<PAGE>
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<CAPTION>
DRAFT 8/6/97
====================================================================================================================================
<S> <C>
As filed with the Securities and Exchange Commission on August 8, 1997 Registration No. 333-_______
====================================================================================================================================
</TABLE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
FLEMINGTON PHARMACEUTICAL CORPORATION
(Name of Small Business Issuer in its charter)
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<CAPTION>
<S> <C> <C>
New Jersey 2834 22-2407152
(State or other jurisdiction of incorporation) (Primary Standard industrial classification number) (I.R.S. Employer
Identification No.)
</TABLE>
43 Emery Avenue
Flemington, New Jersey 08822
(908) 782-3431
(Address and telephone number of registrant's
principal executive offices)
Harry A. Dugger, III, Ph.D., President
Flemington Pharmaceutical Corporation
43 Emery Avenue
Flemington, New Jersey 08822
(908) 782-3431
(Name, address, including zip code and telephone number,
including area code, of agent for service)
* * * * * * * * *
Copies to:
GERARD S. DiFIORE, ESQ. STEVEN F. WASSERMAN,ESQ.
Reed Smith Shaw & McClay LLP Bernstein & Wasserman, LLP
One Riverfront Plaza 950 Third Avenue
Newark, New Jersey 07102 New York, New York 10022
(201) 622-1600 (212) 826-0730
(201) 622-4747 (fax) (212) 371-4730 (fax)
Approximate date of sale to public: As soon as practicable after the
Registration Statement becomes effective.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act Registration Statement number of the earlier
effective registration statement for the same offering. [ ]_____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act Registration Statement number of the earlier effective registration
statement for the same offering. [ ]____________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
If any of the Units 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. [X]
<PAGE>
Pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also covers such indeterminate number of additional
securities, if any, which may become issuable by virtue of the anti-dilution
provisions of the Warrants and the Unit Purchase Option.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
CALCULATION OF REGISTRATION FEE
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====================================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Offering Aggregate Amount of
Class of Securities Amount to be Price Per Offering Registration
to be Registered Registered Unit(1) Price(1) Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Units, each consisting of two shares of
Common Stock,
par value $.01 per share and two 805,000 $7.00 $5,635,000.00 $1,707.58
Redeemable Class A Warrants
to purchase Common Stock(1)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$.01 per share, underlying
the Class A Warrants(2) 1,610,000 $4.25 $6,842,500.00 $2,073.49
- ------------------------------------------------------------------------------------------------------------------------------------
Underwriter's Unit Purchase 70,000 $.001 $ 70.00 $ .02
Option(3)
- ------------------------------------------------------------------------------------------------------------------------------------
Units consisting of two shares of
Common Stock and two Class A
Warrants underlying the Underwriter's
Unit Purchase Option(4) 70,000 $8.40 $ 588.00 $ 178.18
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01
per share, underlying the Class A
Warrants included in the Underwriter's
Unit Purchase Option(5) 140,000 $4.25 $ 595,000.00 $ 180.30
- ------------------------------------------------------------------------------------------------------------------------------------
Total.............................. $4,139.57
====================================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee.
(2) Issuable upon exercise of the Class A Warrants.
(3) Issuable to the Underwriter.
(4) Issuable upon exercise of the Unit Purchase Option.
(5) Issuable upon exercise of the Class A Warrants included in the Unit
Purchase Option.
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
CROSS-REFERENCE SHEET
Showing Location in Prospectus of Part I Items of Form SB-2
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Item Number and Heading
In Form SB-2 Registration Statement Location in Prospectus
----------------------------------- ----------------------
<S> <C> <C>
1 Front of Registration Statement and Outside Front Cover
of Prospectus............................................ Front of Registration Statement; Outside Front Cover Page
of Prospectus
2 Inside Front and Outside Back Cover Pages of Prospectus.. Inside Front and Outside Back Cover Pages of Prospectus
3 Summary Information and Risk Factors..................... Prospectus Summary; Risk Factors
4 Use of Proceeds.......................................... Prospectus Summary; Use of Proceeds; Management's
Discussion and Analysis of Financial Condition and Results
of Operations
5 Determination of Offering Price.......................... Outside Front Cover Page of Prospectus; Risk Factors;
Underwriting
6 Dilution................................................. Risk Factors; Dilution
7 Selling Security Holders................................. Not Applicable
8 Plan of Distribution..................................... Outside Front Cover Page of Prospectus; Prospectus Summary;
Underwriting
9 Legal Proceedings........................................ Business
10 Directors, Executive Officers, Promoters and Control
Persons.................................................. Management; Certain Transactions
11 Security Ownership of Certain Beneficial Owners and
Management............................................... Principal Stockholders
12 Description of Units..................................... Description of Units
13 Interest of Named Experts and Counsel.................... Legal Matters; Experts
14 Disclosure of Commission Position on Indemnification for
Securities Act Liabilities............................... Not Applicable
15 Organization Within Last Five Years...................... Not Applicable
16 Description of Business.................................. Prospectus Summary; Risk Factors; Business
17 Management's Discussion and Analysis or Plan of Operation Management's Discussion and Analysis of Financial Condition
and Results of Operations
</TABLE>
3
<PAGE>
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<CAPTION>
<S> <C> <C>
18 Description of Property.................................. Business
19 Certain Relationships and Related Transactions........... Certain Transactions; Management
20 Market for Common Equity and Related Stockholder Matters. Outside Front Cover Page of Prospectus; Prospectus Summary;
Dividend Policy; Description of Units; Shares Eligible for
Future Sale
.
21 Executive Compensation................................... Management
22 Financial Statements..................................... Financial Statements
23 Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure...................... Not Applicable
</TABLE>
4
<PAGE>
- --------------------------------------------------------------------------------
SUBJECT TO COMPLETION; DATED August 8, 1997
- --------------------------------------------------------------------------------
PROSPECTUS [LOGO]
FLEMINGTON PHARMACEUTICAL CORPORATION
700,000 Units Consisting of 1,400,000 Shares of Common Stock and
1,400,000 Redeemable Class A Warrants
FLEMINGTON PHARMACEUTICAL CORPORATION, a New Jersey corporation (the "Company")
hereby offers 700,000 units (the "Units"), each Unit consisting of two shares of
common stock, par value $.01 per share (the "Common Stock"), and two redeemable
Class A Common Stock Purchase Warrants (the "Class A Warrants"). Each Class A
Warrant entitles the holder to purchase one share of Common Stock at any time
during the period commencing one year from the date of this Prospectus and
ending on the fifth anniversary of the date of this Prospectus at an exercise
price of $4.25 per share, subject to adjustment. The Common Stock and the Class
A Warrants comprising the Units will be separately transferable immediately upon
issuance. The Company may redeem the Class A Warrants commencing ___, 1998 (18
months from the date of this Prospectus) or earlier with the consent of Monroe
Parker Securities, Inc. (the "Underwriter"), at a price of $.10 per Warrant, on
not less than 30 days prior written notice if the last sale price of the Common
Stock has been at least 200% of the current Warrant exercise price, subject to
adjustment, for at least twenty consecutive trading days ending within three
days prior to the date on which notice of redemption is given. See "DESCRIPTION
OF SECURITIES - Warrants."
(cover continued on following page)
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK AND IMMEDIATE
SUBSTANTIAL DILUTION AND SHOULD BE CONSIDERED ONLY BY INVESTORS WHO CAN AFFORD
TO SUSTAIN A LOSS OF THEIR ENTIRE INVESTMENT. SEE "RISK FACTORS" ON
PAGE [__] AND "DILUTION ON PAGE [___]."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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<CAPTION>
=================================================================================================================
Underwriting
Price to Public Discounts and Proceeds to Company(2)
Commissions(1)
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Unit................................. $ 7.00 $ .70 $ 6.30
- -----------------------------------------------------------------------------------------------------------------
Total (3)................................ $4,900,000 $490,000 $4,410,000
=================================================================================================================
</TABLE>
------------------------------
MONROE PARKER SECURITIES, INC.
------------------------------
(1) Excludes additional compensation to be received by the Underwriter in
the form of: (i) a 3% non-accountable expense allowance of $147,000
($169,050 if the Overallotment Option (as defined in note (3) below) is
exercised in full); (ii) an option (the "Underwriter's Option") to
purchase 70,000 Units, exercisable over a period of four years
commencing one year from the date of this Prospectus at an exercise
price equal to 120% of the public offering price of the Units being
offered hereby; and (iii) a two-year financial consulting agreement
providing for aggregate payments to the Underwriter of $98,000. The
Company has agreed under certain circumstances to pay the Underwriter a
Warrant solicitation fee of 5% of the exercise price received for each
Warrant exercise. In addition, the Company has agreed to indemnify the
Underwriter against certain civil liabilities, including liabilities
under the Securities Act of 1933, as amended. See "UNDERWRITING."
1
<PAGE>
(2) Before deducting expenses of the offering payable by the Company,
including the Underwriter's non-accountable expense allowance,
estimated to total $397,000 ($419,050 if the Over Allotment option is
exercised in full).
(3) The Company has granted the Underwriter an option, exercisable within
45 days after the date of this Prospectus, to purchase up to an
additional 105,000 Units (the "Overallotment Option") on the same terms
and conditions as set forth above solely for the purpose of covering
overallotments, if any. If the Overallotment Option is exercised in
full, the total price to public, underwriting discounts and commissions
and proceeds to Company will be $5,635,000, $563,500 and $5,071,500,
respectively, (exclusive of other expenses payable by the Company of
$250,000 and the Underwriter's non-accountable expenses allowance of
$169,050). See "UNDERWRITING."
The date of this Prospectus is August __, 1997
2
<PAGE>
(cover continued)
Prior to this offering, there has been no public market for the Units,
Common Stock or Warrants. The offering price of the Units and the exercise price
and the terms of the Warrants have been determined by negotiations between the
Company and the Underwriter, and are not necessarily related to net asset value,
projected earnings or other established criteria of value. The Company has been
approved for listing of the Units, Common Stock and Warrants on the Boston Stock
Exchange ("BSE") under the symbols "-----," " " and " ," respectively and for
quotation on the Nasdaq SmallCap Stock Market under the symbols" ," " ," " ,"
and " ," respectively. There can be no assurance that an active trading market
in the Company's securities will develop after the completion of this offering,
or be sustained. See "Underwriting."
The Units are being offered on a "firm commitment" basis by the
Underwriter, subject to prior sale, when, as and if delivered to and accepted by
the Underwriter, and subject to the Underwriter's right to reject orders in
whole or in part, and to the approval of certain legal matters by counsel and
certain other conditions. It is expected that delivery of certificates
representing the Common Stock and Warrants will be made against payment therefor
on or about , 1997.
The Company intends to furnish its stockholders with annual reports
containing financial statements audited and reported upon by its independent
public accountants after the end of each fiscal year, commencing with its fiscal
year ending July 31, 1998 and will make available such other periodic reports as
the company may deem to be appropriate or as may be required by law. The Company
has registered the Units, the Common Stock and the Warrants under the Securities
Exchange Act of 1934 (the Exchange Act") and, commencing on the date of this
Prospectus, will be subject to the reporting requirements of the Exchange Act
and will file all required information with the Securities and Exchange
Commission (the "Commission").
- ------------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
ALTHOUGH IT HAS NO OBLIGATION TO DO SO, THE UNDERWRITER MAY FROM TIME TO TIME
ACT AS A MARKET MAKER AND OTHERWISE EFFECT TRANSACTIONS IN THE COMPANY'S
SECURITIES. THE UNDERWRITER, IF IT PARTICIPATES IN THE MARKET, MAY BECOME A
DOMINATING INFLUENCE IN THE MARKET FOR THE SECURITIES, HOWEVER, THERE CAN BE NO
ASSURANCE THAT THE UNDERWRITER WILL OR WILL NOT CONTINUE TO BE A DOMINATING
INFLUENCE. THE PRICES AND LIQUIDITY OF THE SECURITIES OFFERED HEREUNDER MAY BE
SIGNIFICANTLY AFFECTED BY THE DEGREE OF THE UNDERWRITER'S PARTICIPATION IN SUCH
MARKET. THE UNDERWRITER MAY DISCONTINUE SUCH ACTIVITIES AT ANY TIME OR FROM TIME
TO TIME.
3
<PAGE>
Diagram comparing conventional oral dosage formulations with the
Company's lingual spray and bite capsule formulations which bypass the
gastro-intestinal tract and avoid metabolism by the liver, rapidly delivering
the therapeutic agent directly into systemic circulation. The Company believes
that bypassing the digestive system increases the amount of active ingredient
reaching systemic circulation, thereby creating a quicker therapeutic effect
with less side effects than traditional delivery systems.
4
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements (including the notes thereto) appearing
elsewhere herein. Unless otherwise indicated, the information in this Prospectus
does not give effect to the exercise of (i) the Class A Warrants; (ii) the
Underwriter's Options; (iii) outstanding warrants; or (iv) options granted or
available for grant under the Company's 1992 Stock Option Plan and 1997 Stock
Option Plan (collectively the "Stock Option Plans"). This Prospectus contains
forward-looking statements which involve risks and uncertainties. The Company's
actual results may differ significantly from the results discussed in the
forward-looking statements. Factors that might cause such a difference include,
but are not limited to, those discussed under "Risk Factors."
The Company
Flemington Pharmaceutical Corporation, a New Jersey corporation
(the "Company"), is engaged in the development of novel application drug
delivery systems for presently marketed prescription and over-the-counter
("OTC") drugs. The Company's patent-pending delivery systems are lingual sprays
and soft gelatin bite capsules, enabling drug absorption through the oral
mucosa, and more rapid absorption into the bloodstream than presently available
oral delivery systems. The Company's proprietary oral dosage delivery systems
enhance and greatly accelerate the onset of the therapeutic benefits which the
drugs are intended to produce. The Company refers to its delivery systems as
Immediate-Immediate Release (I(2)R(TM)) because its delivery systems are
designed to provide therapeutic benefits within minutes of administration. The
Company's development efforts for its novel drug delivery systems are
concentrated on drugs which are already available and proven in the marketplace.
In addition to increased bioavailability by avoiding metabolism by the liver
before entry into the bloodstream, the Company believes that its proprietary
delivery systems offer the following significant advantages: (i) improved drug
safety profile by reducing the required dosage, including possible reduction of
side-effects; (ii) improved dosage reliability; (iii) allowing medication to be
taken without water; and (iv) improved patient convenience and compliance.
The Company has initially identified approximately 50 presently
marketed drugs that meet the Company's criteria for its drug delivery systems.
The Company will concentrate its product development activities on those
pharmaceuticals with significant prescription or OTC sales. The Company believes
that applying a novel application delivery system to existing drugs involves
less cost, time and risk than developing and commercializing a new chemical
entity. The Company believes that there is significant opportunity to combine
its delivery systems with existing pharmaceuticals to expand the market for an
existing drug, differentiate a product from a generic or brand name competition,
and possibly create new markets.
In light of the material expense and delays associated with
independently developing and obtaining approval of pharmaceutical products, the
Company will only continue to develop such products through collaborative
arrangements with major pharmaceutical companies, which will
5
<PAGE>
fund that development. To date, the Company has signed two such development
agreements with major pharmaceutical companies.
Since its inception in 1982, the Company has been a consultant to the
pharmaceutical industry, focusing on product development activities of various
European pharmaceutical companies, and since 1992 has used its consulting
revenues to fund its own product development activities. The Company's recent
focus on developing its own products evolved naturally out of its consulting
experience for other pharmaceutical companies. Substantially all of the
Company's revenues have been derived from its consulting activities. The
Company's business address is 43 Emery Avenue, Flemington, New Jersey 08822, and
its telephone number is (908) 782-3431.
The Offering
<TABLE>
<CAPTION>
<S> <C>
Securities Offered: 700,000 Units, each Unit consisting of two shares of Common
Stock and two Redeemable Class A Common Stock Purchase Warrants
(the "Warrants"). The Common Stock and Warrants comprising the
Units will be separately transferable immediately upon issuance.
See "Description of Securities."
Description of Warrants:
Exercise of Warrants.................................Subject to redemption by the Company the Warrants may be exercised
at any time during the four-year period commencing one year from
the date of this Prospectus at an exercise price of $4.25 per
share, subject to adjustment.
Redemption of Warrants...............................The Warrants are redeemable by the Company commencing 18
months from the date of the Prospectus, or earlier with the consent
of the Underwriter, at $.10 per Warrant, on not less than 30 days'
prior written notice, provided that the last sale price of the
Common Stock is at least 200% of the current Warrant exercise
price, subject to adjustment, for at least 20 consecutive trading
days ending within three days prior to the date on which notice of
redemption is given. See "Description of Securities."
</TABLE>
6
<PAGE>
Common Stock Outstanding:
<TABLE>
<CAPTION>
<S> <C>
Prior to this Offering............................2,597,390 shares(1)(2)
After this Offering...............................3,997,390 shares(1)(2)
Boston Stock Exchange Symbols (2):
Units.........................................
Common Stock..................................
Warrants......................................
Nasdaq Small Cap Stock Market Symbols (2):
Units.........................................
Common Stock..................................
Warrants......................................
Estimated Net Proceeds...............................Approximately $4,013,000 ($4,652,450 if the Overallotment
option is exercised in full) after deducting underwriting discounts
and commissions of $490,000, and the non-accountable expense
allowance of $147,000 ($563,500 and $169,050, respectively, if the
Overallotment Option is exercised in full) and other offering
expenses of approximately $250,000, regardless of the number of
Units sold.
Use of Proceeds......................................Research, clinical studies and stability testing, product
development, marketing and sales expenses and general
corporate purposes.
Risk Factors.........................................An investment in the Units involves a high degree of risk
and immediate substantial dilution. Prospective investors should
review and consider carefully the factors described under "RISK
FACTORS" and "DILUTION."
</TABLE>
- ----------------------
(1) Unless otherwise indicated, all information in this Prospectus
assumes that: (i) no Warrants are exercised; (ii) the Underwriter's
Options are not exercised; (iii) no options under the Company's Stock
Option Plans are exercised; (iv) none of the Company's 100,000
outstanding warrants and 600,000 non Plan options are exercised; and
(v) the
7
<PAGE>
$300,000 in convertible notes issued by the Company to Harry Dugger and
John Moroney (the "Bridge Notes" or "Bridge Financing") have not been
converted. See "CAPITALIZATION", "DESCRIPTION OF SECURITIES" and
"UNDERWRITING."
(2) Notwithstanding listings on the Boston Stock Exchange and the Nasdaq
SmallCap Stock Market there can be no assurance that a trading market
will develop for the Units, Common Stock or the Warrants, or if any
such market develops, that it will be sustained. See "RISK FACTORS."
8
<PAGE>
SUMMARY FINANCIAL DATA
<TABLE>
<CAPTION>
Nine Months Ended
April 30
(unaudited) Year Ended July 31
--------------------- ---------------------
Summary Operating Data 1997 1996 1996 1995
---- ---- ---- ----
<S> <C> <C> <C> <C>
Operating Revenues $589,000 $1.202,000 $1,402,000 $1,204,000
Consulting Fees (non-recurring) -- -- 2,070,000 --
Interest Income 17,000 16,000 31,000 11,000
-------- ---------- ---------- ----------
Total Revenues $606,000 $1,218,000 $3,503,000 $1,215,000
Expenses:
Operating Expenses 395,000 677,000 819,000 782,000
Product Development 36,000 162,000 172,000 4,000
Selling, general and
administrative expenses 376,000 293,000 410,000 461,000
Interest Expense -- 1,000 2,000 4,000
Consulting Fee Expenses
(non-recurring) -- -- 1,606,000 --
-------- ---------- ---------- ----------
Total Expenses 807,000 1,133,000 3,009,000 1,251,000
-------- ---------- ---------- ----------
Net Income (Loss) $ (201,000) $ 85,000 $ 494,000 $ (36,000)
-------- ---------- ---------- ----------
Per Common Share:
Net Income (Loss) (.05) .02 .12 (.01)
Proforma Net Income (Loss) (.08) (.02) .06 (.07)
</TABLE>
<TABLE>
<CAPTION>
Balance Sheet Data At April 30, 1997
(unaudited)
----------------------------------------------
As
Actual Pro Forma(1) Adjusted(2)
---------- --------- --------
<S> <C> <C> <C>
Working Capital (Deficit) $(148,000) $ 152,000 $ 4,204,000
Long-Term Convertible Debt 0 300,000 0
Total Assets 315,000 615,000 4,628,000
Total Liabilities 389,000 689,000 389,000
Shareholders' equity (Deficit) (74,000) (74,000) 4,239,000
</TABLE>
(1) Gives pro forma effect to the consummation of the $300,000 Bridge
Financing in July 1997 (see "Certain Transactions").
(2) As adjusted to give effect to the receipt of the net proceeds from the
sale of the Units offered hereby, including the conversion of the
$300,000 Bridge Notes into 600,000 shares of Common Stock and the net
proceeds of the offering contemplated herein of $4,013,000 ($4,900,000
proceeds less discount and commissions, 3% non accountable allowance
and other offering expenses of $490,000, $147,000 and $250,000,
respectively), but does not give effect to the possible exercise of:(i)
the Underwriter's Options; (ii) the Class A Warrants; (iii) any options
issued or issuable under the Company's Stock Option Plans; and (iv)
other outstanding warrants. See "CAPITALIZATION" and "CERTAIN
TRANSACTIONS."
9
<PAGE>
RISK FACTORS
The securities offered hereby are speculative and involve a high degree
of risk. In analyzing this offering, prospective investors should give careful
consideration to the following risk factors, in addition to the other
information set forth elsewhere in this Prospectus.
Accumulated Deficit and Operating Losses; Anticipated Continuing
Losses; Limited Working Capital; Going Concern Qualification in Auditor's
Report. The Company had an accumulated deficit at April 30, 1997 of $950,000 and
a working capital deficit of $148,000. The Company incurred operating losses in
three of the last five fiscal years ended July 31 including a net loss of
$36,000 in fiscal 1995. For the nine months ended April 30, 1997, the Company
incurred a net loss of $201,000. Because the Company has changed its business
focus from pharmaceutical consulting to product development, the Company
anticipates that it will incur substantial operating expenses in connection with
continued development, testing and approval of its proposed products, and
expects these expenses will result in continuing and, perhaps, significant
operating losses until such time, if ever, that the Company is able to achieve
adequate product sales levels. Additionally, the Company's financial statements
are presented on the basis that the Company is a going concern, which
contemplates the realization of assets and the satisfaction of liabilities in
the ordinary course of business. The report of the Company's auditors dated
September 4, 1996 concerning the Company's financial statements for the two
years ended July 31, 1996 contains an explanatory paragraph expressing
substantial doubt with respect to the Company's ability to continue as a going
concern without obtaining additional financing such as that contemplated by this
offering. The financial statements do not reflect adjustments to amounts and
classification of recorded assets or the amounts and classification of
liabilities that might be necessary should the Company be unable to continue in
existence. See Note 2 to the Financial Statements and "MANAGEMENT'S DISCUSSION
AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS."
Dependence on Principal Clients. To date, substantially all of the
Company's revenues have been derived from consulting services rendered to a
limited number of clients, the loss of certain of which would have an adverse
effect on the Company. For the year ended July 31, 1996, consulting activities
relating to the Company's three largest clients, accounted for approximately
60%, 14% and 10%, respectively, of the Company's revenues. The project for the
Company's largest client in the year ended July 31, 1996 was completed in that
year and the Company does not expect to perform any additional services for that
client in the immediate future. For the nine months ended April 30, 1997,
consulting activities relating to the Company's four (4) largest clients
accounted for approximately 22%, 20%, 13% and 9%, respectively, of the Company's
revenues. Three of such customers were European and one of such customers was
from the Middle East. There can be no assurance that the Company's clients will
continue to seek consulting services from the Company. See "BUSINESS -
Consulting Activities."
10
<PAGE>
Evolving Nature of Business; Entry into Product Based Business.
Although the Company has received revenue from its own product development
activities, these revenues are insignificant as compared to the Company's
revenues from product development consultation work done for its clients. The
nature of the Company's revenue received from its own product development
consists of payments by major pharmaceutical companies for research and
bioavailability studies, pilot clinical trials, and similar milestone-related
payments. The Company expects to continue its consulting activities, although to
a lesser extent. The future growth and profitability of the Company will,
however, be dependent principally upon the Company's ability to successfully
complete the development of, obtain regulatory approvals for, and license out or
market, its own proposed products. Accordingly, the Company's prospects must be
considered in light of the risks, expenses and difficulties frequently
encountered in connection with the establishment of a new business in a highly
competitive industry, characterized by frequent new product introductions. The
Company anticipates that it will incur substantial operating expenses in
connection with the development, testing and approval of its proposed products
and expects these expenses to result in continuing and, perhaps, significant
operating losses until such time, if ever, that the Company is able to achieve
adequate levels of sales or other revenues. There can be no assurance that the
Company will be able significantly to increase revenues or achieve profitable
operations.
Significant Capital Requirements; Dependence on Offering Proceeds for
Product Development and Commercialization. The Company has an immediate need for
the proceeds of this offering or other financing to fund planned expenditures in
connection with the research, development, testing and approval of its proposed
products. In the event the Company's cash flow from operations is insufficient
to meet current expenditures, proceeds of the offering will also be used for
general working capital purposes, including the payment of general overhead
expenses. These expenditures are expected to be significant. The Company
anticipates, based on its current proposed plans and assumptions relating to its
operations (including the timetable of, and costs associated with, new product
development), that the proceeds of this offering together with projected cash
flow from operations will be sufficient to satisfy its contemplated cash
requirements for approximately 24 months following the consummation of this
offering. If the Company's plans change, its assumptions change or prove to be
inaccurate, or if the proceeds of this offering and/or projected cash flow prove
to be insufficient to fund operations, due to unanticipated expenses, technical
problems or difficulties or otherwise, the Company could be required to seek
additional financing sooner than currently anticipated. The Company has no
current arrangements with respect to, or sources of, additional financing, and
there can be no assurance that additional financing will be available to the
Company on acceptable terms, if at all. In view of the Company's very limited
resources, its anticipated expenses and the competitive environment in which the
Company operates, any inability to obtain additional financing could severely
limit the Company's ability to complete development and commercialization of its
proposed products. See "USE OF PROCEEDS" and "MANAGEMENT'S DISCUSSION AND
ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS."
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No Commercially Available Products. The Company's principal efforts are
the development of, and obtaining regulatory approvals for, its proposed
products. The Company anticipates that marketing activities for its products,
whether by the Company or one or more licensees will not begin until 1998 at the
earliest. Accordingly, it is not anticipated that the Company will generate any
revenues from royalties or sales of products until regulatory approvals are
obtained and marketing activities begin. There can be no assurance that any of
the Company's proposed products will prove to be commercially viable, or if
viable, that they will reach the marketplace on the timetables desired by the
Company. The failure or the delay of these products to achieve commercial
viability would have a material adverse effect on the Company. See "BUSINESS -
Proposed Products" and " - Government Regulation."
Product Development and Acceptance Risks. The development of the
Company's proposed products has not been completed and the Company will be
required to devote considerable effort and expenditures to complete such
development. Satisfactory completion of development, testing, government
approval and sufficient production levels of such products must be obtained
before the proposed products will become available for commercial sale. The
Company does not anticipate generating material revenue from product sales until
perhaps 1998 or thereafter. Other potential products remain in the conceptual or
very early development stage and remain subject to all the risks inherent in the
development of pharmaceutical products, including unanticipated development
problems, and possible lack of funds to undertake or continue development. These
factors could result in abandonment or substantial change in the development of
a specific formulated product. There can be no assurance that any of the
Company's proposed products will be successfully developed, be developed on a
timely basis or be commercially accepted once developed. The inability to
successfully complete development, or a determination by the Company, for
financial or other reasons, not to undertake to complete development of any
product, particularly in instances in which the Company has made significant
capital expenditures, could have a material adverse effect on the Company. See
"BUSINESS - Proposed Products."
Lack of Direct Consumer Marketing Experience; Dependence on Joint
Marketing Arrangements. The Company has no experience in marketing or
distribution at the consumer level of its proposed products. Moreover, the
Company does not have the financial or other resources to undertake extensive
marketing and advertising activities. Accordingly, the Company intends generally
to rely on marketing arrangements, including possible joint ventures or license
or distribution arrangements with third parties. The Company has not entered
into any significant agreements or arrangements with respect to the marketing of
its proposed products, and there can be no assurance that it will do so in the
future or that any such products can be successfully marketed. The Company's
strategy to rely on third party marketing arrangements could adversely affect
its profit margins. See "BUSINESS - Marketing and Distribution."
Dependence on Contract Manufacturing. The Company has agreements with
respect to the manufacture of its initially proposed products with its European
contract manufacturers. Under these agreements the Company is responsible to
obtain required regulatory approvals,
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begin commercialization within three months after FDA marketing approval, pay
royalties under certain circumstances, and satisfy certain minimum purchase
requirements. Additionally, these agreements provide for negotiation and annual
renegotiation of terms relating to per item cost. There can be no assurance that
such terms can be negotiated on terms satisfactory to the Company or that
failure to negotiate such terms will not result in the termination of any such
agreement. The failure of the Company to satisfy its obligations under any of
these agreements could result in modification or termination of such agreement.
There can be no assurance that the Company will have the ability to satisfy all
of its obligations under these agreements, and failure to do so could require
the Company to obtain alternative manufacturing arrangements, which could have
an material adverse effect on the Company. The Company's dependence upon third
parties for the manufacture of its products could have an adverse effect on the
Company's profit margins and its ability to deliver its products on a timely and
competitive basis. See "BUSINESS - Joint Development Agreements."
Compliance with Good Manufacturing Practices. The Company currently
intends to rely on third-party arrangements for the manufacture of its proposed
products. The manufacture of the Company's pharmaceutical products will be
subject to current Good Manufacturing Practices ("cGMP") prescribed by the FDA,
pre-approval inspections by the FDA or foreign authorities, or both, before
commercial manufacture of any such products and periodic cGMP compliance
inspections thereafter by the FDA. There can be no assurance that the Company's
European manufacturers will be able to comply with cGMP or satisfy pre- or
post-approval inspections in connection with the manufacture of the Company's
proposed products. The Company's gelatin capsule manufacturer
SCA-Lohnherstellungs AG ("Swisscaps") successfully completed an FDA pre-approval
inspection in connection with the approval of the Company's Abbreviated New Drug
Application ("ANDA") for Nifedipine. The Company's other manufacturer, Rapid
Spray GmbH & Co, KG. ("Rapid Spray") has not yet been inspected by the FDA.
Failure or delay by any such manufacturer to comply with cGMP or satisfy pre- or
post-approval inspections would have a material adverse effect on the Company.
See "BUSINESS - Manufacturing."
Foreign Manufacturing and Related Risks. The Company anticipates that
its initially proposed products will be manufactured by its European
manufacturers at facilities in Germany and Switzerland. The Company intends to
import completed manufactured products into the United States. In addition, the
raw materials necessary for the manufacture of the Company's products will, in
all likelihood, be purchased by the Company from suppliers in the United States
or Europe and delivered to its manufacturers' facilities by such suppliers.
Accordingly, the Company and its manufacturers may be subject to various import
duties applicable to both finished products and raw materials and may be
affected by various other import and export restrictions as well as other
developments impacting upon international trade. These international trade
factors will, under certain circumstances, have an impact both on the
manufacturing cost (which will, in turn, have an impact on the cost to the
Company of the manufactured product) and the wholesale and retail prices of the
products to be manufactured abroad. To the extent that transactions relating to
the foreign manufacture of the Company's
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proposed products and purchase of raw materials involve currencies other than
United States dollars, the operating results of the Company will be affected by
fluctuations in foreign currency exchange rates. See "BUSINESS - Manufacturing."
Supplier Dependence. The Company believes that the active ingredients
used in the manufacture of its proposed pharmaceutical products are presently
available from numerous suppliers located in the United States, Europe and
Japan. The Company believes that certain raw materials, including inactive
ingredients, are available from a limited number of suppliers and that certain
packaging materials intended for use in connection with its spray products
currently are available only from sole source suppliers. Although the Company
does not believe it will encounter difficulties in obtaining the inactive
ingredients or packaging materials necessary for the manufacture of its
products, there can be no assurance that the Company will be able to enter into
satisfactory agreements or arrangements for the purchase of commercial
quantities of such materials. The failure to enter into agreements or otherwise
arrange for adequate or timely supplies of principal raw materials and the
possible inability to secure alternative sources of raw material supplies could
have a material adverse effect on the Company's ability to arrange for the
manufacture of formulated products. In addition, development and regulatory
approval of the Company's products are dependent upon the Company's ability to
procure active ingredients and certain packaging materials from FDA-approved
sources. Since the FDA approval process requires manufacturers to specify their
proposed suppliers of active ingredients and certain packaging materials in
their applications, FDA approval of a supplemental application to use a new
supplier would be required if active ingredients or such packaging materials
were no longer available from the originally specified supplier, which could
result in manufacturing delays. See "BUSINESS - Raw Materials and Suppliers."
Competition. The markets which the Company intends to enter are
characterized by intense competition. The Company or its licensees may be
competing against established pharmaceutical companies which currently market
products which are equivalent or functionally similar to those the Company
intends to market. Prices of drug products are significantly affected by
competitive factors and tend to decline as competition increases. In addition,
numerous companies are developing or may, in the future, engage in the
development of products competitive with the Company's proposed products. The
Company expects that technological developments will occur at a rapid rate and
that competition is likely to intensify as enhanced dosage from technologies
gain greater acceptance. Additionally, the markets for formulated products which
the Company has targeted for development are intensely competitive, involving
numerous competitors and products. Most of the Company's prospective competitors
possess substantially greater financial, technical and other resources than the
Company. Moreover, many of these companies possess greater marketing
capabilities than the Company, including the resources necessary to enable them
to implement extensive advertising campaigns. There can be no assurance that the
Company will have the ability to compete successfully. See "BUSINESS -
Competition."
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Absence of Product Liability Insurance Coverage. The Company may be
exposed to potential product liability claims by consumers. The Company does not
presently maintain product liability insurance coverage. Although the Company
will seek to obtain product liability insurance before the commercialization of
any products, there can be no assurance that the Company will be able to obtain
such insurance or, if obtained, that any such insurance will be sufficient to
cover all possible liabilities to which the Company may be exposed. In the event
of a successful suit against the Company, insufficiency of insurance coverage
could have a material adverse effect on the Company. In addition, certain food
and drug retailers require minimum product liability insurance coverage as a
condition precedent to purchasing or accepting products for retail distribution.
Failure to satisfy such insurance requirements could impede the ability of the
Company or its distributors to achieve broad retail distribution of its proposed
products, which could have a material adverse effect on the Company. None of the
Company's European manufacturers have made any representations as to the safety
or efficacy of the products covered by their agreements or as to any products
which may be marketed or used under rights granted under any such agreements,
other than compliance with cGMP and product specifications. See "BUSINESS -
Product Liability."
Extensive Government Regulation. The development, manufacture and
commercialization of pharmaceutical products is generally subject to extensive
regulation by various federal and state governmental entities. The FDA, which is
the principal United States regulatory authority, has the power to seize
adulterated or misbranded products and unapproved new drugs, to request their
recall from the market, to enjoin further manufacture or sale, to publicize
certain facts concerning a product and to initiate criminal proceedings. As a
result of federal statutes and FDA regulations, pursuant to which new
pharmaceuticals are required to undergo extensive and rigorous testing,
obtaining pre-market regulatory approval requires extensive time and
expenditures. Under the Federal Food, Drug and Cosmetic Act (the "FDC Act"), a
new drug may not be commercialized or otherwise distributed in the United States
without the prior approval of the FDA. The FDA approval processes relating to
new drugs differ, depending on the nature of the particular drug for which
approval is sought. With respect to any drug product with active ingredients not
previously approved by the FDA, a prospective drug manufacturer is required to
submit a new drug application ("NDA"), including complete reports of
preclinical, clinical and laboratory studies to prove such product's safety and
efficacy. The NDA process generally requires, before the submission of the NDA,
submission of an IND pursuant to which permission is sought to begin preliminary
clinical testing of the new drug. An NDA, based on published safety and efficacy
studies conducted by others, may also be required to be submitted for a drug
product with a previously approved active ingredient if the method of delivery,
strength or dosage form is changed. Alternatively, a drug having the same active
ingredient as a drug previously approved by the FDA may be eligible to be
submitted under an ANDA, which is significantly less stringent than the NDA
approval process. While the ANDA process requires a manufacturer to establish
bioequivalence to the previously approved drug, it permits the manufacturer to
rely on the safety and efficacy studies contained in the DNA for the previously
approved drug. The Company believes that some of its drug products developed in
capsule form will be substantially similar to products which have previously
obtained FDA
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approval and, accordingly, that approvals for such products can be obtained by
submitting an ANDA. The Company, however, may be required, before submitting an
ANDA, to submit a suitability petition, the purpose of which is to permit the
FDA to evaluate whether a change in strength, dosage form or method of delivery
is significant enough to require clinical trials and, therefore, an NDA filing.
There can be no assurance that the FDA will not require the Company to conduct
clinical trials for such products and otherwise comply with the NDA approval
process. The Company believes that products developed in spray dosage form will
require submission of an NDA. The Company estimates that the development of new
formulations of pharmaceutical products, including formulation, testing and
obtaining FDA approval, generally takes four to six years for the ANDA process
and six to eight years for the NDA process. There can be no assurance that the
Company's determinations will prove to be accurate or that pre-marketing
approval relating to its proposed products will be obtained on a timely basis,
or at all. The failure by the Company to obtain necessary regulatory approvals,
whether on a timely basis, or at all, would have a material adverse effect on
the Company.
Patents and Protection of Proprietary Information. The Company holds a
United States patent covering its formulation for Nifedipine gelatin capsules,
which the Company believes is not material to its operations. The Company has
applied for patent protection for its other proposed lingual spray and soft
gelatin drug delivery processes. To the extent possible, the Company intends to
seek formulation patent protection or other proprietary rights for those
products utilizing the Company's oral dosage formulations. There can be no
assurance, however, that patents relating to such formulated products or
processes will in fact be granted or, if granted, will provide any proprietary
rights adequately protecting the Company. Other companies may independently
develop equivalent or superior technologies or processes and may obtain patent
or similar rights with respect thereto. Although the Company believes that its
technology has been independently developed and does not infringe on the patents
of others, there can be no assurance that the technology does not and will not
infringe on the patents of others.
If a process covered by a United States patent is utilized in the
manufacture of a product in a foreign country, the further manufacture, use or
sale of such products in the United States may constitute an infringement of the
United States patent. In the event of infringement, the Company or its European
manufacturers could, under certain circumstances, be required to modify the
infringing process or obtain a license. There can be no assurance that the
Company or the European manufacturers will be able to do so in a timely manner
or upon acceptable terms and conditions or at all. The failure to do any of the
foregoing could have a material adverse effect on the Company. In addition,
there can be no assurance that the Company will have the financial or other
resources necessary to enforce or defend a patent infringement or proprietary
rights violation action. If any of the products developed by the Company
infringes upon the patent or proprietary rights of others, the Company could,
under certain circumstances, be enjoined or become liable for damages, which
would have a material adverse effect on the Company. See "BUSINESS - Patents and
Protection of Proprietary Information."
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Dependence on Existing Management and Key Personnel. The success of the
Company is substantially dependent on the efforts and abilities of its founder
Harry A. Dugger, III, Ph.D., and John J. Moroney, its Chairman. Decisions
concerning the Company's business and its management are and will continue to be
made or significantly influenced by these individuals. The loss or interruption
of their continued services would have a materially adverse effect on the
Company's business operations and prospects. Additionally, the Company's
operations may be materially adversely affected if it is unable to obtain and
retain qualified research, technical and marketing personnel. Only Dr. Dugger is
required to devote his full time to the Company. See "BUSINESS - Employees", "-
Marketing and Sales" and "MANAGEMENT."
Control by Current Stockholders, Officers and Directors. Management and
affiliates of the Company currently beneficially own (including shares they have
the right to acquire) approximately 68% of the outstanding Common Stock. Upon
completion of this offering, they will own approximately 52% of the Common
Stock. These persons are and will continue to be able to exercise control over
the election of the Company's directors and the appointment of officers,
increase the authorized capital, dissolve, merge or engage the Company in other
fundamental corporate transactions. See "PRINCIPAL STOCKHOLDERS."
Immediate and Substantial Dilution. Purchasers of the Shares offered
hereby will incur an immediate dilution of approximately $2.58 per share in net
tangible book value from the public offering price (estimated at $3.50 per Share
and assuming no exercise of the Overallotment Option). This represents an
immediate dilution of approximately 74% from the assumed initial public offering
price per Share. See "DILUTION."
Dividend Policy. The Company has never declared or paid a dividend on
its Common Stock, and management expects that a substantial portion of the
Company's future earnings will be retained for expansion or development of the
Company's business. The decision to pay dividends, if any, in the future is
within the discretion of the Board of Directors and will depend upon the
Company's earnings, capital requirements, financial condition and other relevant
factors such as contractual obligations. Management, therefore, does not
contemplate that the Company will pay dividends on the Common Stock in the
foreseeable future. See "DIVIDEND POLICY."
No Public Market. Prior to this offering, there has been no public
market for the Units, the Common Stock or Warrants. Accordingly, there can be no
assurance that an active trading market in any of such securities will develop
and be sustained upon the completion of this offering or that the market price
of such securities will not decline below the initial public offering price.
Arbitrary Offering Price. The initial offering price of the Units and
the exercise price and terms of the Warrants have been determined by
negotiations between the Company an the Underwriter. See "Underwriting" for a
discussion of the factors considered in determining the initial public offering
price. Regulatory developments and economic and other external factors,
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as well as period-to-period fluctuations in financial results, may also have a
significant impact on the market price of such securities.
Possible Restrictions on Market-Making Activities in Company's
Securities. The Underwriter has advised the Company that it intends to make a
market in the Company's securities. Regulation M, which was recently adopted to
replace Rule 10b-6 and certain other rules promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), may prohibit the
Underwriter from engaging in any market-making activities with regard to the
Company's securities for the period from five business days (or such other
applicable period as Regulation M may provide) prior to any solicitation by the
Underwriter of the exercise of Warrants until the later of the termination of
such solicitation activity or the termination (by waiver of otherwise) of any
right that the Underwriter may have to receive a fee for the exercise of
Warrants following such solicitation. As a result, the Underwriter may be unable
to provide a market for the Company's securities during certain periods while
the Warrants are exercisable. In addition, under applicable rules and
regulations under the Exchange Act, any person engaged in the distribution of
securities of any selling stockholder may not simultaneously engage in
market-making activities with respect to any securities of the Company for the
applicable "cooling off" period prior to the commencement of such distribution.
Accordingly, in the event the Underwriter is engaged in a distribution of the
securities of any selling stockholder, it will not be able to make a market in
the Company's securities during the applicable restrictive period. Any temporary
cessation of such market-making activities could have an adverse effect on the
market price of the Company's securities. See "Underwriting."
Underwriter's Options and Additional Options and Warrants. The Company
has agreed to issue to the Underwriter an option to purchase 70,000 Units
exercisable at $8.40 (120% of the respective public offering price of the Units)
for a term of four years commencing one year from the effective date of this
Prospectus (the "Underwriter's Options"). In addition, the Company has reserved
up to 1,700,000 shares of its Common Stock for issuance upon exercise of stock
options which may be granted pursuant to the Company's 1992 Stock Option Plan
and 1997 Stock Option Plan (hereinafter the "Stock Option Plans"), of which
options to purchase an aggregate of 480,000 and 200,000 shares have been issued
with respect to the Plans, 100,000 shares reserved for issuance upon the
exercise of outstanding warrants and 600,000 options issued outside of the Stock
Option Plans. In addition, the Company has agreed with the Underwriter, under
certain circumstances, to register the Shares and the Warrants subject to the
Underwriter's Options for distribution to the public. Exercise of these
registration rights could involve a substantial expense to the Company and could
prove a hindrance to future financings. Exercise of the Underwriter's Options,
the outstanding warrants and stock options, and those which may be granted under
the Plan (collectively, the "Convertible Securities"), will reduce the
percentage of Common Stock held by the public stockholders. Further, the terms
on which the Company could obtain additional capital during the life of the
Convertible Securities may be adversely affected, and it should be expected that
the holders of the Convertible Securities would exercise them at a time when the
Company would be able to obtain equity capital on terms more favorable than
those provided for by such Convertible Securities. See "UNDERWRITING."
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Potential Adverse Effect of Redemption of Warrants. The Warrants may be
redeemed by the Company commencing eighteen months from the date of this
Prospectus, or earlier with the consent of the Underwriter, at a redemption
price of $.10 per Warrant upon not less then thirty days prior written notice
provided the last sale price of the Common Stock on Nasdaq, the Boston Stock
Exchange (or another national securities exchange) for twenty consecutive
trading days ending within three days of the notice of redemption, equals or
exceeds 200% of the current Warrant exercise price, subject to adjustment.
Redemption of the Warrants could force the holders thereof to exercise the
Warrants and pay the exercise price at a time when it may be disadvantageous for
the holders to do so, to sell the Warrants at the then current market price when
they might otherwise wish to hold the Warrants, or to accept the redemption
price, which is likely to be substantially less than the market value of the
Warrants at the time of redemption. See "DESCRIPTION OF SECURITIES - Warrants."
Potential Adverse Effect from Class A Warrants. Upon completion of this
offering, 1,400,000 Class A Warrants will be issued. The exercise of such
Warrants, or a substantial portion thereof, and the sale of the resulting shares
of Common Stock could adversely affect the market price of the Company's Common
Stock. See "DESCRIPTION OF SECURITIES."
Current Prospectus and State Registration Required to Exercise
Warrants. The Warrants are being registered pursuant to a Registration Statement
filed with the Securities and Exchange Commission ("Commission") under the
Securities Act of 1933 (the "Securities Act"), of which this Prospectus is a
part, and after its effectiveness the Warrants may be traded, and upon exercise,
their underlying share of Common Stock may be sold in the public market that may
develop for the securities for approximately one year thereafter. However,
unless such Registration Statement is kept current by the Company and measures
to qualify or keep such securities in certain states are taken, investors
purchasing the Warrants in this offering, although exercisable, will not be able
to exercise the Warrants or sell its underlying shares of Common Stock issuable
upon exercise of the Warrants in the public market. The Company has agreed to
use its best efforts to qualify and maintain a current registration statement
covering such shares of Common Stock. There can be no assurance, however, that
the Company will be able to maintain a current registration statement or to
effect appropriate qualifications under applicable state securities laws, the
failure of which may result in the exercise of the Warrants and the resale or
other disposition of Common Stock issued, upon such exercise, being unlawful.
See "Description of Securities -- Class A Warrants."
Possible Resales Under Rule 144. All 2,597,390 shares (3,197,390 shares
if the Bridge Notes are converted) of Common Stock held by the Company's present
stockholders and all shares of Common Stock issuable upon exercise of
outstanding stock options and those which may be granted under the 1992 and 1997
Stock Option Plans have not been registered under the Securities Act of 1933, as
amended (the "Act"), but may, under certain circumstances, be available for
public sale by means of ordinary brokerage transactions in the open market
pursuant to Rule 144, promulgated under the Act, subject to certain limitations.
In general, under Rule
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144, a person (or persons whose shares are aggregated) who has satisfied a
one-year holding period may, under certain circumstances, sell within any
three-month period a number of securities which does not exceed the greater of
1% of the then outstanding shares of Common Stock or the average weekly trading
volume of the class during the four calendar weeks prior to such sale. Rule 144
also permits, under certain circumstances, the sale of securities, without any
limitation, by a person who is not an affiliate of the Company and who has
satisfied a two-year holding period. Although all of the Company's stockholders,
as well as all of its officers and directors, have agreed not to publicly offer,
sell or otherwise dispose of directly or indirectly, any of their shares of
Common Stock for a period of 36 months following the consummation of this
offering without the prior written consent of the Underwriter, any substantial
sale of Common Stock pursuant to Rule 144 may have an adverse effect on the
market price of the Shares or the competent securities. See "SHARES ELIGIBLE FOR
FUTURE SALE" and "UNDERWRITING."
Underwriter's Limited Underwriting Experience. The Underwriter has been
actively engaged in the securities brokerage and investment banking business
since 1994. However the Underwriter has engaged in only limited underwriting
activities, and this offering is only the [______] public offering in which the
Underwriter has acted as the sole or managing Underwriter. There can be no
assurance that the Underwriter's limited experience as an underwriter of public
offerings will not adversely affect the proposed public offering of the Units,
Common Stock and Warrants, the subsequent development of a trading market, if
any, or the market for an liquidity of the Company's securities. Therefore,
purchasers of the securities offered hereby may suffer a lack of liquidity in
their investment or a material diminution of the value of their investment.
Underwriter's Influence on the Market. A significant amount of the
Units offered many be sold to customers of the Underwriter. Such customers
subsequently may engage in transactions for the sale of purchase of such Units
and may otherwise effect transaction in such securities. If they participate in
the market, the Underwriter may exert substantial influence on the market, if
one develops, for the Units, Common Stock and Warrants. Such market making
activity may be discontinued at any time. The price and liquidity of the Units,
Common Stock and Warrants may be significantly affected by the degree, if any,
of the Underwriter's participation in such market. See "Underwriting."
Risks of Low-priced Stocks. The Company has applied to list the Units,
Common Stock and Warrants on the Boston Stock Exchange ("BSE"), and it is
anticipated that such securities will also be traded on the Nasdaq SmallCap
Stock Market. If the Company's securities were delisted from the BSE, they
could become subject to Rule 15g-9 under the Exchange Act, which imposes
additional sales practice requirements on broker-dealers which sell such
securities to persons other than established customers and "accredited
investors" (generally, individuals with net worth in excess of $1,000,000 or
annual incomes exceeding $200,000, or $300,000 together with their spouses). For
transaction covered by this rule, a broker-dealer must make a special
suitability determination for the purchaser and have received the purchaser's
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written consent to the transaction prior to sale. Consequently, such rule may
adversely affect the ability of broker-dealers to sell the Company's securities
and may adversely affect the ability of purchasers in this offering to sell in
the secondary market any of the securities acquired hereby.
Possible Adverse Effect of "Penny Stock" Rules in Liquidity for the
Company's Securities. Commission regulations define a "penny stock" to be any
non-Nasdaq equity security that has a market price (as therein defined) of less
than $5.00 per share, subject to certain exceptions. For any transaction
involving a penny stock, unless exempt, the rules require delivery prior to any
transaction in a penny stock, of a disclosure schedule prepared by the
Commission relating to the penny stock market. Disclosure is also required to be
made about commissions payable to both the broker-dealer and the registered
representative and current quotations for the securities. Finally, monthly
statements are required to be sent disclosing recent price information for the
penny stock held in the account and information on the limited market in penny
stocks.
The foregoing required penny stock restrictions will not apply to the
Company's securities if such securities are listed on the Boston Stock Exchange,
Nasdaq, or listed or approved for listing on another national securities
exchange, and have certain price and volume information provided on a current
and continuing basis or meeting certain minimum net tangible assets or average
revenue criteria. There can be no assurance that the Company's securities will
qualify for exemption from these restrictions. In any event, even if the
Company's securities were exempt from such restrictions, it would remain subject
to Section 15(b)(6) of the Exchange Act, which gives the Commission the
authority to prohibit any person that is engaged in unlawful conduct while
participating in a distribution of a penny stock from associating with a
broker-dealer or participating in a distribution of a penny stock, if the
Commission finds that such a restriction would be in the public interest. If the
Company's securities were subject to rules on penny stocks, the market liquidity
for the Company's securities could be severely adversely affected. In such
event, the regulations on penny stocks could limit the ability of broker-dealers
to sell the Company's securities and thus the ability of purchasers of the
Company's securities to sell their securities in the secondary market.
Limitation on Directors' Liabilities under New Jersey Law. Pursuant to
the Company's Certificate of Incorporation and under New Jersey law, directors
of the Company are not liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty, except for liability in connection with a
breach of duty of loyalty, for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, for dividend
payments or stock repurchases illegal under New Jersey law or any transaction in
which a director has derived an improper personal benefit.
Authorization and Discretionary Issuance of Preferred Stock. The
Company's Certificate of Incorporation authorizes the issuance of "blank check"
preferred stock with such designations, rights and preferences as may be
determined from time to time by the Board of Directors. Accordingly, the Board
of Directors is empowered, without stockholder approval, to
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issue preferred stock with dividends, liquidation, conversion, voting or other
rights which could adversely affect the relative voting power or other rights of
the holders of the Company's Common Stock. In the event of issuance, the
preferred stock could be used, under certain circumstances, as a method of
discouraging, delaying or preventing a change in control of the Company, which
could have the effect of discouraging bids for the Company and thereby prevent
stockholders from receiving the maximum value for their shares. Although the
Company has no present intention to issue any shares of its preferred stock,
there can be no assurance that the Company will not do so in the future. See
"DESCRIPTION OF SECURITIES - Preferred Stock."
