000 Equity Incentive Plan
10.5+ 2000 Non-Employee Directors' Stock Option Plan
10.6+ 2000 Employee Stock Purchase Plan
10.7+ Sublease between AeroGen and MicroBar dated April 3, 1997
10.8+ Sublease between AeroGen and MicroBar dated August 9, 1999
10.9++ Development & Supply Agreement between AeroGen and
PathoGenesis Corporation dated March 13, 2000
10.10+++ Development Agreement between Becton, Dickinson and Company
and AeroGen, dated May 10, 2000
10.11+ Settlement Agreement between Bespak plc and AeroGen and
Tenax Corporation, dated March 4, 1999
10.12+ Agreement for the Acquisition By Way of Exchange of the
Entire Issued "A" Share Capital of Cerus Limited, dated May
25, 2000
10.13+ Amended and Restated 1996 Stock Option Plan
10.14+ AeroGen, Inc. Executive Severance Benefit Plan
21.1+ Subsidiaries of AeroGen
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
----------------------- -----------
<C> <S>
23.1+ Consent of PricewaterhouseCoopers LLP, independent
accountants
23.2+ Consent of PricewaterhouseCoopers, independent accountants
23.3+ Consent of Cooley Godward LLP. Reference is made to Exhibit
5.1
23.4+ Consent of IMS HEALTH
23.5+ Consent of Front Line Strategic Management Consulting, Inc.
24.1+ Power of Attorney. Reference is made to Page II-6
27.1+ Financial Data Schedule
</TABLE>
------------------------
++ Confidential treatment requested as to specific portions, which portions
are omitted and filed separately with the Securities and Exchange
Commission.
+ Previously filed.