Pursuant to the terms of the Underwriting Agreement, the Company may
not issue capital stock for a period of 36 months from the effective date of
this Prospectus without prior written consent of the Underwriter.
Indemnification of Directors under New Jersey Law. Pursuant to both the
Company's Certificate of Incorporation and New Jersey law, the Company's
officers and directors are indemnified by the Company for monetary damages for
breach of fiduciary duty, except for liability which arises in connection with
(i) a breach of duty or loyalty, (ii) acts or omissions not made in good faith
or which involve intentional misconduct or a knowing violation of law, (iii) for
dividend payments or stock repurchases illegal under New Jersey law, or (iv) any
transaction in which the officer or director derived an improper personal
benefit. The Company's Certificate of Incorporation does not have any effect on
the availability of equitable remedies (such as an injunction or rescissions)
for breach of fiduciary duty. However, as a practical matter, equitable remedies
may not be available in particular circumstances. See "Management -- Director
and Officer Liability."
22
<PAGE>
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Shares
offered hereby will be approximately $4,013,000 after deducting underwriting
discounts and commissions and other expenses of the offering ($4,652,450 if the
Overallotment Option is exercised in full). It is anticipated that such net
proceeds will be generally applied as follows:
Approximate
Dollar Approximate
Application of Proceeds Amount Percentage
Research, clinical studies and
stability testing(1) $2,000,000.00 49.8%
Product Development(2) $ 750,000.00 18.7%
Marketing and Sales Expenses(3) $ 500,000.00 12.5%
Working Capital and General
Corporate Purposes(4) $ 763,000.00 19.0%
------------- ------
TOTAL $4,013,000.00 100.0%
============= ======
- --------------------
(1) Includes costs and expenses for research, pilot clinical studies and
stability testing; and costs associated with the FDA approval process.
Pilot clinical studies seek to demonstrate, in vivo, that a proposed
drug product provides a significantly accelerated onset of therapeutic
action or a given therapeutic effect at a significantly reduced dosage,
and have an average cost in the range of $100,000 to $200,000 per
study. These studies are conducted after the product development work
referenced in item (2) has been completed indicating that the product
would be suitable for the Company's delivery systems.
(2) Includes costs and expenses in connection with product formulation and
development which occurs earlier in the product development life cycle
than the pilot studies and testing referenced in item (1).
(3) Represents expenses for hiring marketing personnel and developing
marketing and sales and promotional programs, travel and related
expenses for attendance at seminars, trade shows and related functions,
and creation of brochures and similar promotional materials and trade
show displays.
(4) Represents costs expected to be incurred for the operation of the
Company if consulting revenues cannot fully support general operating
expenses.
23
<PAGE>
The foregoing represents the Company's best estimate of the allocation
of the net proceeds of this offering, based on the current status of its
proposed products, anticipated operating expenses, and current product
development and marketing plans. The allocation of proceeds and the timing of
expenditures relating to development of the Company's proposed products are
subject to numerous factors, including, among others, the stage of development
of a particular product, the timing of regulatory approvals, the extent of, and
costs associated with, clinical and other studies, the current status of the
Company's business and contemplated arrangements with third-parties with respect
to development and commercialization of its proposed products, as well as
unanticipated events causing delays. Accordingly, the Company cannot accurately
predict the amount or potential allocation of the proceeds of the offering to
any particular proposed product.
The Company anticipates, based on its current proposed plans and
assumptions relating to its operations (including the timetable of, and costs
associated with, new product development), that the proceeds of this offering
together with projected cash flow from operations will be sufficient to satisfy
its contemplated cash requirements for approximately twenty-four (24) months
following the consummation of this offering. If the Company's plans change, its
assumptions change or prove to be inaccurate or if the proceeds of this offering
and/or projected cash flow prove to be insufficient to fund operations
(including due to unanticipated expenses, technical problems or difficulties or
otherwise), the Company may find it necessary or advisable to reallocate some of
the proceeds within the above-described categories or to use portions thereof
for other purposes.
The Company may use a portion of the proceeds of this offering
allocated to working capital, together with the issuance of debt or equity
securities, to expand the Company's product line by acquiring rights to, or
developing, technology and/or products, or by acquiring companies which the
Company believes are compatible with the Company's business. The Company has no
agreements, commitments or other arrangements with respect to any such
acquisition, and there can be no assurance that the Company will be able to
successfully expand its operations.
Any additional net proceeds received upon the exercise of the
Underwriter's Options, the Class A Warrants or any options or warrants will be
used for working capital. Pending the use of the proceeds of this offering, the
funds will be deposited in interest or non-interest bearing accounts, or
invested in commercial paper, certificates of deposit, government securities or
similar instruments, short-term certificates of deposit, money market funds or
other short-term interest-bearing investments.
24
<PAGE>
DILUTION
As of April 30, 1997, the net tangible book value of the Company's
Common Stock was $(113,000) or $(.04) per share. Net tangible book value per
share represents the amount of the Company's tangible assets (total assets less
intangible assets) less the amount of its liabilities, divided by the number of
shares of Common Stock outstanding. After giving effect to (i) the sale of the
Units offered hereby (at an estimated public offering price of $3.50 per share
and attributing no value to the Class A Warrants) and the receipt of the
estimated net proceeds therefrom; and (ii) the conversion of the Bridge Notes
into 600,000 shares of Common Stock, and assuming no exercise of the Class A
Warrants, the Underwriter's Option, or other outstanding options and warrants;
the as adjusted net tangible book value of the Common Stock at April 30, 1997,
would have been $0.92 per share. This would result in an immediate dilution to
public investors (i.e., the difference between the public offering price of the
Shares and the net tangible book value after the offering) of $2.58 per
share(74%) and an aggregate increase in the net tangible book value of the
present stockholders, of approximately $.96 per share. The following table
illustrates this per share dilution:
Public offering price per Share...........................................$3.50
Net tangible book value per share before Offering ..............$(0.04)
Increase per share attributable to public investors ............$ 0.96
As adjusted net tangible book value per share after Offering .............$0.92
Dilution to public investors .............................................$2.58
- -----------------
In the event the Overallotment Option is exercised in full, the as
adjusted net tangible book value after the offering, after deducting
underwriting discounts and estimated expenses to be paid by the Company, would
be $1.01 per share, which would result in dilution to public investors of $2.49
per share (71%).
The following table summarizes the relative prices paid per share by
existing stockholders and public investors after giving effect to the sale of
Units at an estimated offering price of $7.00 per Unit (attributing no value to
the Warrants included therein), and assuming no exercise of the Warrants, the
Underwriter's Option or other outstanding options and warrants.
25
<PAGE>
<TABLE>
<CAPTION>
Shares Purchased Total Consideration
----------------------------- ----------------------
Price
Number Percent(1) Amount Percent Per Share
------ ------- ------ ------- ---------
<S> <C> <C> <C> <C> <C> <C>
Existing stockholders(1)(2)...... 3,197,390 69.5% $1,176,000 19.4% $ 0.37
New investors.................... 1,400,000 30.5% $4,900,000 80.6% $ 3.50
--------- ----- ---------- -----
Total................... 4,597,390 100.0% $6,076,000 100.0%
</TABLE>
(1) Excludes shares of Common Stock issuable upon the exercise of (i) the
Class A Warrants; (ii) the Overallotment Option; (iii) the
Underwriter's Options; (iv) up to 500,000 options that may be granted
under the 1992 Stock Option Plan; (v) up to 500,000 options that may be
granted under the 1997 Stock Option Plan; (vi) 100,000 common stock
purchase warrants currently outstanding; and (vii) 600,000 non Plan
options.
(2) Includes 600,000 shares of Common Stock to be issued upon the
conversion of the Bridge Notes issued in connection with the Company's
$300,000 Bridge Financing.
DIVIDEND POLICY
The Company has never declared or paid a dividend on its Common Stock,
and management expects that a substantial portion of the Company's future
earnings will be retained for expansion or development of the Company's
business. The decision to pay dividends, if any, in the future is within the
discretion of the Board of Directors and will depend upon the Company's
earnings, capital requirements, financial condition and other relevant factors
such as contractual obligations. Management does not contemplate that the
Company will pay dividends on the Common Stock in the foreseeable future.
26
<PAGE>
CAPITALIZATION
The following tables set forth the capitalization of the Company as of
April 30, 1997 (i) on an actual basis; (ii) on a pro forma basis to give effect
to the Bridge Financing; and (iii) as adjusted to give effect to the sale of the
Units offered by this Prospectus and the receipt of the estimated net proceeds
of this offering, assuming the estimated offering expenses as described in Use
of Proceeds.
<TABLE>
<CAPTION>
April 30, 1997
---------------------------------------------
Actual Pro Forma As Adjusted
------ --------- ------------
<S> <C> <C> <C>
Long term convertible notes payable $ -- $ 300,000 $ --
------------ ------------ ------------
Stockholders' equity (deficit):
Preferred Stock, par value $.01 per share,
1,000,000 shares authorized; no shares
outstanding -- --
Common Stock, par value $.01 per share,
10,000,000 shares authorized; 2,597,390
shares issued and outstanding (actual);
2,597,390 shares issued and outstanding,
(pro forma); 4,597,390 shares issued and
outstanding (as adjusted)(1)...................... 26,000 26,000 46,000
Additional paid in capital................................. 850,000 850,000 5,143,000
Accumulated deficit........................................ (950,000) (950,000) (950,000)
------------ ------------ ------------
Total stockholders' equity (deficit)....................... $ (74,000) $ (74,000) $ 4,239,000
============ ============ ============
TOTAL CAPITALIZATION $ (74,000) $ 226,000 $ 4,239,000
============ ============ ============
</TABLE>
(1) Does not include (i) shares of Common Stock reserved for issuance upon
exercise of the Underwriter's Options; (ii) 500,000 shares of Common
Stock reserved for issuance upon exercise of options granted or
available for grant under the 1992 Stock Option Plan; (iii) 500,000
shares of Common Stock reserved for issuance upon exercise of options
granted or available for grant under the 1997 Stock Option Plan; or
(iv) 700,000 shares of Common Stock reserved for issuance upon exercise
of outstanding warrants and nonplan options.
(2) Reflects the conversion of the $300,000 of Bridge Financing into equity
and net proceeds of $4,013,000 ($4,900,000 gross proceeds less
discounts and commissions, 3% non accountable allowance and other
offering expenses.)
27
<PAGE>
SELECTED FINANCIAL DATA
The following selected financial data is qualified in its entirety by
reference to the Company's Financial Statements and Notes thereto appearing
elsewhere in this Prospectus. The selected financial data for the two years
ended July 31, 1996 have been derived from the Company's audited financial
statements. The selected financial data presented below for the nine months
ended April 30, 1997 and 1996 have been derived from unaudited financial
statements included elsewhere herein. In the opinion of management, such
information includes all adjustments consisting only of normal recurring
adjustments necessary to present fairly the financial condition and results of
operations for such periods. The information for the nine months ended April 30,
1997 is not necessarily indicative of operating results for the entire fiscal
year. The information below should be read in conjunction with "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS"
included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
Nine Months Ended
Statement of Operations Data(1) April 30,
(unaudited) Year Ended July 31,
--------------------------- ---------------------------
1997 1996 1996 1995
---- ---- ---- ----
<S> <C> <C> <C> <C>
REVENUES
Operating Revenues.............................. $ 589,000 $1,202,000 $1,402,000 $1,204,000
Consulting Fee (non-recurring).................. -0- -0- 2,070,000 -0-
Interest Income................................. 17,000 16,000 31,000 11,000
---------- --------- ----------- ----------
606,000 1,218,000 3,503,000 1,215,000
---------- --------- ----------- ----------
COSTS AND EXPENSES
Operating Expenses.............................. 395,000 677,000 819,000 782,000
Product Development............................. 36,000 162,000 172,000 4,000
Selling, General and
Administrative Expenses....................... 376,000 293,000 410,000 461,000
Consulting Fee Expenses
(non-recurring)............................... -0- -0- 1,606,000 -0-
Interest Expense................................ -0- 1,000 2,000 4,000
---------- --------- ----------- ----------
807,000 1,133,000 3,009,000 1,251,000
---------- --------- ----------- ----------
NET INCOME (LOSS) $ (201,000) $ 85,000 $ 494,000 $ (36,000)
---------- --------- ----------- ----------
Weighted average number of
common shares outstanding 4,281,890 4,281,890 4,281,890 4,281,890
Per Common Share:
Net Income (Loss) (.05) .02 .12 (.01)
Proforma Net Income (Loss) (.08) (.02) .06 (.07)
</TABLE>
(1) Since inception, the Company has not declared any dividends on its
Common Stock. See "DIVIDEND POLICY."
28
<PAGE>
<TABLE>
<CAPTION>
Balance Sheet Data At April 30, 1997
(unaudited)
-----------------------------------------------
Actual Pro Forma (1) As Adjusted(2)
------ ------------- --------------
<S> <C> <C> <C>
Working Capital (deficit) $(148,000) $ 152,000 $4,204,000
Long Term Convertible Debt $ -0- $ 300,000 $ -0-
Total Assets $ 315,000 $ 615,000 $4,628,000
Total Liabilities $ 389,000 $ 689,000 $ 389,000
Shareholders' equity (deficit) $ (74,000) $ (74,000) $4,239,000
</TABLE>
(1) Gives pro forma effect to the consummation of the Bridge Financing in
July 1997 (see "Certain Transactions").
(2) As adjusted to give effect to the receipt of the net proceeds from the
sale of the Units offered hereby, and the conversion of the Bridge
Notes, but does not give effect to the possible exercise of:(i) the
Underwriter's Options; (ii) the Class A Warrants; (iii) any options
issued or issuable under the Company's Stock Option Plans; and (iv)
other outstanding warrants. See "CAPITALIZATION" and "CERTAIN
TRANSACTIONS."
29
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
General
Since its inception, substantially all of the Company's revenues have
been derived from consulting activities, primarily in connection with product
development for various pharmaceutical companies. The Company has had a history
of recurring losses from operations through July 31, 1995, giving rise to an
accumulated deficit at July 31, 1995 of approximately $1,243,000. During the
fiscal year ended July 31, 1996, the Company's revenues included a single
(non-recurring) consulting transaction producing a gross consulting fee of
approximately $2,070,000 and net income of $494,000. Although substantially all
of the Company's revenues have been derived from its consulting business, the
future growth and profitability of the Company will be principally dependent
upon its ability to successfully complete the development and marketing of its
own products. The Company's revenues from consulting are currently declining and
are expected to decline further in the future as it shifts its emphasis away
from product development consulting for its clients and towards development of
its own products.
For the reasons stated above, the Company believes that its results of
operations for the periods ended July 31, 1996 and April 30, 1997 are not
necessarily indicative of the Company's future results of operations. The
Company anticipates that it will incur substantial operating expenses in
connection with the development, testing and approval of its proposed products,
and expects these expenses will result in continuing and significant operating
losses until such time, if ever, that the Company is able to achieve adequate
product sales levels. See "USE OF PROCEEDS" and "BUSINESS."
Results of Operations
Nine Months ended April 30, 1997 Compared to Nine Months Ended April 30, 1996
Revenues for the nine months ended April 30, 1997 (the "1997 period")
decreased approximately 51% to $589,000 from $1,202,000 for the nine months
ended April 30, 1996 (the "1996 period") all attributable to delays in
commencement of clinical studies.
Costs and expenses for the 1997 period decreased 29% to approximately
$807,000 for the 1997 period from $1,133,000 for the 1996 period. The decrease
was primarily attributable to reductions in operating expenses of $282,000
reductions in product development expenses of $126,000, partially offset by
increases in selling, general and administrative expenses of $83,000.
The net loss for the 1997 period was $201,000 compared to income of
$85,000 for the 1996 period. This change is attributable primarily to the
reduced revenues discussed above.
30
<PAGE>
Fiscal Year 1996 Compared to Fiscal Year 1995
Revenues for the fiscal year ended July 31, 1996 ("fiscal 1996")
increased approximately 188% to $3,503,000 from $1,215,000 for the fiscal year
ended July 31, 1995 ("fiscal 1995"). The increase was primarily attributable to
a single non-recurring consulting contract producing a gross fee of
approximately $2,070,000. Excluding this non-recurring fee, revenues for fiscal
1996 increased approximately 18% to $1,433,000 from $1,215,000 for fiscal 1995.
For fiscal 1996, the Company incurred non-recurring consulting fee
expenses of approximately $1,606,000, due to the single consulting transaction
described above. Excluding this non-recurring expense, costs and expenses
increased approximately 12% to $1,403,000 for fiscal 1996 from $1,251,000 for
fiscal 1995 due to increases in operating expenses of $37,000, and product
development expenses of $168,000. Interest expense for fiscal 1996 decreased 50%
to $2,000 from $4,000 during fiscal 1995. Selling, general and administrative
expenses decreased approximately 11% to $410,000 for fiscal 1996 from $461,000
for fiscal 1995.
The $168,000 increase in product development costs for fiscal 1996 was
the result of increased development activities in connection with a development
agreement with a major pharmaceutical company.
Giving effect to the non-recurring consulting fee, for fiscal 1996 the
Company had net income of $494,000 compared to a net loss of $36,000 for fiscal
1995. Excluding the effect of this non-recurring transaction, for fiscal 1996
the Company had net income of $30,000 compared to a net loss of $36,000 for
fiscal 1995.
Fiscal Year 1995 Compared to Fiscal Year 1994
Revenues for fiscal 1995 decreased approximately 33% to $1,204,000,
from revenues of $1,531,000 for the fiscal year ended July 31, 1994 ("fiscal
1994"). This decrease was primarily attributable to commencement delays for
several contracts with the Company's consulting clients.
Costs and expenses decreased 28% to $1,251,000 for fiscal 1995 from
$1,729,000 for fiscal 1994 due to decreases in payroll of $200,000, interest
expense of $67,000, clinical study costs of $37,000, insurance expenses of
$19,000, and sample testing costs of $27,000.
Liquidity and Capital Resources
From its inception, the Company's principal sources of capital have
been provided by consulting revenues, conversion of debt, as well as loans and
capital contributions from the Company's principal stockholders. At April 30,
1997, the Company had a working capital deficit of $148,000, compared to working
capital of $87,000 at July 31, 1996, representing a net
31
<PAGE>
decrease of working capital of approximately $235,000. The report of the
Company's independent auditors on the Company's financial statements for each of
the two years ended July 31, 1996 contains an explanatory paragraph expressing
substantial doubt with respect to the Company's ability to continue as a going
concern without obtaining additional financing such as that contemplated by this
offering.
Net cash provided by operating activities was $76,000 in fiscal 1996
compared to $87,000 of net cash used in operating activities in fiscal 1995.
This increase was attributable to net income of $494,000. The increase in the
use of funds was due to an increase in accounts payable of $38,000 and was
partially offset by a increase in accounts receivable of $184,000 and decreases
in accrued payroll expenses of $338,000.
Net cash used in operating activities was $13,000 for the 1997 period
compared to net cash used in operating activities during the 1996 period of
$43,000. This decrease was attributable to a net loss of $201,000 in the 1997
period compared to net income of $85,000 in the 1996 period and a reduction in
accounts payable of $81,000 offset by a decrease in accounts receivable of
$167,000.
Although there can be no assurance, the Company believes that the
proceeds from this offering together with revenues from operations, will be
sufficient to satisfy its cash requirements for at least the next twenty-four
(24) months. No assurance can be given that future unforeseen events will not
adversely affect the Company's ability to implement its expansion plan,
requiring it to seek additional financing, which may not be available on terms
acceptable to the Company, if at all. See "USE OF PROCEEDS."
Inflation
The Company does not believe that inflation has had a material effect
on its results of operations during the past three fiscal years. There can be no
assurance that the Company's business will not be affected by inflation in the
future.
New Accounting Pronouncements
Statement of Financial Accounting Standards No. (SFAS) 121 "Accounting
for the Impairment of long-lived Assets and for long-lived Assets to be Disposed
Of," was issued in March 1995, and is effective for fiscal years beginning after
December 15, 1995, SFAS 121 requires that certain long-lived assets be reviewed
for possible impairment and written down to fair value, if appropriate. The
Company will adopt this new pronouncement for the year ended July 31, 1997, and
the impact of the adoption is not expected to have a material effect on the
Company's financial statements.
Statement of Financial Accounting Standards No. 123, "Accounting for
Stock Based Compensation," requires companies to measure employee stock
compensation plans based on the
32
<PAGE>
fair value method of accounting. However, the statement allows the alternative
of continued use Accounting Principals Board Opinion No. 25, "Accounting for
Stock Issued to Employees," with pro forma disclosure of net income and earnings
per share determined as if the fair value based method has been applied in
measuring compensation cost. The Company has not yet determined if it will adopt
this new pronouncement for the year ended July, 31, 1997 or provide only pro
forma disclosure. The effects of this new pronouncement, if adopted, have not
been determined.
SFAS No. 128, "Earnings per Share," was issued in February 1997, and is
effective for financial statements issued for periods ending after December 15,
1997. SFAS 128 requires that earnings per share be presented more in line with
earnings per share standards of other countries. The Company expects to adopt
SFAS 128 for the year ending July 31, 1998. The Company has not yet determined
the effect of the adoption of this new pronouncement on its financial
statements.
33
<PAGE>
BUSINESS OF THE COMPANY
Company Background
The Company is engaged in the development of novel application drug
delivery systems for presently marketed prescription and over-the-counter
("OTC") drugs. The Company's patent-pending delivery systems are lingual sprays
and soft gelatin bite capsules, enabling drug absorption through the oral
mucosa, and more rapid absorption into the bloodstream than presently available
oral delivery systems. The Company's proprietary dosage delivery systems enhance
and greatly accelerate the onset of the therapeutic benefits which the drugs are
intended to produce. The Company refers to its delivery systems as
Immediate-Immediate Release (I(2)R(TM))because its delivery systems are designed
to provide therapeutic benefits within minutes of administration. The Company's
development efforts for its novel drug delivery systems are concentrated on
drugs which are already available and proven in the marketplace. In addition to
increased bioavailability by avoiding metabolism by the liver before entry into
the bloodstream, the Company believes that its proprietary delivery systems
offer the following significant advantages: (i) improved drug safety profile by
reducing the required dosage, including possible reduction of side-effects; (ii)
improved dosage reliability; (iii) allowing medication to be taken without
water; and (iv) improved patient convenience and compliance.
The Company was organized under the laws of the State of New Jersey in
May 1982 under the name Pharmaconsult, Inc., and in 1991 changed its name to
Flemington Pharmaceutical Corporation to reflect the change in nature of its
business. Since its inception in 1982, the Company has been a consultant to the
pharmaceutical industry, focusing on product development activities of various
European pharmaceutical companies, and since 1992 has used its consulting
revenues to fund its own product development activities. The Company's recent
focus on developing its own products evolved naturally out of its consulting
experience for other pharmaceutical companies. Substantially all of the
Company's revenues have been derived from its consulting activities. The
Company's business address is 43 Emery Avenue, Flemington, New Jersey 08822, and
its telephone number is (908) 782-3431.
Business Strategy
The Company's strategy is to concentrate its product development
activities primarily on those pharmaceuticals for which there already are
significant prescription and OTC sales, where the use of the Company's
innovative delivery systems will greatly enhance speed of onset of therapeutic
effect, reduce side effects through a reduction of the amount of active drug
substance required to produce a given therapeutic effect, and improve patient
convenience or compliance.
The Company has initially identified approximately 50 presently
marketed drugs that meet the Company's criteria for its drug delivery systems.
The Company will concentrate its product development activities on those
pharmaceuticals with significant prescription or OTC sales. The Company believes
that applying a novel application delivery system to existing drugs
34
<PAGE>
involves less cost, time and risk than developing and commercializing a new
chemical entity. The Company believes that there is significant opportunity to
combine its delivery systems with existing pharmaceuticals to expand the market
for an existing drug, differentiate a product from a generic or brand name
competition, and possibly create new markets.
In light of the material expense and delays associated with
independently developing and obtaining approval of pharmaceutical products, the
Company will only continue to develop such products through collaborative
arrangements with major pharmaceutical companies which will fund that
development. To date, the Company has signed two such development agreements
with major pharmaceutical companies, each of which is described below.
Recent Developments
The Company and one of the world's largest pharmaceutical companies
("other party") are parties to a letter agreement for the development of an oral
spray version of an antihistamine product pursuant to which the Company
conducted a pilot bioavailability study of the spray version product. Under this
agreement, the Company will file an Investigatory New Drug application ("IND")
with the U.S. Food and Drug Administration ("FDA") and complete a second pilot
clinical study, at the other party's expense. If this second pilot study is
favorable, the Company and the other party will negotiate an agreement to
complete large scale clinical trials, seek approval by the FDA and the Company
will license the product to the other party. The Company believes, based on the
results of the first pilot study, that the results of the second pilot study
should be favorable. There can be no assurance, however, that the results of the
second study will be favorable, nor can there be any assurance that, even if
favorable, the other party will decide to pursue the project further or that the
Company and the other party will be able successfully to negotiate a mutually
acceptable further agreement.
In November, 1996, the Company entered into an Agreement with the U.S.
subsidiary of a large German pharmaceutical company (the "German firm") under
which the Company agreed to prepare for filing with FDA (under the other party's
name) an Abbreviated New Drug Application (ANDA) for the Company's
patent-pending lingual spray for treatment of angina. Under the terms of the
Agreement, the German firm will, upon approval of the product by the FDA, market
the product in the U.S., and source all of its related product requirements from
the Company. The Company was paid a consulting fee for preparation of the ANDA
and will receive additional fees from the German firm upon acceptance by FDA of
the ANDA as filed and upon FDA approval. There can be no assurance, however,
that FDA will accept the ANDA for filing, or that, if accepted, FDA will approve
the application.
Patent Pending Delivery Systems
The Company has patent applications pending for the following two oral
dosage delivery systems:
35
<PAGE>
Lingual (Oral) Spray. The Company's aerosol and pump spray formulations
release the drug in the form of a fine mist into the mouth for immediate
absorption into the bloodstream via the mucosal membranes. The Company believes
that this delivery system offers certain advantages, including improving the
safety profile of certain drugs by lowering the required dosage, improving dose
reliability, and allowing medication to be taken without water. Drug absorption
through the mucosal membranes of the mouth is rapid and minimizes the first-pass
metabolism effect (i.e., total or partial inactivation of a drug as it passes
through the gastrointestinal tract and liver).
Soft Gelatin Bite Capsule. The Company's soft gelatin bite capsule
formulation consists of a seamless gelatin shell surrounding a core substance
(usually a liquid solution). When crushed or chewed, the soft gelatin bite
capsule releases medication into the mouth, thereby allowing absorption through
the oral mucosa. The portion of the dose that is eventually swallowed is
introduced to the stomach in a solution ready for immediate absorption, thereby
maximizing absorption from the gastrointestinal tract into the bloodstream. The
result is rapid onset of the desired therapeutic effect.
Proposed Products
The Company's initial proposed products fall into the following
therapeutic classes:
o Antihistamines (Clemastine, Chlorpheniramine)
The Company is proceeding with the development of a product using
Clemastine with one of the world's largest pharmaceutical companies. The second
pilot clinical study is being conducted and is expected to be concluded by early
1998. In addition, the Company has concluded bioequivalency studies with respect
to its lingual spray formulation of Clemastine, and will file an IND for this
formulation following the completion of a second pilot study. Thereafter,
efficacy studies will be conducted and an NDA will be submitted to the FDA,
which will be filed by mid 1999, following approval by the FDA, after which
commercial sales of the product can commence in mid 2000.
o Antihistamines with decongestants and other biologically active
amines (Nicotine, Dextromethorpham, Bromocryptine, Levodopa)
The Company is currently investigating proposed products in this area
and intends to use a portion of the proceeds of this offering to conduct several
pilot clinical research studies and approach pharmaceutical companies with the
results. The Company anticipates that, assuming research results are similar to
those obtained for Antihistamines, that there will be significant interest by
pharmaceutical companies in signing development agreements with the Company for
such products. The earliest realistic date that the Company can be in a position
to have a marketable product in this area is late 2000. The Company has
developed its formulation for a
36
<PAGE>
nicotine product among this therapeutic class. All other drugs within this class
are at an earlier stage of development.
o Sleep Inducers (Diphenhydramine)
The Company has developed its formulation for Diphenhydramine and has
finished initial stability testing. The Company intends to use a portion of the
proceeds of this offering to conduct initial pilot clinical studies, including
bioequivalency studies, and thereafter approach pharmaceutical companies with a
proposed product. The earliest time that the Company could reasonably expect to
have a commercially saleable product in this category is mid 2000.
o Cardiovascular (Nitroglycerine)
The Company's Nitroglycerine product has been formulated and stability
testing has been completed. This product is subject to a license agreement with
a U.S. subsidiary of one of the largest pharmaceutical companies in Europe. See
"BUSINESS OF THE COMPANY -- Recent Developments." The Company expects that this
product will be filed with the FDA by late 1998, and available for commercial
sale within 6 to 12 months therafter.
The following therapeutic classes are also being considered by the
Company for proposed products:
o Serotonin Uptake Inhibitors
o Analgesics (Morphine, Butorphanol, Piroxicam)
o Peptides (Calcitonin, Insulin)
o Hormones (Testosterone, Estradiol)
o Appetite Suppressants (Fenfluramine)
These therapeutic classes have been identified by the Company as viable
candidates for its novel drug delivery systems, but are earlier stages of
development than the other therapeutic classes noted above. The Company needs to
conduct additional research to prepare product formulations and conduct
stability testing for each of these classes. If product formulations can be
successfully developed and if stability tests are successful, the Company will
consider conducting pilot clinical studies and bioequivalency studies on an
individualized basis. Because of the early stage of development of these
therapeutic classes, the Company does not expect to be able to have a
commercially saleable product before the year 2005, or perhaps thereafter.
The therapeutic classes identified above are commonly available and
widely accepted in the marketplace. The Company estimates that worldwide sales
of the above products are in the tens of billions of dollars.
The Company's proposed products are subjected to laboratory testing and
stability studies and tested for therapeutic comparison to the originators'
products by qualified laboratories and
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clinics. To the extent that two drugs' active ingredients are substantially
identical in terms of their rate and extent of absorption in the human body
(bioavailability), they are considered bioequivalent. If the accumulated data
demonstrates bioequivalency, submission is then made to the FDA (through the
filing of an ANDA) for its review and approval to manufacture and market. If the
accumulated data demonstrates that there are differences in the two drugs' rate
and extent of absorption into the human body, or if it is intended to make
additional or different claims regarding therapeutic effect for the newly
developed product, submission is made to the FDA via a NDA for its review and
approval under Section 505(b)(2) of the FDC Act. An NDA submitted under this
section of the FDC Act is generally less complex than an ordinary NDA and is
usually acted upon by FDA in a shorter period of time. It is the Company's
expectation that the majority of its products in development will require the
filing of this shorter version of an NDA because the products are known chemical
entities, but the Company or its licensees will be making new claims as to
therapeutic effects or lessened side effects, or both.
The Company estimates that development of new formulations of
pharmaceutical products, including formulation, testing and obtaining FDA
approval, generally takes three to five years for the ANDA process. Development
of products requiring additional clinical studies under Section 505(b)(2) NDAs,
such as the Company anticipates for the majority of its products development,
including FDA approval, may take four to seven years. There can be no assurance
that the Company's determinations will prove to be accurate or that
pre-marketing approval relating to its proposed products will be obtained on a
timely basis, or at all. See "Government Regulation."
Marketing and Distribution
The Company intends, generally, to license products developed with its
technology to drug companies already selling such drug substances under their
own brand names, or to market its products to pharmaceutical wholesalers, drug
distributors, drugstore chains, hospitals, United States governmental agencies,
health maintenance organizations and other drug companies. It is anticipated
that promotion of the Company's proposed products will be characterized by an
emphasis on their distinguishing characteristics, such as dosage form and
packaging, as well as possible therapeutic advantages of such products. The
Company will seek to position its proposed products as alternatives or as line
extensions to brand-name products. The Company believes that to the extent that
the Company's formulated products are patent-protected, such formulations may
offer brand-name manufacturers the opportunity to expand their product lines.
Alternatively, products which are not patented may be offered to brand-name
manufacturers as substitute products after patent protection on existing
products expire.
Inasmuch as the Company does not have the financial or other resources
to undertake extensive marketing activities, the Company generally intends to
seek to enter into marketing arrangements, including possible joint ventures or
license or distribution arrangements, with third parties. The Company believes
that such third-party arrangements will permit the Company to maximize the
promotion and distribution of its products while minimizing the Company's direct
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marketing and distribution costs. Other than the Company's aforementioned
agreement for the Company's proposed lingual spray product for angina, the
Company has not entered into any agreements or arrangements with respect to the
marketing of its proposed products and there can be no assurance that it will do
so in the future. There can be no assurance that the Company's proposed products
can be successfully marketed. Strategies relating to marketing of the Company's
other proposed formulated products have not yet been determined; these will be
formulated in advance of anticipated completion of development activities
relating to the particular formulated product. The Company has no experience in
marketing or distribution of its proposed products.
Manufacturing
The Company has entered into agreements with each of Rapid Spray GmbH &
Co. KG ("Rapid Spray") of Laupheim, Germany and SCA-Lohnherstellungs AG
("Swisscaps") of Kirchberg, Switzerland, European pharmaceutical manufacturers,
regarding the manufacture of the Company's products in spray and gelatin bite
capsule dosage forms, respectively (the "Joint Development Agreements"). Under
the Joint Development Agreements the Company is responsible, among other things,
to conduct any necessary clinical trials and take all action necessary to comply
with the regulatory approval process. The Company will purchase all of its
clinical and commercial requirements for its proposed products from such
manufacturers, at a price to be negotiated by the parties.
In addition to protection afforded by patents for which the Company has
applications pending, each of the Joint Development Agreements provides that the
Company has exclusive rights to market its proposed products in the United
States, Europe and Japan. Each of the Joint Development Agreements also contains
certain minimum purchase requirements for the Company. It is anticipated that
the Company will arrange with third-party suppliers for supplies of active and
inactive pharmaceutical ingredients and packaging materials used in the
manufacture of the Company's proposed products. It is the Company's present
intent to seek to enter into similar manufacturing arrangements for other
products to be developed by it in the future.
The Joint Development Agreements provide for the manufacture of the
Company's products at prices to be mutually agreed upon and require
renegotiation of certain terms relating to per unit cost on an annual basis. The
manufacture of the Company's pharmaceutical products will be subject to cGMP
prescribed by the FDA, and pre-approval inspections by the FDA and foreign
authorities prior to the commercial manufacture of any such products. See
"Government Regulation" and "Raw Materials and Suppliers."
The Company anticipates that its proposed products will be manufactured
by its European manufacturers at their respective facilities in Germany and
Switzerland. The Company intends to import completed manufactured products into
the United States. In addition, the raw materials necessary for the manufacture
of the Company's products will, in all likelihood, be
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<PAGE>
purchased by the Company from suppliers in the United States, Europe and Japan
and delivered to its manufacturers' facilities by such suppliers. Accordingly,
the Company and its manufacturers may be subject to various import duties
applicable to both finished products and raw materials and may be affected by
various other import and export restrictions as well as other developments
impacting upon international trade. These international trade factors will,
under certain circumstances, have an impact both on the manufacturing cost
(which will, in turn, have an impact on the cost to the Company of the
manufactured product) and the wholesale and retail prices of the products to be
manufactured abroad. To the extent that transactions relating to the foreign
manufacture of the Company's proposed products and purchase of raw materials
involve currencies other than United States dollars (i.e., Swiss francs and
German marks), the operating results of the Company will be affected by
fluctuations in foreign currency exchange rates.
Raw Materials and Suppliers
The Company believes that the active ingredients used in the
manufacture of its proposed pharmaceutical products are presently available from
numerous suppliers located in the United States, Europe and Japan. Generally,
certain raw materials, including inactive ingredients, are available from a
limited number of suppliers and certain packaging materials intended for use in
connection with the Company's lingual spray products are only available from
sole source suppliers. Although the Company believes that it will not encounter
difficulties in obtaining the inactive ingredients or packaging materials
necessary for the manufacture of its products, there can be no assurance that
the Company or its manufacturers will be able to enter into satisfactory
agreements or arrangements for the purchase of commercial quantities of such
materials. The failure to enter into agreements or otherwise arrange for
adequate or timely supplies of principal raw materials and the possible
inability to secure alternative sources of raw material supplies could have a
material adverse effect on the ability to manufacture formulated products.
Development and regulatory approval of the Company's pharmaceutical
products are dependent upon the Company's ability to procure active ingredients
and certain packaging materials from FDA-approved sources. Since the FDA
approval process requires manufacturers to specify their proposed suppliers of
active ingredients and certain packaging materials in their applications, FDA
approval of a supplemental application to use a new supplier would be required
if active ingredients or such packaging materials were no longer available from
the specified supplier, which could result in manufacturing delays. Accordingly,
the Company will seek to locate alternative FDA approved suppliers.
Research and Development
During fiscal 1996 and 1995, respectively, the Company spent
approximately $172,000 and $4,000 on product research and development. In future
periods, the Company intends to continue to spend significant, and greatly
increasing amounts, to develop its products. See "USE OF PROCEEDS."
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Government Regulation
The development, manufacture and commercialization of pharmaceutical
products is, generally subject to extensive regulation by various federal and
state governmental entities. The FDA, which is the principal United States
regulatory authority, has the power to seize adulterated or misbranded products
and unapproved new drugs, to request their recall from the market, to enjoin
further manufacture or sale, to publicize certain facts concerning a product and
to initiate criminal proceedings. As a result of federal statutes and FDA
regulations, pursuant to which new pharmaceuticals are required to undergo
extensive and rigorous testing, obtaining pre-market regulatory approval
requires extensive time and expenditures.
Under the FDC Act, a new drug may not be commercialized or otherwise
distributed in the United States without the prior approval of the FDA. The FDA
approval process relating to a new drug differs, depending on the nature of the
particular drug for which approval is sought. With respect to any drug product
with active ingredients not previously approved by the FDA, a prospective drug
manufacturer is required to submit a new drug application ("NDA"), including
complete reports of preclinical, clinical and laboratory studies to prove such
product's safety and efficacy. The NDA process generally requires, before the
submission of the NDA, submission of an investigational new drug application
"IND" pursuant to which permission is sought to begin preliminary clinical
testing of the new drug. An NDA based on published safety and efficacy studies
conducted by others may also be required to be submitted for a drug product with
a previously approved active ingredient, if the method of delivery, strength or
dosage is changed. Alternatively, a drug having the same active ingredients as a
drug previously approved by the FDA may be eligible to be submitted under an
ANDA, which is significantly less stringent than the NDA approval process.
While the ANDA process requires a manufacturer to establish
bioequivalence to the previously approved drug, it permits the manufacturer to
rely on the safety and efficacy studies contained in the NDA for the previously
approved drug.
The NDA approval process generally requires between four to seven years
from NDA submission to pre-marketing approval. By contrast, the ANDA process
permits an expedited FDA review pursuant to which pre-marketing regulatory
approval can generally be obtained in three to five years. The ANDA process is
available for drugs with the same active ingredients, dosage form, strength and
method of delivery as a product which has previously received FDA approval
pursuant to the NDA process. Manufacturing information, including a review of
chemical and physical data, stability data, facilities and processes, must also
be evaluated by FDA before approval.
The Company believes that products developed in lingual spray and soft
gelatin bite capsule delivery systems (dosage forms) usually will require
submission of an NDA.
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The Company estimates that the development of new formulations of
pharmaceutical products, including formulation, testing and obtaining FDA
approval, generally takes three to five years for the ANDA process and four to
seven years for the NDA process. There can be no assurance that the Company's
determinations will prove to be accurate or that pre-marketing approval relating
to its proposed products will be obtained on a timely basis, or at all. The FDA
application procedure has become more rigorous and costly and the FDA currently
performs pre-approval and periodic inspections of each finished dosage form and
each active ingredient.
The manufacture of the Company's pharmaceutical products will be
subject to current Good Manufacturing Processes (cGMP) prescribed by the FDA,
preapproval inspection by the FDA and foreign authorities prior to the
commercial manufacture of such products and periodic cGMP compliance inspection
by the FDA. The Company's European manufacturers will be required to be in
compliance with cGMP with respect to the manufacture of the Company's products.
There can be no assurance that the Company's manufacturers will be deemed to be
in compliance with cGMP with respect to any particular product. To the extent
that the Company's manufacturers are deemed not to be in compliance with cGMP,
there can be no assurance that the Company will be able to enter into other
suitable manufacturing arrangements with third parties which are in compliance
with cGMP.
Competition
The markets which the Company intends to enter are characterized by
intense competition. The Company will be competing against established
pharmaceutical companies which currently market products which are equivalent or
functionally similar to those the Company intends to market. Prices of drug
products are significantly affected by competitive factors and tend to decline
as competition increases. In addition, numerous companies are developing or may,
in the future, engage in the development of products competitive with the
Company's proposed products. The Company expects that technological developments
will occur at a rapid rate and that competition is likely to intensify as
enhanced delivery system technologies gain greater acceptance. Additionally, the
markets for formulated products which the Company has targeted for development
are intensely competitive, involving numerous competitors and products. The
Company will seek to enhance its competitive position by focusing its efforts on
its novel dosage forms.
Patents and Protection of Proprietary Information
The Company has applied for patent protection for the delivery systems
which are the primary focus of its development activities. There can be no
assurance, however, that its patent applications will be granted, or, if
granted, will provide any adequate protection to the Company. The Company also
intends to rely on whatever protection the law affords to trade secrets,
including unpatented know-how. Other companies, however, may independently
develop equivalent or superior technologies or processes and may obtain patent
or similar rights with respect thereto. Although the Company believes that its
technology has been developed
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<PAGE>
independently and does not infringe on the patents of others, there can be no
assurance that the technology does not and will not infringe on the patents of
others. In the event of infringement, the Company or its European manufacturers
could, under certain circumstances, be required to modify the infringing process
or obtain a license, There can be no assurance that the Company or its European
manufacturers would be able to do either of those things in a timely manner or
at all, and failure to do so could have a material adverse effect on the Company
and its business. In addition, there can be no assurance that the Company will
have the financial or other resources necessary to enforce or defend a patent
infringement or proprietary rights violation action. If any of the products
developed by the Company infringe upon the patent or proprietary rights of
others, the Company could, under certain circumstances, be enjoined or become
liable for damages, which would have a material adverse effect on the Company.
The Company also relies on confidentiality and nondisclosure
arrangements with its licensees and potential development candidates. There can
be no assurance that other companies will not acquire information which the
Company considers to be proprietary. Moreover, there can be no assurance that
other companies will not independently develop know-how comparable to or
superior to that of the Company.
Product Liability
The Company may be exposed to potential product liability claims by
consumers. The Company does not presently maintain product liability insurance
coverage. Although the Company will seek to obtain product liability insurance
prior to the commercialization of any products, there can be no assurance that
the Company will obtain such insurance or, if obtained, that any such insurance
will be sufficient to cover all possible liabilities. In the event of a
successful suit against the Company, insufficiency of insurance coverage could
have a material adverse effect on the Company. In addition, certain food and
drug retailers require minimum product liability insurance coverage as a
condition precedent to purchasing or accepting products for retail distribution.
Failure to satisfy such insurance requirements could impede the ability of the
Company or its distributors to achieve broad retail distribution of its proposed
products, which would have a material adverse effect upon the business and
financial condition of the Company.
Customer Dependence
Since inception, substantially all of the Company's revenues have been
derived from consulting activities primarily in connection with product
development for various pharmaceutical companies. Among other things, the
Company works with its European clients to obtain regulatory approvals for new
drug formulations in the United States. For the year ended July 31, 1996
consulting activities relating to the Company's three largest clients accounted
for approximately 60%, 14% and 10% respectively, of the Company's revenue. The
contract with the Company's largest customer for fiscal 1996, is non-recurring
in nature. For the
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year ended July 31, 1995, consulting activities relating to the Company's three
largest clients accounted for approximately 32%, 23% and 14% respectively, of
the Company's revenue.
Employees
The Company currently has four full-time employees, two of whom are
executive officers of the Company, one of whom is a project manager and one of
who is engaged in administrative functions. In addition to the foregoing, the
Company has arrangements with two individuals acting as the Company's European
representatives. Following the closing of this offering, the Company expects
these arrangements to be formalized, although no assurance can be given that
mutually acceptable agreements will be reached. The success of the Company will
be dependent in part, upon its ability to hire and retain additional qualified
marketing, technical and financial personnel, including a Comptroller or Chief
Financial Officer. There can be no assurance that the Company will be able to
hire or retain such necessary personnel.
Legal Proceedings
The Company is not a party to any material legal proceedings.
Properties
The Company's executive offices are located in an approximately 800
square feet facility located at 43 Emery Avenue, Flemington, New Jersey. The
Company occupies the premises under a month to month tenancy. Should this
tenancy be terminated for any reason, there is ample comparable space available
in the area for the Company to occupy. Since the manufacture of the Company's
products are conducted by outside vendors, the Company does not own or lease any
production or manufacturing facilities. The Company believes the Flemington
facility will adequately serve its needs for the foreseeable future.
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MANAGEMENT
Directors and Executive Officers
The directors and executive officers of the Company and their ages and
positions with the Company are as follows:
Name Age Positions with the Company
John J. Moroney 43 Chairman of the Board
Harry A. Dugger, III, Ph.D. 61 President and Director
Jean-Marc Maurette, Pharm. D. 52 Director and European Underwriter
Robert F. Schaul 57 Secretary and Director
John R. Toedtman 51 Director
Jack R. Kornreich [ ] Director
John J. Moroney, Chairman of the Board. Mr. Moroney has been Chairman
of the Company since May 1992. From May 1992 to November 1994, Mr. Moroney was
also the Company's Chief Executive Officer. Mr. Moroney currently is President
of Landmark Financial Corp., Harrington Park, New Jersey, a private financial
consulting company. From 1985 to 1992, Mr. Moroney was a Managing Director of
Corporate Finance for the investment banking firm of Ladenburg, Thalmann & Co.,
Inc., specializing in the pharmaceutical and healthcare industries. Mr. Moroney
received a BS and MBA from Fordham University in 1977.
Harry A. Dugger, III, Ph.D., President and Director. Dr. Dugger is a
founder of the Company and has been President and a director of the Company
since its inception in May 1982. Prior to founding the Company, from June 1980
to November 1982, Dr. Dugger was employed as Vice President of Research and
Development by Bauers-Kray Associates, a company engaged in the development of
pharmaceutical products. From 1964 to 1980, Dr. Dugger was Associate Section
Head for Research and Development at Sandoz Pharmaceuticals Corporation. Dr.
Dugger received an MS in Chemistry from the University of Michigan in 1960 and
received a Ph.D. in Chemistry from the University of Michigan in 1962.
Robert F. Schaul, Secretary and Director. Mr. Schaul has been a
Director of the Company since November, 1991 and was Vice President, Secretary
and General Counsel of the Company from November 1991 to February, 1995. He has
advised the Company since its formation. Since 1995, Mr. Schaul has been Vice
President and General Counsel of Landmark
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Financial Corp. From 1989 to 1991, Mr. Schaul was a partner with the law firm of
Glynn, Byrnes and Schaul, and for twenty years prior thereto was an attorney and
partner with the law firm Kerby, Cooper, English, Schaul & Garvin, specializing
in business law and business related litigation. Mr. Schaul received a BA from
New York University in 1961 and a JD from Harvard University in 1964.
Jean-Marc Maurette, Pharm. D., Director and European Underwriter. Mr.
Maurette has been a director of the Company since June 1992 and since August
1986 has been European Underwriter, with his office in Paris, France. Before his
employment by the Company, Mr. Maurette was a consultant in the European
biotechnology and pharmaceutical industry. From 1994 to August 1996, Mr.
Maurette was Chief Operating Officer of Centre Europeen de Bioprospective,
Cedex, France, a technological development authority of the Normandy region of
France. From 1991 to 1994, Mr. Maurette was Licensing Manager for Pharmascience
Laboratories, a French manufacturer of nutritional food supplements. From 1981
through August 1991, Mr. Maurette was President of L.A.B. Sarl, a French
subsidiary of L.A.B. GmbH & Co., a clinical pharmacology contractor.
John R. Toedtman, Director. Mr. Toedtman has been a director since
August 1992. Mr. Toedtman has been a director of Vital Signs, Inc., a medical
device manufacturer, since 1988, and a director of Noxso Corporation, an air
pollution control process developer, since 1986. From May 1990 to May 1996, Mr.
Toedtman was Chairman and Chief Executive Officer of GenRx, Inc. (formerly
American Veterinary Products, Inc.), a veterinary generic pharmaceutical
manufacturer. Since 1986, Mr. Toedtman has been a consultant in the area of
financial planning, management and strategic planning.
Jack R. Kornreich has been a director of the Company since 1996. He is
presently retired. Before retirement, from 1989 to 1993, Mr. Kornreich was
Executive Vice President and General Counsel of Bolar (renamed Circa
Pharmaceuticals Corp. and now named Watson Pharmaceutical Corp.). From 1984 to
1989, Mr. Kornreich practiced law as a partner in the firm of Baum & Kornreich
(from 1980 to 1984 the firm was named Baum, Skigen & Kornreich). From 1975 to
1989, Mr. Kornreich was in private practice.
Director Compensation
The Directors of the Company are elected annually and serve until the
next annual meeting of stockholders and until a successor shall have been duly
elected and qualified. Directors of the Company who are not employees or
consultants do not receive any compensation for their services as members of the
Board of Directors, but may be reimbursed for expenses incurred in connection
with their attendance at meetings of the Board of Directors. Directors may be
removed with or without cause by a vote of the majority of the stockholders then
entitled to vote.
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Subject to the terms of applicable employment agreements, officers of
the Company are appointed by and serve at the discretion of the Board of
Directors.
Compensation Committee
Harry A. Dugger, III, Ph.D. and John J. Moroney are members of the
Compensation Committee which reviews and makes recommendations with respect to
compensation of officers, employees and consultants, including the granting of
options under the Company's 1997 Stock Option Plan.
Executive Compensation
The following table sets forth a summary for the fiscal years ended
July 31, 1996, 1995, and 1994, respectively, of the cash and non-cash
compensation awarded, paid or accrued, by the Company to the President and to
the Company's two most highly compensated executive officers who were serving as
such at the end of fiscal 1996 (collectively, the "named executive officers").
The Company at no time during the last three fiscal years had more than three
named executive officers.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Long-Term
Compensation
Name and Fiscal Annual Options by All Other
Principal Position Year Compensation No. of Shares Compensation
- ------------------- ------ -------------------- ------------- -------------
Salary Bonus
--------- -----
<S> <C> <C> <C> <C> <C>
Harry A. Dugger, III, Ph.D., 1996 43,334 -- 200,000 $ -
President and CEO 1995 23,500 -- - -
1994 177,461 -- - -
John J. Moroney, Chairman 1996 -- -- 200,000 -
1995 -- -- - -
1994 18,000 -- - -
Robert Schaul, Secretary 1996 10,500 -- 20,000 -
1995 53,000 -- - -
1994 100,000 -- - -
</TABLE>
Except as otherwise provided herein, the Company does not have any
annuity, retirement, pension, deferred or incentive compensation plan or
arrangement under which any executive officers are entitled to benefits, nor
does the Company have any long-term incentive plan pursuant to which performance
Shares or other forms or compensation are paid. The Company does have a 401(k)
profit sharing plan in which all employees are eligible to participate.
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Executive officers who qualify will be permitted to participate in the Company's
1992 and 1997 Stock Option Plans. See "Stock Option Plans." Executive officers
who are employees participate in the Company's group life, health and
hospitalization plan which is available generally to all employees.
Employment Agreements
Effective as of the date of this Prospectus, the Company entered into
employment agreements with each of Messrs. Harry A. Dugger, III, Ph.D. for his
services as President and John J. Moroney for his services as Chairman. Each
agreement is for a base term of three (3) years, and is thereafter renewable for
additional periods of one (1) year, unless the Company gives notice to the
contrary. The Agreements provide for a base salary of $200,000 and $150,000,
respectively and annual cost of living adjustments equal to the greater of the
increase the consumer price index or 7.5%, with additional such increases and
bonuses as shall be approved by the Board.(1)
The agreements also provide for certain non-competition and
non-disclosure covenants of the executive and for certain Company paid fringe
benefits such as disability insurance and inclusion in pension, profit sharing,
stock option, savings, hospitalization and other benefit plans at such times as
the Company shall adopt them. The agreements also provide for the payment of
certain additional severance compensation in the event that at any time during
the term thereof (i) the agreement is terminated by the Company without cause
(as defined), or (ii) terminated by the executive due to a change in control (as
defined). The Company believes that the change in control provisions in these
agreements may tend to discourage attempts to acquire a controlling interest in
the Company and may also tend to make the removal of management more difficult;
however, the Company believes such provisions provide security and
decision-making independence for its executive officers.
In connection with these employment agreements the Company granted
stock options (outside of the Plans) to each of Messrs. Dugger and Moroney to
purchase 300,000 shares respectively, at an exercise price of $1.84 per share.
Stock Option Plans
The Company's 1992 Stock Option Plan and 1997 Stock Option Plan (the
"Plans") adopted by the Company's Board of Directors and stockholders in May
1992 and February 1997, respectively, provide for the issuance of options
("Options") to employees, officers and, under certain circumstances, directors
of and consultants to the Company ("Eligible Participants"). Options granted
under the Plans may be either "incentive stock options" ("ISOs") as defined in
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code") or
"nonqualified
- -------------
(1) Mr. Dugger will also receive an additional cash bonus of $10,000 for each
NDA of the Company's products which is accepted for filing by the U.S. Food and
Drug Administration as well as the use of a Company owned or leased and insured
automobile chosen by the Company.
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stock options" ("NQSOs"). The Plans do not provide for the issuance of stock
appreciation rights, restricted stock awards or deferred stock awards.
Management believes that, in view of the anticipated expansion of the
Company's operations over the next several years, the Company will be faced with
an increasing need for additional qualified personnel. The Company believes that
its ability to offer employees potential equity ownership through the grant of
Options and other awards will enhance the Company's ability to attract and
retain qualified personnel, without unnecessarily depleting the Company's cash
resources.
The 1997 Stock Option Plan is administered by Harry A. Dugger, III,
Ph.D. and John J. Moroney, who constitute the Compensation Committee of the
Board of Directors ("Committee"), and the 1992 Stock Option Plan is administered
by the entire Board. For purposes of the following discussion, the term
Committee will be used to reference the Committee with respect to the 1997 Stock
Option Plan and the Board with respect to the 1992 Stock Option Plan, as
applicable. The Committee has sole discretion and authority, consistent with the
provisions of the Plans, to select the Eligible Participants to whom Options
will be granted under the Plans, the number of shares which will be covered by
each Option and the form and terms of the agreement to be used. All employees
and officers of the Company (except for members of the Committee) are eligible
to participate in the Plans. Directors are eligible to participate only if they
have been declared to be "eligible directors" by resolution of the Board of
Directors. Members of the Committee are not Eligible Participants.
At April 30, 1997, two persons were eligible to receive ISOs under the
Plans.
Options. The Committee is empowered to determine the exercise price of
Options granted under the Plans, but the exercise price of ISOs must be equal to
or greater than the fair market value of a share of Common Stock on the date the
Option is granted (110% with respect to optionees who own at least 10% of the
outstanding Common Stock). The Committee has the authority to determine the time
or times at which Options granted under the Plans become exercisable, but
Options expire no later than ten years from the date of grant (five years with
respect to Optionees who own at least 10% of the outstanding Common Stock of the
Company). Options are nontransferable, other than by will and the laws of
descent, and generally may be exercised only by an employee while employed by
the Company or within 90 days after termination of employment (one year from
termination resulting from death or disability).
No incentive stock option may be granted to an Employee if, as the
result of such grant, the aggregate fair market value (determined at the time
each option was granted) of the shares with respect to which incentive stock
options are exercisable for the first time by such Employee during any calendar
year (under all such plans of the Company and any parent and subsidiary) exceeds
$100,000. The Plans do not confer upon any Employee any right with respect to
the continuation of employment by the Company, nor do the Plans interfere in any
way with the Employee's right or the Company's right to terminate the Employee's
employment at any time.
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A total of 1,000,000 shares of Common Stock is currently reserved for
issuance under the Plans, evenly divided among each of the 1992 and 1997 Stock
Option Plan. As of the date of this Prospectus, there are outstanding options to
purchase an aggregate of 480,000 shares and 200,000 of Common Stock under the
1992 Stock Option Plan and 1997 Stock Option Plan, respectively, of which ISOs
to purchase 54,348 shares were issued to each of Messrs. Dugger and Moroney,
NQSO's to purchase 145,652 shares were issued to each of Messrs. Dugger and
Moroney, and NQSOs to purchase 80,000 shares were issued (20,000 shares each) to
Messrs. Maurette, Kornreich, Schaul and Toedtman having an exercise price of
$1.67 per share. The options issued to Messrs. Dugger and Moroney have an
exercise price of $1.84 per share. All of the foregoing options vested
immediately upon grant.
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PRINCIPAL STOCKHOLDERS
The following table sets forth as of August 1, 1997 certain
information regarding the ownership of the Common Stock by (i) each person known
by the Company to be the beneficial owner of more than 5% of the Common Stock,
(ii) each of the Company's directors, and (iii) all of the Company's executive
officers and directors as a group. Beneficial ownership has been determined in
accordance with Rule 13d-3 under the Units Exchange Act of 1934, as amended.
Under this Rule, certain shares may be deemed to be beneficially owned by more
than one person (such as where persons share voting power or investment power).
In addition, shares are deemed to be beneficially owned by a person if the
person has the right to acquire the shares (for example, upon exercise of an
option) within 60 days of the date as of which the information is provided; in
computing the percentage ownership of any person, the amount of shares
outstanding is deemed to include the amount of shares beneficially owned by such
person (and only such person) by reason of these acquisition rights. As a
result, the percentage of outstanding shares of any person as shown in the
following table does not necessarily reflect the person's actual ownership or
voting power at any particular date.
<TABLE>
<CAPTION>
Name and Address or Amount and Nature of Percentage of Class
Number in Group(2) Beneficial Ownership(1) Before After
Offering Offering
<S> <C> <C> <C>
Harry A. Dugger, III, Ph.D. 1,679,003(3) 47.3% 33.9%
John J. Moroney 873,080(4) 29.6% 20.1%
Robert F. Schaul 59,286(5) 2.3% 1.5%
Jean-Marc Maurette 40,476(5) 1.5% *
John R. Toedtman 20,000(5) * *
Jack R. Kornreich 20,000(5) * *
Watson Pharmaceutical
Corporation 389,350 15.0% 9.7%
311 Bonnie Circle
Corona, CA 91720
Estate of William D. Swift,
Jr., Columbus, Georgia 192,870 7.4% 4.8%
All Officers and Directors as a 2,691,845(3)(4)(5) 67.7% 50.1%
group (6 persons)
- -------------------------
(*) less than 1%.
</TABLE>
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(1) Except as otherwise indicated, each named holder has, to the Company's
knowledge, sole voting and investment power with respect to the shares
indicated.
(2) With the exception of Watson Pharmaceutical Corporation and Saggi Capital
Corporation, the address of all holders in the table is 43 Emery Avenue,
Flemington, New Jersey 08822.
(3) Includes options to purchase 200,000 shares of common stock issued under
the 1992 Stock Option Plan; 600,000 shares issuable upon conversion of the
Bridge Notes, options to purchase 300,000 shares of Common Stock issued
outside of the Plans; 60,000 shares beneficially owned by his daughter
Christina Dugger Sommers and 60,000 shares beneficially owned by his son
Andrew Dugger. Dr. Dugger may be deemed to be a "parent" of the Company as
such term is defined under the Federal securities laws.
(4) Includes options to purchase 200,000 shares of common stock issued under
the 1992 Stock Option Plan; options to purchase 300,000 shares of Commons
Stock issued outside of the Plans; 150,000 shares issuable upon conversion
of the Bridge Notes; 73,080 shares owned jointly with his wife, and 50,000
shares owned by each of his three sons, Matthew, Timothy and Sean.
(5) Includes options to purchase 20,000 shares of common stock issued under the
1992 Stock Option Plan.
CERTAIN TRANSACTIONS
Stockholder Loans
During fiscal 1996 and 1995, respectively, Dr. Dugger and Mr. Moroney
made periodic advances to the Company for working capital and general corporate
purposes. Balances outstanding at the end of fiscal 1996 and fiscal 1995 were
$15,000 and $0, respectively.
Bridge Financing
In July 1997, the Company borrowed an aggregate of $300,000 from
Messrs. Moroney and Dugger, who financed this loan with proceeds realized upon
the private sale of a portion of their holdings of Common Stock, 450,000 and
150,000 shares were sold, respectively. This loan is evidenced by certain notes
which carry a term of 15 months and an interest rate of 7%. These notes are
convertible at the option of the holders into Common Stock at a conversion price
of $.50 per share, the same price at which Messrs. Dugger and Moroney sold their
shares. While
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the terms of the notes do not require them to be converted into Common Stock,
the Company has been advised by each of the holders that they will exercise this
conversion right after the closing of this offering.
Consulting Fees
During fiscal 1995 and fiscal 1996, respectively, the Company paid
consulting fees to Landmark Financial Corp., a corporation wholly owned by Mr.
Moroney, of $140,000 and $563,000, respectively. Messrs. Moroney and Schaul are
President and Vice President, respectively, of Landmark Financial Corp. All but
approximately $45,000 of the $563,000 paid in fiscal 1996 to Landmark was earned
in connection with the non-recurring consulting fee of $2,070,000 received for
merger advice. All but $55,000 paid in fiscal 1995 was attributable to this
non-recurring transaction. These consulting fees were paid in connection with
services rendered to the Company by Landmark with respect to contracts with the
Company requiring Mr. Moroney's personal services.
Conversion Agreements
During fiscal 1994, Watson Pharmaceutical Corp. (formerly Circa
Pharmaceutical), a licensee that made advances to the Company in prior periods,
agreed to convert the principal amount of such advances, into an aggregate of
389,350 shares of the Company's common stock. The advances, which aggregated
$650,000, were made to the Company in 1991 and 1992.
During fiscal 1994, all holders of the Company's 9% Senior Notes (the
"9% Notes"), which were issued in a private placement in May 1992 when the
Company was then considering a public offering, agreed to convert an aggregate
of $737,500 principal amount of such notes into common stock of the Company at a
conversion price of $1.67 per share. Holders of the 9% Notes, which matured in
November 1993, received in cash all accrued interest through the date of
conversion, and also received at the time of issuance of the 9% Notes, an
aggregate of 127,204 shares of common stock.
Employment Agreements
See "MANAGEMENT - Employment Agreements."
All future transactions with officers, directors or five percent (5%)
stockholders of the Company will be on terms no less favorable to the Company
than those obtainable from third parties on an arms-length basis.
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<PAGE>
DESCRIPTION OF SECURITIES
General
The authorized capital stock of the Company consists of 10,000,000
shares of Common Stock, par value $.01, and 1,000,000 shares of Preferred Stock,
par value $.01 per share. The following statements are brief summaries of
certain provisions relating to the Company's capital stock.
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<PAGE>
Preferred Stock
The Board of Directors is authorized to issue 1,000,000 shares of
Preferred Stock in one or more series with such designations, rights and
preferences as may be determined from time to time by the Board of Directors.
Accordingly, the Board of Directors is empowered, without stockholder approval,
to issue Preferred Stock with dividend, liquidation, conversion, voting or other
rights which could adversely affect the voting power or other rights of the
holders of the Common Stock. In the event of issuance, the Preferred Stock could
be utilized, under certain circumstances, as a method of discouraging, delaying
or preventing an acquisition of a change in control of the Company. The Company
does not currently intend to issue any shares of its Preferred Stock and none is
currently outstanding.
Pursuant to the terms of the Underwriting Agreement, the Company may
not issue capital stock for a period of 36 months from the effective date of
this Prospectus without prior written consent of the Underwriter.
Description of Common Stock
As of July 30, 1997, the Company had outstanding 2,597,390 shares of
Common Stock held by 42 stockholders. Each holder of Common Stock is entitled to
one vote per share in the election of directors and on all other matters
submitted to a vote of stockholders. The Common Stock has no cumulative voting
rights. The holders of shares of Common Stock have no preemptive rights and are
entitled to share ratably in any dividends when, as and if declared by the Board
of Directors out of funds legally available therefor. In the event of a
liquidation, dissolution or winding up of the Company, the holders of Common
Stock are entitled to share ratably in all assets remaining available for
distribution to them after payment of liabilities and after provision is made
for each class of stock, if any, having preference over the Common Stock. There
are no pre-emptive or conversion rights, and the shares are not subject to
redemption. All shares of Common Stock now outstanding and shares to be
outstanding upon completion of this offering are, and will be, fully paid and
non-assessable.
The Company's by-laws which govern the rights of stockholders of the
Company in accordance with statutory guidelines set forth under the Business
Corporation Act of the State of New Jersey, provide that such by-laws may be
amended by a majority vote of the stockholders or by a majority vote of the
Board of Directors. Any amendment of the by-laws by action of the Board of
Directors is subject to further amendment or repeal by a majority vote of the
stockholders.
Stockholders do not have cumulative voting rights for the election of
directors. Therefore, the holders of more than 50% of the shares voting for the
election of directors could, if they
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<PAGE>
chose to do so, elect all of the directors, and in such event, the holders of
the remaining shares would not be able to elect any directors. See "PRINCIPAL
STOCKHOLDERS."
The Company has not paid any dividends since its organization. While
the payment of dividends rests within the discretion of the Board of Directors,
the Company presently intends to retain all earnings, if any, in the foreseeable
future for use in the development of its business. It is not anticipated that
dividends will be paid in the foreseeable future. Moreover, there can be no
assurance that dividends can or will ever be paid.
Presently, there is no market for any of the Company's securities and
there is no assurance that any such market will ever develop or, if developed,
will be sustained.
There are no provisions discriminating against any existing or
prospective holder of the Company's Common Stock as a result of such holder
owning a substantial amount of the Company's Common Stock.
With the exception of the authorized and unissued Preferred Stock,
there is no provision in the Company's charter or by-laws that would have the
effect of delaying, deferring or preventing a change in control in the Company
or that would operate only with respect to an extraordinary corporate
transaction involving the Company, such as a merger, reorganization, tender
offer, sale or transfer of substantially all of the Company's assets, or
liquidation.
Description of the Units
The Units offered hereby consist of one share of Common Stock and one
Redeemable Class A Common Stock Purchase Warrant.
Each of the Shares and Class A Warrants will be issued in fully
registered form and will be separately tradeable immediately upon issuance.
American Stock Transfer and Trust Company will act as the Company's transfer
agent and registrar with respect to the Common Stock and warrant agent and
registrar with respect to the Warrants.
Description of the Class A Warrants
The following statements are summaries of the Warrant Agreement
(defined below) and are qualified in their entirety by reference to the Warrant
Agreement, which is incorporated herein in its entirety by reference.
The Warrants will be issued pursuant to a warrant agreement (the
"Warrant Agreement") among the Company, the Underwriter and American Stock
Transfer and Trust Company, as Warrant Agent, and will be evidenced by Warrant
certificates in registered form.
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<PAGE>
Each Class A Warrant entitles the holder to purchase one share of
Common Stock at an exercise price, subject to adjustment, of $4.25 at any time
during the period commencing one year from the date of this Prospectus and
ending at 5:00 P.M., New York City time, on the fifth anniversary of the date of
this Prospectus (the "Expiration Date"), unless previously redeemed.
The Warrants are subject to redemption by the Company upon 30 days
written notice at $.10 per Warrant, commencing 18 months from the effective date
of the Prospectus or earlier with the consent of the "Underwriter, if the last
sale price of the Common Stock has been at least 200% of the current Warrant
exercise price, subject to adjustment, for at least twenty consecutive trading
days ending within three days prior to the date on which notice of redemption is
given. The right to purchase the Company's Common Stock will be forfeited unless
exercised before the date of notice.
The Warrants provide for adjustment of the exercise price and for a
change in the number of shares issuable upon exercise if the Company (a) pays a
dividend or makes a distribution on its shares of Common Stock which is paid or
made in shares of Common Stock, (b) subdivides or reclassifies its outstanding
shares of Common Stock, (c) combines its outstanding shares of Common Stock into
a smaller number of shares of Common stock, (d) issues shares of Common Stock,
or issues rights or warrants to all holders of its Common Stock entitling them
to subscribe for or purchase shares of Common Stock (or securities convertible
into Common Stock), at a price per share less than the then current market
price, or (e) distributes to all holders of its Common Stock evidences of its
indebtedness or assets (excluding any dividend paid in cash out of legally
available funds) subject to the limitation that adjustments by reason of any of
the foregoing need not be made until they result in a cumulative change in the
exercise price of at least $.10. The exercise price will not be adjusted upon
the exercise of Class A Warrants, the exercise of options common stock purchase
warrants outstanding on the date hereof, or upon the grant or exercise of stock
options pursuant to a plan, approved by the Company's stockholders, such as the
Company's 1992 Stock Option Plan or 1997 Stock Option Plan.
Warrants may be exercised upon surrender of the Warrant certificate on
or prior to the Expiration Date (or earlier redemption date) at the office of
American Stock Transfer & Trust Company, the Warrant Agent, with the
Subscription Form on the reverse side of the Warrant certificate completed and
executed as indicated, accompanied by payment of the full exercise price (by
certified or bank check payable to the order of the Company) for the number of
shares with respect to which the Warrants are being exercised. Shares issued
upon exercise of Warrants and payment in accordance with the terms of the
Warrants will be fully paid and non-assessable.
The exercise price of the Warrants were determined by negotiation
between the Company and the Underwriter and should not be construed to be
predictive of or to imply that any price increases will occur in the Company's
securities.
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The Warrants do not confer upon the Warrantholder any voting or other
rights of a stockholder of the Company. Upon notice to the Warrantholders, the
Company has the right to reduce the exercise price or extend the Expiration Date
of the Warrants.
Description of Other Warrants
In May 1995, the Company entered into an agreement with Creative
Technologies, Inc. (f/k/a ETR Associates, Inc.) to assist the Company in finding
suitable business opportunities. In December of 1996, the Company amended this
agreement and issued warrants to purchase an aggregate of 100,000 shares of
Common Stock at an exercise price of $2.50 per share. The Warrants vest in
accordance with certain performance conditions in tax agreement to be satisfied
by Creative.
Description of the Bridge Notes
In July 1997, Messrs. Moroney and Dugger loaned the Company $225,000
and $75,000, respectively. These loans were evidenced by notes carrying a term
of 15 months and an interest rate of 7%. These notes are convertible at the
option of the holders into Common Stock at a conversion price of $.50 per share
at anytime prior to full satisfaction of the notes. While the terms of these
notes do not require them to be converted into Common Stock, the Company has
been advised by each of the holders that they will exercise this conversion
right after the closing of this offering.
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this offering, the Company will have outstanding
3,997,390 shares (4,597,390 shares if Bridge Notes are converted) of Common
Stock. All securities acquired in this offering, other than those that may be
acquired by "affiliates" of the Company as defined in Rule 144 under the Act,
will be freely transferable without restriction or further registration under
the Act.
All of the shares of the Common Stock currently outstanding are
restricted securities (the "Restricted Shares") as defined in Rule 144 under the
Act, and under certain circumstances may be sold without registration pursuant
to Rule 144. Approximately 636,195 of the Restricted Shares are held by
non-affiliates. All Restricted Shares have been beneficially owned for at least
two (2) years.
In general, under Rule 144 as currently in effect, a person (or persons
whose shares are aggregated), including persons who may be deemed to be
affiliates of the Company (as defined under the Act), who beneficially owns
restricted securities for at least one year, is entitled to sell within any
three month period a number of shares that does not exceed the greater of (i) 1%
of the then outstanding shares of Common Stock, or (ii) the average weekly
trading volume of the
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Common Stock during the four calendar weeks preceding such sale. Sales under
Rule 144 are also subject to certain manner of sale provisions, notice
requirements and the availability of current public information about the
Company. However, a person who is not an affiliate of the Company and has
beneficially owned restricted securities for at least two years is entitled to
sell such shares without regard to the volume or other resale requirements
pursuant to Rule 144(k).
Certain of the Company's principal stockholders, as well as all of its
officers and directors have agreed not to publicly offer, sell or otherwise
dispose of directly or indirectly, any of the Company's securities owned by
them, for a period of thirty-six (36) months from the date of this Prospectus,
without the prior written consent of the Underwriter. Prior to this offering,
there has been no market for the Common Stock and no representations can be made
of the effect, if any, that market sales of Restricted Shares or the
availability of Restricted Shares for sale will have on the market price
prevailing from time to time. Nevertheless, sales of substantial amounts of
Restricted Shares in the public market (pursuant to Rule 144 or otherwise) could
adversely affect the prevailing market price of the Common Stock.
In addition, the holders of the Placement Warrants as well as the
Underwriters Underwriter's Options, contain provisions requiring registration of
the Common Stock underlying such instruments, which, if effected, could have an
adverse impact on the prevailing market price of the Common Stock.
Listing on the Boston Stock Exchange and the Nasdaq SmallCap Stock Market
The Company has been approved for listing of the Units, Common Stock
and Warrants on the Boston Stock Exchange under the symbols "______," "______"
and "______," respectively and for trading on the Nasdaq SmallCap Stock Market
under the symbols " ", " " and " ," respectively.
No assurance can be given that the prices of such securities will be so
quoted or that a trading market for the Company's securities will develop or be
sustained, or at what price the securities will trade.
Transfer/Warrant Agent and Registrar
American Stock Transfer & Trust Company, New York, New York, is the
transfer and warrant agent and registrar for the securities of the Company.
New Jersey Shareholder Protection Act
The Company is subject to the New Jersey Shareholder Protection Act
(the "Protection Act") which restricts certain business combinations by the
Company with any of its 10% stockholders. Generally, the Protection act
prohibits a resident domestic New Jersey corporation with its principal
executive offices and significant business operations in New Jersey from
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<PAGE>
engaging in any business combination (defined generally as any merger,
consolidation, sale, lease, exchange, mortgage or pledge, or any stock transfer,
securities reclassification, liquidation or dissolution, excluding certain
transaction involving assets securities which have a market value below that
specific in the Protection Act) with an "Interested Shareholder" (defined
generally as any person who is the beneficial owner of 10% or more of the voting
power of the outstanding shares or any affiliate of the Corporation who at any
time within the five-year period immediately prior to the date of the business
combination has been the beneficial owner of 10% or more of the voting power of
the outstanding share) for a period of five years fro the date the Interested
Shareholder became an Interested Shareholder, unless such transaction is
approved by the board of directors prior to the date the shareholder became an
interested Shareholder. In addition, the Protection Act prohibits any business
combination at any time with an Interested Shareholder other than a transaction
that (i) is approved by the board of directors of the applicable company prior
to the date the Interested Shareholder became the Interested Shareholder; or
(ii) is approved by the affirmative vote of the holders of two-thirds of the
voting shares not beneficially owned by the Interested Shareholder at a meeting
called for that purpose; or (iii) satisfies certain stringent price and terms
criteria.
Certain stockholders may consider the Protection Act to have
disadvantageous effects. Tender offers or other non-open market acquisitions of
shares by persons attempting to acquire control through market purchases may
cause the market price of the shares to reach levels that are higher than would
be otherwise the case. The Protection act may discourage any or all of such
acquisitions, particularly those of less than all of the Company's shares, and
any thereby deprive certain holders of the Company's shares of an opportunity to
sell their shares at a temporarily higher market price.
These provisions could have the effect of delaying, deferring or
preventing a change of control of the Company. The Commission has indicated that
the use of authorized unissued shares of voting stock could have an
anti-takeover effect. In such cases, various specific disclosures to the
stockholders are required.
UNDERWRITING
Subject to the terms and conditions set forth in the underwriting
agreement by and between the Company and the Underwriter (the "Underwriting
Agreement"), the Underwriter has agreed to purchase for the Company, and the
Company has agreed to sell to the Underwriter, an aggregate of 700,000 Units, at
the initial public offering price less the underwriting discounts and
commissions set forth on the cover page of this Prospectus.
The Underwriting Agreement provides that the obligations of the
Underwriter to pay for and accept delivery of certificates representing the
Units is subject to certain conditions precedent, and that the Underwriter will
purchase all of the Units offered hereby on a "firm commitment" basis if any are
purchased.
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The Underwriter has advised the Company that it proposes initially to
offer the Units directly to the public at the initial public offering price set
forth on the cover page of this Prospectus and to certain dealers at such price
less a concession not in excess of $___ per Unit. After the initial public
offering, the public offering price and concession may be changed.
The Company has granted to the Underwriter an option, exercisable
during the 45-day period after the date of this Prospectus, to purchase up to an
aggregate of 105,000 additional Units at the initial per Unit public offering
price less the underwriting discounts and commissions set forth on the cover
page of this Prospectus. The Underwriter may exercise this option only to cover
over-allotments, if any, made in connection with the sale of the Units offered
hereby.
The Company has agreed to pay to the Underwriter a non-accountable
expense allowance equal to 3% of the gross proceeds of this offering, including
any Units purchased pursuant to the Underwriter's over-allotment option, no
portion of which has been paid to date.
The Company and the Underwriter have agreed to indemnify each other
against, or to contribute to losses arising out of, certain civil liabilities in
connection with this offering, including liabilities under the Securities Act.
The Company and all of its current stockholders have agreed not to
offer, sell, contract to sell or otherwise dispose of any shares of Common Stock
or rights to acquire shares of Common Stock without the prior written consent of
the Underwriter for a period of three years after the date of this Prospectus.
The Company has agreed to sell to the Underwriter, for an aggregate
price of $70, the right to purchase up to an aggregate of 70,000 Units (the
"Underwriter's Options"). The Underwriter's Options will be exercisable for a
four-year period commencing one year after the date of the Prospectus, at a per
Unit exercise price equal to 120% of the initial per Unit public offering price
of he Units being offered hereby. The Units underlying the Underwriter's Options
have the same terms and conditions as the Warrants to be sold to the public in
this offering, except that they are subject to redemption by the Company at any
time after the Underwriter's Options have been exercised and the underlying
Warrants are outstanding. The Underwriter's Options may not be sold, assigned,
transferred, pledged or hypothecated for a period of five years from the date of
this Prospectus except to the Underwriter or its officers.
The Company has agreed to file, during the four-year period beginning
one year from the date of this Prospectus, on two separate occasions (on only
one occasion at the cost of the Underwriter), at the request of the holders of a
majority of the underwriter's Options and the underlying shares of Common Stock
and Warrants, and to use its best efforts to cause to become effective, a
post-effective amendment to the Registration Statement or a new registration
statement under the Securities Act, as required to permit the public sale of the
shares of Common Stock and Warrants issued or issuable upon exercise of the
Underwriter's Options. In addition,
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the Company has agreed to give advance notice to holders of the Underwriter's
Options. In addition, the Company has agreed to give advance notice to holders
of the Underwriter's Options of its intention to file certain registration
statements commencing one year and ending five years after the date of the
Prospectus, and in such case, holders of such Underwriter's Options or
underlying shares of Common Stock and Warrants shall have the right to require
the Company to include all or part of such shares of Common Stock and Warrants
underlying such Underwriter's Options in such registration statement at the
Company's expense.
For the life of the Underwriter's Options, the holders thereof are
given the opportunity to profit from a rise in the market price of the shares of
Common Stock and Warrants, which may result in a dilution of the interests of
other stockholders. As a result, the Company may find it more difficult to raise
additional equity capital if it should be needed for the business of the Company
while the Underwriter's Option are outstanding. The holders of the Underwriter's
Options might be expected to exercise them at a time when the Company would, in
all likelihood, be able to obtain additional equity capital on terms more
favorable to the Company than those provided by the Underwriter's Option. Any
profit realized on the sale of the shares of Common Stock issuable upon the
exercise of the Underwriter's Options may be deemed additional underwriting
compensation.
The underwriting agreement provides for the Underwriter to receive a
finder's fee, ranging from 5% of the first $3,000,00 down to 1% of the excess
over $10,000,000 of the consideration involved in any capital business
transaction (including mergers and acquisitions) consummated by the Company in
which the Underwriter introduced the other party to the Company during the
five-year period following the completion of the offering.
The Underwriting Agreement provides that, for a period of two years
from the date of the Prospectus, the Company will nominate a person selected by
the Underwriter, and reasonably acceptable to the Company, for election to serve
as a member of the Company's Board of Directors.
Upon the exercise of the Warrants, the Company will pay the Underwriter
a fee of 5% of the aggregate exercise price if (i) the market price of its
Common Stock on the date the Warrant is exercised is greater than the then
exercise price of the Warrants; (ii) the exercise of the Warrant was solicited
by a member of NASD and the customer states in writing that the transaction was
solicited and designates in writing the broker-dealer to receive compensation
for the exercise; (iii) the Warrant is not held in a discretionary account; (iv)
disclosure of compensation arrangements were made both at the time of the
offering and at the time of exercise of the Warrants; and (v) the solicitation
of exercise of the Warrant was not in violation of Regulation M promulgated
under the Exchange Act.
The Commission has recently adopted Regulation M to replace Rule 10b-6
and certain other rules promulgated under the Exchange Act. Regulation M may
prohibit the Underwriter form engaging in any market making activities with
regard to the Company's securities for the
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period from five business days (or such other applicable period as Regulation M
may provide) prior to any solicitation by the Underwriter of the exercise of
Warrants until the later of the termination of such solicitation activity or the
termination (by waiver or otherwise) of any right that the Underwriter may have
to receive a fee for the exercise of Warrants following such solicitation. As a
result, the Underwriter may be unable to provide a market for the Company's
securities during certain periods while the Warrants are exercisable.
Prior to this offering there has been no public trading market for the
Company's securities. The initial public offering price of the Units and the
exercise price and the terms of the Warrants have been determined by negotiation
between the Company and the Underwriter. Factors considered in determining the
initial public offering price, in addition to prevailing market conditions,
included the history of and prospects for the industry in which the Company
competes, an assessment of the Company's management, the prospects of the
Company, its capital structure and such other factors as were deemed relevant.
The foregoing includes a summary of all of the material terms of the
Underwriting Agreement and does not purport to be complete. Reference is made to
the copy of the Underwriting Agreement that is on file as an exhibit to the
Registration Statement of which this Prospectus is a part.
The Underwriter has informed the Company that no sales will be made to
any account over which the Underwriter exercises discretionary authority.
LEGAL MATTERS
The validity of the issuance of Common Stock offered hereby will be
passed upon for the Company by Reed Smith Shaw & McClay LLP, One Riverfront
Plaza, Newark, New Jersey. Certain legal matters will be passed upon for the
Underwriter by Bernstein & Wasserman, LLP, 950 Third Avenue, New York, New York.
EXPERTS
The financial statements of Flemington Pharmaceutical Corporation at
July 31, 1996, and for each of the two years in the period ended July 31, 1996,
appearing in this Prospectus and Registration Statement have been audited by
Wiss & Company, LLP, independent auditors, as set forth in their report thereon
appearing elsewhere herein. Such financial statements are included herein and
therein in reliance upon such report and upon the authority of such firm as
experts in accounting and auditing.
63
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Units and Exchange Commission,
Washington, D.C., a Registration Statement on Form SB-2 (No. 333- ) under the
Securities Act of 1933, as amended, with respect to the securities offered
hereby, reference is made to the Registration Statement and the financial
statements and exhibits filed as a part thereof. Statements contained in this
Prospectus as to the contents of any contract or any other document are not
necessarily complete, and in each instance, reference is made to the copy of
such contract or document filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference. The
Registration Statement, including the exhibits and schedules thereto, may be
inspected and copied at the Public Reference Room of the Units and Exchange
Commission Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Units and Exchange Commission's regional offices at Seven World Trade Center,
Suite 1300, New York, New York 10048 and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of each such document may also be obtained from
the Units and Exchange Commission at its principal office in Washington, D.C.
upon payment of the charges prescribed by the Units and Exchange Commission or
are available at its Web site at www.sec.gov.
Upon consummation of this offering, the Company will become subject to
the informational requirements of the Units Exchange Act of 1934, as amended,
and in accordance therewith will file reports and other information with the
Units and Exchange Commission. Such reports and other information can be
inspected at the public reference facilities maintained by the Units and
Exchange Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, and at the Units and Exchange Commission's New York Regional Office,
Seven World Trade Center, Suite 1300, New York, New York 10048, and at its
Midwest Regional Office, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of each document may be obtained from the Public Reference Section
of the Units and Exchange Commission at prescribed rates.
64
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
INDEX TO FINANCIAL STATEMENTS
Report of Independent Auditors F-2
Financial Statements:
Balance Sheets at April 30, 1997 [unaudited],
and July 31, 1996 F-3
Statements of Operations for the periods ended
April 30, 1997 and 1996 [unaudited] and
the Years Ended July 31, 1996 and 1995 F-4
Statements of Changes in Stockholders' Equity (Deficit)
for the period ended April 30, 1997 (unaudited] and
the Years Ended July 31, 1996 and 1995 F-5
Statements of Cash Flows for the periods ended
April 30, 1997 and 1996 (unaudited] and
the Years Ended July 31, 1996 and 1995 F-6
Notes to Financial Statements F-7 to 16
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of
Flemington Pharmaceutical Corporation
We have audited the balance sheet of Flemington Pharmaceutical Corporation as
of July 31, 1996 and the related statements of operations, changes in
stockholders' equity and cash flows for each of the two years in the period then
ended. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Flemington Pharmaceutical
Corporation at July 31, 1996, and the results of its operations and its cash
flows for each of the two years in the period then ended in conformity with
generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 2 to the
financial statements, the Company has had a recent history of recurring losses
from operations, giving rise to a stockholders' deficiency through July 31, 1995
and is currently developing pharmaceutical products which will require
substantial financing to fund anticipated product development costs. Resulting
operating losses and negative cash flows from operations are likely to occur
until, if ever, profitability can be achieved through successful marketing of
newly developed products. These factors raise substantial doubt about the
Company's ability to continue as a going concern. Management's plans in regard
to these matters are described in Note 2. The financial statements do not
include any adjustments that might result from the outcome of this uncertainty.
WISS & COMPANY, LLP
Woodbridge, New Jersey
September 4, 1996
F-2
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
BALANCE SHEETS
<TABLE>
<CAPTION>
April 30, July 31,
ASSETS 1997 1996
------ ---------- -----------
(Unaudited)
<S> <C> <C>
CURRENT ASSETS:
Cash $ 53,000 $ 115,000
Accounts receivable - trade, less allowance for doubtful
accounts of $40,000 and $20,000 at April 30, 1997 and
July 31, 1996, respectively 187,000 374,000
Costs and estimated earnings in excess of billings on
uncompleted contracts -- 18,000
Prepaid expenses and other current assets 1,000 10,000
--------- ---------
Total Current Assets 241,000 517,000
FURNITURE, FIXTURES AND EQUIPMENT, LESS
ACCUMULATED DEPRECIATION OF $70,000 AT APRIL 30,
1997 AND $64,000 AT JULY 31, 1996 14,000 10,000
DEFERRED OFFERING COSTS 39,000 --
DEPOSITS 21,000 30,000
--------- ---------
315,000 $ 557,000
--------- ---------
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
CURRENT LIABILITIES:
Accounts payable - trade $ 130,000 $ 211,000
Loans from stockholders 15,000 15,000
Billings in excess of costs and estimated earnings on
uncompleted contracts 232,000 172,000
Accrued payroll -- 10,000
Accrued expenses and other current liabilities 12,000 22,000
--------- ---------
Total Current Liabilities 389,000 430,000
--------- ---------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value:
Authorized 1,000,000 shares, none issued -- --
Common stock, $.01 par value:
Authorized - 10,000,000 shares
Issued and outstanding - 2,597,390 shares 26,000 26,000
Additional paid-in capital 850,000 850,000
Accumulated deficit (950,000) (749,000)
--------- ---------
Total Stockholders' Equity (Deficit) (74,000) 127,000
--------- ---------
$ 315,000 $ 557,000
========= =========
</TABLE>
See accompanying notes to financial statements.
F-3
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Nine Months Ended Year Ended
April 30, July 31,
------------------- ------------------
1997 1996 1996 1995
---- ---- ---- ----
(Unaudited)
<S> <C> <C> <C> <C>
REVENUES:
Operating revenues $ 589,000 $ 1,202,000 $ 1,402,000 $ 1,204,000
Consulting fee (Note 2) -- -- 2,070,000 --
Interest income 17,000 16,000 31,000 11,000
----------- ----------- ----------- -----------
606,000 1,218,000 3,503,000 1,215,000
----------- ----------- ----------- -----------
COSTS AND EXPENSES:
Operating expenses 395,000 677,000 819,000 782,000
Product development 36,000 162,000 172,000 4,000
Consulting fee expenses (Note 2) -- -- 1,606,000 --
Selling, general and administrative expenses 376,000 293,000 410,000 461,000
Interest expense -- 1,000 2,000 4,000
----------- ----------- ----------- -----------
807,000 1,133,000 3,009,000 1,251,000
----------- ----------- ----------- -----------
NET INCOME (LOSS) (201,000) 85,000 494,000 (36,000)
PRO FORMA ADJUSTMENT:
Officers' salary 125,000 192,000 257,000 277,000
----------- ----------- ----------- -----------
PRO FORMA NET INCOME (LOSS) $ (326,000) $ (107,000) $ 237,000 $ (313,000)
----------- ----------- ----------- -----------
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING 4,281,890 4,281,890 4,281,890 4,281,890
=========== =========== =========== ===========
PER COMMON SHARE:
Net income (loss) (.05) .02 .12 (.01)
Pro forma net income (loss) (.08) (.02) .06 (.07)
</TABLE>
See accompanying notes to financial statements.
F-4
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
Common Stock
------------ Stockholders'
Par Paid-in Accumulated Equity
Shares Value Capital Deficit (Deficit)
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
BALANCE, JULY 31, 1994 2,597,390 $ 26,000 $ 850,000 $(1,207,000) $ (331,000)
YEAR ENDED JULY 31, 1995 -
Net loss -- -- -- (36,000) (36,000)
----------- ----------- ----------- ----------- -----------
BALANCE, JULY 31, 1995 2,597,390 26,000 850,000 (1,243,000) (367,000)
YEAR ENDED JULY 31, 1996 -
Net income -- -- -- 494,000 494,000
----------- ----------- ----------- ----------- -----------
BALANCE, JULY 31, 1996 2,597,390 26,000 850,000 (749,000) 127,000
NINE MONTHS ENDED APRIL 30, 1997
(Unaudited) -
Net loss -- -- -- (201,000) (201,000)
----------- ----------- ----------- ----------- -----------
BALANCE, APRIL 30, 1997
(Unaudited) 2,597,390 $ 26,000 $ 850,000 $ (950,000) $ (74,000)
=========== =========== =========== =========== ===========
</TABLE>
See accompanying notes to financial statements.
F-5
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Nine Months Ended Year Ended
April 30, July 31,
---------------------- ----------------------
1997 1996 1996 1995
---- ---- ---- ----
(unaudited)
<S> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $(201,000) $ 85,000 $ 494,000 $ (36,000)
Adjustments to reconcile net income (loss)
to net cash flows from operating activities:
Provision for losses on accounts receivable 20,000 --
Depreciation 6,000 4,000 5,000 8,000
Changes in operating assets and liabilities:
Accounts receivable 167,000 (302,000) (184,000) (18,000)
Deposits 9,000 -- 3,000 (28,000)
Prepaid expenses and other current assets 9,000 -- -- 34,000
Cost and earnings in excess of billings on
uncompleted contracts 18,000 (12,000) (18,000) --
Accounts payable - trade (81,000) 155,000 38,000 (140,000)
Billings in excess of costs and earnings on
uncompleted contracts 60,000 51,000 57,000 87,000
Accrued payroll (10,000) (35,000) (338,000) 36,000
Accrued expenses and other current
liabilities (10,000) 11,000 19,000 (30,000)
--------- --------- --------- ---------
Net cash flows from operating activities (13,000) (43,000) 76,000 (87,000)
CASH FLOW FROM INVESTING ACTIVITIES:
Purchase of property and equipment (10,000) -- -- --
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase in deferred offering costs (39,000) -- -- --
Proceeds of loans from stockholders -- 27,000 15,000 --
--------- --------- --------- ---------
(39,000) 27,000 15,000 --
--------- --------- --------- ---------
NET CHANGE IN CASH (62,000) (16,000) 91,000 (87,000)
CASH, BEGINNING OF PERIOD 115,000 24,000 24,000 111,000
--------- --------- --------- ---------
CASH, END OF PERIOD $ 53,000 $ 8,000 $ 115,000 $ 24,000
========= ========= ========= =========
SUPPLEMENTAL CASH FLOW INFORMATION:
Interest paid -- $ 1,000 $ 2,000 $ 4,000
========= ========= ========= =========
Income taxes paid -- -- -- --
========= ========= ========= =========
</TABLE>
See accompanying notes to financial statements.
F-6
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
NOTES TO FINANCIAL STATEMENTS
(Information pertaining to April 30, 1997 and 1996 is unaudited)
Note 1 -- Nature of the Business and Summary of Significant Accounting
Policies:
Nature of the Business - Flemington Pharmaceutical Corporation (the
"Company") is engaged in the development of novel pharmaceutical
products combining presently marketed drugs with innovative
patent-pending oral dosage delivery systems of the Company, designed
to enhance and accelerate the onset of the therapeutic benefits which
the drugs are intended to produce. Management intends to develop these
products in collaboration with pharmaceutical companies having
significant existing sales of the pharmaceutical compounds being
incorporated into the Company's dosage delivery systems, thereby
creating a more effective, and more attractive product.
The Company has not materially commercialized any of its proposed
products and, accordingly, has not generated any material revenue from
product sales. Since inception, substantially all of the Company's
revenue has been derived from providing consulting services to the
pharmaceutical industry. To date, the Company's drug development
activities have been largely funded through cash flow generated by its
consulting services. Management intends, as its drug development
activities intensify, to diminish, but not eliminate, the amount of
Company effort devoted to consulting services.
Revenues and Costs - Revenues from contract clinical research are
recognized on the percentage-of-completion method. Completion is
measured by the relationship of total contract costs incurred to total
estimated contract costs for each study. Provisions for estimated
losses on uncompleted contracts are made in the period in which such
losses are determined.
Contract costs consist primarily of fees paid to outside clinics for
studies and an allocable portion of the Company's operating expenses.
General and administrative costs are charged to expense as incurred.
Financial Instruments - Financial instruments include cash, accounts
receivable, accounts payable and accrued expenses. The amounts
reported for financial instruments are considered to be reasonable
approximations of their fair values, based on market information
available to management.
Furniture, Fixtures and Equipment - Furniture, fixtures and equipment
are stated at cost. The Company provides for depreciation using an
accelerated method, based upon estimated useful lives of 5 to 7 years
for furniture, fixtures and equipment.
F-7
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
NOTES TO FINANCIAL STATEMENTS
(Information pertaining to April 30, 1997 and 1996 is unaudited)
Income Taxes - Deferred income taxes result primarily from net
operating losses and the differences resulting from reporting on the
cash basis of accounting for tax reporting purposes. As a result of
these temporary differences, the Company has recorded a deferred tax
asset with an offsetting valuation allowance for the same amount.
Deferred Contribution Profit Sharing Plan - The Company has a 401(K)
retirement plan covering substantially all employees. Company
contributions are based on the discretion of the Board of Directors.
The Company made no contributions for the periods ended April 30, 1997
and 1996 and for the years ended July 31, 1996 and 1995.
Deferred Offering Costs - Offering costs have been deferred, pending
the outcome of the offering contemplated herein. If the offering is
successful, these costs will be charged against additional paid-in
capital; otherwise, they will be charged to expense.
New Accounting Pronouncements - Statement of Financial Accounting
Standards ("SFAS") No. 121, "Accounting for the Impairment of
long-lived Assets and for long-lived Assets to be Disposed Of",
requires that certain long-lived assets be reviewed for possible
impairment and written down to fair value, if appropriate. The Company
will adopt this new pronouncement for the year ended July 31, 1997 and
the impact of adoption is not expected to have a material effect on
the Company's financial statements.
SFAS No. 123, "Accounting for Stock-Based Compensation," requires
companies to measure employee stock compensation plans based on the
fair value method of accounting. However, the statement allows the
alternative of continued use of Accounting Principles Board Opinion
No. 25, "Accounting for Stock Issued to Employees," with pro forma
disclosure of net income and earnings per share determined as if the
fair value based method had been applied in measuring compensation
cost. The Company has not yet determined if it will adopt this new
pronouncement for the year ended July 31, 1997 or provide only pro
forma disclosure. The effects of this new pronouncement, if adopted,
have not been determined.
SFAS No. 128, "Earnings per Share," was issued in February 1997, and
is effective for financial statements issued for periods ending after
December 15, 1997. SFAS 128 requires that earnings per share be
presented more in line with earnings per share standards of other
countries. The Company expects to adopt SFAS 128 for the year ending
July 31, 1998. The Company has not yet determined the effect of
adoption of this new pronouncement on its financial statements.
F-8
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
NOTES TO FINANCIAL STATEMENTS
(Information pertaining to April 30, 1997 and 1996 is unaudited)
Risk Concentrations:
(a) Major Customers - The project for the Company's largest client in
the year ended July 31, 1996 was completed in that year and the
Company does not expect to perform any additional services for
that client in the immediate future. This client was located in
the United States and represented approximately 60% of the
Company's total revenue. During the year ended July 31, 1996, the
Company had revenue from two other customers located in France
and Germany approximating, 14% and 10%, respectively, of the
Company's total revenue.
During the year ended July 31, 1995, the Company had revenue from
three customers located in France, Germany and the United Arab
Emirates approximating 32%, 23% and 14%, respectively, of the
Company's total revenue.
(b) Accounts Receivable - At July 31, 1996, the Company had unsecured
accounts receivable from three customers located in France,
Germany and the United Arab Emirates approximating 64%, 17% and
11%, respectively, of the Company's total accounts receivable.
The Company has long standing relationships with its principal
customers and feels that credit risk associated with these
customers is limited. With regard to new customers, the Company
receives customer referrals through long standing relationships.
(c) Significant Employees - All of the Company's consulting and study
reporting activities are performed by major stockholders of the
Company. As a result, the Company is completely dependent upon
these stockholders to continue with these revenue activities.
(d) Supplier Dependence - The Company believes that certain raw
materials, including inactive ingredients, are available only
from a limited number of suppliers and that certain packaging
materials intended for use in connection with its spray products
currently are available only from sole source suppliers. Although
the Company does not believe it will encounter difficulties in
obtaining inactive ingredients or packaging materials necessary
for the manufacture of its products there can be no assurance
that the Company will be able to enter into satisfactory
purchasing agreements or arrangements, thereby causing a
potential significant adverse effect on the Company's ability to
arrange for the manufacture of formulated products.
F-9
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
NOTES TO FINANCIAL STATEMENTS
(Information pertaining to April 30, 1997 and 1996 is unaudited)
Use of Estimates - The preparation of financial statements in
conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosures of contingent assets
and liabilities at the date of the financial statements and the
reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Interim Financial Information - The information for the nine months
ended April 30, 1997 and 1996 is unaudited but includes all
adjustments, consisting only of normal recurring accruals, which the
management of the Company considers necessary for a fair presentation
thereof. Results for the nine months ended April 30, 1997 are not
necessarily indicative of the results for the full fiscal year.
Footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles
have been omitted in accordance with the published rules and
regulations of the Securities and Exchange Commission. These financial
statements should be read in conjunction with the annual financial
statements and notes thereto.
Pro forma Adjustments - An officer's salary, which will be subject to
an employment agreement to be effective upon the consummation of the
offering contemplated herein, has varied during all periods presented.
Accordingly, the pro forma effects of such changes have been reported
on the face of the statements of operations.
Net Income or (Loss) Per Share - Net income (loss) per common share is
based upon the weighted average number of outstanding common shares.
However, common shares, options and warrants issued after July 31,
1995, with per share prices significantly less than the price of the
shares in the offering contemplated herein, have been treated as
outstanding for all reported periods.
Note 2 -- Going Concern:
The Company's financial statements have been presented on the basis
that it is a going concern which contemplates the realization of
assets and the satisfaction of liabilities in the normal course of
business. The Company has had a recent history of recurring losses
from operations through July 31, 1995. During the year ended July 31,
1996, the Company completed a non-recurring transaction resulting in a
consulting fee of approximately $2,070,000 before related costs and
expenses of approximately $1,606,000.
F-10
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
NOTES TO FINANCIAL STATEMENTS
(Information pertaining to April 30, 1997 and 1996 is unaudited)
The Company's continued existence is dependent upon its ability to
achieve profitable operations or obtain additional financing. The
following represents the Company's principal operating and liquidity
problems and management's plans to overcome them.
Operating Trends and Future Prospects - Substantially all of the
Company's revenues, since inception, have been derived from consulting
services in connection with product development by various
pharmaceutical companies. The Company is now engaged in the
development of pharmaceutical products. The future growth and
profitability of the Company will be principally dependent upon its
ability to successfully complete development of and market its
proposed products. To date, the Company has not commercialized any of
its proposed products and has not generated any revenues from product
sales. The Company anticipates that it will incur substantial
operating expenses in connection with the development, testing and
approval of its proposed products and expects these expenses to result
in continuing and significant operating losses until such time, if
ever, that the Company is able to achieve adequate sales levels.
Recent Financing Activities - The Company's capital requirements have
been and will continue to be significant. In the past, the Company has
financed its working capital requirements primarily through cash flow
generated from operations and loans from stockholders. The Company is
dependent on obtaining additional financing to fund its future
operations and working capital requirements and continues to seek to
raise additional capital through the sale of common stock. The Company
has no other current arrangements with respect to, or sources of,
additional financing, and there can be no assurance that additional
financing will be available to the Company on acceptable terms, or at
all. In view of the Company's very limited resources, its anticipated
expenses and the competitive environment in which the Company
operates, any inability to obtain additional financing would severely
limit the Company's ability to complete development and
commercialization of its proposed products.
F-11
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
NOTES TO FINANCIAL STATEMENTS
(Information pertaining to April 30, 1997 and 1996 is unaudited)
Note 3 -- Costs and Estimated Earnings on Uncompleted Contracts:
The following summarizes those contracts in process which are being
reported on the percentage of completion basis:
April 30, July 31,
1997 1996
---------- ----------
(Unaudited)
Gross Contract Values $ 637,000 $ 991,000
--------- ---------
Costs incurred on uncompleted contracts $ 93,000 $ 251,000
Estimated earnings 8,000 22,000
--------- ---------
101,000 273,000
Less: Progress billings and advance
deposits to date 333,000 427,000
--------- ---------
$ 232,000 $ 154,000
========= =========
Included in the accompanying balance
sheets under the following captions:
Costs and estimated earnings in excess of
billings on uncompleted contracts $ -- $ (18,000)
Billings in excess of costs and estimated
earnings on uncompleted contracts 232,000 172,000
--------- ---------
$ 232,000 $ 154,000
========= =========
Note 4 -- Related Party Transactions:
Shareholder Loan Payable - At April 30, 1997 and July 31, 1996, the
Company owed a total of $15,000 to two stockholders of the Company.
These loans bear interest at 8.5% per annum and are due upon demand.
Legal Fees - The Company has incurred legal fees with an officer and
director of the Company. These fees amount to approximately $6,000
and $8,000 for the years ended July 31, 1996 and 1995, respectively.
Consulting Fees - During the years ended July 31, 1996 and 1995 the
Company incurred consulting fees, with a company having officers,
including the consulting company's sole stockholder, who are also
directors and principal stockholders of the Company, approximating
$563,000 and $140,000, respectively.
F-12
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
NOTES TO FINANCIAL STATEMENTS
(Information pertaining to April 30, 1997 and 1996 is unaudited)
Note 5 -- Commitments and Contingencies:
Leases - The Company rents office space on a month to month basis.
Rent expense for the Company's facilities totalled approximately
$31,000 and $41,000, for the years ended July 31, 1996 and 1995,
respectively.
Governmental Regulation - The development, manufacture and
commercialization of pharmaceutical products is subject to extensive
regulation by various federal and state governmental entities.
Note 6 -- Income Taxes:
A summary of current and deferred income taxes included in the
statements of operations is as follows:
Nine Months Ended Year Ended
April 30, July 31,
------------------ ---------------
1997 1996 1996 1995
---- ---- ---- ----
(Unaudited)
Current:
Federal $ -- $ 3,100 $ 18,000 $ --
State -- 900 5,000 --
Benefit of operating
loss carryforwards -- (4,000) (23,000) --
-------- -------- -------- ------
-- -- -- --
-------- -------- -------- ------
Deferred:
Federal -- -- -- --
State -- -- -- --
-------- -------- -------- ------
-- -- -- --
-------- -------- -------- ------
$ -- $ -- $ -- $ --
-------- -------- -------- ------
The total income taxes are different than the amounts computed by
applying the U.S. statutory federal income tax rate of 34% for the
year ended July 31, 1996. The differences are summarized as follows:
Income tax at statutory rate $ 168,000
Increase (decrease) resulting from:
State taxes, net of federal benefit 3,000
Deductions in excess of revenue under the
cash basis of accounting for income tax
reporting exceeding those for financial
reporting (150,000)
Benefit of operating loss carryforward (23,000)
Nondeductible business expenses 1,000
Other 1,000
---------
Provision for income taxes $ --
=========
F-13
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
NOTES TO FINANCIAL STATEMENTS
(Information pertaining to April 30, 1997 and 1996 is unaudited)
The significant components of the Company's deferred tax asset are
summarized as follows:
April 30, July 31,
1997 1996
---------- --------
(Unaudited)
Cumulative deduction in excess of revenue under the
cash basis of accounting for income tax reporting
exceeding those for financial reporting purposes $ 82,000 $ 6,000
Net operating loss carryforwards 345,000 316,000
--------- ---------
427,000 322,000
Valuation allowance (427,000) (322,000)
--------- ---------
Net deferred tax asset $ -- $ --
========= =========
A valuation allowance is provided when it is more likely than not that
some portion of the deferred tax asset will not be realized. The
Company has determined, based on the Company's prior history of
recurring losses, that a full valuation allowance is appropriate at
July 31, 1996.
At July 31, 1996, the Company has federal and state net operating loss
carryforwards of approximately $847,000 which can be used to offset
current and future taxable income through the year 2010.
Note 7 -- Stockholders' Equity:
Stock Option Plan - In May 1992, the Company adopted a stock option
plan (the "Plan") under which 500,000 shares of common stock have been
reserved for issuance either as incentive stock options ("ISOs") under
the Internal Revenue Code or as non-qualified options. ISOs may be
granted to employees and officers of the Company and non-qualified
options may be granted to consultants, directors, employees and
officers of the Company. Options to purchase the Company's common
stock may not be granted at a price less than the fair market value of
the common stock on the date of grant and will expire not more than
ten years from the date of grant. ISOs' granted to a 10% or more
stockholder may not be for less than 110% of fair market value nor for
a term of more than five years.
F-14
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
NOTES TO FINANCIAL STATEMENTS
(Information pertaining to April 30, 1997 and 1996 is unaudited)
In July 1992, the Company granted two-year options to purchase an
aggregate of 100,000 shares of common stock. All such options were
surrendered to the Company in July 1993. No options are outstanding
under the Plan at either July 31, 1996 or 1995 (See Notes 8 and 9).
Preferred Stock - The Company's Certificate of Incorporation
authorizes the issuance of up to 1,000,000 shares of Preferred Stock.
None of such Preferred Stock has been designated or issued to date.
The Board of Directors is authorized to issue shares of Preferred
Stock from time to time in one or more series and to establish and
designate any such series and to fix the number of shares and the
relative conversion rights, voting rights, terms of redemption and
liquidation.
Note 8 -- Subsequent Event:
Stock Options - In August 1996, the Board of Directors consented to
issue 200,000 incentive stock options to the President of the Company.
In addition, the Board also consented to issue 200,000 non-qualified
options to the Chairman of the Board, 80,000 non-qualified options to
various officers and directors of the Company and 2,000 non-qualified
options to other employees of the Company. All of the above options
are exercisable into one share of the Company's common stock at a
price of $1.67 per share for holders of less than 10% of the Company's
outstanding stock and $1.84 per share for holders of 10% or more of
the Company's common stock. All of the options are due to expire
August 14, 2005.
Note 9 -- Events Subsequent to Date of Auditors' Report (Unaudited):
Consulting Agreement - In December 1996, the Company entered into
agreement with a consulting company, (the "Consultant"), for
assistance in finding suitable business opportunities. The agreement
provides for the Company to pay a fee to the Consultant of 10% of the
consideration received by the Company from projects identified in the
agreement, net of expenses. The agreement also provides for the
Company to pay a 5% fee for equity transactions arranged by the
Consultant. In addition to the above, the Company issued a warrant to
the Consultant to purchase up to 100,000 shares of the Company's
common stock at $2.50 per share, with vesting of 20,000 shares upon
completion of each successful project.
F-15
<PAGE>
FLEMINGTON PHARMACEUTICAL CORPORATION
NOTES TO FINANCIAL STATEMENTS
(Information pertaining to April 30, 1997 and 1996 is unaudited)
Stock Option Plan - In January 1997, the Company's Board of Directors
adopted a stock option plan, providing for the issuance of options to
employees, officers and under certain circumstances, directors of and
consultants to the Company. Options granted under the plan may be
either incentive stock options as defined in the Internal Revenue Code
or non-qualified stock options. The total number of shares of common
stock reserved and available under the plan shall be 500,000 shares.
Bridge Financing - In July 1997, the Company borrowed an aggregate of
$300,000, at an interest rate of 7% per annum, from two of its officer
shareholders, who financed this loan with proceeds realized upon the
private sale of 600,000 shares of their common stock in the Company.
The loan is evidenced by certain notes which are convertible into
600,000 shares of the Company's common stock upon the consummation of
the offering contemplated herein.
Employment Agreement - The Company entered into separate employment
agreements with its President and Chairman of the Board of Directors
for a base annual salary of $200,000 and $150,000, respectively. Each
agreement has a base term of three years effective upon the
consummation of the public offering contemplated herein. The
agreements are thereafter renewable for additional one year periods,
unless the Company gives notice to the contrary.
In connection with these agreements, the Company also granted non-
revocable options to these officers to purchase a total of 600,000
shares, exercisable within a ten year period of the date of grant at
an exercise price of $1.84 per share.
F-16
<PAGE>
================================================================================
No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made hereby, and if given or made, such
information or representation must not be relied upon as having been authorized
by the Company or the Underwriter. This Prospectus does not constitute as offer
to sell or a solicitation of any offer to buy any security by any person in any
jurisdiction in which such offer or solicitation would be unlawful. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, imply that the information in this Prospectus is correct as of
any time subsequent to the date of this Prospectus.
--------------------------
TABLE OF CONTENTS
Page
-----
Prospectus Summary........................................................
The Company...............................................................
Risk Factors..............................................................
Use of Proceeds ..........................................................
Dilution..................................................................
Dividend Policy ..........................................................
Capitalization ...........................................................
Selected Financial Data ..................................................
Management's Discussion and Analysis of
Financial Condition and Results of Operations...........................
Business..................................................................
Management................................................................
Principal Stockholders ...................................................
Certain Transactions......................................................
Description of Units .....................................................
Shares Eligible for Future Sale ..........................................
Underwriting .............................................................
Legal Matters ............................................................
Experts ..................................................................
Available Information ....................................................
Index to Financial Statements ............................................ F-1
--------------------------
Until , 1997 (25 days after the date of this Prospectus), all
dealers effecting transactions in the registered securities, whether or nor
participating in this distribution, may be required to deliver a Prospectus.
This is in addition to the obligation of dealers to deliver a Prospectus when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
================================================================================
<PAGE>
================================================================================
[LOGO]
FLEMINGTON
PHARMACEUTICAL
CORPORATION
700,000 Units consisting of
1,400,000 Shares of Common Stock and 1,400,000
Redeemable Class A Common Stock Purchase Warrants
------------------------------
PROSPECTUS
------------------------------
MONROE PARKER SECURITIES, INC.
_______________, 1997
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 24. Indemnification of Directors and Officers.
Section 14A:3-5(2) of the Business Corporation Act of the State of New
Jersey (the "Business Corporation Act") provides, in general, that a corporation
shall have the power to indemnify a corporate agent against his expenses and
liabilities in connection with any proceeding involving the corporate agent by
reason of his being or having been such a corporate agent, other than a
proceeding by or in the right of the corporation, if (a) such corporate agent
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation; and (b) with respect to any
criminal proceeding, such corporate agent had no reasonable cause to believe his
conduct was unlawful. The termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not in itself create a presumption that such corporate agent did meet the
applicable standards of conduct set forth in paragraphs (a) and (b) above.
Section 14A:3-5(3) of the Business Corporation Act provides, in
general, that a corporation shall have power to indemnify a corporate agent
against his expenses in connection with any proceeding by or in the right of the
corporation to procure a judgment in its favor which involves the corporate
agent by reason for his being or having been such corporate agent, if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation. However, in such proceeding no
indemnification shall be provided in respect of any claim, issue or matter as to
which such corporate agent shall have been adjudged to be liable to the
corporation, unless and only to the extent that the Superior Court or the court
in which such proceeding was brought shall determine upon application that
despite the adjudication of liability, but in view of all circumstances of the
case, such corporate agent is fairly and reasonably entitled to indemnity for
such expenses as the Superior Court or such other court shall deem proper.
Section 14A:3-5(4) of the Business Corporation Act provides, in
general, that a corporation shall indemnify a corporate agent against expenses
to the extent that such corporate agent has been successful on the merits or
otherwise in any proceeding referred to in subsections 14A:3-5(2) and 14A:3-5(3)
or in defense of any claim, issue or matter therein.
Section 14A:3-5(9) of the Business Corporation Act provides, in
general, that a corporation shall have power to purchase and maintain insurance
on behalf of any corporate agent against any expenses incurred in any proceeding
and any liabilities asserted against him by reason of his being or having been a
corporate agent, whether or not the corporation would have the power to
indemnify him against such expenses and liabilities under the provision of this
section.
II-1
<PAGE>
The Business Corporation Act also provides that a corporation's
certificate of incorporation may provide that a director or officer shall not be
personally liable, or shall be liable only to the extent therein provided, to
the corporation or its shareholders for damages for breach of any duty owed to
the corporation or its shareholder, except that such provision shall not relieve
a director from liability for any breach of duty based upon an act or omission
(a) in breach of such person's duty of loyalty to the corporation or its
shareholders, (b) not in good faith or involving a knowing violation of law or
(c) resulting in receipt by such person of an improper personal benefit.
The Company's by-laws and Certificate of Incorporation provide that the
Company will indemnify its officers, directors, employees and agents to the
fullest extent permitted by the Business Corporation Act.
The Company's Certificate of Incorporation eliminates the personal
liability of the directors to the fullest extent permitted by the Business
Corporation Law.
Reference is made to Section of the Form of Underwriting Agreement
(Exhibit 1.1 ).
Item 25. Other Expenses of Issuance and Distribution.
The following is an itemized statement of the estimated expenses to be
incurred by the Registrant in connection with this offering (excluding the
Underwriter's non-accountable expense allowance):
SEC registration fee........................................ $ 4,140.00
NASD filing fee............................................. 1,807.32
Boston Stock Exchange listing fee .......................... 15,000.00
Nasdaq SmallCap listing fee................................. 15,000.00
Blue Sky fees and expenses.................................. 20,000.00
Printing and engraving expenses............................. 75,000.00
Legal fees and expenses..................................... 75,000.00
Accounting fees and expenses................................ 35,000.00
Transfer Agent's fees and expenses.......................... 5,000.00
Miscellaneous expenses 4,052.68
-----------
Total.............................................. $250,000.00
===========
II-2
<PAGE>
Item 26. Recent Sales of Unregistered Securities.
Within the past three years, the Registrant sold the following
securities, to the persons listed below without registration under the
Securities Act of 1933, as amended (the "Act").
The Bridge Financing
In July 1997, the Company borrowed an aggregate of $300,000 from
Messrs. Moroney and Dugger, who financed this loan with proceeds realized upon
the private sale of a portion of their holdings of Common Stock, 450,000
and 150,000 shares were sold, respectively. This loan is evidenced by certain
convertible subordinated notes due September 30, 1988 bearing an interest rate
of 7%. These notes are convertible at the option of the holders into Common
Stock at a conversion price of $.50 per share, the same price at which Messrs.
Dugger and Moroney sold their shares. While the terms of the notes do not
require them to be converted into Common Stock, the Company has been advised by
each of the holders that they will exercise this conversion right after the
closing of this offering.
The notes were sold for cash and offers and sales were made in reliance
on Section 4(2) of the Act.
In connection with the transaction described above, no general
advertisement or solicitation of offerees was made and all purchasers signed and
delivered to the Registrant agreements wherein they represented, among other
things, that the securities would be held for their own account, for investment
only and not with a view to the distribution thereof. The certificates
representing such securities bear legends restricting transferability in
transactions not registered under the Act, and the Registrant's records bear
stop transfer restrictions with respect thereto.
Item 27. Exhibits.
<TABLE>
<CAPTION>
Number Description
<S> <C> <C>
1.1 - Form of Underwriting Agreement
1.2 - Form of Selected Dealers' Agreement
1.3 - Financial Consulting Agreement
3.1 - Certificate of Incorporation of the Registrant, as amended
3.2 - By-Laws of the Registrant, as amended
4.1 - Form of Warrant Agreement
4.2 - Form of Common Stock Certificate*
4.3 - Form of Class A Warrant Certificate
4.4 - Form of Underwriter's Option Agreement
5.1 - Opinion of Reed Smith Shaw & McClay LLP
</TABLE>
- ---------
* To be filed by amendment
II-3
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
10.1 - Employment Agreement with Harry A. Dugger, III, Ph.D.
10.2 - Employment Agreement with John J. Moroney*
10.3 - Agreement dated December 7, 1996 between the Registrant and Altana, Inc.
10.4 - Agreement dated December 19, 1996 between the Registrant and Sandoz
Pharmaceuticals
10.5 - Registrant's 1992 Stock Option Plan
10.6 - Form of Option Agreement under 1992 Stock Option Plan*
10.7 - Registrant's 1997 Stock Option Plan
10.8 - Form of Option Agreement under 1997 Stock Option Plan*
10.9 - Agreement with Rapid Spray (Clemastine) dated June 2, 1992
10.10 - Agreement with Rapid Spray (Nitroglycerine) dated June 2, 1992
11.1 - Computation of earnings per share*
23.1 - Consent of Wiss & Company, LLP (included on page II-7)
23.2 - Consent of Reed Smith Shaw & McClay LLP (included in Exhibit 5.1)
27.1 - Financial Data Schedule - Fiscal Years Ended 1995 and 1996 and Nine Months Ended April 30, 1997
and 1996*
- -----------
* To be filed by amendment
</TABLE>
Item 28. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement; and
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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; and
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II-4
<PAGE>
The undersigned Registrant hereby undertakes to provide to the
Underwriter at the closing specified in the Underwriting Agreement certificates
in such denominations and registered in such names as required by the
Underwriter to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, (the "Act") may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described under
Item 24, or otherwise, the Registrant has been advised that in the opinion of
the Units and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the questions whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of a Registration
Statement in reliance upon Rule 430A and contained in the form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 496(h) under the
Securities Act shall be deemed to be part of the Registration Statement as of
the time it was declared effective.
For the purpose of determining any liability under the 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>
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the use in this Prospectus constituting
part of the Registration Statement on Form SB-2 of our report dated September 4,
1996 relating to the financial statements of Flemington Pharmaceutical
Corporation which appears in such Prospectus. We also consent to the reference
to us under the caption "Experts" in the Prospectus.
WISS & COMPANY, LLP
Woodbridge, New Jersey
August 8, 1997
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form SB-2 and has duly caused this
Registration Statement on Form SB-2 to be signed on its behalf by the
undersigned, thereunder duly authorized, in the City of Newark, State of New
Jersey on August 8, 1997.
FLEMINGTON PHARMACEUTICAL CORPORATION
By:______________________________________
Harry A. Dugger, III, Ph.D., President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below under the heading "Signatures" constitutes and appoints Harry A.
Dugger, III, Ph.D. and John Moroney or either of them, as his/her true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him/her and in his/her name, place and stead, in any and all
capacities to sign any or all amendments to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Units and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he/she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
______________________________
Harry A. Dugger, III, Ph.D. President and Chief Executive Officer August 8, 1997
(Principal Executive Officer)
______________________________
John J. Moroney Chairman of the Board August 8, 1997
______________________________
Robert F. Schaul Secretary and Director August 8, 1997
______________________________
Jean Marc Maurette Director August 8, 1997
______________________________
Jack R. Kornreich Director August 8, 1997
______________________________
John R. Toedtman Director August 8, 1997
</TABLE>
S-1
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description
<S> <C> <C>
1.1 - Form of Underwriting Agreement
1.2 - Form of Selected Dealers' Agreement
1.3 - Financial Consulting Agreement
3.1 - Certificate of Incorporation of the Registrant, as amended
3.2 - By-Laws of the Registrant, as amended
4.1 - Form of Warrant Agreement
4.2 - Form of Common Stock Certificate*
4.3 - Form of Class A Warrant Certificate
4.4 - Form of Underwriter's Option Agreement
5.1 - Opinion of Reed Smith Shaw & McClay LLP
10.1 - Employment Agreement with Harry A. Dugger, III, Ph.D.
10.2 - Employment Agreement with John J. Moroney*
10.3 - Agreement dated December 7, 1996 between the Registrant and Altana, Inc.
10.4 - Agreement dated December 19, 1996 between the Registrant and Sandoz
Pharmaceuticals
10.5 - Registrant's 1992 Stock Option Plan
10.6 - Form of Option Agreement under 1992 Stock Option Plan*
10.7 - Registrant's 1997 Stock Option Plan
10.8 - Form of Option Agreement under 1997 Stock Option Plan*
10.9 - Agreement with Rapid Spray (Clemastine) dated June 2, 1992
10.10 - Agreement with Rapid Spray (Nitroglycerine) dated June 2, 1992
11.1 - Computation of earnings per share*
23.1 - Consent of Wiss & Company, LLP (included on page II-7)
23.2 - Consent of Reed Smith Shaw & McClay LLP (included in Exhibit 5.1)
27.1 - Financial Data Schedule - Fiscal Years Ended 1995 and 1996 and Nine Months Ended April 30, 1997
and 1996*
- -----------
* To be filed by amendment
</TABLE>
<PAGE>
700,000 Units (each Unit consisting of two (2) shares of
Common Stock, par value $.01 per share and two (2)
Warrants for Common Stock)
FLEMINGTON PHARMACEUTICAL CORPORATION
UNDERWRITING AGREEMENT
----------------------
New York, New York
__________, 1997
Monroe Parker Securities, Inc.
2500 Westchester Avenue
Purchase, New York 10577
Flemington Pharmaceutical Corporation, a New Jersey corporation (the
"Company"), proposes to issue and sell to you (the "Underwriter"), an aggregate
of 700,000 Units ("Units"), each Unit consisting of two (2) shares of Common
Stock, par value $.01 per share ("Common Stock"), and two (2) Class A Redeemable
Purchase Warrants for Common Stock ("Warrants"). The Units, Common Stock and
Warrants may be collectively referred to hereinafter as the "Securities". Each
Warrant entitles the registered holder thereof to purchase one (1) share of
Common Stock at an exercise price of $4.25 per share for a period of four (4)
years, commencing __________, 1998 (one (1) year from the Effective Date)
through __________, 2002. The Warrants are subject to redemption by the Company
upon not less than thirty (30) days' notice at any time after ___________, 1998
(eighteen (18) months from the Effective Date) or earlier with the consent of
the Underwriter, at $.10 per warrant, if the closing sale price per share of
Common Stock has equaled or exceeded 260% of the then exercise price of the
Warrants on all 20 business days ending on the third day prior to the written
notice of redemption. In addition, the Company proposes to grant to the
Underwriter the option referred to in Section 2(b) to purchase all or any part
of an aggregate of 105,000 additional Units.
Unless the context otherwise requires, the aggregate of 700,000 Units
to be sold by the Company (together with the additional Units sold pursuant to
Section 2(b)) and the shares of Common Stock and the Warrants comprising the
Units, are herein called the "Units." The Common Stock to be outstanding after
giving effect to the sale of the Units are also called the "Shares."
<PAGE>
You have advised the Company that you desire to purchase the Units.
The Company confirms the agreements made by it with respect to the purchase of
the Units by the Underwriter as follows:
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with you that:
(a) A registration statement (File No. 333-_______) on Form
SB-2 relating to the public offering of the Units, including a form of
prospectus subject to completion, copies of which have heretofore been delivered
to you, has been prepared in conformity with the requirements of the Securities
Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, and has been filed with the Commission under the Act and one or more
amendments to such registration statement may have been so filed. After the
execution of this Agreement, the Company will file with the Commission either
(i) if such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the Act, a prospectus in the
form most recently included in an amendment to such registration statement (or,
if no such amendment shall have been filed in such registration statement), with
such changes or insertions as are required by Rule 430A under the Act or
permitted by Rule 424(b) under the Act and as have been provided to and approved
by you prior to the execution of this Agreement, or (ii) if such registration
statement, as it may have been amended, has not been declared by the Commission
to be effective under the Act, an amendment to such registration statement,
including a form of prospectus, a copy of which amendment has been furnished to
and approved by you prior to the execution of this Agreement. As used in this
Agreement, the term "Company" means Flemington Pharmaceutical Corporation and/or
each of its subsidiaries ("Subsidiaries"); the term "Registration Statement"
means such registration statement, as amended at the time when it was or is
declared effective, including all financial schedules and exhibits thereto and
including any information omitted therefrom pursuant to Rule 430A under the Act
and included in the Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus subject to completion filed with such
registration statement or any amendment thereto (including the prospectus
subject to completion, if any, included in the Registration Statement or any
amendment thereto at the time it was or is declared effective); and the term
"Prospectus" means the prospectus first filed with the Commission pursuant to
Rule 424(b) under the Act, or, if no prospectus is required to be filed pursuant
to said Rule 424(b), such term means the prospectus included in the Registration
Statement; except that if such registration statement or prospectus is amended
or such prospectus is supplemented, after the effective date of such
registration statement and prior to the Option Closing Date (as hereinafter
defined), the terms "Registration Statement" and "Prospectus" shall include such
registration statement and prospectus as so amended, and the term "Prospectus"
shall include the prospectus as so supplemented, or both, as the case may be.
2
<PAGE>
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. At the time the Registration
Statement becomes effective and at all times subsequent thereto up to and on the
First Closing Date (as hereinafter defined) or the Option Closing Date, as the
case may be, (i) the Registration Statement and Prospectus will in all respects
conform to the requirements of the Act and the Rules and Regulations; and (ii)
neither the Registration Statement nor the Prospectus will include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make statements therein not misleading; provided,
however, that the Company makes no representations, warranties or agreements as
to information contained in or omitted from the Registration Statement or
Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Underwriter specifically for use
in the preparation thereof. It is understood that the statements set forth in
the Prospectus with respect to stabilization, under the heading "Underwriting",
and the identity of counsel to the Underwriter under the heading "Legal Matters"
constitute for purposes of this Section and Section 6(b) the only information
furnished in writing by or on behalf of the Underwriter for inclusion in the
Registration Statement and Prospectus, as the case may be.
(c) The Company and its Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation with full corporate
power and authority to own their properties and conduct their business as
described in the Prospectus and are duly qualified or licensed to do business as
foreign corporations and are in good standing in each other jurisdiction in
which the nature of their business or the character or location of their
properties require such qualification, except where the failure to so qualify
will not materially adversely affect the Company's or Subsidiaries' business,
properties or financial condition.
(d) The authorized, issued and outstanding capital stock of
the Company and its Subsidiaries, including the predecessors of the Company, is
as set forth the Company's financial statements contained in the Registration
Statement; the shares of issued and outstanding capital stock of the Company and
its Subsidiaries set forth therein have been duly authorized, validly issued and
are fully paid and nonassessable; except as set forth in the Prospectus, no
options, warrants, or other rights to purchase, agreements or other obligations
to issue, or agreements or other rights to convert any obligation into, any
shares of capital stock of the Company or its Subsidiaries have been granted or
entered into by the Company or its Subsidiaries; and the capital stock conforms
to all statements relating thereto contained in the Registration Statement and
Prospectus.
(e) The Units and the shares of Common Stock, when paid for,
issued and delivered pursuant to this Agreement, will have been duly authorized,
issued and delivered and will constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or other laws affecting
the right of creditors generally or by general equitable principles, and
entitled to the rights and preferences provided by the Certificate of
Incorporation, which will be in the form filed as an exhibit to the Registration
Statement. The terms of the Common Stock conform to the description thereof in
the Registration Statement and Prospectus.
3
<PAGE>
The Warrants, when paid for, issued and delivered pursuant to
this Agreement, will have been duly authorized, issued and delivered and will
constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or other laws affecting the right of creditors generally
or by general equitable principles, and entitled to the benefits provided by the
warrant agreement pursuant to which such Warrants are to be issued (the "Warrant
Agreement"), which will be substantially in the form filed as an exhibit to the
Registration Statement. The shares of Common Stock issuable upon exercise of the
Warrants have been reserved for issuance upon the exercise of the Warrants and
when issued in accordance with the terms of the Warrants and Warrant Agreement,
will be duly and validly authorized validly issued, fully paid and
non-assessable and free of preemptive rights. The Warrant Agreement has been
duly authorized and, when executed and delivered pursuant to this Agreement,
assuming due authorization, execution and delivery by the transfer agent, will
have been duly executed and delivered and will constitute the valid and legally
binding obligation of the Company enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency or other laws
affecting the rights of creditors generally or by general equitable principles.
The Warrants and Warrant Agreement conform to the respective descriptions
thereof in the Registration Statement and Prospectus.
The Purchase Option (as defined in the Registration
Statement), when paid for, issued and delivered pursuant to this Agreement will
constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms and entitled to the benefits provided by the
Purchase Option, except as enforceability may be limited by bankruptcy,
insolvency or other laws affecting the rights of creditors generally or by
general equitable principles. The Securities issuable upon exercise of the
Purchase Option (and the shares of Common Stock issuable upon exercise of the
Warrants) when issued and paid for in accordance with this Agreement, the
Purchase Option and the Warrant Agreement, will be duly authorized, validly
issued, fully paid and non-assessable and free of preemptive rights.
(f) This Agreement has been duly and validly authorized,
executed and delivered by the Company. The Company has full power and authority
to authorize, issue and sell the Units to be sold by it hereunder on the terms
and conditions set forth herein, and no consent, approval, authorization or
other order of any governmental authority is required in connection with such
authorization, execution and delivery or in connection with the authorization,
issuance and sale of the Units or the Purchase Option, except such as may be
required under the Act or state securities laws.
(g) Except as described in the Prospectus, or which would not
have a material adverse effect on the condition (financial or otherwise),
business prospects, net worth or properties of the Company and the Subsidiaries
taken as a whole (a "Material Adverse Effect"), the Company and its Subsidiaries
are not in violation, breach or default of or under, and consummation of the
transactions herein contemplated and the fulfillment of the terms of this
Agreement will not conflict with, or result in a breach or violation of, any of
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the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company or its Subsidiaries pursuant to the terms of
any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or its Subsidiaries is a party or
by which the Company or its Subsidiaries may be bound or to which any of the
property or assets of the Company or its Subsidiaries is subject, nor will such
action result in any violation of the provisions of the certificate of
incorporation or the by-laws of the Company or its Subsidiaries, as amended, or
any statute or any order, rule or regulation applicable to the Company or its
Subsidiaries of any court or of any regulatory authority or other governmental
body having jurisdiction over the Company or its Subsidiaries.
(h) Subject to the qualifications stated in the Prospectus,
the Company and its Subsidiaries have good and marketable title to all
properties and assets described in the Prospectus as owned by them, free and
clear of all liens, charges, encumbrances or restrictions, except such as are
not materially significant or important in relation to their business; all of
the material leases and subleases under which the Company or its Subsidiaries is
the lessor or sublessor of properties or assets or under which the Company and
its Subsidiaries holds properties or assets as lessee or sublessee as described
in the Prospectus are in full force and effect, and, except as described in the
Prospectus, the Company and its Subsidiaries are not in default in any material
respect with respect to any of the terms or provisions of any of such leases or
subleases, and, to the best knowledge of the Company, no claim has been asserted
by anyone adverse to rights of the Company or its Subsidiaries as lessor,
sublessor, lessee or sublessee under any of the leases or subleases mentioned
above, or affecting or questioning the right of the Company or its Subsidiaries
to continued possession of the leased or subleased premises or assets under any
such lease or sublease except as described or referred to in the Prospectus; and
the Company and its Subsidiaries own or lease all such properties described in
the Prospectus as are necessary to their operations as now conducted and, except
as otherwise stated in the Prospectus, as proposed to be conducted as set forth
in the Prospectus.
(i) Wiss & Company, LLP, which has given its report on certain
financial statements filed with the Commission as a part of the Registration
Statement, is with respect to the Company, independent public accountants as
required by the Act and the Rules and Regulations.
(j) The financial statements, and schedules together with
related notes, set forth in the Prospectus or the Registration Statement present
fairly the financial position and results of operations and changes in cash flow
position of the Company and its Subsidiaries on the basis stated in the
Registration Statement, at the respective dates and for the respective periods
to which they apply. Said statements and schedules and related notes have been
prepared in accordance with generally accepted accounting principles applied on
a basis which is consistent during the periods involved except as disclosed in
the Prospectus and Registration Statement.
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(k) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus and except as otherwise
disclosed or contemplated therein, the Company and its Subsidiaries have not
incurred any liabilities or obligations, direct or contingent, not in the
ordinary course of business, or entered into any transaction not in the ordinary
course of business, which would have a Material Adverse Effect, and there has
not been any change in the capital stock of, or any incurrence of short-term or
long-term debt by, the Company or its Subsidiaries or any issuance of options,
warrants or other rights to purchase the capital stock of the Company or its
Subsidiaries or any material adverse change or any development involving, so far
as the Company or its Subsidiaries can now reasonably foresee a prospective
adverse change in the condition (financial or otherwise), net worth, results of
operations, business, key personnel or properties of it which would have a
Material Adverse Effect.
(l) Except as set forth in the Prospectus, there is not now
pending or, to the knowledge of the Company, threatened, any action, suit or
proceeding to which the Company or its Subsidiaries is a party before or by any
court or governmental agency or body, which might result in any material adverse
change in the financial condition, business prospects, net worth, or properties
of the Company or its Subsidiaries, nor are there any actions, suits or
proceedings related to environmental matters or related to discrimination on the
basis of age, sex, religion or race; and no labor disputes involving the
employees of the Company or its Subsidiaries exist or to the knowledge of the
Company, are threatened which might be expected to have a Material Adverse
Effect.
(m) Except as disclosed in the Prospectus, the Company and its
Subsidiaries have filed all necessary federal, state and foreign income and
franchise tax returns required to be filed as of the date hereof and have paid
all taxes shown as due thereon; and there is no tax deficiency which has been,
or to the knowledge of the party, may be asserted against the Company or its
Subsidiaries.
(n) Except as disclosed in the Registration Statement or
Prospectus, the Company and its Subsidiaries have sufficient licenses, permits
and other governmental authorizations currently necessary for the conduct of
their business or the ownership of their properties as described in the
Prospectus and is in all material respects complying therewith and owns or
possesses adequate rights to use all material patents, patent applications,
trademarks, service marks, trade-names, trademark registrations, service mark
registrations, copyrights and licenses necessary for the conduct of such
businesses and have not received any notice of conflict with the asserted rights
of others in respect thereof. To the best knowledge of the Company, none of the
activities or business of the Company and its Subsidiaries are in violation of,
or cause the Company or its Subsidiaries to violate, any law, rule, regulation
or order of the United States, any state, county or locality, or of any agency
or body of the United States or of any state, county or locality, the violation
of which would have a Material Adverse Effect.
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(o) The Company and its Subsidiaries have not, directly or
indirectly, at any time (i) made any contributions to any candidate for
political office, or failed to disclose fully any such contribution in violation
of law or (ii) made any payment to any state, federal or foreign governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments or contributions required or allowed by applicable
law. The Company's and Subsidiaries' internal accounting controls and procedures
are sufficient to cause the Company and its Subsidiaries to comply in all
material respects with the Foreign Corrupt Practices Act of 1977, as amended.
(p) On the Closing Dates (hereinafter defined) all transfer or
other taxes, (including franchise, capital stock or other tax, other than income
taxes, imposed by any jurisdiction) if any, which are required to be paid in
connection with the sale and transfer of the Securities to the Underwriter
hereunder will have been fully paid or provided for by the Company and all laws
imposing such taxes will have been complied with in all material respects.
(q) All contracts and other documents of the Company which
are, under the Rules and Regulations, required to be filed as exhibits to the
Registration Statement have been so filed.
(r) Except as disclosed in the Registration Statement, the
Company has no Subsidiaries.
(s) Except as disclosed in the Registration Statement, the
Company has not entered into any agreement pursuant to which any person is
entitled either directly or indirectly to compensation from the Company for
services as a finder in connection with the proposed public offering.
(t) Except as previously disclosed in writing by the Company
to the Underwriter or as disclosed in the Registration Statement, no officer,
director or stockholder of the Company has any National Association of
Securities Dealers, Inc. (the "NASD") affiliation.
(u) No other firm, corporation or person has any rights to
underwrite an offering of any of the Company's securities.
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<PAGE>
2. Purchase, Delivery and Sale of the Units.
(a) Subject to the terms and conditions of this Agreement, and
upon the basis of the representations, warranties, and agreements herein
contained, the Company agrees to issue and sell to the Underwriter and the
Underwriter agrees to buy from the Company at $6.30 per Unit, at the place and
time hereinafter specified, 700,000 Units (the "First Units").
Delivery of the First Units against payment therefor shall
take place at the offices of Bernstein & Wasserman, LLP, 950 Third Avenue, New
York, New York (or at such other place as may be designated by agreement between
the Underwriter and the Company) at 10:00 a.m., New York time, on __________,
1997, or at such later time and date as the Underwriter may designate in writing
to the Company at least two business days prior to such purchase, but not later
than __________, 1997 such time and date of payment and delivery for the First
Units being herein called the "First Closing Date."
(b) In addition, subject to the terms and conditions of this
Agreement, and upon the basis of the representations, warranties and agreements
herein contained, the Company hereby grants an option to the Underwriter (the
"Over-Allotment Option") to purchase all or any part of an aggregate of an
additional 105,000 Units to cover over allotments at the same price per Unit as
the Underwriter shall pay for the First Units being sold pursuant to the
provisions of subsection (a) of this Section 2 (such additional Units being
referred to herein as the "Option Units"). This option may be exercised within
45 days after the effective date of the Registration Statement upon written
notice by the Underwriter to the Company advising as to the amount of Option
Units as to which the option is being exercised, the names and denominations in
which the certificates for such Option Units are to be registered and the time
and date when such certificates are to be delivered. Such time and date shall be
determined by the Underwriter but shall not be earlier than four nor later than
ten full business days after the exercise of said option (but in no event more
than 55 days after the Effective Date), nor in any event prior to the First
Closing Date, and such time and date is referred to herein as the "Option
Closing Date." Delivery of the Option Units against payment therefor shall take
place at the offices of Bernstein & Wasserman, LLP, 950 Third Avenue, New York,
NY 10022 (or at such other place as may be designated by agreement between the
Underwriter and the Company). The option granted hereunder may be exercised only
to cover over-allotments in the sale by the Underwriter of First Units referred
to in subsection (a) above. No Option Units shall be delivered unless all First
Units shall have been delivered to the Underwriter as provided herein.
(c) The Company will make the certificates for the Units to be
purchased by the Underwriter hereunder available to you for checking at least
two full business days prior to the First Closing Date or the Option Closing
Date (which are collectively referred to herein as the "Closing Dates"). The
certificates shall be in such names and denominations as you may request, at
least three full business days prior to the Closing Dates. Delivery of the
certificates at the time and place specified in this Agreement is a further
condition to the obligations of the Underwriter.
8
<PAGE>
Definitive certificates in negotiable form for the Units to be
purchased by the Underwriter hereunder will be delivered by the Company to you
for the account of the Underwriter against payment of the respective purchase
prices by the Underwriter, by wire transfer or certified or bank cashier's
checks in New York Clearing House funds, payable to the order of the Company.
In addition, in the event the Underwriter exercises the option
to purchase from the Company all or any portion of the Option Units pursuant to
the provisions of subsection (b) above, payment for such Units shall be made to
or upon the order of the Company by wire transfer or certified or bank cashier's
checks payable in New York Clearing House funds at the offices of Bernstein &
Wasserman, LLP, 950 Third Avenue, New York, N.Y., at the time and date of
delivery of such Units as required by the provisions of subsection (b) above,
against receipt of the certificates for such Units by you for your account
registered in such names and in such denominations as you may reasonably
request.
It is understood that the Underwriter proposes to offer the
Units to be purchased hereunder to the public upon the terms and conditions set
forth in the Registration Statement, after the Registration Statement becomes
effective.
3. Covenants of the Company. The Company covenants and agrees with the
Underwriter that:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective. If required, the Company will file
the Prospectus and any amendment or supplement thereto with the Commission in
the manner and within the time period required by Rule 424(b) under the Act.
Upon notification from the Commission that the Registration Statement has become
effective, the Company will so advise you and will not at any time, whether
before or after the effective date, file any amendment to the Registration
Statement or supplement to the Prospectus of which you shall not previously have
been advised and furnished with a copy or to which you or your counsel shall
have reasonably objected in writing or which is not in compliance with the Act
and the Rules and Regulations. At any time prior to the later of (A) the
completion by the Underwriter of the distribution of the Units contemplated
hereby (but in no event more than nine months after the date on which the
Registration Statement shall have become or been declared effective) and (B) 25
days after the date on which the Registration Statement shall have become or
been declared effective, the Company will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the Registration
Statement or Prospectus which, in the opinion of counsel to the Company and the
Underwriter, may be reasonably necessary or advisable in connection with the
distribution of the Units.
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<PAGE>
As soon as the Company is advised thereof, the Company will
advise you, and provide you copies of any written advice, of the receipt of any
comments of the Commission, of the effectiveness of any post-effective amendment
to the Registration Statement, of the filing of any supplement to the Prospectus
or any amended Prospectus, of any request made by the Commission for an
amendment of the Registration Statement or for supplementing of the Prospectus
or for additional information with respect thereto, of the issuance by the
Commission or any state or regulatory body of any stop order or other order or
threat thereof suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Units for offering in any jurisdiction,
or of the institution of any proceedings for any of such purposes, and will use
its best efforts to prevent the issuance of any such order, and, if issued, to
obtain as soon as possible the lifting thereof.
The Company has caused to be delivered to you copies of each
Preliminary Prospectus, and the Company has consented and hereby consents to the
use of such copies for the purposes permitted by the Act. The Company authorizes
the Underwriter and dealers to use the Prospectus in connection with the sale of
the Units for such period as in the opinion of counsel to the Underwriter and
the Company the use thereof is required to comply with the applicable provisions
of the Act and the Rules and Regulations. In case of the happening, at any time
within such period as a Prospectus is required under the Act to be delivered in
connection with sales by the Underwriter or dealer of any event of which the
Company has knowledge and which materially affects the Company or the securities
of the Company, or which in the opinion of counsel for the Company and counsel
for the Underwriter should be set forth in an amendment of the Registration
Statement or a supplement to the Prospectus in order to make the statements
therein not then misleading, in light of the circumstances existing at the time
the Prospectus is required to be delivered to a purchaser of the Units or in
case it shall be necessary to amend or supplement the Prospectus to comply with
law or with the Rules and Regulations, the Company will notify you promptly and
forthwith prepare and furnish to you copies of such amended Prospectus or of
such supplement to be attached to the Prospectus, in such quantities as you may
reasonably request, in order that the Prospectus, as so amended or supplemented,
will not contain any untrue statement of a material fact or omit to state any
material facts necessary in order to make the statements in the Prospectus, in
the light of the circumstances under which they are made, not misleading. The
preparation and furnishing of any such amendment or supplement to the
Registration Statement or amended Prospectus or supplement to be attached to the
Prospectus shall be without expense to the Underwriter, except that in case the
Underwriter is required, in connection with the sale of the Units to deliver a
Prospectus nine months or more after the effective date of the Registration
Statement, the Company will upon request of and at the expense of the
Underwriter, amend or supplement the Registration Statement and Prospectus and
furnish the Underwriter with reasonable quantities of prospectuses complying
with Section 10(a)(3) of the Act.
The Company will comply with the Act, the Rules and
Regulations and the Securities Exchange Act of 1934 (the "Exchange Act") and the
rules and regulations thereunder in connection with the offering and issuance of
the Securities.
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<PAGE>
(b) The Company will furnish such information as may be
required and to otherwise cooperate and use its best efforts to qualify or
register the Units for sale under the securities or "blue sky" laws of such
jurisdictions as you may designate and will make such applications and furnish
such information as may be required for that purpose and to comply with such
laws, provided the Company shall not be required to qualify as a foreign
corporation or a dealer in securities or to execute a general consent of service
of process in any jurisdiction in any action other than one arising out of the
offering or sale of the Units. The Company will, from time to time, prepare and
file such statements and reports as are or may be required to continue such
qualification in effect for so long a period as the counsel to the Company and
the Underwriter deem reasonably necessary.
(c) If the sale of the Units provided for herein is not
consummated as a result of the Company not performing its obligations hereunder
in all material respects, the Company shall pay all costs and expenses incurred
by it which are incident to the performance of the Company's obligations
hereunder, including but not limited to, all of the expenses itemized in Section
8, including the accountable expenses of the Underwriter (including the
reasonable fees and expenses of counsel to the Underwriter), if the offering is
not consummated.
(d) The Company will use its best efforts to (i) cause a
registration statement under the Exchange Act to be declared effective
concurrently with the completion of this offering and will notify you in writing
immediately upon the effectiveness of such registration statement, and (ii) to
obtain and keep current a listing in the Standard & Poors or Moody's OTC
Industrial Manual.
(e) For so long as the Company is a reporting company under
either Section 12(g) or 15(d) of the Exchange Act, the Company, at its expense,
will furnish to its stockholders an annual report (including financial
statements audited by independent public accountants), in reasonable detail and
at its expense, will furnish to you during the period ending five (5) years from
the date hereof, (i) as soon as practicable after the end of each fiscal year,
but no earlier than the filing of such information with the Commission a balance
sheet of the Company and any of its Subsidiaries as at the end of such fiscal
year, together with statements of income, surplus and cash flow of the Company
and any Subsidiaries for such fiscal year, all in reasonable detail and
accompanied by a copy of the certificate or report thereon of independent
accountants; (ii) as soon as practicable after the end of each of the first
three fiscal quarters of each fiscal year, but no earlier than the filing of
such information with the Commission, consolidated summary financial information
of the Company for such quarter in reasonable detail; (iii) as soon as they are
publicly available, a copy of all reports (financial or other) mailed to
security holders; (iv) as soon as they are available, a copy of all non-
confidential reports and financial statements furnished to or filed with the
Commission or any securities exchange or automated quotation system on which any
class of securities of the Company is listed; and (v) such other information as
you may from time to time reasonably request.
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(f) In the event the Company has an active subsidiary or
Subsidiaries, such financial statements referred to in subsection (e) above will
be on a consolidated basis to the extent the accounts of the Company and its
subsidiary or Subsidiaries are consolidated in reports furnished to its
stockholders generally.
(g) The Company will deliver to you at or before the First
Closing Date two signed copies of the Registration Statement including all
financial statements and exhibits filed therewith, and of all amendments
thereto, and will deliver to the Underwriter such number of conformed copies of
the Registration Statement, including such financial statements but without
exhibits, and of all amendments thereto, as the Underwriter may reasonably
request. The Company will deliver to or upon your order, from time to time until
the effective date of the Registration Statement, as many copies of any
Preliminary Prospectus filed with the Commission prior to the effective date of
the Registration Statement as you may reasonably request. The Company will
deliver to the Underwriter on the effective date of the Registration Statement
and thereafter for so long as a Prospectus is required to be delivered under the
Act, from time to time, as many copies of the Prospectus, in final form, or as
thereafter amended or supplemented, as the Underwriter may from time to time
reasonably request.
(h) The Company will make generally available to its security
holders and to the registered holders of its Warrants and deliver to you as soon
as it is practicable to do so but in no event later than 90 days after the end
of twelve months after its current fiscal quarter, an earnings statement (which
need not be audited) covering a period of at least twelve consecutive months
beginning after the effective date of the Registration Statement, which shall
satisfy the requirements of Section 11(a) of the Act.
(i) The Company will apply the net proceeds from the sale of
the Securities substantially for the purposes set forth under "Use of Proceeds"
in the Prospectus and, except as set forth therein, shall not use any proceeds
to pay any (i) debt for borrowed funds, or (ii) debt or obligation owed to any
insider outside of salary in the ordinary course of business.
(j) The Company will promptly prepare and file with the
Commission any amendments or supplements to the Registration Statement,
Preliminary Prospectus or Prospectus and take any other action, which in the
opinion of counsel to the Underwriter and counsel to the Company, may be
reasonably necessary or advisable in connection with the distribution of the
Securities, and will use its best efforts to cause the same to become effective
as promptly as possible.
(k) The Company will reserve and keep available the maximum
number of its authorized but unissued securities which are issuable upon
exercise of the Purchase Option outstanding from time to time.
(l) (1) For a period of thirty six (36) months from the First
Closing Date no officer, director or shareholder of any securities prior to the
offering will, directly or indirectly, offer, sell (including any short sale),
12
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grant any option for the sale of, acquire any option to dispose of, or otherwise
dispose of any shares of Common Stock without the prior written consent of the
Underwriter, other than as set forth in the Registration Statement. In order to
enforce this covenant, the Company shall impose stop-transfer instructions with
respect to the securities owned by every shareholder prior to the offering until
the end of such period (subject to any exceptions to such limitation on
transferability set forth in the Registration Statement). If necessary to comply
with any applicable Blue-sky Law, the shares held by such shareholders will be
escrowed with counsel for the Company or otherwise as required.
(2) Except for the issuance of shares of capital stock by the
Company in connection with a dividend, recapitalization, reorganization or
similar transactions or as result of the exercise of warrants or options to
purchase up to 500,000 shares of Common Stock pursuant to an incentive/qualified
stock option plan disclosed in or issued or granted pursuant to plans disclosed
in the Registration Statement (so long as options granted pursuant to such plan
shall be exercisable at not less than the fair market value on the date of
grant), the Company shall not, for a period of thirty six (36) months following
the First Closing Date, directly or indirectly, offer, sell, issue or transfer
any shares of its capital stock, or any security exchangeable or exercisable
for, or convertible into, shares of the capital stock or (including stock
options) register any of its capital stock (under any form of registration
statement including Form S-8), without the prior written consent of the
Underwriter. Options granted pursuant to plans must be exercisable at the fair
market value on the date of grant. Notwithstanding the foregoing provisions, the
Company may issue securities during said thirty six (36) month period in
connection with acquisitions by the Company which would have a positive effect
on the Company's income statement based upon generally accepted accounting
principles.
(m) Upon completion of this offering, the Company will make
all filings required, including registration under the Exchange Act, to obtain
the listing of the Units, Common Stock and the Warrants on the Boston Stock
Exchange and NASD Electronic Bulletin Board, and will use its best efforts to
effect and maintain such listing for at least five years from the date of this
Agreement.
(n) Except for the transactions contemplated by this Agreement
and as disclosed in the Prospectus, the Company represents that it has not taken
and agrees that it will not take, directly or indirectly, any action designed to
or which has constituted or which might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any of the
Securities.
(o) On the First Closing Date and simultaneously with the
delivery of the Units, the Company shall execute and deliver to you the Purchase
Option. The Purchase Option will be substantially in the form filed as an
Exhibit to the Registration Statement.
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(p) On the First Closing Date, the Company will have in force
key person life insurance on the life of ____________ in an amount of not less
than $1,000,000, payable to the Company, and will use its best efforts to
maintain such insurance during the three year period commencing with the First
Closing Date. In addition, the Company shall enter into employment agreements
with such individuals, upon terms and conditions satisfactory to the
Underwriter.
(q) So long as any Warrants are outstanding and the exercise
price of the Warrants is less than the market price of the Common Stock, the
Company shall use its best efforts to cause post-effective amendments to the
Registration Statement to become effective in compliance with the Act and
without any lapse of time between the effectiveness of any such post-effective
amendments and cause a copy of each Prospectus, as then amended, to be delivered
to each holder of record of a Warrant and to furnish to the Underwriter as many
copies of each such Prospectus as such Underwriter or dealer may reasonably
request. The Company shall not call for redemption of any of the Warrants unless
a registration statement covering the securities underlying the Warrants has
been declared effective by the Commission and remains current at least until the
date fixed for redemption.
(r) For a period of five (5) years following the Effective
Date, the Company will maintain registration with the Commission pursuant to
Section 12(g) of the Exchange Act and will provide to the Underwriter copies of
all filings made with the Commission pursuant to the Exchange Act. In the event
that the Company fails to maintain registration with the Commission pursuant to
Section 12(g) during such five year period, the Company will provide reasonable
access to an independent accountant designated by the Underwriter, to all books,
records and other documents or statements that reflect the Company's financial
status at least once each quarter, at the Company's expense.
(s) The Company agrees to pay the Underwriter a warrant
solicitation fee of 5.0% of the exercise price of any of the Warrants exercised
beginning one (1) year after the Effective Date (not including warrants
exercised by the Underwriter) if (a) the market price of the Company's Common
Stock on the date the Warrant is exercised is greater than the exercise price of
the Warrant, (b) the exercise of the Warrant was solicited by the Underwriter
and the holder of the warrant designates the Underwriter in writing as having
solicited such Warrant, (c) the Warrant is not held in a discretionary account,
(d) disclosure of the compensation arrangement is made upon the sale and
exercise of the Warrants, (e) soliciting the exercise is not in violation of
Rule 10b-6 under the Securities Exchange Act of 1934, and (f) solicitation
of the exercise is in compliance with the NASD Notice to Members 81-38
(September 22, 1981).
(t) The Company shall retain American Stock Transfer & Trust
Company as its transfer agent for the Common Stock and as its warrant agent for
the Warrants for a period of five (5) years from the Effective Date. For a
period of two years from the Effective Date, at the request of the Underwriter,
the Company shall provide promptly, at the expense of the Company, copies of the
Company's monthly transfer sheets furnished to it by its transfer agent and
copies of the securities position listings provided to it by the Depository
Trust Company.
(u) The Company hereby agrees that:
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(i) The Company will pay a finder's fee to the
Underwriter, equal to five percent (5%) of the first $3,000,000 of the
consideration involved in any transaction, 4% of the next $3,000,000 of
consideration involved in the transaction, 3% of the next $2,000,000, 2% of the
next $2,000,000 and 1% of the excess, if any, for future consummated
transactions, if any, introduced by the Underwriter (including mergers,
acquisitions, joint ventures, and any other business for the Company introduced
by the Underwriter) consummated by the Company (an "Introduced Consummated
Transaction"), in which the Underwriter introduced the other party to the
Company during a period ending five years following the First Closing Date; and
(ii) Any finder's fee due hereunder will be paid in
cash or other consideration that is acceptable to the Underwriter, at the
closing of the particular Introduced Consummated Transaction for which the
finder's fee is due.
(v) Upon the first Closing Date and simultaneously with the
delivery of the Securities, the Company shall execute and deliver to the
Underwriter, a two year financial consulting agreement in the form attached as
an Exhibit to the Registration Statement which shall require the Company to pay
the Underwriter 2% of the gross proceeds of the Offering. (the "Financial
Consulting Agreement").
(w) For a period of two (2) years following the Effective Date
the Company, at its expense, shall cause its regularly engaged independent
certified public accountants to review (but not audit) the Company's financial
statements for each of the first three (3) fiscal quarters prior to the
announcement of quarterly financial information, the filing of the Company's
10-Q quarterly report and the mailing of quarterly financial information to
stockholders, provided that the Company shall not be required to file a report
of such accountants relating to such review with the Commission. The Company
will retain its present legal counsel and independent certified public
accountants for at least one year from the Closing Date.
(x) For the two (2) year period commencing on the First
Closing Date, the Company shall recommend and use its best efforts to elect a
designee of the Underwriter as a member of the Company's Board of Directors.
Such designee shall serve on the Compensation Committee of the Board of
Directors so long as such designee would qualify as disinterested for the
purpose of Section 162(m) of the Internal Revenue Code of 1986, as amended.
Alternatively, the Underwriter may appoint an advisor who will be able to attend
all meetings of the Board of Directors. However, the Board of Directors shall
have the right to require such advisor to execute a confidentiality agreement
satisfactory to the Company. The Underwriter shall also have the right to
written notice no later than notice to other directors of each meeting and to
obtain copies of the minutes, if requested, from all Board of Directors meetings
for two (2) years following the Effective Date of the Registration Statement,
whether or not a nominee of the Underwriter attends or participates in any such
Board meeting. To the extent permitted by law, the Company will indemnify the
Underwriter and its designee for the actions of such designee as a director of
the Company. The Company will use its best efforts to obtain liability insurance
not to exceed $50,000 per year in premiums to cover acts of officers and
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directors, including said designee. The Company agrees to reimburse the
Underwriter immediately upon the Underwriter's request therefor of any
reasonable travel and lodging expenses directly incurred by the Underwriter in
connection with its designee or representative attending Company Board meetings
on the same basis for other Board members and such designee shall be entitled to
receive no more or less compensation than is paid to other non-management
directors of the Company.
(y) For a period of thirty (30) days from and after the
Effective Date, the Company will not issue a press release or engage in any
publicity other than promotion by the Company of its products and services and
other press releases in the ordinary course of its business, without the
Underwriter's prior written consent, unless required by law.
4. Conditions of Underwriter's Obligation. The obligations of the
Underwriter to purchase and pay for the Units which it has agreed to purchase
hereunder, are subject to the accuracy (as of the date hereof, and as of the
Closing Dates) of and compliance with the representations and warranties of the
Company herein, to the performance by the Company of its obligations hereunder,
and to the following conditions:
(a) The Registration Statement shall have become effective and
you shall have received notice thereof not later than 10:00 A.M., New York time,
on the day following the date of this Agreement, or at such later time or on
such later date as to which you may agree in writing; on or prior to the Closing
Dates no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that or a similar purpose shall
have been instituted or shall be pending or, to your knowledge or to the
knowledge of the Company, shall be contemplated by the Commission; any request
on the part of the Commission for additional information shall have been
complied with to the satisfaction of the Commission; and no stop order shall be
in effect denying or suspending effectiveness of such qualification nor shall
any stop order proceedings with respect thereto be instituted or
pending or threatened. If required, the Prospectus shall have been filed with
the Commission in the manner and within the time period required by Rule 424(b)
under the Act.
(b) At the First Closing Date, you shall have received the
opinion, dated as of the First Closing Date, of Reed Smith Shaw & McClay,
counsel for the Company, in form and substance satisfactory to counsel for the
Underwriter, to the effect that:
(i) the Company and its Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of organization, with all requisite
corporate power and authority to own their properties and conduct their business
as described in the Registration Statement and Prospectus and are duly qualified
or licensed to do business as foreign corporations and are in good standing in
each other jurisdiction in which the ownership or leasing of their properties or
conduct of their business requires such qualification except where the failure
to qualify or be licensed will not have a Material Adverse Effect;
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(ii) the authorized capitalization of the Company as
of _______, 1997 is as set forth in the Registration Statement; the Securities
as set forth in the Registration Statement have been duly authorized and upon
payment of consideration therefor, will be validly issued, fully paid and
non-assessable and conform in all material respects to the description thereof
contained in the Prospectus; to such counsel's knowledge the outstanding shares
of capital stock of the Company and its Subsidiaries have not been issued in
violation of the preemptive rights of any shareholder and to such counsel's
knowledge the shareholders of the Company do not have any preemptive rights or
other rights to subscribe for or to purchase, nor are there any restrictions
upon the voting or transfer of any of the capital stock except as provided in
the Prospectus or as required by law. The Securities, the Purchase Option and
the Warrant Agreement conform in all material respects to the respective
descriptions thereof contained in the Prospectus; the shares of Common Stock,
and the shares of Common Stock issuable upon exercise of Warrants, the Purchase
Option, and the Warrant Agreement will have been duly authorized and, when
issued and delivered in accordance with their respective terms, will be duly and
validly issued, fully paid, non-assessable, free of preemptive rights to the
best of their knowledge; to the best of their knowledge, all prior sales by the
Company of the Company's securities, have been made in compliance with or under
an exemption from registration under the Act and applicable state securities
laws; a sufficient number of shares of Common Stock has been reserved for
issuance upon exercise of the Warrants and Common Stock has been reserved for
issuance upon exercise of the Warrants contained in the Purchase Option and to
the best of such counsel's knowledge, neither the filing of the Registration
Statement nor the offering or sale of the Securities as contemplated by this
Agreement gives rise to any registration rights other than those which have been
waived or satisfied for or relating to the registration of any shares of Common
Stock;
(iii) this Agreement, the Purchase Option, and the
Warrant Agreement have been duly and validly authorized, executed and delivered
by the Company;
(iv) the certificates evidencing the Securities as
described in the Registration Statement comply in all material respects with the
descriptions set forth therein, and comply with the New Jersey General
Corporation Law, as in effect on the date hereof; each Warrant will be
exercisable for one share of the Common Stock of the Company, respectively, and
at the prices provided for in the Warrant Agreement;
(v) except as otherwise disclosed in the Registration
Statement, such counsel knows of no pending or threatened legal or governmental
proceedings to which the Company or its Subsidiaries are a party which would
materially adversely affect the business, property, financial condition or
operations of the Company or its Subsidiaries; or which question the validity of
the Securities, this Agreement, the Warrant Agreement or the Purchase Option, or
of any action taken or to be taken by the Company pursuant to this Agreement,
the Warrant Agreement or the Purchase Option; to such counsel's knowledge there
are no governmental proceedings or regulations required to be described or
referred to in the Registration Statement which are not so described or referred
to;
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(vi) the execution and delivery of this Agreement,
the Purchase Option or the Warrant Agreement and the incurrence of the
obligations herein and therein set forth and the consummation of the
transactions herein or therein contemplated, will not result in a breach or
violation of, or constitute a default under the certificate of incorporation or
by-laws of the Company or its Subsidiaries, or to the best knowledge of counsel
after due inquiry, in the performance or observance of any material obligations,
agreement, covenant or condition contained in any bond, debenture, note or other
evidence of indebtedness or in any material contract, indenture, mortgage, loan
agreement, lease, joint venture or other agreement or instrument to which the
Company or its Subsidiaries is a party or by which they or any of their
properties is bound or in violation of any order, rule, regulation, writ,
injunction, or decree of any government, governmental instrumentality or court,
domestic or foreign the result of which would have a Material Adverse Effect;
(vii) the Registration Statement has become effective
under the Act, and to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for that purpose have been instituted or are pending before, or
threatened by, the Commission; the Registration Statement and the Prospectus
(except for the financial statements and other financial data contained therein,
or omitted therefrom, as to which such counsel need express no opinion) as of
the Effective Date comply as to form in all material respects with the
applicable requirements of the Act and the Rules and Regulations;
(viii) in the course of preparation of the
Registration Statement and the Prospectus such counsel has participated in
conferences with the President of the Company with respect to the Registration
Statement and Prospectus and such discussions did not disclose to such counsel
any information which gives such counsel reason to believe that the Registration
Statement or any amendment thereto at the time it became effective contained any
untrue statement of a material fact required to be stated therein or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any supplement
thereto contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make statements therein, in light of the
circumstances under which they were made, not misleading (except, in the case of
both the Registration Statement and any amendment thereto and the Prospectus and
any supplement thereto, for the financial statements, notes thereto and other
financial information (including without limitation, the pro forma financial
information) and schedules contained therein, as to which such counsel need
express no opinion);
(ix) all descriptions in the Registration Statement
and the Prospectus, and any amendment or supplement thereto, of contracts and
other agreements to which the Company or its Subsidiaries is a party are
accurate and fairly present in all material respects the information required to
be shown, and such counsel is familiar with all contracts and other agreements
referred to in the Registration Statement and the Prospectus and any such
amendment or supplement or filed as exhibits to the Registration Statement, and
such counsel does not know of any contracts or agreements to which the Company
or its Subsidiaries is a party of a character required to be summarized or
described therein or to be filed as exhibits thereto which are not so
summarized, described or filed;
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(x) no authorization, approval, consent, or license
of any governmental or regulatory authority or agency is necessary in connection
with the authorization, issuance, transfer, sale or delivery of the Securities
by the Company, in connection with the execution, delivery and performance of
this Agreement by the Company or in connection with the taking of any action
contemplated herein, or the issuance of the Purchase Option or the Securities
underlying the Purchase Option, other than registrations or qualifications of
the Securities under applicable state or foreign securities or Blue Sky laws and
registration under the Act; and
(xi) the Units, shares of Common Stock and the
Warrants have been duly authorized for quotation on the Boston Stock Exchange
and the NASD Electronic Bulletin Board.
Such opinion shall also cover such matters incident to the
transactions contemplated hereby as the Underwriter or counsel for the
Underwriter shall reasonably request. In rendering such opinion, such counsel
may rely upon certificates of any officer of the Company or public officials as
to matters of fact; and may rely as to all matters of law other than the law of
the United States or of the State of New York or New Jersey upon opinions of
counsel satisfactory to you, in which case the opinion shall state that they
have no reason to believe that you and they are not entitled to so rely.
(c) Intentionally Omitted.
(d) All corporate proceedings and other legal matters relating
to this Agreement, the Registration Statement, the Prospectus and other related
matters shall be satisfactory to or approved by Bernstein & Wasserman, LLP,
counsel to the Underwriter.
(e) You shall have received a letter prior to the Effective
Date and again on and as of the First Closing Date from Wiss & Company, LLP,
independent public accountants for the Company, substantially in the form
reasonably acceptable to you, providing you with such "cold comfort" as you may
reasonably require.
(f) At the Closing Dates, (i) the representations and
warranties of the Company contained in this Agreement shall be true and correct
in all material respects with the same effect as if made on and as of the
Closing Dates taking into account for the Option Closing Dates the effect of the
transactions contemplated hereby and the Company or its Subsidiaries shall have
performed all of its obligations hereunder and satisfied all the conditions on
its part to be satisfied at or prior to such Closing Date; (ii) the Registration
Statement and the Prospectus and any amendments or supplements thereto shall
contain all statements which are required to be stated therein in accordance
with the Act and the Rules and Regulations, and shall in all material respects
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conform to the requirements thereof, and neither the Registration Statement nor
the Prospectus nor any amendment or supplement thereto shall contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; (iii)
there shall have been, since the respective dates as of which information is
given, no material adverse change, or to the Company or its Subsidiaries's
knowledge, any development involving a prospective material adverse change, in
the business, properties, condition (financial or otherwise), results of
operations, capital stock, long-term or short-term debt or general affairs of
the Company or its Subsidiaries from that set forth in the Registration
Statement and the Prospectus, except changes which the Registration Statement
and Prospectus indicate might occur after the effective date of the Registration
Statement, and the Company or its Subsidiaries shall not have incurred any
material liabilities or entered into any material agreement not in the ordinary
course of business other than as referred to in the Registration Statement and
Prospectus; (iv) except as set forth in the Prospectus, no action, suit or
proceeding at law or in equity shall be pending or threatened against the
Company or its Subsidiaries which would be required to be set forth in the
Registration Statement, and no proceedings shall be pending or threatened
against the Company or its Subsidiaries before or by any commission, board or
administrative agency in the United States or elsewhere, wherein an unfavorable
decision, ruling or finding would materially and adversely affect the business,
property, condition (financial or otherwise), results of operations or general
affairs of the Company or its Subsidiaries, and (v) you shall have received, at
the First Closing Date, a certificate signed by each of the President and the
principal operating officer of the Company or its Subsidiaries, dated as of the
First Closing Date, evidencing compliance with the provisions of this subsection
(f).
(g) Upon exercise of the Over-Allotment Option provided for in
Section 2(b) hereof, the obligations of the Underwriter to purchase and pay for
the Option Units referred to therein will be subject (as of the date hereof and
as of the Option Closing Date) to the following additional conditions:
(i) The Registration Statement shall remain effective
at the Option Closing Date, and no stop order suspending the effectiveness
thereof shall have been issued and no proceedings for that purpose shall have
been instituted or shall be pending, or, to your knowledge or the knowledge of
the Company, shall be contemplated by the Commission, and any reasonable request
on the part of the Commission for additional information shall have been
complied with to the satisfaction of the Commission.
(ii) At the Option Closing Date there shall have been
delivered to you the signed opinion of Reed Smith Shaw & McClay, counsel to the
Company, dated as of the Option Closing Date, in form and substance reasonably
satisfactory to Bernstein & Wasserman, LLP, counsel to the Underwriter, which
opinion shall be substantially the same in scope and substance as the opinion
furnished to you at the First Closing Date pursuant to Sections 4(b) hereof,
except that such opinion, where appropriate, shall cover the Option Securities.
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(iii) At the Option Closing Date there shall have be
delivered to you a certificate of the President and the principal operating
officer of the Company, dated the Option Closing Date, in form and substance
reasonably satisfactory to Bernstein & Wasserman, LLP, counsel to the
Underwriter, substantially the same in scope and substance as the certificate
furnished to you at the First Closing Date pursuant to Section 4(f) hereof.
(iv) At the Option Closing Date there shall have been
delivered to you a letter in form and substance satisfactory to you from Wiss &
Company, LLP, dated the Option Closing Date and addressed to the Underwriter
confirming the information in their letter referred to in Section 4(e) hereof
and stating that nothing has come to their attention during the period from the
ending date of their review referred to in said letter to a date not more than
five business days prior to the Option Closing Date, which would require any
change in said letter if it were required to be dated the Option Closing Date.
(v) All proceedings taken at or prior to the Option
Closing Date in connection with the sale and issuance of the Option Units shall
be reasonably satisfactory in form and substance to you, and you and Bernstein &
Wasserman, LLP, counsel to the Underwriter, shall have been furnished with all
such documents, certificates, and opinions as you may reasonably request in
connection with this transaction in order to evidence the accuracy and
completeness of any of the representations, warranties or statements of the
Company or its compliance with any of the covenants or conditions contained
herein.
(h) No action shall have been taken by the Commission or the
NASD the effect of which would make it improper, at any time prior to the
Closing Date, for members of the NASD to execute transactions (as principal or
agent) in the Securities and no proceedings for the taking of such action shall
have been instituted or shall be pending, or, to the knowledge of the
Underwriter or the Company, shall be contemplated by the Commission or the NASD.
The Company and the Underwriter represent that at the date hereof each has no
knowledge that any such action is in fact contemplated against it by the
Commission or the NASD.
(i) If any of the conditions herein provided for in this
Section shall not have been fulfilled in all material respects as of the date
indicated, this Agreement and all obligations of the Underwriter under this
Agreement may be canceled at, or at any time prior to, each Closing Date by the
Underwriter notifying the Company of such cancellation in writing or by telegram
at or prior to the applicable Closing Date. Any such cancellation shall be
without liability of the Underwriter to the Company.
5. Conditions of the Obligations of the Company, The obligation of the
Company to sell and deliver the Units is subject to the following conditions:
(a) The Registration Statement shall have become effective not
later than 10:00 A.M. New York time, on the day following the date of this
Agreement, or on such later date as the Company and the Underwriter may agree in
writing.
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(b) At the Closing Dates, no stop orders suspending the
effectiveness of the Registration Statement shall have been issued under the Act
or any proceedings therefor initiated or threatened by the Commission.
If the conditions to the obligations of the Company provided
for in this Section have been fulfilled on the First Closing Date but are not
fulfilled after the First Closing Date and prior to the Option Closing Date,
then only the obligation of the Company to sell and deliver the Units on
exercise of the Over-Allotment Option provided for in Section 2(b) hereof shall
be affected.
6. Indemnification.
(a) The Company agrees (i) to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act against
any losses, claims, damages or liabilities, joint or several (which shall, for
all purposes of this Agreement, include, but not be limited to, all reasonable
costs of defense and investigation and all reasonable attorneys' fees), to which
such Underwriter or such controlling person may become subject, under the Act or
otherwise, and (ii) to reimburse, as incurred, the Underwriter and such
controlling persons for any legal or other expenses reasonably incurred in
connection with investigating, defending against or appearing as a third party
witness in connection with any losses, claims, damages or liabilities; insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
relating to (i) and (ii) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in (A) the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, (B) any blue sky application or other document executed by
the Company specifically for that purpose containing written information
specifically furnished by the Company and filed in any state or other
jurisdiction in order to qualify any or all of the Securities under the
securities laws thereof (any such application, document or information being
hereinafter called a "Blue Sky Application"), or arise out of or are based upon
the omission or alleged omission to state in the Registration Statement, any
Preliminary Prospectus, Prospectus, or any amendment or supplement thereto, or
in any Blue Sky Application, a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company will not be required to indemnify the Underwriter and any
controlling person or be liable in any such case to the extent, but only to the
extent, that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter specifically for use
in the preparation of the Registration Statement or any such amendment or
supplement thereof or any such Blue Sky Application or any such preliminary
Prospectus or the Prospectus or any such amendment or supplement thereto,
provided, further that the indemnity with respect to any Preliminary Prospectus
shall not be applicable on account of any losses, claims, damages, liabilities
or litigation arising from the sale of Securities to any person if a copy of the
Prospectus was not delivered to such person at or prior to the written
confirmation of the sale to such person. This indemnity will be in addition to
any liability which the Company may otherwise have.
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(b) The Underwriter will indemnify and hold harmless the
Company, each of its directors, each nominee (if any) for director named in the
Prospectus, each of its officers who have signed the Registration Statement and
each person, if any, who controls the Company within the meaning of the Act,
against any losses, claims, damages or liabilities (which shall, for all
purposes of this Agreement, include, but not be limited to, all costs of defense
and investigation and reasonable attorneys' fees) to which the Company or any
such director, nominee, officer or controlling person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or any Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by the Underwriter
specifically for use in the preparation thereof and for any violation by the
Underwriter in the sale of such Securities of any applicable state or federal
law or any rule, regulation or instruction thereunder relating to violations
based on unauthorized statements by Underwriter or its representative; provided
that such violation is not based upon any violation of such law, rule or
regulation or instruction by the party claiming indemnification or inaccurate or
misleading information furnished by the Company or its representatives,
including information furnished to the Underwriter as contemplated herein. This
indemnity agreement will be in addition to any liability which the Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify in writing the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, subject to the provisions herein stated, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. The indemnified party
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shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the indemnifying party if the indemnifying party
has assumed the defense of the action with counsel reasonably satisfactory to
the indemnified party; provided that the reasonable fees and expenses of such
counsel shall be at the expense of the indemnifying party if (i) the employment
of such counsel has been specifically authorized in writing by the indemnifying
party or (ii) the named parties to any such action (including any impleaded
parties) include both the indemnified party and the indemnifying party and in
the reasonable judgment of the counsel to the indemnified party, it is advisable
for the indemnified party to be represented by separate counsel (in which case
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, that
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys for the
indemnified party, which firm shall be designated in writing by the indemnified
party). No settlement of any action against an indemnified party shall be made
without the consent of the indemnified party, which shall not be unreasonably
withheld in light of all factors of importance to such indemnified party. If it
is ultimately determined that indemnification is not permitted, then an
indemnified party will return all monies advanced to the indemnifying party.
7. Contribution.
In order to provide for just and equitable contribution under
the Act in any case in which the indemnification provided in Section 6 hereof is
requested but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case, notwithstanding the fact that the express provisions of
Section 6 provide for indemnification in such case, then the Company and each
person who controls the Company, in the aggregate, and the Underwriter shall
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (which shall, for all purposes of this Agreement, include, but
not be limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees) (after contribution from others) in such proportions
that the Underwriter is responsible in the aggregate for that portion of such
losses, claims, damages or liabilities represented by the percentage that the
underwriting discount for each of the Units appearing on the cover page of the
Prospectus bears to the public offering price appearing thereon and the Company
shall be responsible for the remaining portion; provided, however, that if such
allocation is not permitted by applicable law then allocated in such proportion
as is appropriate to reflect relative benefits but also the relative fault of
the Company and the Underwriter and controlling persons, in the aggregate, in
connection with the statements or omissions which resulted in such damages and
other relevant equitable considerations shall also be considered. The relative
fault shall be determined by reference to, among other things, whether in the
case of an untrue statement of a material fact or the omission to state a
material fact, such statement or omission relates to information supplied by the
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Company or the Underwriter and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriter agree that it would not be just and
equitable if the respective obligations of the Company and the Underwriter to
contribute pursuant to this Section 7 were to be determined by pro rata or per
capita allocation of the aggregate damages or by any other method of allocation
that does not take account of the equitable considerations referred to in this
Section 7. No person guilty of a fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who is not guilty of such fraudulent misrepresentation. As used in this
paragraph, the word "Company" includes any officer, director, or person who
controls the Company within the meaning of Section 15 of the Act. If the full
amount of the contribution specified in this paragraph is not permitted by law,
then the Underwriter and each person who controls the Underwriter shall be
entitled to contribution from the Company, its officers, directors and
controlling persons, and the Company, its officers, directors and controlling
persons shall be entitled to contribution from the Underwriter to the full
extent permitted by law. The foregoing contribution agreement shall in no way
affect the contribution liabilities of any persons having liability under
Section 11 of the Act other than the Company and the Underwriter. No
contribution shall be requested with regard to the settlement of any matter from
any party who did not consent to the settlement; provided, however, that such
consent shall not be unreasonably withheld in light of all factors of importance
to such party.
8. Costs and Expenses.
(a) Whether or not this Agreement becomes effective or the
sale of the Securities to the Underwriter is consummated, the Company will pay
all costs and expenses incident to the performance of this Agreement by the
Company including, but not limited to, the fees and expenses of counsel to the
Company and of the Company's accountants; the costs and expenses incident to the
preparation, printing, filing and distribution under the Act of the Registration
Statement (including the financial statements therein and all amendments and
exhibits thereto), Preliminary Prospectus and the Prospectus, as amended or
supplemented, the fee of the NASD in connection with the filing required by the
NASD relating to the offering of the Units contemplated hereby; all expenses,
including reasonable fees not to exceed $40,000 and disbursements of counsel to
the Underwriter, in connection with the qualification of the Securities under
the state securities or blue sky laws which the Underwriter shall designate; the
cost of printing and furnishing to the Underwriter copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus, this Agreement, and the
Blue Sky Memorandum, any fees relating to the listing of the Units, Common Stock
and Warrants on Nasdaq or any other securities exchange, the cost of printing
the certificates representing the Securities; fees for bound volumes and
prospectus memorabilia and the fees of the transfer agent and warrant agent. The
Company shall pay any and all taxes (including any transfer, franchise, capital
stock or other tax imposed by any jurisdiction) on sales to the Underwriter
hereunder. The Company will also pay all costs and expenses incident to the
furnishing of any amended Prospectus or of any supplement to be attached to the
Prospectus as called for in Section 3(a) of this Agreement except as otherwise
set forth in said Section.
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(b) In addition to the foregoing expenses, the Company shall
at the First Closing Date pay to the Underwriter a non-accountable expense
allowance of $147,000. In the event the overallotment option is exercised, the
Company shall pay to the Underwriter at the Option Closing Date an additional
amount in the aggregate equal to 3% of the gross proceeds received upon exercise
of the overallotment option. In the event the transactions contemplated hereby
are not consummated by reason of any action by the Underwriter (except if such
prevention is based upon a breach by the Company of any covenant, representation
or warranty contained herein or because any other condition to the Underwriter's
obligations hereunder required to be fulfilled by the Company is not fulfilled)
the Company shall not be liable for any expenses of the Underwriter, including
the Underwriter's legal fees. In the event the transactions contemplated hereby
are not consummated by reason of the Company being unable to perform its
obligations hereunder in all material respects, the Company shall be liable for
the actual accountable out-of-pocket expenses of the Underwriter, including
reasonable legal fees.
(c) Except as disclosed in the Registration Statement, no
person is entitled either directly or indirectly to compensation from the
Company, from the Underwriter or from any other person for services as a finder
in connection with the proposed offering, and the Company agrees to indemnify
and hold harmless the Underwriter, against any losses, claims, damages or
liabilities, joint or several (which shall, for all purposes of this Agreement,
include, but not be limited to, all costs of defense and investigation and all
reasonable attorneys' fees), to which the Underwriter or person may become
subject insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon the claim of any person (other
than an employee of the party claiming indemnity) or entity that he or it is
entitled to a finder's fee in connection with the proposed offering by reason of
such person's or entity's influence or prior contact with the indemnifying
party.
9. Effective Date.
The Agreement shall become effective upon its execution except
that you may, at your option, delay its effectiveness until 11:00 A.M., New York
time on the first full business day following the effective date of the
Registration Statement, or at such earlier time on such business day after the
effective date of the Registration Statement as you in your discretion shall
first commence the public offering of the Units. The time of the initial public
offering shall mean the time of release by you of the first newspaper
advertisement with respect to the Securities, or the time when the Securities
are first generally offered by you to dealers by letter or telegram, whichever
shall first occur. This Agreement may be terminated by you at any time before it
becomes effective as provided above, except that Sections 3(c), 6, 7, 8, 12, 13,
14 and 15 shall remain in effect notwithstanding such termination.
10. Termination.
(a) After this Agreement becomes effective, this Agreement,
except for Sections 3(c), 6, 7, 8, 12, 13, 14 and 15 hereof, may be terminated
at any time prior to the First Closing Date, by you if in your judgment (i)
trading in securities on the New York Stock Exchange or the American Stock
26
<PAGE>
Exchange having been suspended or limited, (ii) material governmental
restrictions have been imposed on trading in securities generally (not in force
and effect on the date hereof), (iii) a banking moratorium has been declared by
federal or New York state authorities, (iv) an outbreak of major international
hostilities involving the United States or other substantial national or
international calamity has occurred, (v) a pending or threatened legal or
governmental proceeding or action relating generally to the Company's business,
or a notification has been received by the Company of the threat of any such
proceeding or action, which would materially adversely affect the Company; (vi)
the passage by the Congress of the United States or by any state legislative
body of similar impact, of any act or measure, or the adoption of any orders,
rules or regulations by any governmental body or any authoritative accounting
institute or board, or any governmental executive, which is reasonably believed
likely by the Underwriter to have a material adverse impact on the business,
financial condition or financial statements of the Company; or (vii) any
material adverse change having occurred, since the respective dates of which
information is given in the Registration Statement and Prospectus, in the
earnings, business prospects or general condition of the Company, financial or
otherwise, whether or not arising in the ordinary course of business.
(b) If you elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section 10, the
Company shall be promptly notified by you, by telephone or telegram, confirmed
by letter.
11. Purchase Option.
At or before the First Closing Date, the Company will sell the
Underwriter or its designees for a consideration of $10, and upon the terms and
conditions set forth in the form of Purchase Option annexed as an exhibit to the
Registration Statement, a Purchase Option to purchase an aggregate of 70,000
Units. In the event of conflict in the terms of this Agreement and the Purchase
Option with respect to language relating to the Purchase Option, the language of
the Purchase Option shall control.
12. Representations and Warranties of the Underwriter.
The Underwriter represents and warrants to the Company that it
is registered as a broker-dealer in all jurisdictions in which it is offering
the Units and that it will comply with all applicable state or federal laws
relating to the sale of the Units, including but not limited to, violations
based on unauthorized statements by the Underwriter or its representatives.
13. Representations, Warranties and Agreements to Survive Delivery.
The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Underwriter and the
undertakings set forth in or made pursuant to this Agreement will remain in full
force and effect until three years from the date of this Agreement, regardless
of any investigation made by or on behalf of the Underwriter, the Company or any
of its officers or directors or any controlling person and will survive delivery
of and payment of the Securities and the termination of this Agreement.
27
<PAGE>
14. Notice.
Any communications specifically required hereunder to be in
writing, if sent to the Representative, will be mailed, delivered or telecopied
and confirmed to them at Monroe Parker Securities, Inc., 2500 Westchester
Avenue, Purchase, New York 10577, with a copy sent to Bernstein & Wasserman,
LLP, 950 Third Avenue, New York, New York 10022, Attention: Stuart Neuhauser,
Esq. or if sent to the Company, will be mailed, delivered or telecopied and
confirmed to it at 43 Emery Avenue, Flemington, NJ 08822, with a copy sent to
Reed Smith Shaw & McClay, One Riverfront Plaza, Newark, NJ 07102-5311, Attn:
Gerard S. Difiore, Esq. Notice shall be deemed to have been duly given if mailed
or transmitted by any standard form of telecommunication.
15. Parties in Interest.
The Agreement herein set forth is made solely for the benefit
of the Underwriter, the Company, any person controlling the Company or the
Underwriter, and directors of the Company, nominees for directors (if any) named
in the Prospectus, its officers who have signed the Registration Statement, and
their respective executors, administrators, successors, assigns and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include any purchaser, as such
purchaser, from the Underwriter of the Units.
16. Applicable Law.
This Agreement will be governed by, and construed in
accordance with, of the laws of the State of New York applicable to agreements
made and to be entirely performed within New York.
17. Counterparts.
This agreement may be executed in one or more counterparts
each of which shall be deemed to constitute an original and shall become
effective when one or more counterparts have been signed by each of the parties
hereto and delivered to the other parties (including by fax, followed by
original copies by overnight mail).
18. Entire Agreement; Amendments.
This Agreement constitutes the entire agreement of the parties
hereto and supersedes all prior written or oral agreements, understandings and
negotiations with respect to the subject matter hereof. This Agreement may not
be amended except in writing, signed by the Underwriter and the Company.
28
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return this agreement, whereupon it will become a
binding agreement between the Company and the Underwriter in accordance with its
terms.
Very truly yours,
FLEMINGTON PHARMACEUTICAL CORPORATION
By: ________________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
MONROE PARKER SECURITIES, INC.
By: ________________________________
Name: Stephen J. Drescher
Title: Director Corporate Finance
29
<PAGE>
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION BUT HAS NOT YET BECOME EFFECTIVE. NO
OFFER TO BUY THE SECURITIES CAN BE ACCEPTED AND NO PART OF THE PURCHASE PRICE
CAN BE RECEIVED UNTIL THE REGISTRATION STATEMENT HAS BECOME EFFECTIVE, AND ANY
SUCH OFFER MAY BE WITHDRAWN OR REVOKED, WITHOUT OBLIGATION OR COMMITMENT OF ANY
KIND, AT ANY TIME PRIOR TO NOTICE OF ITS ACCEPTANCE GIVEN AFTER THE EFFECTIVE
DATE.
FLEMINGTON PHARMACEUTICAL CORPORATION
700,000 UNITS CONSISTING OF
1,400,000 SHARES OF COMMON STOCK, $.01 PAR VALUE
AND
1,400,000 CLASS A REDEEMABLE COMMON STOCK
PURCHASE WARRANTS
SELECTED DEALERS AGREEMENT
_______ __, 1997
Dear Sirs:
1. Monroe Parker Securities, Inc. (the "Underwriter"), has agreed to
offer on a firm commitment basis, subject to the terms and conditions and
execution of the Underwriting Agreement, 700,000 Units each consisting of two
(2) shares of Common Stock, par value $.01 per share ("Common Stock") of
Flemington Pharmaceutical Corporation (the "Company") and two (2) Class A
Redeemable Common Stock Purchase Warrants ("Warrants") (hereinafter,
collectively referred to as the "Units"; including any shares of Common Stock
and Warrants offered pursuant to an over-allotment option, the "Firm Units").
Each Warrant is exercisable to purchase one (1) share of Common Stock. The Firm
Units are more particularly described in the enclosed Preliminary Prospectus,
additional copies of which, as well as the Prospectus (after effective date),
will be supplied in reasonable quantities upon request.
2. The Underwriter is soliciting offers to buy Units, upon the terms
and conditions hereof, from Selected Dealers, who are to act as principals,
including you, who are (i) registered with the Securities and Exchange
Commission ("the Commission") as broker-dealers under the Securities Exchange
Act of 1934, as amended ("the 1934 Act"), and members in good standing with the
National Association of Securities Dealers, Inc. ("the NASD"), or (ii) dealers
of institutions with their principal place of business located outside the
United States, its territories and possessions and
<PAGE>
not registered under the 1934 Act who agree to make no sales within the United
States, its territories and possessions or to persons who are nationals thereof
or residents therein and, in making sales, to comply with the NASD's
interpretation with respect to free-riding and withholding. The Units are to be
offered to the public at a price of $7.00 per Unit. Selected Dealers will be
allowed a concession of not less than __% of the aggregate offering price. You
will be notified of the precise amount of such concession prior to the effective
date of the Registration Statement. The offer is solicited subject to the
issuance and delivery of the Units and their acceptance by the Underwriter, to
the approval of legal matters by counsel and to the terms and conditions as
herein set forth.
3. Your offer to purchase may be revoked in whole or in part without
obligation or commitment of any kind by you any time prior to acceptance and no
offer may be accepted by us and no sale can be made until after the registration
statement covering the Units has become effective with the Commission. Subject
to the foregoing, upon execution by you of the Offer to Purchase below and the
return of same to us, you shall be deemed to have offered to purchase the number
of Units set forth in your offer on the basis set forth in paragraph 2 above.
Any oral notice by us of acceptance of your offer shall be immediately followed
by written or telegraphic confirmation preceded or accompanied by a copy of the
Prospectus. If a contractual commitment arises hereunder, all the terms of this
Selected Dealers Agreement shall be applicable. We may also make available to
you an allotment to purchase Units, but such allotment shall be subject to
modification or termination upon notice from us any time prior to an exchange of
confirmations reflecting completed transactions. All references hereafter in
this Agreement to the purchase and sale of the Units assume and are applicable
only if contractual commitments to purchase are completed in accordance with the
foregoing.
4. You agree that in re-offering the Units, if your offer is accepted
after the Effective Date, you will make a bona fide public distribution of same.
You will advise us upon request of the Units purchased by you remaining unsold,
and we shall have the right to repurchase such Units upon demand at the public
offering price less the concession as set forth in paragraph 2 above. Any of the
Units purchased by you pursuant to this Agreement are to be re-offered by you to
the public at the public offering price, subject to the terms hereof and shall
not be offered or sold by you below the public offering price before the
termination of this Agreement.
5. Payment for Units which you purchase hereunder shall be made by you
on such date as we may determine by certified or bank cashier's check payable in
New York Clearinghouse funds to Monroe Parker Securities, Inc. Certificates for
the Securities shall be delivered as soon as practicable at the offices of
Monroe Parker Securities, Inc., 2500 Westchester Avenue, Purchase, New York
10577. Unless specifically authorized by us, payment by you may not be deferred
until delivery of certificates to you.
6. A registration statement covering the offering has been filed with
the Commission in respect to the Units. You will be promptly advised when the
registration statement becomes effective. Each Selected Dealer in selling the
Units pursuant hereto agrees (which agreement shall also be for the benefit of
the Company) that it will comply with the applicable requirements of the
Securities Act of 1933 and of the 1934 Act and any applicable rules and
regulations issued under
2
<PAGE>
said Acts. No person is authorized by the Company or by the Underwriter to give
any information or to make any representations other than those contained in the
Prospectus in connection with the sale of the Units. Nothing contained herein
shall render the Selected Dealers a member of the underwriting group or partners
with the Underwriter or with one another.
7. You will be informed by us as to the states in which we have been
advised by counsel the Units have been qualified for sale or are exempt under
the respective securities or blue sky laws of such states, but we have not
assumed and will not assume any obligation or responsibility as to the right of
any Selected Dealer to sell Units in any state.
8. The Underwriter shall have full authority to take such action as we
may deem advisable in respect of all matters pertaining to the offering or
arising thereunder. The Underwriter shall not be under any liability to you,
except such as may be incurred under the Securities Act of 1933 and the rules
and regulations thereunder, except for lack of good faith and except for
obligations assumed by us in this Agreement, and no obligation on our part shall
be implied or inferred herefrom.
9. Selected Dealers will be governed by the conditions herein set forth
until this Agreement is terminated. This Agreement will terminate when the
offering is completed. Nothing herein contained shall be deemed a commitment on
our part to sell you any Units; such contractual commitment can only be made in
accordance with the provisions of paragraph 3 hereof.
10. You represent that you are a member in good standing of the
National Association of Securities Dealers, Inc. ("Association") and registered
as a broker-dealer or are not eligible for membership under Section I of the
By-Laws of the Association who agree to make no sales within the United States,
its territories or possessions or to persons who are nationals thereof or
residents therein and, in making sales, to comply with the NASD's interpretation
with respect to free-riding and withholding. Your attention is called to the
following: (a) Rules 2730, 2740,2420 and 2750 of the NASD Conduct Rules of the
Association and the interpretations of said Section promulgated by the Board of
Governors of such Association including the interpretation with respect to
"Free- Riding and Withholding"; (b) Section 10(b) of the 1934 Act and Rules
10b-6 and 10b-10 of the general rules and regulations promulgated under said
Act; (c) Securities Act Release #3907; (d) Securities Act Release #4150; and (e)
Securities Act Release #4968 requiring the distribution of a Preliminary
Prospectus to all persons reasonably expected to be purchasers of Units from you
at least 48 hours prior to the time you expect to mail confirmations. You, if a
member of the Association, by signing this Agreement, acknowledge that you are
familiar with the cited law, rules and releases, and agree that you will not
directly and/or indirectly violate any provisions of applicable law in
connection with your participation in the distribution of the Units.
11. In addition to compliance with the provisions of paragraph 10
hereof, you will not, until advised by us in writing or by wire that the entire
offering has been distributed and closed, bid for or purchase Units or its
component securities in the open market or otherwise make a market in such
securities or otherwise attempt to induce others to purchase such securities in
the open market. Nothing contained in this paragraph 11 shall, however, preclude
you from acting as agent in the
3
<PAGE>
execution of unsolicited orders of customers in transactions effectuated for
them through a market maker.
12. You understand that the Underwriter may in connection with the
offering engage in stabilizing transactions. If the Underwriter contracts for or
purchases in the open market in connection with such stabilization any Units
sold to you hereunder and not effectively placed by you, the Underwriter may
charge you the Selected Dealer's concession originally allowed you on the Units
so purchased, and you agree to pay such amount to us on demand.
13. By submitting an Offer to Purchase you confirm that your net
capital is such that you may, in accordance with Rule 15c3-1 adopted under the
1934 Act, agree to purchase the number of Units you may become obligated to
purchase under the provisions of this Agreement.
14. You agree that (i) you shall not recommend to a customer the
purchase of Firm Units unless you shall have reasonable grounds to believe that
the recommendation is suitable for such customer on the basis of information
furnished by such customer concerning the customer's investment objectives,
financial situation and needs, and any other information known to you, (ii) in
connection with all such determinations, you shall maintain in your files the
basis for such determination, and (iii) you shall not execute any transaction in
Firm Units in a discretionary account without the prior specific written
approval of the customer.
4
<PAGE>
15. You represent that neither you nor any of your affiliates or
associates owns any Common Stock of the Company.
16. All communications from you should be directed to us at the office
of Monroe Parker Securities, Inc., 2500 Westchester Avenue, Purchase, New York
10577. All communications from us to you shall be directed to the address to
which this letter is mailed.
Very truly yours,
MONROE PARKER SECURITIES, INC.
By: ______________________________
Name:
Title:
ACCEPTED AND AGREED TO AS OF THE ______
DAY OF ____________, 1997
[Name of Dealer]
By: ____________________________
Its
5
<PAGE>
TO: Monroe Parker Securities, Inc.
2500 Westchester Avenue
Purchase, New York 10577
We hereby subscribe for Units of Flemington Pharmaceutical Corporation
in accordance with the terms and conditions stated in the foregoing letter. We
hereby acknowledge receipt of the Prospectus referred to in the first paragraph
thereof relating to said Units. We further state that in purchasing said Units
we have relied upon said Prospectus and upon no other statement whatsoever,
whether written or oral. We confirm that we are a dealer actually engaged in the
investment banking or securities business and that we are either (i) a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") or (ii) a dealer with its principal place of business located outside
the United States, its territories and its possessions and not registered as a
broker or dealer under the Securities Exchange Act of 1934, as amended, who
hereby agrees not to make any sales within the United States, its territories or
its possessions or to persons who are nationals thereof or residents therein. We
hereby agree to comply with the provisions of Rule 2740 of the NASD Conduct
Rules, and if we are a foreign dealer and not a member of the NASD, we also
agree to comply with the NASD's interpretation with respect to free-riding and
withholding, to comply, as though we were a member of the NASD, with the
provisions of Rules 2730 and 2750 of the NASD Conduct Rules.
Name of
Dealer:
By:
Address:
Dated: , 1997
6
<PAGE>
FINANCIAL CONSULTING AGREEMENT
Agreement made this ____ day of _______, 1997 by and between
Monroe Parker Securities, Inc.("Consultant") and Flemington Pharmaceutical
Corporation (the "Company").
WHEREAS, the Company desires to obtain Consultant's consulting
services in connection with the Company's business and financial affairs, and
Consultant is willing to render such services as hereinafter more fully set
forth.
NOW, THEREFORE, the parties hereby agree as follows:
1. The Company hereby engages and retains Consultant and
Consultant hereby agrees to use its best efforts, to render to the Company the
consulting services hereinafter described for a period of two (2) years
commencing as of, and conditioned upon, the closing of the underwriting
contemplated in the Registration Statement on Form SB-2, No. 333-_______,
declared effective by the Securities and Exchange Commission on __________,
1997.
2. Consultant's services hereunder shall consist of
consultations with the Company concerning investment banking and other financial
matters to be determined by the Company.
3. The Company agrees that Consultant shall not be precluded
during the term of this Agreement from providing other consulting services or
engaging in any other business activities whether or not such consulting
services or business activities are pursued for gain, profit or other pecuniary
advantage and whether or not such consulting activities are in direct or
indirect competition with the business activities of the Company.
4. The Company agrees to pay to Consultant for its services
hereunder the sum of Two Percent (2%) of the gross proceeds of the Company's
initial public offering. The Company agrees that the entire sum due to
Consultant hereunder shall be paid in full on the date hereof.
5. Consultant shall be entitled to reimbursement by the
Company of such reasonable out-of-pocket expenses as Consultant may
incur in performing services under this Agreement.
6. All final decisions with respect to consultations or
services rendered by Consultant pursuant to this Agreement shall be those of the
Company, and there shall be no liability on the part of the Consultant in
respect thereof. This Agreement and the Underwriting Agreement dated __________,
1997 contain the entire agreement of the parties hereto with respect to the
subject matter hereof, and there are no representations or warranties other than
as shall be herein or therein set forth. No waiver or modification hereof shall
be valid unless in writing. No waiver of any term,
<PAGE>
provision or condition of this Agreement, in any one or more instance, shall
constitute a waiver of any other provision thereof, whether or not similar, nor
shall such waiver constitute a continuing waiver.
7. This Agreement shall be governed, construed and enforced in
accordance with the laws of the State of New York, without regard to the
principals of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused the
agreement to be signed as of the day and year first above written.
FLEMINGTON PHARMACEUTICAL CORPORATION
By:____________________________
Name:
Title:
MONROE PARKER SECURITIES, INC.
By:___________________________
Name: Stephen J. Drescher
Title: Director
Corporate Finance
2
<PAGE>
FILED AND RECORDED
JAN 21 1982
JANE BINGIO
SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
PHARMACONSULT, INC
THIS IS TO CERTIFY THAT, there is hereby organized a corporation under
and by virtue of N.J.S. 14A: 1-1 et seq., the "New Jersey Business Corporation
Act."
1. The name of the Corporation is Pharmaconsult, Inc.
2. The address of this Corporation's initial registered office is 9 De
Forest Avenue, Summit, New Jersey 07901 and the name of this Corporation's
registered agent at that address is: Robert F. Schaul.
3. The purposes for which this Corporation is organized are to engage
in any activities within the purposes for which a corporation may be organized
under the "New Jersey Business Corporation Act", N.J.S. 14A: 1-1 et seq.
4. The aggregate number of shares which the Corporation shall have
authority to issue is 2,500 capital stock without par value.
5. One person will constitute the first Board of Directors, his name is
as follows: Harry Dugger, Lake Trail East, Morristown, N.J. 07960.
6. The name and address of the incorporator is: Robert Schaul, 9 De
Forest Avenue, Summit, New Jersey 07901.
IN WITNESS WHEREOF, the incorporator, being over the age of 21 years,
has signed this certificate on 14 January
/s/ Robert F. Schaul
-----------------------
ROBERT F. SCHAUL
<PAGE>
FILED
AUG 12 1991
JOAN HABERLE
Secretary of State
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
PHARMACONSULT, INC.
To: Secretary of State
State of New Jersey
Pursuant to the provisions of Sections 14A:9-2(4) and 14A:9-4(3) of the
New Jersey Statutes, the undersigned corporation executes the following
Certificate of Amendment to its Certificate of Incorporation:
1. The name of the corporation is: Pharmaconsult, Inc.
2. The following amendment to the Certificate of Incorporation was
approved by unanimous consent of the Directors and Shareholders of the
corporation on July 31, 1991:.
RESOLVED, that Pararaph 1 of the Certificate of Incorporation be
amended to read as follows:
l. The name of the Corporation is:
FLEMINGTON PHARMACEUTICAL CORPORATION
3. At the time of the adoption of the amendment set forth above, the
number of shares outstanding and entitled to vote thereon was 100. There were no
shares entitled to vote thereon as a class or series.
4. The number of shares voting for and against the amendment is as
follows:
Number of Shares Voting Number of Shares Voting
For Amendment Against Amendment
100 0
<PAGE>
5. The effective date of this amendment to the Certificate of
Incorporation shall be August 15, 1991.
Signed this 1st day of August, 1991.
PHARMACONSULT, INC.
By: /s/ Harry A. Dugger
-----------------------
Harry A. Dugger, III
President
<PAGE>
FILED
MAY 5 1992
DANIEL J. DALTON
Secretary of State
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
FLEMINGTON PHARMACEUTICAL CORPORATION
Pursuant to the provisions of Section 14A:9-4 of the New Jersey
Business Corporation Act, the undersigned corporation hereby executes the
following Certificate of Amendment of the Certificate of Incorporation:
FIRST: The name of the corporation is:
FLEMINGTON PHARMACEUTICAL CORPORATION
SECOND: The following amendment to Article 4 and the addition of new
Articles 7 and 8 to the Certificate of Incorporation were approved by the
written consent of all of the members of the Board of Directors of the
corporation, without a meeting, pursuant to Section 14A:6-7 of the New Jersey
Business Corporation Act (the "Act"), and thereafter submitted to all of the
shareholders of the corporation pursuant to Section 14A:9-2(4) of the Act. Said
amendment and new Articles were duly adopted by the written consent of all of
the shareholders, without a meeting, pursuant to Section 14A:5-6 of the Act on
May 4, 1992. The number of common shares represented by such consent is 200,
being all of the issued and outstanding shares of common stock, no par value,
which is the only class of stock outstanding and entitled to vote thereon:
<PAGE>
"4. The total number of shares of capital stock which the Corporation
shall have authority to issue is eleven million (11,000,000) shares, of which
ten million (10,00,000 shares shall be Common Stock, par value $.0l per share,
and one million (1,000,000) shares shall be Preferred Stock, par value $.0l per
share.
The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors of the Corporation is hereby expressly authorized
to provide, by resolution or resolutions duly adopted by it prior to issuance,
for the creation of each such series and to fix the designation and the powers,
preferences, rights, qualifications, limitations and restrictions relating to
the shares of each such series. The authority of the Board of Directors with
respect to each series of Preferred Stock shall include, but not be limited to,
determining the following:
(a) the designation of such series, the number of shares to
constitute such series and the stated value if different from the par
value thereof;
(b) whether the shares of such series shall have voting
rights, in addition to any voting rights provided by law, and, if so,
the terms of such voting rights, which may be general or limited;
(c) the dividends, if any, payable on such series, whether any
such dividends shall be cumulative, and, if so, from what dates, the
conditions and dates upon which such dividends shall be payable, and
the preference or relation which such dividends shall bear to the
dividends payable on any shares of stock of any other class or any
other series of Preferred Stock;
(d) whether the shares of such series shall be subject to
redemption by the Corporation, and, if so, the times, prices and other
conditions of such redemption;
(e) the amount or amounts payable upon shares of such series
upon, and the rights of the holders of such series in, the voluntary or
involuntary liquidation, dissolution or winding up, or upon any
distribution of the assets, of the Corporation;
(f) whether the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to
the purchase or redemption of the shares of such series for retirement
or other corporate purposes and the terms and provisions relating to
the operation thereof;
(g) whether the shares of such series shall be convertible
into, or exchangeable for, shares of stock of any
-2-
<PAGE>
other class or any other series of Preferred Stock or any other
securities and, if so, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same,
and any other terms and conditions of conversion or exchange;
(h) the limitations and restrictions, if any, to be effective
while any shares of such series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the
purchase, redemption or other acquisition by the Corporation of, the
Common Stock or shares of stock of any other class or any other series
of Preferred Stock;
(i) the conditions or restrictions, if any, upon the creation
of indebtedness of the Corporation or upon the issue of any additional
stock, including additional shares of such series or of any other
series of Preferred Stock or of any other class; and
(j) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations
and restrictions, thereof.
The powers, preferences and relative, participating, optional and other
special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding. All shares of any one series of
Preferred Stock shall be identical in all respects with all other shares of such
series, except that shares of any one series issued at different times may
differ as to the dates from which dividends thereof shall be cumulative."
"7. No director or officer of the corporation shall be personally
liable to the corporation or its shareholders for damages for breach of any duty
owed to the corporation or its shareholders, provided that this provision shall
not relieve a director or officer from liability for any breach of duty based
upon an act or omission (a) in breach of such person's duty of loyalty to the
corporation or its shareholders; (b) not in good faith or involving a knowing
violation of law; or (c) resulting in receipt by such person of an improper
personal benefit. If the New Jersey Business Corporation Act is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors or officers, then the liability of a director or officer
shall be eliminated or limited to the fullest extent permitted by the New Jersey
Business Corporation Act, as so amended.
8. The corporation shall indemnify to the full extent permitted by the
laws of the State of New Jersey as from time to time in effect, each person who
is or was a director or officer of the corporation in the event that he is or
was a party or is
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<PAGE>
threatened to be made a party to, or otherwise requires representation by
counsel in connection with any pending, threatened or completed civil, criminal,
administrative or arbitrative action, suit or proceeding, and any appeal therein
and any inquiry or investigation which could lead to such action, suit or
proceeding, by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
or by reason of any action alleged to have been taken or omitted in such
capacity. The right to indemnification conferred by this Article shall also
include the right of such persons to be paid in advance by the corporation for
their expenses to the full extent permitted by laws of the State of New Jersey
as from time to time in effect. The right to indemnification conferred on the
directors and officers of the corporation by this Article shall be a contract
right in favor of such directors and officers, and shall extend to all actions
and omissions taken by the directors and officers of the corporation, whether
before or after the effective date of this Article.
The corporation may, by action of its Board of Directors, indemnify
each person who is or was an employee or agent of the corporation in the event
that he is or was a party or is threatened to be made a party to, or otherwise
requires representation by counsel in connection with, any pending, threatened
or completed civil, criminal, administrative or arbitrative action, suit or
proceeding, and any appeal therein and any inquiry or investigation which could
lead to such action, suit or proceeding, by reason of the fact that he is or was
an employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity.
The rights and authority conferred in this Article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of this Certificate of Incorporation or the By-Laws
of the corporation, agreement, vote of stockholders or disinterested directors
or otherwise.
Neither the amendment or repeal of this Article, nor the adoption of
any provision of the Certificate of Incorporation or By-Laws or of any statute
inconsistent with this Article, shall eliminate or reduce the effect of this
Article in respect of any acts or omissions occurring prior to such amendment,
repeal or adoption of an inconsistent provision.
The right of indemnification provided for in this Article shall
continue as to persons who have ceased to have the status pursuant to which they
were entitled or were denominated
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as entitled to indemnification hereunder and shall inure to the benefit of the
heirs and legal representatives of persons entitled to indemnification
hereunder."
THIRD: All of the presently issued and outstanding shares of common
stock, exclusive of treasury stock, shall be exchanged in the ratio of 1 share
of present common stock for 7,461.605 shares of the new authorized common stock.
IN WITNESS WHEREOF, this Certificate of Amendment of the Certificate of
Incorporation was executed on behalf of the corporation this 4th day of May,
1992.
FLEMINGTON PHARMACEUTICAL CORPORATION
By: /s/ Harry A. Dugger
----------------------------------
Harry A. Dugger, III, President
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<PAGE>
AMENDED AND RESTATED BY-LAWS
OF
FLEMINGTON PHARMACEUTICAL CORPORATION
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the
corporation shall be located at 43 Emery Avenue, Flemington, New Jersey 08822.
SECTION 2. OTHER OFFICES. The corporation may have such
other offices and places of business, within or without the State of New Jersey,
as shall be determined by the directors.
ARTICLE II
SHAREHOLDERS
SECTION l. PLACE OF MEETINGS. Meetings of the shareholders
may be held at such place or places, within or without the State of New Jersey
as shall be fixed by the directors and stated in the notice of the meeting.
SECTION 2. ANNUAL MEETING. The annual meeting of
shareholders for the election of directors and the transaction of such other
business as may properly come before the meeting shall be held on the date set
by the Board of Directors, within five months after the close of the fiscal year
of the corporation.
SECTION 3. NOTICE OF ANNUAL MEETING. Notice of the annual
meeting shall be given to each shareholder entitled to vote, at least ten days
prior to the meeting.
SECTION 4. SPECIAL MEETING. Special meetings of the
shareholders for any purpose or purposes may be called by the President or
Secretary and must be called upon receipt by either of them of the written
request of the holders of twenty-five percent of the stock then outstanding and
entitled to vote.
<PAGE>
SECTION 5. NOTICE OF SPECIAL MEETING. Notice of a special
meeting, stating the time, place and purpose or purposes thereof, shall be given
to each shareholder entitled to vote, not less than ten nor more than 60 days
prior to the meeting. The notice shall also set forth at whose direction it is
being issued.
SECTION 6. QUORUM. At any meeting of the shareholders, the
holders of a majority of the shares of stock then entitled to vote shall
constitute a quorum for all purposes, except as otherwise provided by law or the
Certificate of Incorporation.
SECTION 7. VOTING. At each meeting of the share holders,
every holder of stock then entitled to vote may vote in person or by proxy, and,
except as may be otherwise provided by the Certificate of Incorporation, shall
have one vote for each share of stock registered in his name.
SECTION 8. ADJOURNED MEETINGS. Any meeting of shareholders
may be adjourned to a designated time and place by a vote of a majority in
interest of the shareholders present in person or by proxy and entitled to vote,
even though less than a quorum is so present. No notice of such an adjourned
meeting need be given, other than by announcement at the meeting, and any
business may be transacted which might have been transacted at the meeting as
originally called.
SECTION 9. ACTION BY WRITTEN CONSENT OF SHAREHOLDERS. Any
action required or permitted to be taken at a meeting of shareholders by the New
Jersey Business Corporation Act, the Certificate of Incorporation, or By-Laws,
other than the annual election of directors, may be taken without a meeting upon
the written consent of shareholders who would have been entitled to cast the
minimum number of votes which would be necessary to authorize such action at a
meeting at which all shareholders entitled to vote thereon were present and
voting pursuant to the provisions of Section 14A:5-6 of the New Jersey Business
Corporation Act.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER. At the first annual meeting of
shareholders and at each annual meeting thereafter the shareholders shall elect
directors to hold office until the next
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<PAGE>
succeeding annual meeting. Each director sha11 hold office for the term for
which he is elected and until his successor shall have been elected and
qualified. The number of directors shall be one or more, as shall be determined
from time to time by resolution of the directors. Directors need not be
shareholders.
SECTION 2. POWERS. The Board of Directors may adopt such
rules and regulations for the conduct of its meetings, the exercise of its
powers and the management of the affairs of the corporation as it may deem
proper, not inconsistent with the laws of the State of New Jersey, the
Certificate of Incorporation or these By-Laws.
In addition to the powers and authorities by these By-Laws
expressly conferred upon them, the Board of Directors may exercise all such
powers of the corporation and do such lawful acts and things except as are by
statute, the Certificate of Incorporation or these By-Laws directed or required
to be exercised or done by the shareholders.
SECTION 3. MEETING, QUORUM, ACTION WITHOUT MEETING. Meetings
of the Board of Directors may be held at any place, either within or without the
State of New Jersey, provided a quorum be in attendance. Except as may be
otherwise provided by the Certificate of Incorporation or by the Business
Corporation Act, a majority of the directors in office shall constitute a quorum
at any meeting of the Board of Directors and the vote of a majority of a quorum
of directors shall constitute the act of the Board of Directors.
The Board of Directors may hold an annual meeting, without
notice, immediately after the annual meeting of shareholders. Regular meetings
of the Board of Directors may be established by a resolution adopted by the
Board of Directors. The Chairman of the Board of Directors (if any) or the
President or Secretary may call, and at the request of any two directors must
call, a special meeting of the Board of Directors, three days notice of which
shall be given by mail or via facsimile, or two days notice personally to each
director.
Any one or more members of the Board of Directors or any
Committee thereof may participate in a meeting of such Board of Directors or
Committee by means of a conference telephone call or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time. Participation by such means shall constitute presence in
person at a meeting.
Any action required or permitted to be taken by the Board of
Directors or any Committee thereof may be taken without a meeting if all members
of the Board of Directors or the Committee consent in writing to the adoption of
a resolution
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<PAGE>
authorizing the action. The resolution and the written consents thereto by the
members of the Board of Directors or Committee shall be filed with the minutes
of the meetings of the Board of Directors or Committee.
SECTION 4. VACANCIES, REMOVAL. Except as otherwise provided
in the Certificate of Incorporation or in the following paragraph, vacancies
occurring in the membership of the Board of Directors, from whatever cause
arising (including vacancies occurring by reason of the removal of directors
without cause and newly created directorships resulting from any increase in the
authorized number of directors), may be filled by a majority vote of the
remaining directors, though less than a quorum, or such vacancies may be filled
by the shareholders.
Except where the Certificate of Incorporation contains
provisions authorizing cumulative voting or the election of one or more
directors by class or their election by holders of bonds, or requires all action
by shareholders to be by a greater vote, anyone or more of the directors may be
removed, (a) either for or without cause, at any time, by vote of the
shareholders holding a majority of the outstanding stock of the corporation
entitled to vote, present in person or by proxy, at any special meeting of the
shareholders or by written consent of all of the shareholders entitled to vote,
or (b) for cause, by action of the Board of Directors at any regular or special
meeting of the Board of Directors. A vacancy or vacancies occurring from such
removal may be filled at the special meeting of shareholders or at a regular or
special meeting of the Board of Directors.
SECTION 5. COMMITTEES. The Board of Directors, by resolution
adopted by a majority of the entire Board of Directors, may designate from its
members an Executive Committee or other committee or committees, each consisting
of one or more members, with such powers and authority (to the extent permitted
by law) as may be provided in said resolution.
ARTICLE IV
OFFICERS
SECTION 1. EXECUTIVE OFFICERS. The executive officers of the
corporation shall be a Chief Executive Officer, a President, one or more
Vice-Presidents, a Treasurer and a Secretary, all of whom shall be elected
annually by the Board of Directors, who shall hold office at the pleasure of the
Board of Directors. In addition, the Board of Directors may elect a Chairman and
a Vice-Chairman of the Board of Directors. Any two
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<PAGE>
or more offices may be held by one person. All vacancies occurring among any of
the officers shall be filled by the Board of Directors. Any officer may be
removed at any time by the affirmative majority (unless the Certificate of
Incorporation requires a larger vote) of the directors present at a special
meeting of the Board of Directors called for that purpose or by the unanimous
written consent of the Board of Directors.
SECTION 2. OTHER OFFICERS. The Board of Directors may
appoint such other officers and agents with such powers and duties as it shall
deem necessary.
SECTION 3. THE CHAIRMAN OF THE BOARD. The Chairman of the
Board of Directors, if one be elected, shall preside at all meetings of the
Board of Directors and he shall be the Chief Executive of the corporation and he
shall perform such other duties as from time to time may be assigned to him by
the Board of Directors or the Executive Committee, should such committee be
established.
SECTION 4. THE VICE-CHAIRMAN OF THE BOARD. The Vice-Chairman
of the Board of Directors, if one be elected, shall, in the absence of the
Chairman of the Board and the President, preside at all meetings of the Board of
Directors and stockholders, and shall perform such other duties as from time to
time may be assigned to him by the Board of Directors or the Executive
Committee, should such committee be established.
SECTION 5. THE CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer, who may, but need not be a director. He shall have the general powers
and duties usually vested in a chief executive officer of the Company subject to
the direction of the Board of Directors.
SECTION 6. THE PRESIDENT. The President, who may, but need
not be a director, shall, in the absence or non-election of a Chairman of the
Board, preside at all meetings of the shareholders and directors. He shall be in
charge of the day-to-day operations of the corporation subject to the direction
of the Chairman of the Board and the Board of Directors.
SECTION 7. THE VICE-PRESIDENT. The Vice-President, or if
there be more than one, the senior Vice-President as determined by the Board of
Directors, in the absence or disability of the President, shall exercise the
powers and perform the duties of the President, and each Vice-President shall
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<PAGE>
exercise such other powers and perform such other duties as shall be prescribed
by the Board of Directors.
SECTION 8. THE TREASURER. The Treasurer shall have custody
of all funds, securities and evidences of indebtedness of the corporation; he
shall receive and give receipts and acquittances for moneys paid in on account
of the corporation, and shall pay out of the funds on hand all bills, payrolls
and other just debts of the corporation, of whatever nature, upon maturity; he
shall enter regularly in books to be kept by him for that purpose, full and
accurate accounts of all moneys received and paid out by him on account of the
corporation, and he shall perform all other duties incident to the office of
Treasurer and as may be prescribed by the Board of Directors.
SECTION 9. THE SECRETARY. The Secretary shall keep the
minutes of all meetings of the Board of Directors and of the shareholders; he
shall attend to the giving and serving of all notices to shareholders and
directors or other notices required by law or by these By-Laws; he shall affix
the seal of the corporation to deeds, contracts and other instruments in writing
requiring a seal, when duly signed or when so ordered by the Board of Directors;
he shall have charge of the certificate books and stock books and such other
books and papers as the Board of Directors may direct, and he shall perform all
other duties incident to the office of Secretary.
SECTION 10. SALARIES. The salaries of all officers shall be
fixed by the Board of Directors, and the fact that any officer is a director
shall not preclude him from receiving a salary as an officer, or from voting
upon the resolution providing the same.
ARTICLE V
CAPITAL STOCK
SECTION 1. FORM AND EXECUTION OF CERTIFICATES. Certificates
of stock shall be in such form as required by the Business Corporation Act of
New Jersey and as shall be adopted by the Board of Directors. They shall be
numbered and registered in the order issued, shall be signed by the Chairman or
a Vice-Chairman of the Board of Directors (if any) or by the President or
Vice-President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer and may be sealed with the corporate seal or a
facsimile thereof.
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<PAGE>
When such a certificate is countersigned by a transfer agent or registered by a
registrar, the signatures of any such officers may be facsimiles.
SECTION 2. TRANSFER. Transfer of shares shall be made only
upon the books of the corporation by the registered holder in person or by
attorney, duly authorized, and upon surrender of the certificate or certificates
for such shares properly assigned for transfer.
SECTION 3. LOST OR DESTROYED CERTIFICATES. The holder of any
certificate representing shares of stock of the corporation may notify the
corporation of any loss, theft or destruction thereof, and the Board of
Directors may thereupon, in its discretion, cause a new certificate for the same
number of shares to be issued to such holder upon satisfactory proof of such
loss, theft or destruction, and the deposit of indemnity by way of bond or
otherwise, in such form and amount and with such surety or sureties as the Board
of Directors may require, to indemnify the corporation against any loss or
liability by reason of the issuance of such new certificates.
SECTION 4. RECORD DATE. In lieu of closing the books of the
corporation, the Board of Directors may fix, in advance, a date, not exceeding
sixty days, nor less than ten days, preceding the date fixed for any action, as
the record date for the determination of shareholders entitled to receive notice
of, or to vote, at any meeting of shareholders, or to consent to any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividends, or allotment of any rights, or for the purpose
of any other action.
ARTICLE VI
INDEMNIFICATION
SECTION 1. INDEMNIFICATION. All persons who the Corporation
is empowered to Indemnify pursuant to the provisions of Section 145 of the
General Corporation Law of the State of Delaware (or any similar provision or
provisions of applicable law at the time in effect) shall be indemnified by the
Corporation to the full extent permitted thereby. The foregoing right of
indemnification shall not be deemed to be exclusive of any other such rights to
which those seeking indemnification from the Corporation may be entitled,
including, but not limited to, any rights of indemnification to which they may
be entitled pursuant to any agreement, insurance policy, other by-law or charter
provision, vote of stockholders or directors, or
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<PAGE>
otherwise. No repeal or amendment of this Article VI shall adversely affect any
rights of any person pursuant to this Article VI which existed at the time of
such repeal or amendment with respect to acts or omissions occurring prior to
such repeal or amendment.
ARTICLE VII
MISCELLANEOUS
SECTION 1. DIVIDENDS. The Board of Directors may declare
dividends from time to time upon the capital stock of the corporation from the
surplus or net profits available therefor.
SECTION 2. SEAL. The Board of Directors shall provide a
suitable corporate seal which shall be used as authorized by these By-Laws.
SECTION 3. FISCAL YEAR. The fiscal year of the corporation
shall be determined by the Board of Directors.
SECTION 4. CHECKS, NOTES ETC. Checks, notes, drafts, bills
of exchange and orders for the payment of money shall be signed or endorsed in
such manner as shall be determined by the Board of Directors.
The funds of the corporation shall be deposited in such
bank or trust company, and checks drawn against such funds shall be signed in
such manner, as may be determined from time to time by the Board of Directors.
SECTION 5. NOTICE AND WAIVER OF NOTICE. Any notice required
to be given under these By-Laws may be waived by the person entitled thereto, in
writing or via facsimile, and the presence of any person at a meeting shall
constitute waiver of notice thereof as to such person.
ARTICLE VIII
AMENDMENTS
SECTION 1. BY SHAREHOLDERS. These By-Laws may be amended at
any meeting of the shareholders by vote of the
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<PAGE>
shareholders holding a majority, (unless the Certificate of Incorporation
requires a larger vote) of the outstanding stock having voting power, present
either in person or by proxy, provided notice of the amendment is included in
the notice or waiver of notice of such meeting.
SECTION 2. BY DIRECTORS. The Board of Directors may also
amend these By-Laws at any regular or special meeting of the Board by a majority
(unless the Certificate of Incorporation requires a larger vote) vote of the
entire Board, but any By-Laws so made by the Board of Directors may be altered
or repealed by the shareholders.
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<PAGE>
I.B.2
BY-LAWS
OF
PHARMACONSULT, INC.
-----------------------
Adopted 15 June, 1982
ARTICLE I
OFFICES
1. Registered Office and Agent.--The registered office of
the Corporation in the State of New Jersey is at 9 De Forest Avenue, Summit, New
Jersey. The registered agent of the Corporation at such office is Robert F.
Schaul.
2. Principal Place of Business.--The principal place of
business of the Corporation is at Lake Trail East, Morristown, New Jersey 07960.
3. Other Places of Business.--Branch or subordinate places
of business or offices may be established at any time by the Board at any place
or places where the Corporation is qualified to do business.
<PAGE>
ARTICLE II
SHAREHOLDERS
1. Annual Meeting.--The annual meeting of shareholders shall
be held upon not less than ten nor more than sixty days written notice of the
time, place, and purposes of the meeting at one o'clock p.m. on the first Monday
of April of each year at 9 De Forest Avenue, Summit, New Jersey or at such other
time and place as shall be specified in the notice of meeting, in order to elect
directors and transact such other business as shall come before the meeting. If
that date is a legal holiday, the meeting shall be held at the same hour on the
next succeeding business day.
2. Special Meetings.--A special meeting of shareholders may
be called for any purpose by the President or the Board. A special meeting shall
be held upon not less than ten nor more than sixty days written notice of the
time, place, and purposes of the meeting.
3. Action Without Meeting.--The shareholders may act without
a meeting if, before or after such action, each shareholder who would have been
entitled to vote upon such shall consent in writing to such action. Such written
consent or consents shall be filed in the minute book.
<PAGE>
4. Quorum.--The presence at a meeting in person or by proxy
of the holders of shares entitled to cast a majority of the votes shall
constitute a quorum.
ARTICLE III
BOARD OF DIRECTORS
1. Number and Term of Office.--The Board shall consist of
one member. The directors shall be elected by the shareholders at each annual
meeting and shall hold office until the next annual meeting of shareholders and
until a director's successor shall have been elected and qualified.
2. Regular Meetings.--A regular meeting of the Board shall
be held without notice immediately following, and at the same place, as the
annual shareholders' meeting, for the purposes of electing officers and
conducting such other business as may come before the meeting. The Board, by
resolution, may provide for additional regular meetings which may be held
without notice, except as to members not present at the time of the adoption of
the resolution.
3. Special Meetings.--A special meeting of the Board may be
called at any time by the President or by any one director for any purpose.
Such meeting shall be held upon two days motice if given orally, (either by
telephone or in person.) or by telegraph, or by five days notice if given by
<PAGE>
depositing the notice in the United States mails, postage prepaid. Such notice
shall specify the time and place of meeting.
4. Action Without Meeting.--The Board may act without a
meeting if, before or after such action, each member of the Board shall consent
in writing to such action. Such written consent or consents shall be filed
in the minute book.
5. Quorum.--A majority of the entire Board shall constitute
a quorum for the transaction of business.
6. Vacancies in Board of Directors.--Any vacancy in the
Board, except a vacancy caused by an increase in the number of directors, may be
filled by the affirmative vote of a majority of the remaining directors, even
though less than a quorum of the Board, or by a sole remaining director.
7. Removal of Director.--Directors serve as such at the
pleasure of the shareholders and may be removed from office at any time by a
vote of the majority of all shares of the Corporation.
<PAGE>
ARTICLE IV
WAIVERS OF NOTICE
Any notice required by these By-Laws, by the Certificate of
Incorporation, or by the New Jersey Business Corporation Act may be waived in
writing by any person entitled to notice. The waiver or waiver may be executed
either before or after the event with respect to which notice is waived. Each
director or shareholder attending a meeting without protesting, before its
conclusion, the lack of proper notice shall be deemed conclusively to have
waived notice of the meeting.
ARTICLE V
OFFICERS
1. Election.--At its regular meeting following the annual
meeting of shareholders, the Board shall elect a President, a Treasurer, a
Secretary, and such other officers, including one or more Vice Presidents, as it
shall deem necessary. One person may hold two or more offices.
2. Duties and Authority of President.--The President shall
be chief executive officer of the Corporation. Subject only to the authority of
the Board, he shall have general charge and supervision over, and responsibility
for, the business affairs of the Corporation. Unless otherwise
<PAGE>
directed by the Board, all other officers shall be subject to the authority and
supervision of the President. The President may enter into and execute in the
name of the Corporation contracts or other instruments in the regular course of
business, or contracts or other instruments not in the regular course of
business which are authorized, either generally or specifically, by the Board.
He shall have the general powers and duties of management usually vested in the
office of President of a corporation.
3. Duties and Authority of Vice President.--The
Vice-President shall perform such duties and have such authority as from time to
time may be delegated to him by the President or by the Board. In the absence of
the President or in the event of his death, inability, or refusal to act, the
Vice President shall perform the duties and be vested with the authority of the
President.
4. Duties and Authority of Treasurer.--The Treasurer shall
have the custody of the funds and securities of the Corporation and shall keep
or cause to be kept regular books of account for the Corporation. The Treasurer
shall perform such other duties and possess such other powers as are incident to
that office or as shall be assigned by the President or the Board.
<PAGE>
5. Duties and Authority of Secretary.--The Secretary shall
cause notices of all meetings to be served as prescribed in these By-laws and
shall keep or cause to be kept the minutes of all meetings of the shareholders
and the Board. The Secretary shall have charge of the seal of the Corporation.
The Secretary shall perform such other duties and possess such other powers as
are incident to that office or as are assigned by the President or the Board.
6. Removal of Officers.--Officers of the corporation serve
at the pleasure of the Board of Directors and may be removed from office any
time by vote of a majority of the Board.
ARTICLE VI
AMENDMENTS TO AND EFFECT OF BY-LAWS;
1. Effect of By-laws.--These By-laws are subject to the
provisions of the New Jersey Business Corporation Act and the Corporation's
Certificate of Incorporation, as it may be amended from time to time. If any
provision in these By-laws is inconsistent with a provision in that Act or the
Certificate of Incorporation, the provision of that Act or the Certificate of
Incorporation shall govern.
<PAGE>
2. Amendments to By-laws.--These by-laws may be altered,
amended or repealed by the shareholders or the Board. Any By-law adopted,
amended or repealed by the shareholders may be amended or repealed by the Board,
unless the resolution of the shareholders adopting such By-law expressly
reserves to the shareholders the right to amend or repeal it.
<PAGE>
WARRANT AGREEMENT
AGREEMENT, dated as of this ____ day of _______, 1997, by and between
FLEMINGTON PHARMACEUTICAL CORPORATION, a New Jersey corporation ("Company"), and
American Stock Transfer & Trust Company, as Warrant Agent (the "Warrant Agent").
WITNESSETH:
WHEREAS, in connection with a public offering of up to 805,000 Units,
each consisting of two (2) shares of Common Stock, par value $.01 per share, and
two (2) Class A Redeemable Common Stock Purchase Warrants (the "Warrants")
pursuant to an underwriting agreement (the "Underwriting Agreement") dated
__________, 1997 between the Company and Monroe Parker Securities, Inc.
("Monroe"), and the issuance to Monroe or its designees of a Purchase Option to
purchase 70,000 additional Units, consisting of 140,000 shares of Common Stock
and 140,000 Warrants (the "Purchase Option"), the Company will issue up to
1,750,000 Warrants;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange and redemption of the Warrants, the
issuance of certificates representing the Warrants, the exercise of the
Warrants, and the rights of the holders thereof;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth and for the purpose of defining the terms and
provisions of the Warrants and the certificates representing the Warrants and
the respective rights and obligations thereunder of the Company, the holders of
certificates representing the Warrants and the Warrant Agent, the parties hereto
agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings, unless the context shall otherwise require:
(a) "Common Stock" shall mean the common stock of the Company
which at the date hereof consists of __________ authorized shares, par value
$.01 per share, and shall also include any capital stock of any class of the
Company thereafter authorized which shall not be limited to a fixed sum or
percentage in respect to the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary liquidation,
dissolution, or winding up of the Company; provided, however, that the shares
issuable upon exercise of the Warrants shall include (i) only shares of such
class designated in the Company's Certificate
<PAGE>
of Incorporation as Common Stock on the date of the original issue of the
Warrants or (ii), in the case of any reclassification, change, consolidation,
merger, sale, or conveyance of the character referred to in Section 9(c) hereof,
the stock, securities, or property provided for in such section or (iii), in the
case of any reclassification or change in the outstanding shares of Common Stock
issuable upon exercise of the Warrants as a result of a subdivision or
combination or consisting of a change in par value, or from par value to no par
value, or from no par value to par value, such shares of Common Stock as so
reclassified or changed.
(b) "Corporate Office" shall mean the office of the Warrant
Agent (or its successor) at which at any particular time its principal business
shall be administered, which office is located at the date hereof at 40 Wall
Street, New York, New York 10005.
(c) "Exercise Date" shall mean, as to any Warrant, the date on
which the Warrant Agent shall have received both (i) the Warrant Certificate
representing such Warrant, with the exercise form thereon duly executed by the
Registered Holder thereof or his attorney duly authorized in writing, and (ii)
payment in cash, or by official bank or certified check made payable to the
Company, of an amount in lawful money of the United States of America equal to
the applicable Purchase Price.
(d) "Initial Warrant Exercise Date" shall mean ______, 1998
(one (1) year from the Effective Date).
(e) "Purchase Price" shall mean the purchase price per share
to be paid upon exercise of each Warrant in accordance with the terms hereof,
which price shall be $4.25 per share, subject to adjustment from time to time
pursuant to the provisions of Section 9 hereof, and subject to the Company's
right, upon approval of a majority of the holders of shares of Common Stock of
the Company, to reduce the Purchase Price upon notice to all warrantholders.
(f) "Redemption Price" shall mean the price at which the
Company may, at its option, redeem the Warrants, in accordance with the terms
hereof, which price shall be $0.10 per Warrant.
(g) "Registered Holder" shall mean as to any Warrant and as of
any particular date, the person in whose name the certificate representing the
Warrant shall be registered on that date on the books maintained by the Warrant
Agent pursuant to Section 6.
(h) "Transfer Agent" shall mean American Stock Transfer &
Trust Company, as the Company's transfer agent, or its authorized successor, as
such.
(i) "Warrant Expiration Date" shall mean 5:00 P.M. (New York
time) on __________, 2002 or the Redemption Date as defined in
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Section 8, whichever is earlier; provided that if such date shall in the State
of New York be a holiday or a day on which banks are authorized or required to
close, then 5:00 P.M. (New York time) on the next following day which in the
State of New York is not a holiday or a day on which banks are authorized or
required to close. Upon notice to all warrantholders the Company shall have the
right to extend the Warrant Expiration Date.
2. Warrants and Issuance of Warrant Certificates.
(a) A Warrant initially shall entitle the Registered Holder of
the Warrant Certificate representing such Warrant to purchase one share of
Common Stock upon the exercise thereof, in accordance with the terms hereof,
subject to modification and adjustment as provided in Section 9.
(b) Upon execution of this Agreement, Warrant Certificates
representing the number of Warrants sold pursuant to the Underwriting Agreement
shall be executed by the Company and delivered to the Warrant Agent. Upon
written order of the Company signed by its President or Chairman or a Vice
President and by its Secretary or an Assistant Secretary, the Warrant
Certificates shall be countersigned, issued, and delivered by the Warrant Agent.
(c) From time to time, up to the Warrant Expiration Date, the
Transfer Agent shall countersign and deliver stock certificates in required
whole number denominations representing up to an aggregate of 1,750,000 shares
of Common Stock, subject to adjustment as described herein, upon the exercise of
Warrants in accordance with this Agreement.
(d) From time to time, up to the Warrant Expiration Date, the
Warrant Agent shall countersign and deliver Warrant Certificates in required
whole number denominations to the persons entitled thereto in connection with
any transfer or exchange permitted under this Agreement; provided that no
Warrant Certificates shall be issued except (i) those initially issued
hereunder, (ii) those issued on or after the Initial Warrant Exercise Date, upon
the exercise of fewer than all Warrants represented by any Warrant Certificate,
to evidence any unexercised Warrants held by the exercising Registered Holder,
(iii) those issued upon any transfer or exchange pursuant to Section 6; (iv)
those issued in replacement of lost, stolen, destroyed, or mutilated Warrant
Certificates pursuant to Section 7; (v) those issued pursuant to the Purchase
Option; and (vi) those issued at the option of the Company, in such form as may
be approved by the its Board of Directors, to reflect any adjustment or change
in the Purchase Price, the number of shares of Common Stock purchasable upon
exercise of the Warrants or the Redemption Price therefor made pursuant to
Section 9 hereof.
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(e) Pursuant to the terms of the Purchase Option, Monroe may
purchase up to 70,000 Units, consisting of 140,000 shares of Common Stock and
140,000 Warrants. The Purchase Option shall not be transferred, sold, assigned
or hypothecated for a period of one (1) year from the Effective Date, except
that it may be transferred to persons who are officers of Monroe or selling
group members in the offering.
3. Form and Execution of Warrant Certificates.
(a) The Warrant Certificates shall be substantially in the
form annexed hereto as Exhibit A (the provisions of which are hereby
incorporated herein) and may have such letters, numbers, or other marks of
identification or designation and such legends, summaries, or endorsements
printed, lithographed, or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage or to the requirements of Section
2(b). The Warrant Certificates shall be dated the date of issuance thereof
(whether upon initial issuance, transfer, exchange, or in lieu of mutilated,
lost, stolen, or destroyed Warrant Certificates) and issued in registered form.
Warrant Certificates shall be numbered serially with the letter W.
(b) Warrant Certificates shall be executed on behalf of the
Company by its Chairman of the Board, President, or any Vice President and by
its Secretary or an Assistant Secretary, by manual signatures or by facsimile
signatures printed thereon, and shall have imprinted thereon a facsimile of the
Company's seal. Warrant Certificates shall be manually countersigned by the
Warrant Agent and shall not be valid for any purpose unless so countersigned. In
case any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be an officer of the Company or to hold the
particular office referenced in the Warrant Certificate before the date of
issuance of the Warrant Certificates or before countersignature by the Warrant
Agent and issue and delivery thereof, such Warrant Certificates may nevertheless
be countersigned by the Warrant Agent, issued and delivered with the same force
and effect as though the person who signed such Warrant Certificates had not
ceased to be an officer of the Company or to hold such office. After
countersignature by the Warrant Agent, Warrant Certificates shall be delivered
by the Warrant Agent to the Registered Holder without further action by the
Company, except as otherwise provided by Section 4 hereof.
4. Exercise. Each Warrant may be exercised by the Registered Holder
thereof at any time on or after the Initial Exercise Date, but not after the
Warrant Expiration Date, upon the terms and subject to the conditions set forth
herein and in the
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applicable Warrant Certificate. A Warrant shall be deemed to have been exercised
immediately prior to the close of business on the Exercise Date and the person
entitled to receive the securities deliverable upon such exercise shall be
treated for all purposes as the holder of those securities upon the exercise of
the Warrant as of the close of business on the Exercise Date. As soon as
practicable on or after the Exercise Date the Warrant Agent shall deposit the
proceeds received from the exercise of a Warrant and shall notify the Company in
writing of the exercise of the Warrants. Promptly following, and in any event
within five days after the date of such notice from the Warrant Agent, the
Warrant Agent, on behalf of the Company, shall cause to be issued and delivered
by the Transfer Agent, to the person or persons entitled to receive the same, a
certificate or certificates for the securities deliverable upon such exercise
(plus a certificate for any remaining unexercised Warrants of the Registered
Holder), unless prior to the date of issuance of such certificates the Company
shall instruct the Warrant Agent to refrain from causing such issuance of
certificates pending clearance of checks received in payment of the Purchase
Price pursuant to such Warrants. Upon the exercise of any Warrant and clearance
of the funds received, the Warrant Agent shall promptly remit the payment
received for the Warrant (the "Warrant Proceeds") to the Company or as the
Company may direct in writing.
5. Reservation of Shares; Listing; Payment of Taxes, etc.
(a) The Company covenants that it will at all times reserve
and keep available out of its authorized Common Stock, solely for the purpose of
issue upon exercise of Warrants, such number of shares of Common Stock as shall
then be issuable upon the exercise of all outstanding Warrants. The Company
covenants that all shares of Common Stock which shall be issuable upon exercise
of the Warrants shall, at the time of delivery, be duly and validly issued,
fully paid, nonassessable, and free from all taxes, liens, and charges with
respect to the issue thereof, (other than those which the Company shall promptly
pay or discharge) and that upon issuance such shares shall be listed on each
national securities exchange or eligible for inclusion in each automated
quotation system, if any, on which the other shares of outstanding Common Stock
of the Company are then listed or eligible for inclusion.
(b) The Company covenants that if any securities to be
reserved for the purpose of exercise of Warrants hereunder require registration
with, or approval of, any governmental authority under any federal securities
law before such securities may be validly issued or delivered upon such
exercise, then the Company will, to the extent the Purchase Price is less than
the Market Price (as hereinafter defined), in good faith and as expeditiously as
reasonably possible, endeavor to secure such registration or approval and will
use its reasonable efforts to obtain appropriate approvals or registrations
under state "blue sky" securities laws.
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With respect to any such securities, however, Warrants may not be exercised by,
or shares of Common Stock issued to, any Registered Holder in any state in which
such exercise would be unlawful.
(c) The Company shall pay all documentary, stamp, or similar
taxes and other governmental charges that may be imposed with respect to the
issuance of Warrants, or the issuance, or delivery of any shares upon exercise
of the Warrants; provided, however, that if the shares of Common Stock are to be
delivered in a name other than the name of the Registered Holder of the Warrant
Certificate representing any Warrant being exercised, then no such delivery
shall be made unless the person requesting the same has paid to the Warrant
Agent the amount of transfer taxes or charges incident thereto, if any.
(d) The Warrant Agent is hereby irrevocably authorized to
requisition the Company's Transfer Agent from time to time for certificates
representing shares of Common Stock issuable upon exercise of the Warrants, and
the Company will authorize the Transfer Agent to comply with all such proper
requisitions. The Company will file with the Warrant Agent a statement setting
forth the name and address of the Transfer Agent of the Company for shares of
Common Stock issuable upon exercise of the Warrants.
6. Exchange and Registration of Transfer.
(a) Warrant Certificates may be exchanged for other Warrant
Certificates representing an equal aggregate number of Warrants of the same
class or may be transferred in whole or in part. Warrant Certificates to be
exchanged shall be surrendered to the Warrant Agent at its Corporate Office, and
upon satisfaction of the terms and provisions hereof, the Company shall execute
and the Warrant Agent shall countersign, issue, and deliver in exchange therefor
the Warrant Certificate or Certificates which the Registered Holder making the
exchange shall be entitled to receive.
(b) The Warrant Agent shall keep at its office books in which,
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and the transfer thereof in accordance with its regular
practice. Upon due presentment for registration of transfer of any Warrant
Certificate at such office, the Company shall execute and the Warrant Agent
shall issue and deliver to the transferee or transferees a new Warrant
Certificate or Certificates representing an equal aggregate number of Warrants.
(c) With respect to all Warrant Certificates presented for
registration or transfer, or for exchange or exercise, the subscription form on
the reverse thereof shall be duly endorsed, or be accompanied by a written
instrument or instruments of transfer and subscription, in form satisfactory to
the Company and the Warrant Agent, duly executed by the Registered Holder or his
attorney-in-fact duly authorized in writing.
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(d) A service charge may be imposed by the Warrant Agent for
any exchange or registration of transfer of Warrant Certificates. In addition,
the Company may require payment by such holder of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
(e) All Warrant Certificates surrendered for exercise or for
exchange in case of mutilated Warrant Certificates shall be promptly cancelled
by the Warrant Agent and thereafter retained by the Warrant Agent until
termination of this Agreement or resignation as Warrant Agent, or disposed of or
destroyed, at the direction of the Company.
(f) Prior to due presentment for registration of transfer
thereof, the Company and the Warrant Agent may deem and treat the Registered
Holder of any Warrant Certificate as the absolute owner thereof and of each
Warrant represented thereby (notwithstanding any notations of ownership or
writing thereon made by anyone other than a duly authorized officer of the
Company or the Warrant Agent) for all purposes and shall not be affected by any
notice to the contrary. The Warrants which are being publicly offered with
shares of Common Stock pursuant to the Underwriting Agreement will be
immediately detachable from the Common Stock and transferable separately
therefrom.
7. Loss or Mutilation. Upon receipt by the Company and the Warrant
Agent of evidence satisfactory to them of the ownership of and loss, theft,
destruction, or mutilation of any Warrant Certificate and (in case of loss,
theft, or destruction) of indemnity satisfactory to them, and (in the case of
mutilation) upon surrender and cancellation thereof, the Company shall execute
and the Warrant Agent shall (in the absence of notice to the Company and/or
Warrant Agent that the Warrant Certificate has been acquired by a bona fide
purchaser) countersign and deliver to the Registered Holder in lieu thereof a
new Warrant Certificate of like tenor representing an equal aggregate number of
Warrants. Applicants for a substitute Warrant Certificate shall comply with such
other reasonable regulations and pay such other reasonable charges as the
Warrant Agent may prescribe.
8. Redemption.
(a) Subject to the provisions of Section 2(e), on not less
than thirty (30) days notice given at any time after eighteen (18) months after
the Initial Warrant Exercise Date, or earlier with the consent of Monroe, the
Warrants may be redeemed, at the option of the Company, at a redemption price of
$0.10 per Warrant, provided the Market Price of the Common Stock receivable upon
exercise of the Warrant shall equal or exceed 260% of the then exercise price of
the Warrants per share (the "Target Price"), subject to adjustment as set forth
in Section 8(f) below. Market Price for the purpose of this Section 8 shall mean
the average
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closing sale price for all twenty (20) consecutive trading days ending on the
third day prior to the date of the notice of redemption, which notice shall be
mailed no later than five days thereafter, of the Common Stock as reported by
the Nasdaq Stock Market, Inc. or any national securities exchange on which the
Common Stock is traded.
(b) If the conditions set forth in Section 8(a) are met, and
the Company desires to exercise its right to redeem the Warrants, it shall mail
a notice of redemption to each of the Registered Holders of the Warrants to be
redeemed, first class, postage prepaid, not later than the thirtieth day before
the date fixed for redemption, at their last address as shall appear on the
records maintained pursuant to Section 6(b). Any notice mailed in the manner
provided herein shall be conclusively presumed to have been duly given whether
or not the Registered Holder receives such notice.
(c) The notice of redemption shall specify (i) the redemption
price, (ii) the date fixed for redemption, (iii) the place where the Warrant
Certificates shall be delivered and the redemption price paid, and (iv) that the
right to exercise the Warrant shall terminate at 5:00 P.M. (New York time) on
the business day immediately preceding the date fixed for redemption. The date
fixed for the redemption of the Warrant shall be the Redemption Date. No failure
to mail such notice nor any defect therein or in the mailing thereof shall
affect the validity of the proceedings for such redemption except as to a
Registered Holder (A) to whom notice was not mailed or (B) whose notice was
defective. An affidavit of the Warrant Agent or of the Secretary or an Assistant
Secretary of the Company that notice of redemption has been mailed shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
(d) Any right to exercise a Warrant shall terminate at 5:00
P.M. (New York time) on the business day immediately preceding the Redemption
Date. On and after the Redemption Date, Holders of the Warrants shall have no
further rights except to receive, upon surrender of the Warrant, the redemption
price.
(e) From and after the Redemption Date specified, the Company
shall, at the place specified in the notice of redemption, upon presentation and
surrender to the Company by or on behalf of the Registered Holder thereof of one
or more Warrant Certificates evidencing Warrants to be redeemed, deliver or
cause to be delivered to or upon the written order of such Holder a sum in cash
equal to the redemption price of each such Warrant. From and after the
Redemption Date and upon the deposit or setting aside by the Company of a sum
sufficient to redeem all the Warrants called for redemption, such Warrants shall
expire and become void and all rights hereunder and under the Warrant
Certificates, except the right to receive payment of the redemption price, shall
cease.
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(f) If the shares of the Company's Common Stock are subdivided
or combined into a greater or smaller number of shares of Common Stock, the
Target Price shall be proportionally adjusted by the ratio which the total
number of shares of Common Stock outstanding immediately prior to such event
bears to the total number of shares of Common Stock to be outstanding
immediately after such event.
9. Adjustment of Exercise Price and Number of Shares of Common Stock
or Warrants.
(a) Subject to the exceptions referred to in Section 9(g)
below, in the event the Company shall, at any time or from time to time after
the date hereof, sell any shares of Common Stock for a consideration per share
less than the Market Price of the Common Stock (as defined in Section 8) on the
date of the sale or issue any shares of Common Stock as a stock dividend to the
holders of Common Stock, or subdivide or combine the outstanding shares of
Common Stock into a greater or lesser number of shares (any such sale, issuance,
subdivision, or combination being herein called a "Change of Shares"), then, and
thereafter upon each further Change of Shares, the Purchase Price in effect
immediately prior to such Change of Shares shall be changed to a price
(including any applicable fraction of a cent) determined by multiplying the
Purchase Price in effect immediately prior thereto by a fraction, the numerator
of which shall equal the sum of the number of shares of Common Stock outstanding
immediately prior to the issuance of such additional shares and the number of
shares of Common Stock which the aggregate consideration received (determined as
provided in subsection 9(f) below) for the issuance of such additional shares
would purchase at such current Market Price per share of Common Stock, and the
denominator of which shall equal the number of shares of Common Stock
outstanding immediately after the issuance of such additional shares. Such
adjustment shall be made successively whenever such an issuance is made.
Upon each adjustment of the Purchase Price pursuant
to this Section 9, the total number of shares of Common Stock purchasable upon
the exercise of each Warrant shall (subject to the provisions contained in
Section 9(b) hereof) be such number of shares (calculated to the nearest tenth)
purchasable at the Purchase Price in effect immediately prior to such adjustment
multiplied by a fraction, the numerator of which shall be the Purchase Price in
effect immediately prior to such adjustment and the denominator of which shall
be the Purchase Price in effect immediately after such adjustment.
(b) The Company may elect, upon any adjustment of the Purchase
Price hereunder, to adjust the number of Warrants
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outstanding, in lieu of the adjustment in the number of shares of Common Stock
purchasable upon the exercise of each Warrant as hereinabove provided, so that
each Warrant outstanding after such adjustment shall represent the right to
purchase one share of Common Stock. Each Warrant held of record prior to such
adjustment of the number of Warrants shall become that number of Warrants
(calculated to the nearest tenth) determined by multiplying the number one by a
fraction, the numerator of which shall be the Purchase Price in effect
immediately prior to such adjustment and the denominator of which shall be the
Purchase Price in effect immediately after such adjustment. Upon each adjustment
of the number of Warrants pursuant to this Section 9, the Company shall, as
promptly as practicable, cause to be distributed to each Registered Holder of
Warrant Certificates on the date of such adjustment Warrant Certificates
evidencing, subject to Section 10 hereof, the number of additional Warrants to
which such Holder shall be entitled as a result of such adjustment or, at the
option of the Company, cause to be distributed to such Holder in substitution
and replacement for the Warrant Certificates held by him prior to the date of
adjustment (and upon surrender thereof, if required by the Company) new Warrant
Certificates evidencing the number of Warrants to which such Holder shall be
entitled after such adjustment.
(c) In case of any reclassification, capital reorganization,
or other change of outstanding shares of Common Stock, or in case of any
consolidation or merger of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification, capital
reorganization, or other change of outstanding shares of Common Stock), or in
case of any sale or conveyance to another corporation of the property of the
Company as, or substantially as, an entirety (other than a sale/leaseback,
mortgage, or other financing transaction), the Company shall cause effective
provision to be made so that each holder of a Warrant then outstanding shall
have the right thereafter, by exercising such Warrant, to purchase the kind and
number of shares of stock or other securities or property (including cash)
receivable upon such reclassification, capital reorganization, or other change,
consolidation, merger, sale, or conveyance by a holder of the number of shares
of Common Stock that might have been purchased upon exercise of such Warrant
immediately prior to such reclassification, capital reorganization, or other
change, consolidation, merger, sale, or conveyance. Any such provision shall
include provision for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 9. The Company shall
not effect any such consolidation, merger, or sale unless prior to or
simultaneously with the consummation thereof the successor (if other than the
Company) resulting from such consolidation or merger or the corporation
purchasing assets or other appropriate corporation or entity shall assume, by
written instrument executed and delivered
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to the Warrant Agent, the obligation to deliver to the holder of each Warrant
such shares of stock, securities, or assets as, in accordance with the foregoing
provisions, such holders may be entitled to purchase and the other obligations
under this Agreement. The foregoing provisions shall similarly apply to
successive reclassification, capital reorganizations, and other changes of
outstanding shares of Common Stock and to successive consolidations, mergers,
sales, or conveyances.
(d) Irrespective of any adjustments or changes in the Purchase
Price or the number of shares of Common Stock purchasable upon exercise of the
Warrants, the Warrant Certificates theretofore and thereafter issued shall,
unless the Company shall exercise its option to issue new Warrant Certificates
pursuant to Section 2(d) hereof, continue to express the Purchase Price per
share, the number of shares purchasable thereunder, and the Redemption Price
therefor as the Purchase Price per share, and the number of shares purchasable
and the Redemption Price therefore were expressed in the Warrant Certificates
when the same were originally issued.
(e) After each adjustment of the Purchase Price pursuant to
this Section 9, the Company will promptly prepare a certificate signed by the
Chairman or President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, of the Company setting forth: (i) the
Purchase Price as so adjusted, (ii) the number of shares of Common Stock
purchasable upon exercise of each Warrant after such adjustment, and, if the
Company shall have elected to adjust the number of Warrants, the number of
Warrants to which the registered holder of each Warrant shall then be entitled,
and the adjustment in Redemption Price resulting therefrom, and (iii) a brief
statement of the facts accounting for such adjustment. The Company will promptly
file such certificate with the Warrant Agent and cause a brief summary thereof
to be sent by ordinary first class mail to Monroe and to each registered holder
of Warrants at his or her last address as it shall appear on the registry books
of the Warrant Agent. No failure to mail such notice nor any defect therein or
in the mailing thereof shall affect the validity thereof except as to the holder
to whom the Company failed to mail such notice, or except as to the holder whose
notice was defective. The affidavit of an officer of the Warrant Agent or the
Secretary or an Assistant Secretary of the Company that such notice has been
mailed shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
(f) For purposes of Section 9(a) and 9(b) hereof, the
following provisions (i) to (vii) shall also be applicable:
(i) The number of shares of Common Stock outstanding
at any given time shall include shares of Common Stock owned or held by or for
the account of the Company and the sale or issuance of such
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treasury shares or the distribution of any such treasury shares shall not be
considered a Change of Shares for purposes of said sections.
(ii) No adjustment of the Purchase Price shall be
made unless such adjustment would require an increase or decrease of at least
$.10 in such price; provided that any adjustments which by reason of this
subsection (ii) are not required to be made shall be carried forward and shall
be made at the time of and together with the next subsequent adjustment which,
together with any adjustment(s) so carried forward, shall require an increase or
decrease of at least $.10 in the Purchase Price then in effect hereunder.
(iii) In case of (1) the sale by the Company for cash
of any rights or warrants to subscribe for or purchase, or any options for the
purchase of, Common Stock or any securities convertible into or exchangeable for
Common Stock without the payment of any further consideration other than cash,
if any (such convertible or exchangeable securities being herein called
"Convertible Securities"), or (2) the issuance by the Company, without the
receipt by the Company of any consideration therefor, of any rights or warrants
to subscribe for or purchase, or any options for the purchase of, Common Stock
or Convertible Securities, in each case, if (and only if) the consideration
payable to the Company upon the exercise of such rights, warrants, or options
shall consist of cash, whether or not such rights, warrants, or options, or the
right to convert or exchange such Convertible Securities, are immediately
exercisable, and the price per share for which Common Stock is issuable upon the
exercise of such rights, warrants, or options or upon the conversion or exchange
of such Convertible Securities (determined by dividing (x) the minimum aggregate
consideration payable to the Company upon the exercise of such rights, warrants,
or options, plus the consideration received by the Company for the issuance or
sale of such rights, warrants, or options, plus, in the case of such Convertible
Securities, the minimum aggregate amount of additional consideration, if any,
other than such Convertible Securities, payable upon the conversion or exchange
thereof, by (y) the total maximum number of shares of Common Stock issuable upon
the exercise of such rights, warrants, or options or upon the conversion or
exchange of such Convertible Securities issuable upon the exercise of such
rights, warrants, or options) is less than the fair market value of the Common
Stock on the date of the issuance or sale of such rights, warrants, or options,
then the total maximum number of shares of Common Stock issuable upon the
exercise of such rights, warrants, or options or upon the conversion or exchange
of such Convertible Securities (as of the date of the issuance or sale of such
rights, warrants, or options) shall be deemed to be outstanding shares of Common
Stock for purposes of Sections 9(a) and 9(b) hereof and shall be deemed to have
been sold for cash in an amount equal to such price per share.
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(iv) In case of the sale by the Company for cash of
any Convertible Securities, whether or not the right of conversion or exchange
thereunder is immediately exercisable, and the price per share for which Common
Stock is issuable upon the conversion or exchange of such Convertible Securities
(determined by dividing (x) the total amount of consideration received by the
Company for the sale of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, other than such Convertible
Securities, payable upon the conversion or exchange thereof, by (y) the total
maximum number of shares of Common Stock issuable upon the conversion or
exchange of such Convertible Securities) is less than the fair market value of
the Common Stock on the date of the sale of such Convertible Securities, then
the total maximum number of shares of Common Stock issuable upon the conversion
or exchange of such Convertible Securities (as of the date of the sale of such
Convertible Securities) shall be deemed to be outstanding shares of Common Stock
for purposes of Sections 9(a) and 9(b) hereof and shall be deemed to have been
sold for cash in an amount equal to such price per share.
(v) In case the Company shall modify the rights of
conversion, exchange, or exercise of any of the securities referred to in
subsection (iii) above or any other securities of the Company convertible,
exchangeable, or exercisable for shares of Common Stock, for any reason other
than an event that would require adjustment to prevent dilution, so that the
consideration per share received by the Company after such modification is less
than the market price on the date prior to such modification, the Purchase Price
to be in effect after such modification shall be determined by multiplying the
Purchase Price in effect immediately prior to such event by a fraction, of which
the numerator shall be the number of shares of Common Stock outstanding
multiplied by the market price on the date prior to the modification plus the
number of shares of Common Stock which the aggregate consideration receivable by
the Company for the securities affected by the modification would purchase at
the market price and of which the denominator shall be the number of shares of
Common Stock outstanding on such date plus the number of shares of Common Stock
to be issued upon conversion, exchange, or exercise of the modified securities
at the modified rate. Such adjustment shall become effective as of the date upon
which such modification shall take effect.
(vi) On the expiration of any such right, warrant, or
option or the termination of any such right to convert or exchange any such
Convertible Securities, the Purchase Price then in effect hereunder shall
forthwith be readjusted to such Purchase Price as would have obtained (a) had
the adjustments made upon the issuance or sale of such rights, warrants,
options, or Convertible Securities been made upon the basis of the issuance of
only the number of shares of Common Stock theretofore actually delivered (and
the total consideration received therefor) upon the exercise
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<PAGE>
of such rights, warrants, or options or upon the conversion or exchange of such
Convertible Securities and (b) had adjustments been made on the basis of the
Purchase Price as adjusted under clause (a) for all transactions (which would
have affected such adjusted Purchase Price) made after the issuance or sale of
such rights, warrants, options, or Convertible Securities.
(vii) In case of the sale for cash of any shares of
Common Stock, any Convertible Securities, any rights or warrants to subscribe
for or purchase, or any options for the purchase of, Common Stock or Convertible
Securities, the consideration received by the Company therefore shall be deemed
to be the gross sales price therefor without deducting therefrom any expense
paid or incurred by the Company or any underwriting discounts or commissions or
concessions paid or allowed by the Company in connection therewith.
(g) No adjustment to the Purchase Price of the Warrants
or to the number of shares of Common Stock purchasable upon the
exercise of each Warrant will be made, however,
(i) upon the sale or exercise of the Warrants,
including without limitation the sale or exercise of any of the Warrants
comprising the Purchase Option; or
(ii) upon the sale of any shares of Common Stock in
the Company's initial public offering, including, without limitation, shares
sold upon the exercise of any over-allotment option granted to the Underwriters
in connection with such offering; or
(iii) upon the issuance or sale of Common Stock or
Convertible Securities upon the exercise of any rights or warrants to subscribe
for or purchase, or any options for the purchase of, Common Stock or Convertible
Securities, whether or not such rights, warrants, or options were outstanding on
the date of the original sale of the Warrants or were thereafter issued or sold
other than issuances of preferred stock in connection with acquisitions by the
Company; or
(iv) upon the issuance or sale of Common Stock upon
conversion or exchange of any Convertible Securities, whether or not any
adjustment in the Purchase Price was made or required to be made upon the
issuance or sale of such Convertible Securities and whether or not such
Convertible Securities were outstanding on the date of the original sale of the
Warrants or were thereafter issued or sold; or
(v) upon the issuance or sale of Common Stock or
Convertible Securities in a private placement unless the issuance or sale price
is less than 85% of the fair market value of the Common Stock on the date of
issuance, in which case the adjustment
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shall only be for the difference between 85% of the fair market value and the
issue or sale price; or
(vi) upon the issuance or sale of Common Stock or
Convertible Securities to shareholders of any corporation which merges into the
Company or from which the Company acquires assets and some or all of the
consideration consists of equity securities of the Company, in proportion to
their stock holdings of such corporation immediately prior to the acquisition
but only if no adjustment is required pursuant to any other provision of this
Section 9.
(h) Intentionally Omitted.
(i) Any determination as to whether an adjustment in the
Purchase Price in effect hereunder is required pursuant to Section 9, or as to
the amount of any such adjustment, if required, shall be binding upon the
holders of the Warrants and the Company if made in good faith by the Board of
Directors of the Company.
(j) If and whenever the Company shall grant to the holders of
Common Stock, as such, rights or warrants to subscribe for or to purchase, or
any options for the purchase of, Common Stock or securities convertible into or
exchangeable for or carrying a right, warrant, or option to purchase Common
Stock, the Company shall concurrently therewith grant to each Registered Holder
as of the record date for such transaction of the Warrants then outstanding, the
rights, warrants, or options to which each Registered Holder would have been
entitled if, on the record date used to determine the stockholders entitled to
the rights, warrants, or options being granted by the Company, the Registered
Holder were the holder of record of the number of whole shares of Common Stock
then issuable upon exercise (assuming, for purposes of this Section 9(j), that
exercise of Warrants is permissible during periods prior to the Initial Warrant
Exercise Date) of his or her Warrants. Such grant by the Company to the holders
of the Warrants shall be in lieu of any adjustment which otherwise might be
called for pursuant to this Section 9.
10. Fractional Warrants and Fractional Shares.
(a) If the number of shares of Common Stock purchasable upon
the exercise of each Warrant is adjusted pursuant to Section 9 hereof, the
Company nevertheless shall not be required to issue fractions of shares, upon
exercise of the Warrants or otherwise, or to distribute certificates that
evidence fractional shares. With respect to any fraction of a share called for
upon any exercise hereof, the Company shall pay to the Holder an amount in cash
equal to such fraction multiplied by the current market value of such fractional
share, determined as follows:
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(i) If the Common Stock is listed on a national
securities exchange or admitted to unlisted trading privileges on such exchange
or listed for trading on the Nasdaq Stock Market, Inc., the current value shall
be the last reported sale price of the Common Stock on such exchange or market
on the last business day prior to the date of exercise of this Warrant or if no
such sale is made on such day, the average of the closing bid and asked prices
for such day on such exchange or market; or
(ii) If the Common Stock is not listed or admitted to
unlisted trading privileges, the current value shall be the mean of the last
reported bid and asked prices reported by the National Quotation Bureau, Inc. on
the last business day prior to the date of the exercise of this Warrant; or
(iii) If the Common Stock is not so listed or
admitted to unlisted trading privileges and bid and asked prices are not so
reported, the current value shall be an amount determined in such reasonable
manner as may be prescribed by the Board of Directors of the Company.
11. Warrant Holders Not Deemed Stockholders. No holder of Warrants
shall, as such, be entitled to vote or to receive dividends or be deemed the
holder of Common Stock that may at any time be issuable upon exercise of such
Warrants for any purpose whatsoever, nor shall anything contained herein be
construed to confer upon the holder of Warrants, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action (whether upon any recapitalization,
issue or reclassification of stock, change of par value or change of stock to no
par value, consolidation, merger, or conveyance or otherwise), or to receive
notice of meetings, or to receive dividends or subscription rights, until such
Holder shall have exercised such Warrants and been issued shares of Common Stock
in accordance with the provisions hereof.
12. Rights of Action. All rights of action with respect to this
Agreement are vested in the respective Registered Holders of the Warrants, and
any Registered Holder of a Warrant, without consent of the Warrant Agent or of
the holder of any other Warrant, may, in such Registered Holder's own behalf and
for such Registered Holder's own benefit, enforce against the Company such
Registered Holder's right to exercise his Warrants for the purchase of shares of
Common Stock in the manner provided in the Warrant Certificate and this
Agreement.
13. Agreement of Warrant Holders. Every Registered Holder of
a Warrant, by his or her acceptance thereof, consents and agrees with the
Company, the Warrant Agent and every other Registered Holder of a Warrant that:
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(a) The Warrants are transferable only on the registry books
of the Warrant Agent by the Registered Holder thereof in person or by his or her
attorney duly authorized in writing and only if the Warrant Certificates
representing such Warrants are surrendered at the office of the Warrant Agent,
duly endorsed or accompanied by a proper instrument of transfer satisfactory to
the Warrant Agent and the Company in their sole discretion, together with
payment of any applicable transfer taxes; and
(b) The Company and the Warrant Agent may deem and treat the
person in whose name the Warrant Certificate is registered as the holder and as
the absolute, true, and lawful owner of the Warrants represented thereby for all
purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice or knowledge to the contrary, except as otherwise expressly provided in
Section 7 hereof.
14. Cancellation of Warrant Certificates. If the Company shall purchase
or acquire any Warrant or Warrants, the Warrant Certificate or Warrant
Certificates evidencing the same shall thereupon be delivered to the Warrant
Agent and cancelled by it and retired. The Warrant Agent shall also cancel
Common Stock following exercise of any or all of the Warrants represented
thereby or delivered to it for transfer, split-up, combination, or exchange.
15. Concerning the Warrant Agent. The Warrant Agent acts hereunder as
agent and in a ministerial capacity for the Company, and its duties shall be
determined solely by the provisions hereof. The Warrant Agent shall not, by
issuing and delivering Warrant Certificates or by any other act hereunder be
deemed to make any representations as to the validity, value, or authorization
of the Warrant Certificates or the Warrants represented thereby or of any
securities or other property delivered upon exercise of any Warrant or whether
any stock issued upon exercise of any Warrant is fully paid and nonassessable.
The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of Warrant Certificates to make or cause to be made
any adjustment of the Purchase Price or the Redemption Price provided in this
Agreement, or to determine whether any fact exists which may require any such
adjustments, or with respect to the nature or extent of any such adjustment,
when made, or with respect to the method employed in making the same. It shall
not (i) be liable for any recital or statement of facts contained herein or for
any action taken, suffered, or omitted by it in reliance on any Warrant
Certificate or other document or instrument believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties,
(ii) be responsible for any failure on the part of the Company to comply with
any of its covenants and obligations contained in this Agreement or in any
Warrant Certificate, or (iii) be liable for any
17
<PAGE>
act or omission in connection with this Agreement except for its own negligence
or wilful misconduct.
The Warrant Agent may at any time consult with counsel
satisfactory to it (who may be counsel for the Company) and shall incur no
liability or responsibility for any action taken, suffered or omitted by it in
good faith in accordance with the opinion or advice of such counsel.
Any notice, statement, instruction, request, direction, order,
or demand of the Company shall be sufficiently evidenced by an instrument signed
by the Chairman of the Board, President, any Vice President, its Secretary, or
Assistant Secretary (unless other evidence in respect thereof is herein
specifically prescribed). The Warrant Agent shall not be liable for any action
taken, suffered or omitted by it in accordance with such notice, statement,
instruction, request, direction, order, or demand believed by it to be genuine.
The Company agrees to pay the Warrant Agent reasonable
compensation for its services hereunder and to reimburse it for its reasonable
expenses hereunder; it further agrees to indemnify the Warrant Agent and save it
harmless against any and all losses, expenses, and liabilities, including
judgments, costs, and counsel fees, for anything done or omitted by the Warrant
Agent in the execution of its duties and powers hereunder except losses,
expenses, and liabilities arising as a result of the Warrant Agent's negligence
or wilful misconduct.
The Warrant Agent may resign its duties and be discharged from
all further duties and liabilities hereunder (except liabilities arising as a
result of the Warrant Agent's own negligence or wilful misconduct), after giving
60 days' prior written notice to the Company. At least 15 days prior to the date
such resignation is to become effective, the Warrant Agent shall cause a copy of
such notice of resignation to be mailed to the Registered Holder of each Warrant
Certificate at the Company's expense. Upon such resignation, or any inability of
the Warrant Agent to act as such hereunder, the Company shall appoint a new
warrant agent in writing. If the Company shall fail to make such appointment
within a period of 30 days after it has been notified in writing of such
resignation by the resigning Warrant Agent, then the Registered Holder of any
Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a new warrant agent. Any new warrant agent, whether appointed by
the Company or by such a court, shall be a bank or trust company having a
capital and surplus, as shown by its last published report to its stockholders,
of not less than $10,000,000 or a stock transfer company. After acceptance in
writing of such appointment by the new warrant agent is received by the Company,
such new warrant agent shall be vested with the same powers, rights, duties, and
responsibilities as if it had been originally named herein as the
18
<PAGE>
Warrant Agent, without any further assurance, conveyance, act, or deed; but if
for any reason it shall be necessary or expedient to execute and deliver any
further assurance, conveyance, act, or deed, the same shall be done at the
expense of the Company and shall be legally and validly executed and delivered
by the resigning Warrant Agent. Not later than the effective date of any such
appointment the Company shall file notice thereof with the resigning Warrant
Agent and shall forthwith cause a copy of such notice to be mailed to the
Registered Holder of each Warrant Certificate.
Any corporation into which the Warrant Agent or any new
warrant agent may be converted or merged or any corporation resulting from any
consolidation to which the Warrant Agent or any new warrant agent shall be a
party or any corporation succeeding to the trust business of the Warrant Agent
shall be a successor warrant agent under this Agreement without any further act,
provided that such corporation is eligible for appointment as successor to the
Warrant Agent under the provisions of the preceding paragraph. Any such
successor warrant agent shall promptly cause notice of its succession as warrant
agent to be mailed to the Company and to the Registered Holder of each Warrant
Certificate.
The Warrant Agent, its subsidiaries and affiliates, and any of
its or their officers or directors, may buy and hold or sell Warrants or other
securities of the Company and otherwise deal with the Company in the same manner
and to the same extent and with like effects as though it were not Warrant
Agent. Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
16. Modification of Agreement. The Warrant Agent and the Company may by
supplemental agreement make any changes or corrections in this Agreement (i)
that they shall deem appropriate to cure any ambiguity or to correct any
defective or inconsistent provision or manifest mistake or error herein
contained; or (ii) that they may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Warrant Certificates; provided,
however, that this Agreement shall not otherwise be modified, supplemented, or
altered in any respect except with the consent in writing of the Registered
Holders of Warrant Certificates representing not less than 50% of the Warrants
then outstanding; and provided, further, that no change in the number or nature
of the securities purchasable upon the exercise of any Warrant, or the Purchase
Price therefor, or the acceleration of the Warrant Expiration Date, shall be
made without the consent in writing of the Registered Holder of the Warrant
Certificate representing such Warrant, other than such changes as are
specifically prescribed by this Agreement as originally executed or are made in
compliance with applicable law.
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<PAGE>
17. Notices. All notices, requests, consents, and other communications
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first class registered or certified mail, postage prepaid as
follows: if to the Registered Holder of a Warrant Certificate, at the address of
such Holder as shown on the registry books maintained by the Warrant Agent; if
to the Company, 43 Emery Avenue, Flemington, New Jersey 08822, Attention:
President, with a copy sent to Reed Smith Shaw & McClay, One Riverfront Plaza,
Newark, NJ 07102-5311, Attention: Gerard S. Difiore, Esq. or at such other
address as may have been furnished to the Warrant Agent in writing by the
Company; and if to the Warrant Agent, at its Corporate office.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to
principles of conflicts of law.
19. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Company and the Warrant Agent and their respective successors
and assigns, and the holders from time to time of Warrant Certificates. Nothing
in this Agreement is intended or shall be construed to confer upon any other
person any right, remedy, or claim, in equity or at law, or to impose upon any
other person any duty, liability, or obligation.
20. Termination. This Agreement shall terminate at the close of
business on the Warrant Expiration Date of all the Warrants or such earlier date
upon which all Warrants have been exercised, except that the Warrant Agent shall
account to the Company for cash held by it and the provisions of Section 15
hereof shall survive such termination.
21. Counterparts. This Agreement may be executed in several
counterparts, which taken together shall constitute a single document.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
FLEMINGTON PHARMACEUTICAL CORPORATION
By: _________________________________
Its: Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: _______________________________
Its: Authorized Officer
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<PAGE>
EXHIBIT A
[Form of Face of Warrant Certificate]
No. W Warrants
VOID AFTER ________ __, 2002
STOCK PURCHASE WARRANT CERTIFICATE FOR PURCHASE OF COMMON STOCK
FLEMINGTON PHARMACEUTICAL CORPORATION
THIS CERTIFIES THAT FOR VALUE RECEIVED
or registered assigns (the "Registered Holder") is the owner of the number of
Redeemable Class A Common Stock Purchase Warrants ("Warrants") specified above.
Each Warrant initially entitles the Registered Holder to purchase, subject to
the terms and conditions set forth in this Certificate and the Warrant Agreement
(as hereinafter defined), one fully paid and nonassessable share of Common
Stock, par value $.01 per share ("Common Stock"), of FLEMINGTON PHARMACEUTICAL
CORPORATION, a New Jersey corporation (the "Company"), at any time between the
Initial Warrant Exercise Date and the Expiration Date (as hereinafter defined),
upon the presentation and surrender of this Warrant Certificate with the
Subscription Form on the reverse hereof duly executed, at the corporate office
of AMERICAN STOCK TRANSFER & TRUST COMPANY as Warrant Agent, or its successor
(the "Warrant Agent"), accompanied by payment of $4.25 (the "Purchase Price") in
lawful money of the United States of America in cash or by official bank or
certified check made payable to Flemington Pharmaceutical Corporation.
This Warrant Certificate and each Warrant represented hereby are issued
pursuant to and are subject in all respects to the terms and conditions set
forth in the Warrant Agreement (the "Warrant Agreement") dated ________ __,
1997, by and between the Company and the Warrant Agent.
In the event of certain contingencies provided for in the Warrant
Agreement, the Purchase Price or the number of shares of Common Stock subject to
purchase upon the exercise of each Warrant represented hereby are subject to
modifications or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional shares of Common Stock will be issued. In
the case of the exercise of less than all the Warrants represented hereby, the
Company shall cancel this Warrant Certificate upon the surrender hereof and
shall execute and deliver a new Warrant Certificate or Warrant Certificates of
like tenor, which the Warrant Agent shall countersign, for the balance of such
Warrants.
<PAGE>
The term "Initial Warrant Exercise Date" shall mean ________ __, 1998.
The term "Expiration Date" shall mean 5:00 p.m. (New York time) on
________ __, 2002, or such earlier date as the Warrants shall be redeemed. If
such date shall in the State of New York be a holiday or a day on which the
banks are authorized to close, then the Expiration Date shall mean 5:00 p.m.
(New York time) the next following day which in the State of New York is not a
holiday or a day on which banks are authorized to close.
The Company shall not be obligated to deliver any securities pursuant
to the exercise of this Warrant unless a registration statement under the
Securities Act of 1933, as amended, with respect to such securities is
effective. This Warrant shall not be exercisable by a Registered Holder in any
state where such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof by
the Registered Holder at the corporate office of the Warrant Agent, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Warrants, each of such new Warrant Certificates to represent
such number of Warrants as shall be designated by such Registered Holder at the
time of such surrender. Upon due presentment with any transfer fee in addition
to any tax or other governmental charge imposed in connection therewith, for
registration of transfer of this Warrant Certificate at such office, a new
Warrant Certificate or Warrant Certificates representing an equal aggregate
number of Warrants will be issued to the transferee in exchange therefor,
subject to the limitations provided in the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the Registered
Holder shall not be entitled to any rights of a stockholder of the Company,
including, without limitation, the right to vote or to receive dividends or
other distributions, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided in the Warrant Agreement.
This Warrant may be redeemed at the option of the Company, at a
redemption price of $.10 per Warrant at any time after ________ __, 1998 or
earlier with the consent of Monroe Parker Securities, Inc., provided the Market
Price (as defined in the Warrant Agreement) for the securities issuable upon
exercise of such Warrant shall exceed 260% of the then exercise price of the
Warrants. Notice of redemption shall be given not later than the thirtieth day
before the date fixed for redemption, all as provided in the Warrant Agreement.
On and after the date fixed for redemption, the Registered Holder shall have no
rights with respect to this Warrant except to receive the $.10 per Warrant upon
surrender of this Certificate.
Prior to due presentment for registration of transfer hereof, the
Company and the Warrant Agent may deem and treat the Registered Holder as the
absolute owner hereof and of each Warrant represented hereby (notwithstanding
any notations of ownership or writing hereon made by anyone other than a duly
authorized officer of the Company or
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<PAGE>
the Warrant Agent) for all purposes and shall not be affected by any notice to
the contrary.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of New Jersey without reference to
principles of conflicts of law.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed, manually or in facsimile by two of its officers thereunto duly
authorized and a facsimile of its corporate seal to be imprinted hereon.
FLEMINGTON PHARMACEUTICAL CORPORATION
By: ________________________________
Its: Chief Executive Officer
Date: ______________________________
[Seal]
COUNTERSIGNED:
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Warrant Agent
By: ______________________________
Its: Authorized Officer
3
<PAGE>
[Form of Reverse of Warrant Certificate]
SUBSCRIPTION FORM
To Be Executed by the Registered Holder in Order to Exercise Warrants
THE UNDERSIGNED REGISTERED HOLDER hereby irrevocably elects to exercise
_____ Warrants represented by this Warrant Certificate, and to purchase the
securities issuable upon the exercise of such Warrants, and requests that
certificates for such securities shall be issued in the name of
____________________________________________
(please insert social security or other identifying number)
and be delivered to
____________________________________________
____________________________________________
____________________________________________
____________________________________________
(please print or type name and address)
and if such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated below:
____________________________________________
____________________________________________
____________________________________________
(Address)
____________________________________________
(Date)
____________________________________________
(Taxpayer Identification Number)
If this Warrant has been solicited by a member of the National Association of
Securities Dealers, Inc., the name of such firm is:__________:
<PAGE>
SIGNATURE GUARANTEED
ASSIGNMENT
To Be Executed by the Registered Holder in Order to Assign Warrants
FOR VALUE RECEIVED, hereby sells, assigns, and transfers unto
____________________________________________
(please insert social security or other identifying number)
____________________________________________
____________________________________________
____________________________________________
____________________________________________
(please print or type name and address)
of the Warrants represented by this Warrant Certificate, and hereby irrevocably
constitutes and appoints _________________________________ Attorney to transfer
this Warrant Certificate on the books of the Company, with full power of
substitution in the premises.
____________________________________________
(Date)
SIGNATURE GUARANTEED
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE
GUARANTEED BY AN ELIGIBLE INSTITUTION (AS DEFINED IN RULE 17Ad-15 UNDER THE
SECURITIES AND EXCHANGE ACT OF 1934) WHICH MAY INCLUDE A COMMERCIAL BANK OR
TRUST COMPANY, SAVINGS ASSOCIATION, CREDIT UNION OR A MEMBER FIRM OF THE
AMERICAN STOCK EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR
MIDWEST STOCK EXCHANGE.
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Option to Purchase
70,000 Units
FLEMINGTON PHARMACEUTICAL CORPORATION
PURCHASE OPTION
Dated: __________, 1997
THIS CERTIFIES that Monroe Parker Securities, Inc., 2500 Westchester
Avenue, Purchase, NY 10577 (hereinafter sometimes referred to as the "Holder"),
is entitled to purchase from FLEMINGTON PHARMACEUTICAL CORPORATION (hereinafter
referred to as the "Company"), at the prices and during the periods as
hereinafter specified, up to 70,000 Units ("Units"), each Unit consisting of two
(2) shares of Common Stock, par value $.01 per share ("Common Stock"), and two
(2) Class A Redeemable Common Stock Purchase Warrants ("Warrants"). Each Warrant
entitles the registered holder thereof to purchase one (1) share of Common Stock
at an exercise price of $4.25 per share. The Warrants (hereinafter, the
"Warrants") are exercisable for a four year period, commencing __________,
1998(one (1) year from the Effective Date). Hereinafter, the Units, shares of
Common Stock and Warrants shall be referred to as an "Option Securities" or
"Securities."
The Securities have been registered under a Registration Statement on
Form SB-2 (File No. 333-________) declared effective by the Securities and
Exchange Commission on __________, 1997 (the "Registration Statement"). This
Option (the "Option") to purchase 70,000 Units was originally issued pursuant to
an underwriting agreement between the Company and Monroe Parker Securities, Inc.
as underwriter (the "Underwriter"), in connection with a public offering of
700,000 Units (collectively, the "Public Securities") through the Underwriter,
in consideration of $10.00 received for the Option.
Except as specifically otherwise provided herein, the Common Stock and
the Warrants issued pursuant to this Option shall bear the same terms and
conditions as described under the caption "Description of Securities" in the
Registration Statement, and the Warrants shall be governed by the terms of the
Warrant Agreement dated as of __________, 1997, executed in connection with such
public offering (the "Warrant Agreement"), except that the holder shall have
registration rights under the Securities Act of 1933, as amended (the "Act"),
for the Option, the Units, the Common Stock and the Warrants included in the
Option, and the shares of Common Stock underlying the Warrants, as more fully
described in paragraph 6 of this Option. In the event of any reduction of the
<PAGE>
exercise price of the Warrants included in the Public Securities, the same
changes to the Warrants included in the Option and the components thereof shall
be simultaneously effected.
1. The rights represented by this Option shall be exercised at the
prices, subject to adjustment in accordance with paragraph 8 of this Option, and
during the periods as follows:
(a) Between __________, 1998 (one (1) year from the Effective
Date) and __________, 2002, inclusive, the Holder shall have the option to
purchase Units hereunder at a price of $8.40 per Unit (subject to adjustment
pursuant to paragraph 8 hereof) (the "Exercise Price").
(b) After __________, 2002, the Holder shall have no
right to purchase any Units hereunder.
2. The rights represented by this Option may be exercised at any time
within the period above specified, in whole or in part, by (i) the surrender of
this Option (with the purchase form at the end hereof properly executed) at the
principal executive office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to the Holder at the address of
the Holder appearing on the books of the Company); (ii) payment to the Company
of the Exercise Price then in effect for the number of Option Securities
specified in the above-mentioned purchase form together with applicable stock
transfer taxes, if any; and (iii) delivery to the Company of a duly executed
agreement signed by the person(s) designated in the purchase form to the effect
that such person(s) agree(s) to be bound by the provisions of paragraph 6 and
subparagraphs (b), (c) and (d) of paragraph 7 hereof. This Option shall be
deemed to have been exercised, in whole or in part to the extent specified,
immediately prior to the close of business on the date this Option is
surrendered and payment is made in accordance with the foregoing provisions of
this paragraph 2, and the person or persons in whose name or names the
certificates for shares of Common Stock and Warrants shall be issuable upon such
exercise shall become the holder or holders of record of such Common Stock and
Warrants at that time and date. The Common Stock and Warrants and the
certificates for the Common Stock and Warrants so purchased shall be delivered
to the Holder within a reasonable time, not exceeding ten (10) days, after the
rights represented by this Option shall have been so exercised.
3. This Option shall not be transferred, sold, assigned, or
hypothecated for a period of one (1) year from the Effective Date, except that
it may be transferred to successors of the Holder, and may be assigned in whole
or in part to any person who is an officer of the Holder or selling group member
of the offering during such period. Any transfer after one (1) year must be
accompanied with an immediate exercise of the Option. Any such assignment shall
be effected by the Holder (i) executing the form of assignment at the
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<PAGE>
end hereof and (ii) surrendering this Option for cancellation at the office or
agency of the Company referred to in paragraph 2 hereof, accompanied by a
certificate (signed by an officer of the Holder if the Holder is a corporation),
stating that each transferee is a permitted transferee under this paragraph 3
hereof; whereupon the Company shall issue, in the name or names specified by the
Holder (including the Holder) a new Option or Options of like tenor and
representing in the aggregate rights to purchase the same number of Option
Securities as are purchasable hereunder.
4. The Company covenants and agrees that all shares of Common Stock
which may be issued as part of the Option Securities purchased hereunder and the
Common Stock which may be issued upon exercise of the Warrants will, upon
issuance, be duly and validly issued, fully paid and nonassessable. The Company
further covenants and agrees that during the periods within which this Option
may be exercised, the Company will at all times have authorized and reserved a
sufficient number of shares of its Common Stock to provide for the exercise of
this Option and that it will have authorized and reserved a sufficient number of
shares of Common Stock for issuance upon exercise of the Warrants included in
the Option Securities.
5. This Option shall not entitle the Holder to any voting,
dividend, or other rights as a stockholder of the Company.
6. (a) During the period set forth in paragraph l(a) hereof, the
Company shall advise the Holder or its transferee, whether the Holder holds the
Option or has exercised the Option and holds Option Securities or any of the
securities underlying the Option Securities, by written notice at least 20 days
prior to the filing of any post-effective amendment to the Registration
Statement or of any new registration statement or post-effective amendment
thereto under the Act covering any securities of the Company, for its own
account or for the account of others (other than a registration statement on
Form S-4 or S-8 or any successor forms thereto), and will for a period of five
years from the effective date of the Registration Statement, upon the request of
the Holder within 10 days of the receipt of the Company's notice, include in any
such post-effective amendment or registration statement, such information as may
be required to permit a public offering of the Option, all or any of the Units,
Common Stock, or Warrants included in the Units or the Common Stock issuable
upon the exercise of the Warrants (the "Registrable Securities"). The Company
shall supply prospectuses and such other documents as the Holder may request in
order to facilitate the public sale or other disposition of the Registrable
Securities, use its best efforts to register and qualify any of the Registrable
Securities for sale in such states as such Holder designates provided that the
Company shall not be required to qualify as a foreign corporation or a dealer in
securities or execute a general consent to service of process in any
jurisdiction in any action and do any and all other
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acts and things which may be reasonably necessary or desirable to enable such
Holders to consummate the public sale or other disposition of the Registrable
Securities, and furnish indemnification in the manner provided in paragraph 7
hereof. The Holder shall furnish information and indemnification as set forth in
paragraph 7 except that the maximum amount which may be recovered from the
Holder shall be limited to the amount of proceeds received by the Holder from
the sale of the Registrable Securities. The Company shall use its best efforts
to cause the managing underwriter or underwriters of a proposed underwritten
offering to permit the holders of Registrable Securities requested to be
included in the registration to include such securities in such underwritten
offering on the same terms and conditions as any similar securities of the
Company included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of such offering advises the holders of Registrable
Securities that the total amount of securities which they intend to
include in such offering is such as to materially and adversely affect the
success of such offering, then the amount of securities to be offered for the
accounts of holders of Registrable Securities shall be eliminated, reduced, or
limited to the extent necessary to reduce the total amount of securities to be
included in such offering to the amount, if any, recommended by such managing
underwriter or underwriters (any such reduction or limitation in the total
amount of Registrable Securities to be included in such offering to be borne by
the holders of Registrable Securities proposed to be included therein pro rata).
The Holder will pay its own legal fees and expenses and any underwriting
discounts and commissions on the securities sold by such Holder and shall not be
responsible for any other expenses of such registration.
(b) If any 50% holder (as defined below) shall give notice to
the Company at any time during the period set forth in paragraph l(a) hereof to
the effect that such holder desires to register under the Act this Option or any
of the underlying securities contained in the Option Securities underlying the
Option under such circumstances that a public distribution (within the meaning
of the Act) of any such securities will be involved then the Company will
promptly, but no later than 60 days after receipt of such notice, file a
post-effective
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amendment to the current Registration Statement or a new registration statement
pursuant to the Act, to the end that the Option and/or any of the Securities
underlying the Option Securities may be publicly sold under the Act as promptly
as practicable thereafter and the Company will use its best efforts to cause
such registration to become and remain effective for a period of 120 days
(including the taking of such steps as are reasonably necessary to obtain the
removal of any stop order); provided that such holder shall furnish the Company
with appropriate information in connection therewith as the Company may
reasonably request in writing. The 50% holder (which for purposes hereof shall
mean any direct or indirect transferee of such holder) may, at its option,
request the filing of a post-effective amendment to the current Registration
Statement or a new registration statement under the Act with respect to the
Registrable Securities on only one occasion during the term of this Option. The
Holder may at its option request the registration of the Option and/or any of
the securities underlying the Option in a registration statement made by the
Company as contemplated by Section 6(a) or in connection with a request made
pursuant to this Section 6(b) prior to acquisition of the Securities issuable
upon exercise of the Option and even though the Holder has not given notice of
exercise of the Option. The 50% holder may, at its option, request such
post-effective amendment or new registration statement during the described
period with respect to the Option or separately as to the Common Stock and/or
Warrants included in the Option and/or the Common Stock issuable upon the
exercise of the Warrants, and such registration rights may be exercised by the
50% holder prior to or subsequent to the exercise of the Option. Within ten
business days after receiving any such notice pursuant to this subsection (b) of
paragraph 6, the Company shall give notice to the other holders of the Options,
advising that the Company is proceeding with such post-effective amendment or
registration statement and offering to include therein the securities underlying
the Options of the other holders. Each holder electing to include its
Registrable Securities in any such offering shall provide written notice to the
Company within twenty (20) days after receipt of notice from the Company. The
failure to provide such notice to the Company shall be deemed conclusive
evidence of such holder's election not to include its Registrable Securities in
such offering. Each holder electing to include its Registrable Securities shall
furnish the Company with such appropriate information (relating to the
intentions of such holders) in connection therewith as the Company shall
reasonably request in writing. All costs and expenses of only one such
post-effective amendment or new registration statement shall be borne by the
Company, except that the holders shall bear the fees of their own counsel and
any underwriting discounts or commissions applicable to any of the securities
sold by them.
The Company shall be entitled to postpone the filing
of any registration statement pursuant to this Section 6(b) otherwise required
to be prepared and filed by it if (i) the Company is engaged in a material
acquisition, reorganization, or divestiture, (ii) the Company is currently
engaged in a self-tender or exchange offer and the filing of a registration
statement would cause a violation of Rule 10b-6 under the Securities Exchange
Act of 1934, (iii) the Company is engaged in an underwritten offering and the
managing underwriter has advised the Company in writing that such a registration
statement would have a material adverse effect on the consummation of such
offering or (iv) the Company is subject to an underwriter's lock-up as a result
of an underwritten public offering and such underwriter has refused in writing,
the Company's request to waive such lock-up. In the event of such postponement,
the Company shall be required to file the
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registration statement pursuant to this Section 6(b), within 60 days of the
consummation of the event requiring such postponement.
The Company will use its best efforts to maintain
such registration statement or post-effective amendment current under the Act
for a period of at least six months (and for up to an additional three months if
requested by the Holder) from the effective date thereof. The Company shall
supply prospectuses, and such other documents as the Holder may reasonably
request in order to facilitate the public sale or other disposition of the
Registrable Securities, use its best efforts to register and qualify any of the
Registrable Securities for sale in such states as such holder designates,
provided that the Company shall not be required to qualify as a foreign
corporation or a dealer in securities or execute a general consent to service of
process in any jurisdiction in any action and furnish indemnification in the
manner provided in paragraph 7 hereof.
(c) The term "50% holder" as used in this paragraph 6 shall
mean the holder of at least 50% of the Common Stock and the Warrants underlying
the Option (considered in the aggregate) and shall include any owner or
combination of owners of such securities, which ownership shall be calculated by
determining the number of shares of Common Stock held by such owner or owners as
well as the number of shares then issuable upon exercise of the Warrants.
7. (a) Whenever pursuant to paragraph 6 a registration statement
relating to the Option or any shares or warrants issued or issuable upon the
exercise of any Options, is filed under the Act, amended or supplemented, the
Company will indemnify and hold harmless each holder of the securities covered
by such registration statement, amendment, or supplement (such holder being
hereinafter called the "Distributing Holder"), and each person, if any, who
controls (within the meaning of the Act) the Distributing Holder, and each
underwriter (within the meaning of the Act) of such securities and each person,
if any, who controls (within the meaning of the Act) any such underwriter,
against any losses, claims, damages, or liabilities, joint or several, to which
the Distributing Holder, any such controlling person or any such underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in any such registration statement or any preliminary prospectus or
final prospectus constituting a part thereof or any amendment or supplement
thereto, or arise out of or are based upon the omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse the Distributing Holder and each such
controlling person and underwriter for any legal or other expenses reasonably
incurred by the Distributing Holder or such controlling
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<PAGE>
person or underwriter in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the Company
will not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in said
registration statement, said preliminary prospectus, said final prospectus, or
said amendment or supplement in reliance upon and in conformity with written
information furnished by such Distributing Holder or any other Distributing
Holder, for use in the preparation thereof.
(b) The Distributing Holder will indemnify and hold harmless
the Company, each of its directors, each of its officers who have signed said
registration statement and such amendments and supplements thereto, each person,
if any, who controls the Company (within the meaning of the Act) against any
losses, claims, damages, or liabilities, joint and several, to which the Company
or any such director, officer, or controlling person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages, or liabilities
arise out of or are based upon any untrue or alleged untrue statement of any
material fact contained in said registration statement, said preliminary
prospectus, said final prospectus, or said amendment or supplement, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in said registration statement, said preliminary prospectus,
said final prospectus, or said amendment or supplement in reliance upon and in
conformity with written information furnished by such Distributing Holder for
use in the preparation thereof; and will reimburse the Company or any such
director, officer, or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action.
(c) Promptly after receipt by an indemnified party under this
paragraph 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying
party, give the indemnifying party notice of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Paragraph 7.
(d) In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
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indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
paragraph 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof.
8. The Exercise Price in effect at any time and the number and kind of
securities purchasable upon the exercise of this Option shall be subject to
adjustment from time to time upon the happening of certain events as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares of Common
Stock, (ii) subdivide or reclassify its outstanding shares of Common Stock into
a greater number of shares, or (iii) combine or reclassify its outstanding
shares of Common Stock into a smaller number of shares, the Exercise Price in
effect at the time of the record date for such dividend or distribution or of
the effective date of such subdivision, combination or reclassification shall be
adjusted so that it shall equal the price determined by multiplying the Exercise
Price by a fraction, the denominator of which shall be the number of shares of
Common Stock outstanding after giving effect to such action, and the numerator
of which shall be the number of shares of Common Stock outstanding immediately
prior to such action. Notwithstanding anything to the contrary contained in the
Warrant Agreement, in the event an adjustment to the Exercise Price is effected
pursuant to this Subsection (a) (and a corresponding adjustment to the number of
Option Securities is made pursuant to Subsection (d) below), the exercise price
of the Warrants shall be adjusted so that it shall equal the price determined by
multiplying the exercise price of the Warrants by a fraction, the denominator of
which shall be the number of shares of Common Stock outstanding immediately
after giving effect to such action and the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such action.
In such event, there shall be no adjustment to the number of shares of Common
Stock or other securities issuable upon exercise of the Warrants. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock entitling them
to subscribe for or purchase shares of Common Stock (or securities convertible
into Common Stock) at a price (the "Subscription Price") (or having a conversion
price per share) less than the current market price of the Common Stock (as
defined in Subsection (e) below) on the record date mentioned below, the
Exercise Price shall be adjusted so that the same shall equal the price
determined by multiplying the number of shares then comprising an Option
Securities by the product of the Exercise
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Price in effect immediately prior to the date of such issuance multiplied by a
fraction, the numerator of which shall be the sum of the number of shares of
Common Stock outstanding on the record date mentioned below and the number of
additional shares of Common Stock which the aggregate offering price of the
total number of shares of Common Stock so offered (or the aggregate conversion
price of the convertible securities so offered) would purchase at such current
market price per share of the Common Stock, and the denominator of which shall
be the sum of the number of shares of Common Stock outstanding on such record
date and the number of additional shares of Common Stock offered for
subscription or purchase (or into which the convertible securities so offered
are convertible). Such adjustment shall be made successively whenever such
rights or warrants are issued and shall become effective immediately after the
record date for the determination of shareholders entitled to receive such
rights or warrants; and to the extent that shares of Common Stock are not
delivered (or securities convertible into Common Stock are not delivered) after
the expiration of such rights or warrants the Exercise Price shall be readjusted
to the Exercise Price which would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made upon the basis of
delivery of only the number of shares of Common Stock (or securities convertible
into Common Stock) actually delivered.
(c) In case the Company shall hereafter distribute to the
holders of its Common Stock evidences of its indebtedness or assets (excluding
cash dividends or distributions and-dividends or distributions referred to in
Subsection (a) above) or subscription rights or warrants (excluding those
referred to in Subsection (b) above), then in each such case the Exercise Price
in effect thereafter shall be determined by multiplying the number of shares
then comprising an Option Securities by the product of the Exercise Price in
effect immediately prior thereto multiplied by a fraction, the numerator of
which shall be the total number of shares of Common Stock outstanding multiplied
by the current market price per share of Common Stock (as defined in Subsection
(e) below), less the fair market value (as determined by the Company's Board of
Directors) of said assets or evidences of indebtedness so distributed or of such
rights or warrants, and the denominator of which shall be the total number of
shares of Common Stock outstanding multiplied by such current market price per
share of Common Stock. Such adjustment shall be made successively whenever such
a record date is fixed. Such adjustment shall be made whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of shareholders entitled to receive such
distribution.
(d) Whenever the Exercise Price payable upon exercise of this
Option is adjusted pursuant to Subsections (a), (b) or (c) above, the number of
Option Securities purchasable upon exercise of this Option shall simultaneously
be adjusted by multiplying the
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number of Option Securities initially issuable upon exercise of this Option by
the Exercise Price in effect on the date hereof and dividing the product so
obtained by the Exercise Price, as adjusted.
(e) For the purpose of any computation under Subsections
(b) or (c) above, the current market price per share of Common Stock at any date
shall be deemed to be the average of the daily closing prices for 20 consecutive
business days before such date. The closing price for each day shall be the last
sale price regular way or, in case no such reported sale takes place on such
day, the average of the last reported bid and asked prices regular way, in
either case on the principal national securities exchange on which the Common
Stock is admitted to trading or listed, or if not listed or admitted to trading
on such exchange, the average of the highest reported bid and lowest reported
asked prices as reported by NASDAQ, or other similar organization if NASDAQ is
no longer reporting such information, or if not so available, the fair market
price as determined by the Board of Directors.
(f) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at least fifteen
cents ($0.15) in such price; provided, however, that any adjustments which by
reason of this Subsection (i) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment required to be made
hereunder. All calculations under this Section 8 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be. Anything in
this Section 8 to the contrary notwithstanding, the Company shall be entitled,
but shall not be required, to make such changes in the Exercise Price, in
addition to those required by this Section 8, as it shall determine, in its sole
discretion, to be advisable in order that any dividend or distribution in shares
of Common Stock, or any subdivision, reclassification or combination of Common
Stock, hereafter made by the Company shall not result in any Federal Income tax
liability to the holders of Common Stock or securities convertible into Common
Stock (including Warrants issuable upon exercise of this Option).
(g) Whenever the Exercise Price is adjusted, as herein
provided, the Company shall promptly, but no later than 10 days after any
request for such an adjustment by the Holder, cause a notice setting forth the
adjusted Exercise Price and adjusted number of Option Securities issuable upon
exercise of this Option and, if requested, information describing the
transactions giving rise to such adjustments, to be mailed to the Holder, at the
address set forth herein, and shall cause a certified copy thereof to be mailed
to its transfer agent, if any. The Company may retain a firm of independent
certified public accountants selected by the Board of Directors (who may be the
regular accountants employed by the Company) to make any computation required by
this Section 8, and a certificate signed by such firm shall be conclusive
evidence of the correctness of such adjustment.
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(h) In the event that at any time, as a result of an
adjustment made pursuant to Subsection (a) above, the Holder thereafter shall
become entitled to receive any shares of the Company, other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of this
Option shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the Common
Stock contained in Subsections (a) to (g), inclusive above.
(i) No adjustments shall be made in connection with future
public offerings.
9. This Agreement shall be governed by and in accordance with the laws
of the State of New York.
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IN WITNESS WHEREOF, Flemington Pharmaceutical Corporation has
caused this Option to be signed by its duly authorized officers under its
corporate seal, and this Option to be dated as of the date first above written.
FLEMINGTON PHARMACEUTICAL CORPORATION
By:______________________________
Chief Executive Officer
(Corporate Seal)
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PURCHASE FORM
(To be signed only upon exercise of option)
THE UNDERSIGNED, the holder of the foregoing Option, hereby irrevocably
elects to exercise the purchase rights represented by such Option for, and to
purchase thereunder,
_____Units, each consisting of two (2) Shares of Common Stock, par value $.01
per share, of Flemington Pharmaceutical Corporation and two (2) Warrants and
herewith makes payment of $______________ therefor, and requests that the
Warrants and certificates for shares of Common Stock be issued in the name(s)
of, and delivered to _________________________ whose address(es) is (are)
- ---------------------------------------------.
Dated:
<PAGE>
TRANSFER FORM
(To be signed only upon transfer of the Option)
For value received, the undersigned hereby sells, assigns, and
transfers unto _________________________________ the right to purchase Units,
each consisting of two (2) shares of Common Stock and two (2) Warrants of
Flemington Pharmaceutical Corporation, in the numbers set forth below
represented by the foregoing Option to the extent of _____ shares of Common
Stock and ____ Warrants, and appoints _________________________________ attorney
to transfer such rights on the books of Flemington Pharmaceutical Corporation,
with full power of substitution in the premises.
Dated:
By: ______________________________
Address:
______________________________
______________________________
______________________________
In the presence of:
<PAGE>
REED SMITH SHAW & MCCLAY LLP
Formed in the Commonwealth of Pennsylvania
Gerard S. DiFiore One Riverfront Plaza
Resident Counsel Newark, New Jersey 07102-5400
Phone: 973-622-1600
Writer's Direct Fax: 973-622-4747
Numbers:
Phone 973-622-1600
Fax 973-622-4747
[email protected]
August 5, 1997
Flemington Pharmaceutical Corporation
43 Emery Avenue
Flemington, New Jersey 08822
Re: Flemington Pharmaceutical Corporation
Registration Statement on Form SB-2 for up to 805,000 Units
Ladies and Gentlemen:
This opinion is delivered to you in connection with the Registration
Statement on Form SB-2 (the "Registration Statement"), which will be filed on or
about August 6, 1997 by Flemington Pharmaceutical Corporation, a New Jersey
corporation (the "Company") with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act") for
registration under the Act of (a) an aggregate of up to 805,000 units (the
"Units") each unit consisting of (i) two (2) shares (the "Shares") of the
Company's Common Stock, $.01 par value per share ("Common Stock") and (ii) two
(2) Redeemable Class A Common Stock Purchase Warrants (the "Class A Warrants");
and (b) 70,000 units issuable upon exercise of a unit purchase option (the "Unit
Purchase Option") to be issued to Monroe Parker Securities, Inc. (the
"Underwriter"). The Units are to be offered and sold to the public by the
Underwriter on a firm commitment basis pursuant to the Registration Statement.
Each Class A Warrant evidences the right to purchase one (1) share of Common
Stock.
We are familiar with the Articles of Incorporation, the corporate
minute book and the By-Laws of the Company, and the Registration Statement. We
have also examined such other documents, records and certificates and made such
further investigation as we have deemed necessary for the purposes of this
opinion, and we are of the opinion that:
A. The 1,610,000 Shares proposed to be sold by the
Company will, when sold pursuant to the Registration
Statement and the Resolutions of the Board of
Directors of the Company authorizing the same, be
legally issued, fully paid and non-assessable.
B. The 1,610,000 shares of Common Stock issuable upon
exercise of the Class A Warrants, when issued in
accordance with the terms and conditions of the
Warrant Agreement, a form of which is filed as an
Exhibit to the Registration Statement, among the
<PAGE>
Company, the Underwriter, and American Stock Transfer
Transfer and Trust Co., as warrant agent (the
"Warrant Agreement"), will be legally issued, fully
paid and non-assessable.
C. The 70,000 shares of Common Stock included in the
Units issuable upon exercise of the Underwriter's
Unit Purchase Option will, when issued in accordance
with the terms and conditions of the Unit Purchase
Option to be granted by the Company to the
Underwriter, a form of which is filed as an exhibit
to the Registration Statement, be legally issued,
fully paid and non-assessable. The 70,000 shares of
Common Stock issuable upon exercise of the Class A
Warrants underlying the Unit Purchase Option, will,
when issued in accordance with the terms and
conditions of the Unit Purchase Option and the
Warrant Agreement, be legally issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and further consent to the reference to our firm under
the caption "Legal Matters" in the Prospectus forming a part of the Registration
Statement.
By giving the foregoing consent, we do not admit that we come within
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission thereunder.
This opinion is rendered to the Company and no other person may rely
upon it without our written consent.
Very truly yours,
REED, SMITH, SHAW & McCLAY, LLP
<PAGE>
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of the 1st day of June,
1997, between FLEMINGTON PHARMACEUTICAL CORPORATION, a New Jersey corporation
(together with its successors and assigns referred to herein as the
"Corporation"), with principal executive offices located at 43 Emery Avenue,
Flemington, New Jersey 08822 and HARRY A. DUGGER III, Ph.D., residing at 548
Sergeantsville Road, Flemington, New Jersey 08822 (the "Executive").
W I T N E S S E T H
WHEREAS, the Corporation desires to employ Executive as the
Corporation's President and Chief Executive Officer to engage in such activities
and to render such services under the terms and conditions hereof and has
authorized and approved the execution of this Agreement; and
WHEREAS, Executive desires to be employed by the Corporation under the
terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, the parties agree as follows:
1. Employment, Duties and Acceptance.
1.1 Services. During employment hereunder, Executive shall be
President and Chief Executive Officer of the Corporation, shall have the powers
and duties set forth in the Corporation's By-laws and normally held by a
corporate officer holding such a position and shall report directly to the Board
of Directors of the Corporation of which Executive shall be a member (the
"Board"). Executive shall devote Executive's business time, attention, knowledge
and skills faithfully, diligently and to the best of Executive's ability in
furtherance of the business and activities of the Corporation (the "Services").
The principal place of performance by Executive of services hereunder shall be
at the principal offices of the Corporation or such other place as the Board may
designate.
1.2 Acceptance. Executive hereby accepts such employment and agrees to
render the Services.
2. Term of Employment.
2.1 Term. The Executive's employment under this Agreement (the
"Term") shall commence as of the Effective Date (as hereinafter defined) and
shall continue for a term of three (3) years, unless sooner terminated pursuant
to Sections 5 or 9 of this Agreement. Notwithstanding anything to the contrary
contained herein, the provisions of this Agreement governing Protection of
Confidential Information shall continue in effect as specified in Section 10
hereof and survive the expiration or termination hereof.
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2.2 Effective Date. The effective date of this Agreement (the
"Effective Date") shall be the date of the closing of the Corporation's initial
public offering of equity securities (the "IPO").
3. Base Salary and Expense Reimbursement.
3.1 Base Salary. The Corporation shall pay Executive a salary
(the "Base Salary") at the rate of $200,000 per year for the first year of
employment under this Agreement. Payment shall be made monthly, on the last day
of each calendar month. For each subsequent calendar year of employment, the
Base Salary shall be increased by the greater of the "cost of living increase"
(as defined below) or seven and one-half percent (7 1/2%)
3.2 Expense Reimbursement. All travel and other expenses
reasonably incurred by Executive incidental to the rendering of Services to the
Corporation hereunder shall be paid by the Corporation or reimbursed to
Executive upon receipt and approval of expense reports on Corporation forms
supported by appropriate documentation. From time to time, Executive shall
submit, and obtain approval for, proposed expense budgets. All unbudgeted
expenses in excess of $1,000.00 (individually, or collectively if in connection
with a single, related subject or project within a given month) shall require
advance approval.
3.3 Bonuses. In addition, Executive shall be entitled to (a)
such other cash bonuses and other compensation in the form of stock, stock
options or other property or rights as may from time to time be awarded by the
Board in connection with Executive's employment and (b) receive a cash bonus for
each NDA for one of the Corporation's products which is accepted for filing by
FDA, in the amount of $10,000.
3.4 Cost of Living Increase. For purposes of this Agreement,
"cost of living increase" means the annual percentage increase of the U.S.
Department of Labor, BLS, Consumer Price Index (CPI-W) (Philadelphia-New Jersey)
during the twelve month period ending on the date of the most recently available
data as of the respective dates of adjustment.
4. Stock Options.
In connection with this Agreement, the Corporation has granted the
Executive stock options (outside of the Corporation's stock option plans) to
purchase 300,000 shares of the Corporation's common stock, at an exercise price
of $1.84 per share (the "Nonplan Options"). The Nonplan Options may be exercised
by the Executive at any time during the ten (10) years following the date of
grant and, notwithstanding the status of the Executive as an employee of the
Corporation, can not be terminated or revoked by the Corporation.
5. Severance and Change in Control.
5.1 Termination for Good Reason. In the event that Executive's
employment hereunder shall be terminated for Good Reason (as defined in Section
9.4 hereof) at any time prior to the end of the Term, Executive shall be
entitled to receive from the Corporation, in addition to any Base Salary earned
to the date of termination, a severance payment in an amount equal to
Executive's Base Salary for the remainder of the entire Term, payable to the
Executive in biweekly increments until the date on which the Term would have
otherwise expired, had the termination not occurred. Nothing in this Section 5.1
shall affect the exercisability of the Nonplan Options in Section 4 hereof. In
the event of such termination, the amounts due hereunder shall be payable
without offset or defense or any obligation of the Executive to mitigate
damages.
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5.2 Executive's Termination without Good Reason. In the event
that the Executive terminates employment without Good Reason (as defined in
Section 9.4 hereof) at any time prior to the end of the Term, Executive shall be
entitled to receive from the Corporation payment of any unpaid accrued Base
Salary earned through the date of termination. In the event of such termination,
all obligations of the Corporation hereunder shall terminate on the date of
termination and the Executive's termination without Good Reason shall act as a
waiver of all claims to compensation which would have otherwise accrued after
the date of termination. Nothing in this Section 5.2 shall affect the
exercisability of the Nonplan Options in Section 4 hereof or the obligations of
the Executive under Section 10 hereof.
5.3 Change in Control. Executive, at his option, shall be able
to terminate this Agreement upon written notice given to the Secretary of the
Corporation within ninety (90) days of an occurrence of a "Change in Control". A
"Change in Control" of the Corporation shall mean a change in control of the
Corporation or any entity controlling the Corporation (referred to collectively
in this Section 5 as the Corporation) of a nature that would be required to be
reported in response to Item 1 of a Current Report on Form 8-K, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act");
provided that, without limitation, such a Change in Control shall be deemed to
have occurred at such time as (a) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than a person who or which is a
shareholder of the Corporation immediately prior to the IPO, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing twenty-five percent
(25%) or more of the combined voting power of the Corporation's outstanding
securities ordinarily having the right to vote at elections of directors; or (b)
individuals who constitute the Board (the "Incumbent Board") immediately prior
to the Corporation's IPO cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the date
hereof whose election or nomination for election by the Corporation's
shareholders was approved by a vote of at least three quarters of the directors
comprising the Incumbent Board, shall be, for purposes of this clause (b),
considered as though he were a member of the Incumbent Board; or (c) a sale by
the Corporation of all or substantially all of its assets occurs.
Notwithstanding anything in the foregoing to the contrary, no Change in Control
shall be deemed to have occurred for purposes of this Agreement by virtue of any
transactions which result in the acquisition by the Executive, or by a group of
persons which includes the Executive, directly or indirectly, of a majority of
either the outstanding shares of common stock of the Corporation or the voting
securities of any corporation which acquires all or substantially all of the
assets of the Corporation, whether by way of merger, consolidation, sale of such
assets or otherwise. Notwithstanding anything contained in this Agreement to the
contrary, if, while the Executive is employed by the Corporation, a Change in
Control shall occur with or without the prior approval of the Incumbent Board,
then the Corporation shall immediately pay the Executive a lump sum amount equal
to the product of the Executive's Base Salary for the year in which the Change
in Control occurred, and 2.99; provided, however, that the amount so paid shall
not exceed 2.99 times the Executive's "base amount", as such term is defined in
Section 280(G)(b) of the Internal Revenue Code. The lump sum payment specified
in the preceding sentence shall be made in addition to any other compensation
due to the Executive, or his beneficiaries, by the Corporation, including but
not limited to salary, severance pay, consulting fees, disability benefits,
termination benefits, retirement benefits, life and health insurance benefits,
stock ownership or stock option benefits.
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6. Additional Benefits.
During Executive's employment, the Corporation shall cause Executive to
be covered by all the Corporation's employee benefit plans, in effect from time
to time, for which Executive is eligible, including without limitation, any
retirement plan or group insurance. In addition, to facilitate Executive's
travel on Corporation business, during employment the Corporation shall furnish
Executive, without cost to Executive, but in accordance with any applicable IRS
requirements and limitations, a Corporation owned or leased, and Corporation
insured, automobile chosen by the Corporation. Notwithstanding the foregoing,
Executive recognizes that each year the Corporation must report to the IRS an
amount of income to be charged to Executive as taxable income representing the
fair value of Executive's personal use of such automobile. In addition, the
Corporation shall pay or reimburse all reasonable expenses of maintaining and
operating such automobile.
7. Vacation.
Executive shall be entitled to such holidays as are in effect for all
of the Corporation's employees, and to sick leave in accordance with Corporation
policy as in effect from time to time. In addition, Executive shall be entitled
to six weeks vacation days (thirty business days) during the initial year of
this Agreement. During the second and third years of this Agreement, Executive
shall be entitled to seven and eight weeks vacation time, respectively. The
timing of the taking of vacation is left to the discretion of Executive,
provided the same is not inconsistent with the reasonable business requirements
of the Corporation. Vacation days not used by Executive during a given year may
be accumulated and carried forward to future years.
8. Indemnification.
The Corporation shall indemnify Executive and hold Executive harmless
against any and all expenses reasonably incurred by him in connection with or
arising out of (a) the defense of any action, suit or proceeding to which
Executive is a named party, or (b) any claim asserted or threatened against
Executive, provided, in either case, the matter has arisen because of or in
connection with Executive's being or having been an employee, officer or
director of the Corporation, whether or not he continues to be such at the time
the expenses indemnified against are incurred, except insofar as (a) such
indemnification may be prohibited by law, (b) the expenses were incurred in
connection with a matter where the Corporation is or was in an adversarial
position to Executive and the Corporation prevailed against Executive in such
matter, or (c) the expenses were incurred in connection with a matter arising
out a material breach by Executive of this Agreement or of Executive's
obligations to the Corporation. Expenses indemnified against include, without
limitation, reasonable attorneys fees, money judgments and money settlements,
provided the Corporation's advance approval has been sought and obtained. This
Section 8 is independent of any similar indemnification obligation which may be
contained in the Corporation's Certificate of Incorporation or By-laws, and
applies as well to matters attributable to Executive's employment by the
Corporation before the Effective Date of this Agreement, if applicable.
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9. Termination.
9.1 Death. If Executive dies during the Term of this
Agreement, Executive's employment hereunder shall terminate upon his death and
all obligations of the Corporation hereunder shall terminate on such date,
except that Executive's estate or his designated beneficiary shall be entitled
to payment of any unpaid accrued Base Salary through the date of his death.
9.2 Disability. If Executive shall be unable to perform a
significant part of his duties and responsibilities in connection with the
conduct of the business and affairs of the Corporation and such inability lasts
for a period of at least 180 consecutive days by reason of Executive's physical
or mental disability, whether by reason of injury, illness or similar cause,
Executive shall be deemed disabled, and the Corporation any time thereafter may
terminate Executive's employment hereunder by reason of the disability. During
such 180 day period, the Base Salary and other benefits payable to Executive
hereunder shall not be suspended or diminished, except to the extent equivalent
to the extent of any Corporation-provided disability insurance in effect. Upon
delivery to Executive of notice to terminate, all obligations of the Corporation
hereunder shall terminate, except that Executive shall be entitled to payment of
any unpaid accrued Base Salary through the date of termination. The obligations
of Executive under Section 10 hereof shall continue notwithstanding termination
of Executive's employment pursuant to this Section 9.2.
9.3 Termination For Cause. The Corporation may at any time
during the Term, with 30 days prior written notice, terminate this Agreement and
discharge Executive for Cause, whereupon the Corporation's obligation to pay
compensation or other amounts payable hereunder to or for the benefit of
Executive shall terminate on the date of such discharge. As used herein the term
"Cause" shall be deemed to mean and include: (i) a material breach by Executive
of this Agreement including without limitation a breach by Executive of the
obligations set forth in Section 10 hereof; (ii) excessive absenteeism,
alcoholism or drug abuse; (iii) substantial neglect or inattention by Executive
of or to his duties hereunder; (iv) willful violation of specific and lawful
written or oral direction from the Board of Directors of the Corporation
provided such direction is not inconsistent with the Executive's duties and
responsibilities as President and Chief Executive Officer of the Corporation; or
(v) fraud, criminal conduct or embezzlement. The following shall be deemed a
material breach for the purposes of Subsection (i) hereof: (a) the Executive's
conviction for, or a plea of nolo contendere to, a felony or a crime involving
moral turpitude (which, through lapse of time or otherwise, is not subject to
appeal); (b) willful misconduct as an employee of the Corporation; or (c)
willful or reckless disregard of his responsibilities under this Agreement. The
obligations of the Executive under Section 10 shall continue notwithstanding
termination of the Executive's employment pursuant to this Section 9.3.
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9.4 Termination by Executive. The Executive shall have the
right to terminate this Agreement for Good Reason, as hereinafter defined. Good
Reason shall mean any of the following: (i) the assignment to the Executive of
duties inconsistent with the Executive's position, duties, responsibilities,
titles or offices as described herein; (ii) any material reduction by the
Corporation of the Executive's duties and responsibilities (including the
appointment, without the Executive's consent, of an executive officer senior to
him); (iii) any reduction by the Corporation of the Executive's compensation or
benefits payable hereunder (it being understood that a reduction of benefits
applicable to all employees of the Corporation, including the Executive, shall
not be deemed a reduction of the Executive's compensation package for purposes
of this definition); or (iv) requiring the Executive to be based without his
consent at a location not within reasonable commuting distance of Flemington,
New Jersey.
10. Confidentiality; Non-Competition.
10.1 Confidentiality. The Corporation and Executive
acknowledge that the services to be performed by Executive under this Agreement
are unique and extraordinary, and, as a result of Executive's employment
hereunder, Executive will be in possession of confidential information and trade
secrets relating to the business and affairs of both the Corporation and its
clients. Executive agrees that Executive will not, other than in the ordinary
course of business and subject to receipt of an appropriate Confidentiality
Agreement, during or after any term of employment, directly or indirectly use or
disclose to any person, firm or corporation any confidential information
regarding the clients, customers, business practices, products, research
programs of the Corporation or its clients acquired by Executive during
Executive's employment, unless Executive has obtained the Corporation's advance
written consent specifically authorizing Executive's disclosure or use thereof.
10.2 Non-Competition. Executive agrees that, for a period
beginning with the Effective Date of this Agreement and ending twelve months
after the date of termination of employment by the Company, Executive will not,
either individually or in conjunction with any person, firm, association,
syndicate, company or corporation, directly or indirectly (as principal, agent,
employee, director, officer, shareholder, partner, independent contractor,
individual proprietor, or as an investor who has made advances, loans or
contributions to capital, or in any other manner whatsoever) compete with
company in the business then conducted by Company. Executive also agrees that,
during such period, Executive will not solicit or encourage any persons who,
during such period, were employees of Company to (i) terminate such persons'
employment with Company; or (ii) become affiliated with any person, firm,
association, syndicate, company or corporation which is in a business similar to
that of the Company and in which Executive, either directly or indirectly, has
an interest. If Company directs Executive to cease and desist a proposed
post-termination course of conduct, on the grounds that he is proposing to
compete with the Company's business, during this one-year post-termination
period, Company shall compensate Executive by paying him his base Salary during
the period he is prevented from pursuing such activity.
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10.3 Anti-Raiding. Executive agrees that during the term of
his employment hereunder, and, thereafter for a period of one (1) year,
Executive will not, as principal, agent, employee, employer, consultant,
director or partner of any person, firm, corporation or business entity other
that the Corporation, or in any individual or representative capacity
whatsoever, directly or indirectly, without the prior express written consent of
the Corporation approach, counsel or attempt to induce any person who is then in
the employ of the Corporation to leave the employ of the Corporation or employ
or attempt to employ any such person or persons who at any time during the
preceding six months was in the employ of the Corporation.
10.4 Injunction. Executive acknowledges and agrees that,
because of the unique and extraordinary nature of his services, any breach or
threatened breach of any of the above provisions of this Section 10 hereof will
cause the Corporation irreparable injury and incalculable harm and, therefore,
the Corporation will have "no adequate remedies at law". Executive, therefore,
agrees in advance that Corporation shall be entitled to injunctive and other
equitable relief for such breach or threatened breach and that resort by the
Corporation to such injunctive or other equitable relief shall not be deemed to
waive or to limit in any respect any right or remedy which the Corporation may
have with respect to such breach or threatened breach. The Executive agrees that
in such action, if the Corporation makes a prima facie showing that Executive
has violated or apparently intends to violate any of the provisions of this
Section 10, the Corporation need not prove either damage or irreparable injury
in order to obtain injunctive relief. The Corporation and Executive agree that
any such action for injunctive or equitable relief shall be heard in a state or
federal court situated in New Jersey and each of the parties hereto agrees to
accept service of process by registered mail and to otherwise consent to the
jurisdiction of such courts.
10.5 No Indemnification. The provisions of Section 8, above,
do not apply to any expenses incurred by Executive in defending against any
claim made pursuant to this Section 10.
10.6 Severability. If any provision contained within this
Section 10 is found to be unenforceable by reason of the extent, duration or
scope thereof, or otherwise, then such restriction shall be enforced to the
maximum extent permitted by law, and Executive agrees that such extent, duration
or scope may be modified in any proceeding brought to enforce such restriction.
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11. Arbitration.
Except with respect to any proceeding brought under Section 10 hereof,
any controversy, claim, or dispute between the parties, directly or indirectly,
concerning this Employment Agreement or the breach hereof, or the subject matter
hereof, including questions concerning the scope and applicability of this
arbitration clause, shall be finally settled by arbitration in the State of New
Jersey pursuant to the rules then applying of the American Arbitration
Association. The arbitrators shall consist of one representative selected by the
Corporation, one representative selected by the Executive and one representative
selected by the first two arbitrators. The parties agree to expedite the
arbitration proceeding in every way, so that the arbitration proceeding shall be
commenced within thirty (30) days after request therefore is made, and shall
continue thereafter, without interruption, and that the decision of the
arbitrators shall be handed down within thirty (30) days after the hearings in
the arbitration proceedings are closed. The arbitrators shall have the right and
authority to assess the cost of the arbitration proceedings and to determine how
their decision or determination as to each issue or matter in dispute may be
implemented or enforced. The decision in writing of any two of the arbitrators
shall be binding and conclusive on all of the parties to this Agreement. Should
either the Corporation or the Executive fail to appoint an arbitrator as
required by this Section 11 within thirty (30) days after receiving written
notice from the other party to do so, the arbitrator appointed by the other
party shall act for all of the parties and his decision in writing shall be
binding and conclusive on all of the parties to this Employment Agreement. Any
decision or award of the arbitrators shall be final and conclusive on the
parties to this Agreement; judgment upon such decision or award may be entered
in any competent Federal or state court located in the United States of America;
and the application may be made to such court for confirmation of such decision
or award for any order of enforcement and for any other legal remedies that may
be necessary to effectuate such decision or award.
12. Notices.
All notices, requests, consents and other communications required or
permitted to be given hereunder, shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by prepaid telegram, telecopy or
mailed first-class, postage prepaid, by registered or certified mail (notices
sent by telegram or mailed shall be deemed to have been given on the date sent),
to the parties at their respective addresses hereinabove set forth or to such
other address as either party shall designate by notice in writing to the other
in accordance herewith. Copies of all notices shall be sent to Gerard S.
DiFiore, Esq. at Reed Smith Shaw & McClay LLP, One Riverfront Plaza, First
Floor, Newark, NJ 07102.
13. General.
13.1 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the local laws of the State of New
Jersey applicable to agreements made and to be performed entirely in New Jersey.
13.2 Captions. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
13.3 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
hereof, and supersedes all prior agreements, arrangements and understandings,
written or oral, relating to the subject matter hereof. No representation,
promise or inducement has been made by either party that is not embodied in this
Agreement, and neither party shall be bound by or liable for any alleged
representation, promise or inducement not so set forth.
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13.4 Severability. If any of the provisions of this Agreement
shall be unlawful, void, or for any reason, unenforceable, such provision shall
be deemed severable from, and shall in no way affect the validity or
enforceability of, the remaining portions of this Agreement.
13.5 Waiver. The waiver by any party hereto of a breach of any
provision of this Agreement by any other party shall not operate or be construed
as a waiver of any subsequent breach of the same provision or any other
provision hereof.
13.6 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same Agreement.
13.7 Assignability. This Agreement, and Executive's rights and
obligations hereunder, may not be assigned by Executive. The Corporation may
assign its rights, together with its obligations, hereunder in connection with
any sale, transfer or other disposition of all or substantially all of its
business or assets; in any event the rights and obligations of the Corporation
hereunder shall be binding on its successors or assigns, whether by merger,
consolidation or acquisition of all or substantially all of its business or
assets.
13.8 Amendment. This Agreement may be amended, modified,
superseded, canceled, renewed or extended and the terms or covenants hereof may
be waived, only by a written instrument executed by both of the parties hereto,
or in the case of a waiver, by the party waiving compliance. No superseding
instrument, amendment, modification, cancellation, renewal or extension hereof
shall require the consent or approval of any person other than the parties
hereto. The failure of either party at any time or times to require performance
of any provision hereof shall in no matter affect the right at a later time to
enforce the same. No waiver by either party of the breach of any term or
covenant contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATTEST: FLEMINGTON PHARMACEUTICAL CORPORATION.
By: By:
------------------------------- --------------------------------
, Title John J. Moroney, Chairman of
the Board of Directors
WITNESS:
------------------------------- -----------------------------------
Harry A. Dugger, III, individually
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TO COME
<PAGE>
FLEMINGTON
PHARMACEUTICAL
CORPORATION
December 9, 1996
Ms. Marcy J. Adrian
ALTANA INC.
60 Baylis Road
Melville, N.Y. 11747
Dear Marcy:
I have countersigned, dated and am returning the agreement.
Exhibit A will be forthcoming shortly.
Our invoice for the payment due on signing is enclosed.
If there are questions, please call.
Sincerely,
/s/ Robert F. Schaul
- -----------------------------
Robert F. Schaul
Encl.
<PAGE>
FLEMINGTON
PHARMACEUTICAL
CORPORATION
December 9, 1996
ALTANA INC.
60 Baylis Road
Melville, N.Y. 11747
Invoice No.: 96-166
First payment per agreement dated
December 7, 1996 $12,500.00
Total $12,500.00
Bank Transfer Information:
Summit Bank - Hackensack
ABA Routing No.: 02-120-2162
Account No.: 113647
MEMBER FEDERAL WIRE SYSTEM
<PAGE>
AGREEMENT
This Agreement made and effective this 7th day of December 1996, (the
"Effective Date"), by and between ALTANA INC., a New York corporation having
offices at 60 Baylis Road, Melville, New York 11747, hereinafter referred to as
"Altana") and FLEMINGTON PHARMACEUTICAL CORP., a corporation with offices at 43
Emery Avenue, Flemington, New Jersey 08822 (hereinafter referred to as
"Flemington").
WHEREAS, Flemington is a pharmaceutical company engaged in the
development of various products, including a nitroglycerin lingual spray, and
WHEREAS, Altana is a pharmaceutical company which markets a
nitroglycerin topical ointment under the name Nitrol(R), and Altana desires to
obtain the exclusive rights to market Flemington's nitroglycerin lingual spray
product in the United States; and
WHEREAS, Flemington desires to grant such exclusive rights to Altana;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, Flemington and Altana agree as follows:
1. Definitions.
(a) Product means Nitroglycerin in a glass spray canister,
which is in compliance with the specifications to be set forth by mutual
agreement of the parties in an ANDA, defined below, and for which the approval
of the United States Food and Drug Administration (FDA) ultimately grants
approval.
(b) ANDA means an Abbreviated New Drug Application for the
Product, to be prepared by Flemington and delivered by it to Altana for filing
in Altana's name with FDA.
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(c) Acceptance For Filing means that FDA has accepted the ANDA
for the Product and an application number has been assigned by FDA to the ANDA.
(d) FDA Approval means approval by FDA of the ANDA for the
Product, authorizing the manufacture of the Product by Flemington's contract
manufacturer and its marketing and sale within the Territory by Altana.
(e) Territory means the United States of America, including
the Commonwealth of Puerto Rico and the Territory of the Virgin Islands.
(f) CGMP means current Good Manufacturing Practices, as
promulgated and enforced by FDA pursuant to regulations adopted from time to
time under authority of the Food, Drug and Cosmetics Act (the Act), detailing
requirements for licensed manufacturing facilities.
2. Grant.
(a) During the Term of this Agreement, subject to the terms
and conditions set forth herein, Altana shall have exclusive rights to sell and
distribute the Product within the Territory.
(b) The ANDA shall be filed showing Altana as the sole
applicant, and it is the Parties' intent that the approved ANDA shall continue
throughout the Term of the Agreement to be in the sole name of Altana.
(c) Nothing in this Agreement shall be construed to grant any
license to Altana to manufacture the Product under any inventions, secret
formula(e), secret process(es) or other confidential or secret information owned
or controlled by Flemington or Rapid Spray, whether or not patented, relating to
the Product or its manufacture.
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3. Registration.
(a) Promptly following execution of this Agreement by
the Parties, Flemington shall proceed diligently to prepare an ANDA for the
Product in a canister containing approximately 200 doses (spray activations) of
the active ingredient and deliver the same to Altana for filing by it with FDA.
(b) Altana shall be kept fully informed by Flemington of the
progress of the preparation of the ANDA, and Altana's regulatory affairs
personnel shall have full opportunity for review of and input on the form and
contents of the ANDA.
(c) Following acceptance of the filing of the ANDA by FDA,
and the completion of development, including necessary stability testing, of a
second size of canister to contain approximately 300 doses, Flemington shall
prepare and submit to Altana for filing with FDA an Amendment to the ANDA also
seeking approval for the second size canister.
(d) Following filing, Flemington shall provide Altana with all
necessary assistance and support in responding to any requests from FDA for
additional information or data.
(e) The Parties agree that their mutual intent is that no in
vivo bioequivalency study for the Product is to be carried out or included in
the ANDA. Rather, it is their intent that the ANDA will contain a request,
pursuant to 21 CFR Section 320.22(a) and 21 CFR Section 320.22(b)(5) for a
waiver of the requirement of an in vivo bioequivalence study on the grounds
that the Product for which approval is being sought is (a) an oral solution; (b)
its active drug ingredient is in the same concentration as the FDA-approved
nitroglycerin spray product being marketed by Rhone-Poulenc Rohrer, and (c) it
contains no inactive ingredient known to significantly affect absorption of the
active drug ingredient.
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4. Payments.
(a) Altana shall pay to Flemington for the Product rights
granted herein, the following amounts:
(i) upon execution of this Agreement: $ 12,500.00
(ii) upon Acceptance For Filing of the ANDA: $ 12,500.00
(iii) upon FDA Approval of the ANDA: $250,000.00
(b) If FDA shall refuse to file the ANDA as submitted, or if
the ANDA shall be filed but then either be disapproved by FDA or FDA should
demand submission of additional data which the parties are unable to satisfy,
Flemington shall be under no obligation to return to Altana funds paid pursuant
to Paragraphs 4(a)(i) or (ii), or both, above. Notwithstanding anything to the
contrary in this Paragraph 4(b), if FDA files the ANDA and subsequently demands
in vivo bioequivalence testing, any funds paid pursuant to 4(a)(ii) will be
refunded to Altana.
(c) Altana shall reimburse Flemington for the costs of all
stability testing for the 300-spray canister subsequently to be added to the
ANDA via Amendment.
5. Orders.
(a) Altana shall purchase all of its requirements for Product
exclusively from Flemington.
(b) Altana shall submit to Flemington an annual forecast, on a
month-by-month basis, of its requirements of Product, commencing upon evidence
of imminent approval of the ANDA. Such forecast shall be revised on an annual
basis and shall not be binding on either Altana or Flemington.
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<PAGE>
(c) From time to time but at least 90 days prior to the
specified delivery date, Altana shall submit firm purchase orders setting forth
quantities, delivery dates and shipping instructions.
(d) Firm purchase orders for Product submitted by Altana to
Flemington shall automatically be deemed accepted if it is within 150% of
Altana's forecasted requirements for Product in the month of requested delivery.
Flemington shall exercise its best efforts to accommodate Altana if purchase
orders exceed the 150% of the forecasted amount.
(e) The minimum order quantity for any single order is 20,000
units.
6. Price.
(a) The Price to be paid by Altana to Flemington shall be
$4.50 per 200 spray canister of Product, packaged in individual packages with a
label of Altana's design affixed to the exterior of the canister and each
individual canister in its own container with an insert or outsert.
(b) The Parties shall agree upon a reduction in price if
Altana elects to perform the final packaging.
(c) The price for the 300 spray canister shall be agreed upon
by the Parties.
(d) It is the intent of the Parties that both Flemington and
Altana be able to maintain reasonable gross margins on sales. The Parties
recognize, however, that unanticipated market, regulatory or other conditions
may adversely impact either Flemington's cost of goods or the price at which
Altana can sell the Product, and that both of the Parties may not be able to
maintain their presently anticipated respective margins. In that case, the
Parties agree to negotiate pricing with the intent of producing an outcome which
is fair and equitable to both Parties. If the Parties are unable to resolve
pricing to their mutual satisfaction, the Party raising
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<PAGE>
the subject may submit the issue to Arbitration as elsewhere provided in this
Agreement, the arbitrators, however, shall be directed to honor the Parties'
mutual expectation of a reciprocal opportunity to earn a fair profit.
(e) Payment shall be made in United States dollars 30 days
from the date of invoice.
(f) The Product will be shipped F.O.B. site of manufacture.
7. Trademarks and Labeling.
(a) Before initial production, Altana shall provide Flemington
with "camera-ready" artwork (which may be in agreed-upon electronic form) for
the label to be affixed to each individual canister of Product, for the outer
package and for the package insert (or outsert).
(b) Altana and Flemington agree that trademarks used on the
Product manufactured for Altana under this Agreement are the exclusive property
of Altana and Flemington shall have no rights thereto. Upon termination,
Flemington agrees that it will not use any Altana trademark.
8. Specifications.
(a) Product sold to Altana hereunder shall meet the
specifications set forth in Exhibit A hereto (the "Specifications"). Altana
shall examine the Product within sixty (60) days after receipt. If the Product
does not meet the Specifications, Altana shall immediately notify Flemington.
Product which does not meet the Specifications shall be returned to Flemington
at Flemington's expense and the purchase price therefor credited to Altana's
account. Any such Product shall be replaced by Flemington as promptly as
possible.
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<PAGE>
(b) Altana shall have the option, with respect to any lot of
Product, to rely upon a certificate of analysis issued by Flemington or its
contract manufacturer, upon the basis of testing performed by Flemington or its
contract manufacturer. Flemington shall send or cause to be sent such
certificate of analysis for each lot of Product delivered to Altana.
(c) If the alleged defect is an issue of chemistry any
dispute between the Parties as to whether or not Prouct is defective shall be
referred by them to a mutually acceptable independent laboratory. If the alleged
defect is something other than chemistry, any dispute between the Parties as to
whether or not Product is defective shall be referred by them to a mutually
acceptable industry expert. The cost of the laboratory (including the cost of
assays and any other services) or the expert's fees, as applicable, shall be
borne by the Party whose position was found to be in error.
9. Warranties and Indemnification.
(a) Flemington warrants that all Product delivered to Altana
pursuant to this Agreement will at the time of such delivery not be adulterated
or misbranded within the meaning of the Act, as amended, or within the meaning
of any applicable state or municipal law in which the definitions of
adulteration or misbranding are substantially the same as that contained in the
Act, as such Act and such laws are constituted and effective at the time of
delivery and will not be an article which may not, under the provisions of such
Act, be introduced into interstate commerce. Notwithstanding anything to the
contrary in this paragraph, Flemington's warranty hereunder does not extend to
any packaging or labeling provided by, or which is the responsibility of Altana.
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<PAGE>
(b) Flemington represents and warrants to Altana that neither
the importation of Product into the Territory, nor the sale and distribution of
Product by Altana within the Territory, will infringe upon the right of any
other person, including, without limitation, any patent infringement.
(c) Flemington hereby indemnifies Altana and undertakes to
hold it harmless against all damages, costs and expenses incurred as a result of
any claims or suits arising solely out of the sale by Altana of Product (whether
in the nature of product liability, patent infringement or otherwise) sold by
Flemington or its contract manufacturer, without any action by Altana subsequent
to delivery of Product contributing thereto; provided that prompt notice is
given to Flemington of any such claim or suit, and provided further that
Flemington shall have the option to undertake and conduct the defense of any
suit so brought, and that no settlement of any such claim or suit is made
without the advance written consent of Flemington to the fact and terms of such
settlement.
10. Term and Termination.
(a) The term of this Agreement shall be the market life
of the Product.
(b) This Agreement, and the rights and obligations of the
Parties under it (other than those which may have become vested before
termination) may be terminated:
(1) Without action by either Party if FDA refuses to file
the ANDA without a supporting bioequivalence study or demands
such study to complete the review of the ANDA.
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<PAGE>
(2) Without action by either Party if FDA, in a final
agency action, denies approval and the Parties do not elect
jointly to appeal that denial.
(3) By written notice from one Party to the other if the
Party to which the notice is directed is in material breach of
its obligations under this Agreement, in which case
termination shall become effective 60 days after the date of
giving of the notice, unless the breach has been cured within
the period.
(4) By Altana if the importation, manufacture or
distribution of Product within the Territory is determined to
infringe upon the right(s) of a third party, in which case,
Flemington shall reimburse any monies, paid to it by Altana
under Paragraph 4(a) of this Agreement.
(5) By Flemington if Altana shall discontinue selling the
Product within the Territory.
(c) If this Agreement shall be terminated by Flemington
pursuant to Paragraph 10(b)(3), above, Altana agrees, upon written request of
Flemington, to transfer the ANDA to Flemington, and to execute any documents
necessary to effect such transfer with FDA, at no cost to Flemington.
11. Physician or Consumer Adverse Reaction Reports, Complaints
and/or Inquiries.
Flemington and Altana agree that Altana shall be primarily
responsible for responding to all consumer and/or physician adverse reaction
reports, inquiries and/or complaints
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<PAGE>
regarding use of the Product. Where Altana is unable to provide an adequate
response to a consumer and/or physician inquiry for any reason, Altana shall
seek the advice of Flemington. Flemington agrees to promptly respond to Altana's
request for advice so that Altana may maintain its record of prompt response to
all consumer and/or physician reports, complaints, or inquiries. In the event of
consumer and/or physician inquiries or complaints concerning the physical
attributes of the Product, Flemington agrees to provide Altana with all
necessary information to provide an appropriate response. In the event consumer
and/or physician complaints identify a troublesome trend regarding Product
quality, Altana and Flemington agree to cooperate fully in the investigation and
resolution of any problem which might be identified.
12. Recall.
In the event (a) any government authority issues a request,
directive or order that the Product be recalled, or (b) a court of competent
jurisdiction orders such a recall, or (c) Altana reasonably determines after
consultation with Flemington that the Product should be recalled, the Parties
shall take all appropriate corrective actions. In the event that such recall
results from any cause or event arising from a failure of the Product to meet
its specifications, or a breach of Flemington's warranties set forth in this
Agreement, Flemington shall be responsible for all expenses of the recall.
13. Confidentiality.
Any and all information, data or know-how received by one Party
from the other shall be maintained in confidence by the Party which receives it.
Upon expiration or earlier termination of this Agreement all such information
(together with any and all writings or copies which may contain it) shall be
returned to the disclosing Party upon request. Failure to request
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<PAGE>
return of any such information shall not be construed as in any way releasing
the obligation of the recipient to maintain its confidentiality. The obligation
set forth herein shall not apply to information which: (a) the recipient can
show by clear and convincing evidence was already known to it before disclosure;
(b) is or comes into the public domain through no act or omission of the
recipient; (c) becomes known or available through a third party not under any
obligation of confidentiality to the recipient; or, (d) is required to be
disclosed pursuant to judicial process or order, or the disclosure of which is
necessary for Federal or State regulatory approval or compliance.
14. Assignment
This Agreement may not be assigned by Altana, except to a parent,
subsidiary or affiliate of Altana or to an entity acquiring all or substantially
all of Altana's assets, without the consent of Flemington, which consent shall
not be withheld unreasonably.
15. Miscellaneous Provisions.
(a) The performance by either Party of any obligation under this
Agreement, other than an obligation to pay money, shall be excused for any
reason customarily regarded as constituting force majeure.
(b) Except as may otherwise be expressly authorized in writing,
neither Party shall have, or hold itself out as having, any power or authority
to bind the other.
(c) This Agreement may only be amended, modified or supplemented
by a writing specifically identifying itself as such, which writing must be
executed with the same formality as this Agreement. Any party or person
asserting that this requirement of a writing for
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<PAGE>
such a purpose was waived orally shall have the burden of proving the fact of
such a waiver by clear and convincing evidence.
(d) Any formal notice or communication from one Party to the other
pursuant to this Agreement (which is not intended by the Parties to include
ordinary day-to-day business communications) shall be sent by the giver to the
receiver in writing via fax, with confirming copies via both ordinary and
certified mail.
(e) This Agreement is to be controlled by and interpreted in
accordance with the law of the State of New Jersey.
(f) Any dispute between the Parties shall be resolved by
arbitration pursuant to the rules and under the auspices of the American
Arbitration Society. The place of arbitration shall be in the Borough of
Manhattan, New York City, New York, unless otherwise mutually agreed.
(g) This Agreement is intended by the Parties to be an integrated
document and to express their entire agreement regarding its subject matter.
Any other, earlier or inconsistent statements or expressions, written or oral,
as to the subject matter are expressly superseded.
(h) This Agreement is to be executed in multiple counterparts.
Any one of such counterparts bearing original signatures, or any two
counterparts which taken together bear the original signatures of both Parties,
shall be deemed to be an original of this Agreement.
(i) The headings used in this Agreement are for convenience only
and are not a part of the Agreement.
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<PAGE>
IN WITNESS WHEREOF, the undersigned authorized representative of
the Parties have signed this Agreement effective the date set forth above.
FLEMINGTON PHARMACEUTICAL CORP. ALTANA INC.
By: /s/ Robert F. Schaul By: /s/ Marcy J. Adrian
------------------------ ------------------------------
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Flemington Pharmaceutical Corp.
43 Emery Avenue
Flemington, New Jersey 08822
Telephone: (908) 782-3431
Facsimile: (908) 782-2445
December 19, 1996
Mr. Dean Work
Sandoz Pharmaceuticals Corp.
59 Route 10
East Hanover, New Jersey 07936
Subject: Clemastine Lingual Spray
Dear Dean:
The purpose of this letter is to confirm the terms upon which Flemington
Pharmaceutical Corp. (Flemington) and Sandoz Pharmaceutical Corp. (Sandoz) have
agreed to cooperate in the further development and testing by Flemington of a
Clemastine lingual spray product (the Product).
We propose that the next phase of the project be divided into the following
steps, all of which, except #2, shall be carried out by Flemington in full
consultation with Sandoz' appropriate personnel:
1 Manufacture of clinical supplies, plus manufacture of supplies in various
flavors for use in marketing studies to be carried out by Sandoz' marketing
personnel for the purpose of arriving at the to-be-marketed version of the
Product;
2. The carrying out by Sandoz of a marketing study to demonstrate whether or
not the prospect of faster onset of therapeutic activity has a satisfactory
(to Sandoz) consumer response. This should be completed in approximately 60
days from date.
3. Designing by Flemington of a protocols for two Pilot Studies to be used in
an IND to be prepared and filed by Flemington with FDA.
The first study is to be designed both to demonstrate whether the Product,
as expected, yields a faster onset of therapeutic effect than the Tavist(R)
tablet, and also to determine whether the Product can be used effectively
as a prophylactic measure.
The second study, which potentially may be made a part of the first study,
is to be designed to determine whether there is any local irritation caused
by use of the Product.
<PAGE>
Mr. Dean Work December 19, 1996
Subject: Clemastine Lingual Spray
Flemington and Sandoz presently anticipate that the IND to be filed shall
include the protocol for the first study, above, and shall make reference
to existing safety data. The protocol for the second study shall be used if
FDA, in its review of the IND, requests such a study to be performed.
Flemington and Sandoz shall interact jointly with FDA during its review of
the IND.
4. In parallel with step 3 (but not to impede its progress), Flemington and
Sandoz shall prepare a proposed development plan for the overall project,
ultimately to be presented to and discussed with FDA for the purpose of
arriving at an agreed-upon program of studies to be performed in the next
phase of the project.
5. Arranging for and monitoring the Pilot Study(ies) and providing a Final
Report thereon to Sandoz.
If, upon completion of step 2, above, Sandoz determines not to proceed further
with the project, it may terminate this Agreement. In that case, Sandoz shall
not be obligated to make any further payments to Flemington hereunder;
Flemington shall, however, be entitled to retain the entire payment made to it
by Sandoz on the signing of this letter, together with reimbursement of all
proper expenses incurred by it before such termination.
Upon receipt and review of the results of the Pilot Study(ies) (step 3 and 4,
above), Flemington and Sandoz shall enter into discussions regarding Sandoz'
interest in proceeding further with the development of the Product and the
terms upon which the companies would do so.
In consideration of the foregoing, Sandoz shall pay Flemington three
"milestone" payments, as follows:
A. Upon approval by Sandoz of the terms of this letter: $75,000.00
B. Upon filing by Flemington of the IND with FDA: $100,000.00
C. Upon delivery by Flemington to Sandoz of the Final
Report of the results of the Pilot Study: $100,000.00
In addition to the foregoing, Sandoz agrees to reimburse Flemington for all
expenses incurred by it in carrying out the project, including, but not
necessarily limited to: cost of clinical and marketing-analysis supplies; travel
and subsistence; and, fees of third-party providers such as analytical
laboratories and clinical research organizations. Budgets for these expenses
shall be reviewed and approved by Sandoz in advance. Expenses shall be invoiced
to Sandoz monthly, as incurred.
If, at any time, Sandoz should decide not to proceed further with the Project,
or Sandoz and Flemington are unable to reach matually acceptable terms for
proceeding further with the Project, all results of and data developed during
the Project shall be the sole and exclusive property of Flemington.
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<PAGE>
Mr. Dean Work December 19, 1996
Subject: Clemastine Lingual Spray
If the contents of this letter are acceptable to Sandoz, please countersign,
below, a copy of this letter and return it to me.
If there are any questions, please get in touch with me or Bob Schaul.
Very truly yours,
Flemington Pharmaceutical Corp.
By: /s/ Harry A. Dugger
-----------------------------
Harry A. Dugger III, Ph.D.
President
Approved:
Sandoz Pharmaceuticals Corp.
By:
-----------------------------
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<PAGE>
1992 STOCK OPTION PLAN
OF FLEMINGTON PHARMACEUTICAL CORPORATION
1. Purpose
Flemington Pharmaceutical Corporation (the "Company") desires to
attract and retain the best available talent and encourage the highest level of
performance in order to continue to serve the best interests of the Company, and
its shareholders. By affording key personnel the opportunity to acquire
proprietary interests in the Company and by providing them incentives to put
forth maximum efforts for the success of the business, the 1992 Stock Option
Plan of Flemington Pharmaceutical Corporation (the "1992 Plan") is expected to
contribute to the attainment of those objectives.
The word "Subsidiary" or "Subsidiaries" as used herein, shall mean
any corporation, fifty percent or more of the voting stock of which is owned by
the Company.
2. Scope and Duration
Options under the 1992 Plan may be granted in the form of incentive
stock options ("Incentive Options") as provided in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), or in the form of nonqualified
stock options ("Non-Qualified Options"). (Unless otherwise indicated,
references in the 1992 Plan to "options" include Incentive Options and
Non-Qualified options.) The maximum aggregate number of shares as to which
options may be granted from time to time under the 1992 Plan is 500,000 shares
of the common stock, par value $.01 per share, of the Company ("Common Stock"),
which shares may be, in whole or in part, authorized but unissued shares or
shares reacquired by the Company. If an option shall expire, terminate or be
surrendered for cancellation for any reason without having been exercised in
full, the shares represent by the option or portion thereof not so exercised
shall (unless the 1992 Plan shall have been terminated) become available for
subsequent option grants under the 1992 Plan. As provided in paragraph 13, the
1992 Plan shall become effective on May 1, 1992, and unless terminated sooner
pursuant to paragraph 14, the 1992 Plan shall terminate on May 1, 2002, and no
option shall be granted hereunder after that date.
3. Administration
The 1992 Plan shall be administered by the Board of Directors of the
Company, or, at their discretion, by a committee which is appointed by the
Board of Directors to perform such function (the "Committee"). The Committee
shall consist of not less than two members of the Board of Directors, each
of whom shall serve at the pleasure of the Board of Directors and shall be a
"disinterested person" as defined in Rule 16b-3 pursuant to
<PAGE>
the Securities Exchange Act of 1934, as amended. Members of the Committee shall
not be eligible to participate in the Plan while a member of the Committee.
Vacancies occurring in the membership of the Committee shall be filled by
appointment by the Board of Directors.
The Board of Directors or the Committee, as the case may be, shall have
plenary authority in its discretion, subject to and not inconsistent with the
express provisions of the 1992 Plan, to grant options, to determine the purchase
price per share of the Common Stock covered by each option, the term of each
option, persons to whom, and the time or times at which, options shall be
granted and the number of shares to be covered by each option; to designate
options as Incentive Options or Non-Qualified Options; to interpret the 1992
Plan; to prescribe, amend and rescind rules and regulations relating to the 1992
Plan; to determine the terms and provisions of the option agreements (which need
not be identical) entered into in connection with options under the 1992 Plan;
and to make all other determinations deemed necessary or advisable for the
administration of the 1992 Plan. The Board of Directors or the Committee, as the
case may be, may delegate to one or more of its members or to one or more agents
such administrative duties as it may deem advisable, and the Board of Directors
or the Committee, as the case may be, or any person to whom it has delegated
duties as aforesaid may employ one or more persons to render advice with respect
to any responsibility the Board of Directors or the Committee, as the case may
be, or such person may have under the 1992 Plan.
4. Eligibility; Factors to be Considered in Granting Options
Incentive Options shall be limited to persons who are employees and
officers of the Company or its future Subsidiaries and at the grant of any
option are in the employ of the Company or its future Subsidiaries. In
determining the employees and officers to whom Incentive Options shall be
granted and the number of shares to be covered by each Incentive Option, the
Board of Directors or the Committee, as the case may be, shall take into account
the nature of employees' or officers' duties, their present and potential
contributions to the success of the Company and such other factors as it shall
deem relevant in connection with accomplishing the purposes of the 1992 Plan. An
employee or officer who has been granted an option or options under the 1992
Plan may be granted in additional option or options, subject, in the case of
Incentive Options, to such limitations as may be imposed by the Code on such
options. Except as provided below, a Non-Qualified Option may be granted to
employees, independent agents, consultants and attorneys, directors who the
Board of Directors or the Committee, as the case may be, believes has
contributed, or will contribute, to the
2
<PAGE>
success of the Company (whether or not any such director is an employee) of the
Company.
5. Option Price
The purchase price of the Common Stock covered by each option shall be
determined by the Board of Directors or the Committee, as the case may be, and,
in the case of Incentive Options, shall not be less than 100% of the Fair Market
Value (as defined in paragraph 15 below) of a share of the Common Stock on the
date on which the option is granted. In the case of Non-Qualified Options, the
purchase price of the shares under the option shall be within the discretion of
the Board of Directors or Committee, as the case may be, provided, however, that
such purchase price may not be less than 100% of the Fair Market Value (as
defined in paragraph 15 below) of such shares of Common Stock on the date on
which the option is granted. Such price shall be subject to adjustment as
provided in paragraph 12 below. The Board of Directors or the Committee, as the
case may be, shall determine the date on which an option is granted; in the
absence of such a determination, the date on which the Board of Directors or the
Committee, as the case may be, adopts a resolution granting an option shall be
considered the date on which such option is granted.
6. Term of Options
The term of each option shall be not more then ten years from the date
of grant, as the Board of Directors or the Committee, as the case may be, shall
determine, subject to earlier termination as provided in paragraphs 10 and 11
below.
7. Exercise of Options
(a) Subject to the provisions of the 1992 Plan and unless otherwise
provided in the option agreement, options granted pursuant to the 1992 Plan
shall become exercisable as determined by the Board of Directors or Committee.
In its discretion, the Board of Directors or the Committee, as the case may be,
may, in any case or cases, prescribe that options granted pursuant to 1992 Plan
become exercisable in installments or provide that an option may be exercisable
in full immediately upon the date of its grant. The Board of Directors or the
Committee, as the case may be, may, in its sole discretion, also provide that
an option granted pursuant to the 1992 Plan shall immediately become
exercisable in full upon the happening of any of the following events; (i) the
first purchase of shares of Common Stock pursuant to a tender offer or exchange
offer (other than an offer by the Company) for all, or any part of, the
Common Stock, (ii) the approval by the shareholders of the Company of an
agreement for a merger in which the Company will not survive as an independent,
publicly owned corporation, a consolidation, or a sale, exchange or
other disposition of all or substantially all
3
<PAGE>
of the Company's assets, (iii) with respect to an employee, on his 65th
birthday, or (iv) with respect to an employee, on the employee's involuntary
termination from employment. In the event of a question or controversy as to
whether or not any of the events hereinabove described has taken place, a
determination by the Board of Directors or the Committee, as the case may be,
that such event has or has not occurred shall be conclusive and binding upon the
Company and participants in the 1992 Plan.
(b) Any option at any time granted under the 1992 Plan may contain a
provision to the effect that the optionee (or any persons entitled to act
pursuant to Paragraph 11 hereof) may, at any time at which Fair Market Value is
in excess of the exercise price and prior to exercising the option, in whole or
in part, request that the Company purchase all or any portion of the option as
shall then be exercisable at a price equal to the difference between (i) an
amount equal to the option price multiplied by the number of shares subject to
that portion of the option in respect of which such request shall be made and
(ii) an amount equal to such number of shares multiplied by the fair market
value of the Company's Common Stock (within the meaning of Section 422 of the
Code and the treasury regulations promulgated thereunder) on the date of
purchase. The Company shall have no obligation to make any purchase pursuant to
such request, but if it elects to do so, such portion of the option as to which
the request is made shall be surrendered to the Company. The purchase price for
the portion of the option to be so surrendered shall be paid by the Company, at
the election of the Board of Directors or the Committee, as the case may be,
either in cash or in shares of Common Stock (valued as of the date and in the
manner provided in clause (ii) above), or in any combination of cash and Common
Stock, which may consist, in whole or in part, of shares of authorized
but unissued Common Stock or shares of Common Stock held in the Company's
treasury. No fractional share of Common Stock shall be issued or transferred
and any fractional share shall be disregarded. Shares covered by that portion
of any option purchased by the Company pursuant hereto and surrendered to
the Company shall not be available for granting of further options under the
Plan. All determinations to be made by the Company hereunder shall be made by
the Board of Directors or the Committee, as the case may be.
(c) An option may be exercised, at any time or from time to time
(subject, in the case of Incentive Options, to such restrictions as may be
imposed by the Code), as to any or all full share as to which the option has
become exercisable until the expiration of the period set forth in Paragraph 6
hereof, by the delivery to the Company, at its principal place of business in
Flemington, New Jersey, of (i) written notice of exercise in the form specified
by the Board of Directors or the Committee, as the case may be, specifying the
number of shares of Common Stock with respect to which the option is being
exercised and signed by the person exercising the option as provided herein,
(ii) payment
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<PAGE>
of the purchase price; and (iii) in the case of Non-Qualified Options, payment
in cash of all withholding tax obligations imposed on the Company by reason of
the exercise of the option. Upon acceptance of such notice, receipt of payment
in full, and receipt of payment of all withholding tax obligations, the
Company shall cause to be issued a certificate representing the shares of
Common Stock purchased. In the event the person exercising the option delivers
the items specified in (i) and (ii) of this Subsection (c), but not the item
specified in (iii) hereof, if applicable, the option shall still be considered
exercised upon acceptance by the Company for the full number of shares of Common
Stock specified in the notice of exercise but the actual number of shares
issued shall be reduced by the smallest number of whole shares of Common Stock
which, when multiplied by the Fair Market Value of the Common Stock as of the
date the option is exercised, is sufficient to satisfy the required amount of
withholding tax.
(d) The purchase price of the shares as to which an option is exercised
shall be paid in full at the time of exercise. Payment shall be made in cash,
which may be paid by check or other instrument acceptable to the Company; in
addition, subject to compliance with applicable laws and regulations and such
conditions as the Board of Directors or the Committee, as the case may be, may
impose, the Board of Directors or the Committee, as the case may be, in its sole
discretion, may on a case-by-case basis elect to accept payment in shares of
Common Stock of the Company which are already owned by the option holder, valued
at the Fair Market Value thereof (as defined in paragraph 15 below) on the date
of exercise; provided, however, that with respect to Incentive Options, no such
discretion may be exercised unless the option agreement permits the payment of
the purchase price in that manner.
(e) Except as provided in paragraphs 10 and 11 below, no option granted
to an employee may be exercised at any time by such employee unless such
employee is then an employee of the Company or a Subsidiary.
8. Incentive Options
(a) With respect to Incentive Options granted, the aggregate Fair
Market Value (determined in accordance with the provisions of paragraph 15 at
the time the Incentive Option is granted) of the Common Stock or any other
stock of the Company or its current or future Subsidiaries with respect to
which incentive stock options, as defined in Section 422 of the Code, are
exercisable for the first time by any employee during any calendar year (under
all incentive stock option plans of the Company and its parent and subsidiary
corporation's, as those terms are defined in Section 424 of the Code) shall not
exceed $100,000.
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<PAGE>
(b) No Incentive Option may be awarded to any employee who immediately
prior to the date of the granting of such Incentive Option owns more than 10% of
the combined voting power of all classes of stock of the Company or any of its
Subsidiaries unless the exercise price under the Incentive Option is at least
110% of the Fair Market Value and the option expires within 5 years from the
date of grant.
(c) In the event of amendments to the Code or applicable regulations
relating to Incentive Options subsequent to the date hereof, the Company may
amend the provisions of the 1992 Plan, and the Company and the employees holding
options may agree to amend outstanding option agreements, to conform to such
amendments.
9. Non-Transferability of Options
Options granted pursuant to the 1992 Plan shall not be transferable
otherwise than by will or the laws of descent and distribution, and options may
be exercised during the lifetime of the optionee only by the optionee. No
transfer of an option by the optionee by will or by the laws of descent and
distribution shall be effective to bind the Company unless the Company shall
have been furnished with written notice thereof and a copy of the will and
such other evidence as the Company may deem necessary to establish the validity
of the transfer and the acceptance by the transferor or transferees of the terms
and conditions of such option.
10. Termination of Employment
In the event that the employment of an employee to whom an option has
been granted under the 1992 Plan shall be terminated (except as set forth in
paragraph 11 below), such option may be, subject to the provisions of the 1992
Plan, exercised (to the extent that the employee was entitled to do so at the
termination of his employment) at any time within thirty (30) days after such
termination, but not later than the date on which the option terminates;
provided, however, that any option which is held by an employee whose employment
is terminated for cause or voluntarily without the consent of the Company shall,
to the extent not theretofore exercised, automatically terminate as of the date
of termination of employment. As used herein, "cause" shall mean conduct
amounting to fraud, dishonesty, negligence, or engaging in competition or
solicitations in competition with the Company and breachs of any applicable
employment agreement between the Company and the optionee. Options granted to
employees under the 1992 Plan shall not be affected by any change of duties or
position so long as the holder continues to be a regular employee of the
Company or any of its current or future Subsidiaries. Any option agreement or
any rules and regulations relating to the 1992 Plan may contain such provisions
as the Board of Directors or the Committee, as
6
<PAGE>
the case may be, shall approve with reference to the determination of the date
employment terminates and the effect of leaves of absence. Nothing in the 1992
Plan or in any option granted pursuant to the 1992 Plan shall confer upon any
employee any right to continue in the employ of the Company or any of its
Subsidiaries or parent or affiliated companies or interfere in any way with the
right of the Company or any such Subsidiary or parent or affiliated companies to
terminate such employment at any time.
11. Death of Employee
If an employee to whom an option has been granted under the 1992 Plan
shall die while employed by the Company or a Subsidiary or within thirty (30)
days after the termination of such employment (other than termination for cause
or voluntary termination without the consent of the Company), such option may be
exercised, to the extent exercisable by the employee on the date of death, by a
legatee or legatees of the employee under the employee's last will, or by the
employee's personal representative or distributees, at any time within one year
after the date of the employee's death, but not later than the date on which the
option terminates.
12. Adjustments Upon Changes in Capitalization, Etc.
Notwithstanding any other provision of the 1992 Plan, the Board of
Directors or the Committee, as the case may be, may, at any time, make or
provide for such adjustments to the 1992 Plan, to the number and class of shares
issuable thereunder or to any outstanding options as it shall deem appropriate
to prevent dilution or enlargement of rights, including adjustments in the event
of changes in the outstanding Common Stock by reason of stock dividends,
split-ups, recapitalizations, mergers, consolidations, combinations or exchanges
of shares, separations, reorganizations, liquidations and the like. In the event
of any offer to holders of Common Stock generally relating to the acquisition of
their shares, the Board of Directors or the Committee, as the case may be, may
make such adjustment as it deems equitable in respect of outstanding options and
rights, including in its discretion revision of outstanding options and rights
so that they may be exercisable for the consideration rights so payable in the
acquisition transaction. Any such determination by the Board of Directors or the
Committee, as the case may be, shall be conclusive. Any fractional shares
resulting from such adjustments shall be eliminated.
13. Effective Date
The 1992 Plan shall become effective on May __, 1992 the date of
adoption of the Board of Directors, provided it is approved by the shareholders
of the Company.
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14. Termination and Amendment
The Board of Directors of the Company may suspend, terminate, modify or
amend the 1992 Plan, provided that any amendment that would increase the
aggregate number of shares which may be issued under the 1992 Plan, materially
increase the benefits accruing to participants under the 1992 Plan, or
materially modify the requirements as to eligibility for participation in the
1992 Plan, shall be subject to the approval of the Company's stockholders,
except that any such increase or modification that may result from adjustments
authorized by paragraph 12 does not require such approval. No suspension,
termination, modification or amendment of the 1992 Plan may, without the consent
of the employee to whom an option shall theretofore have been granted, effect
the rights of such employee under such option.
15. Miscellaneous
As said term is used in the 1992 Plan, the "Fair Market Value" of a
share of Common Stock on any day means: (a) if the principal market for
the Common Stock is a national securities exchange or the National Association
of Securities Dealers Automated quotation System ("NASDAQ") National Market
System, the closing sales price of the Common Stock on such day as reported
by such exchange or market system, or on a consolidated tape reflecting
transactions on such exchange or market system, or (b) if the principal
market for the Common Stock is not a national securities exchange or the NASDAQ
Nationa1 Market System and the Common Stock is quoted on NASDAQ, the mean
between the closing bid and the closing asked prices for the Common Stock on
such day as quoted on NASDAQ, or (c) if the principal market for the Common
Stock is not a national securities exchange or the NASDAQ National Market System
and the Common Stock is not quoted on the NASDAQ, the mean between the highest
bid and lowest asked prices for the Common Stock on such day as reported by the
National Quotation Bureau, Inc.; provided that if clauses (a), (b) and (c) of
this paragraph are all inapplicable, or if no trades have been made or no quotes
are available for such day, the Fair Market Value of the Common Stock shall be
determined by the Board of Directors or the Committee, as the case may be, shall
be conclusive as to the Fair Market Value of the Common Stock.
The Board of Directors or the Committee, as the case may be, may
require, as a condition to the exercise of any options granted under the 1992
Plan, that to the extent required at the time of exercise, (i) the shares of
Common Stock reserved for purposes of the 1992 Plan shall be duly listed, upon
official notice of issuance, upon stock exchange(s) on which the Common Stock is
listed, (ii) a Registration Statement under the Securities Act of 1933, as
amended, with respect to such shares shall be effective, and/or (iii) the person
exercising such option deliver to the Company such documents, agreements and
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investment and other representations as the Board of Directors or the
Committee, as the case may be, shall determine to be in the best interests of
the Company.
During the term of the 1992 Plan, the Board of Directors or the
Committee, as the case may be, in its discretion, may offer one or more option
holders the opportunity to surrender any or all unexpired options for
cancellation or replacement. If any options are so surrendered, the Board of
Directors or the Committee, as the case may be, may then grant new Non-Qualified
or Incentive Options to such holders for the same or different numbers of shares
at higher or lower exercise prices than the surrendered options. Such new
options may have a different term and shall be subject to the provisions of the
1992 Plan the same as any other option.
Anything herein to the contrary notwithstanding, the Board of Directors
or the Committee, as the case may be, may, in their sole discretion, impose more
restrictive conditions on the exercise of an option granted pursuant to the 1992
Plan; however, any and all such conditions shall be specified in the option
agreement limiting and defining such option.
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FLEMINGTON PHARMACEUTICAL CORPORATION
1997 Stock Option Plan
(Adopted as of January, 1997)
Section 1. Purpose; Definitions.
1.1 Purpose. The purpose of the Flemington Pharmaceutical Corporation
(the "Company") 1997 Stock Option Plan (the "Plan") is to enable the Company to
offer to its key employees, officers, directors and consultants whose past,
present and/or potential contributions to the Company and its Subsidiaries have
been, are or will be important to the success of the Company, an opportunity to
acquire a proprietary interest in the Company. The various types of long-term
incentive awards which may be provided under the Plan will enable the Company to
respond to changes in compensation practices, tax laws, accounting regulations
and the size and diversity of its businesses.
1.2 Definitions. For purposes of the Plan, the following terms shall be
defined as set forth below:
(a) "Agreement" means the agreement between the Company and the
Holder setting forth the terms and conditions of an award under the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and any successor thereto and the regulations promulgated
thereunder.
(d) "Committee" means the Compensation Committee of the Board or
any other committee of the Board, which the Board may designate to administer
the Plan or any portion thereof. The Committee shall consist of disinterested
persons appointed by the Board who, during the one year period prior to
commencement of service on the Committee, shall not have participated in, and
while serving and for one year after serving on the Committee, shall not be
eligible for selection as persons to whom awards of Stock may be allocated, or
to whom Stock Options may be granted under the Plan or any other discretionary
plan of the Company, under which participants are entitled to acquire Stock or
Stock Options of the Company. If no Committee is so designated, then all
references in this Plan to "Committee" shall mean the Board.
(e) "Common Stock" means the Common Stock of the Company, par value
$.01 per share.
(f) "Company" means Flemington Pharmaceutical Corporation, a
corporation organized under the laws of the State of New Jersey.
(g) "Continuous Status as an Employee" means the absence of any
interruption or termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of sick leave, military
leave, or any other leave of absence approved by the Board.
(h) "Employee" shall mean any person, including officers and
directors, employed by the Company or any Parent or Subsidiary of the Company
and for whom a withholding obligation exists
<PAGE>
under Section 3401 of the Code by the employing corporation, as applicable. The
payment of a director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
(i) "Deferred Stock" means Stock to be received, under an award
made pursuant to Section 8 below, at the end of a specified deferral period.
(j) "Disability" means disability as determined under procedures
established by the Committee for purposes of the Plan.
(k) "Effective Date" means the date set forth in Section 11.
(1) "Fair Market Value", unless otherwise required by any
applicable provision of the Code or any regulations issued thereunder, means, as
of any given date: (i) if the Common Stock is listed on a national securities
exchange or quoted on the NASDAQ National Market or NASDAQ SmallCap Market, the
last sale price of the Common Stock in the principal trading market for the
Common Stock on the last trading day preceding the date of grant of an award
hereunder, as reported by the exchange or NASDAQ, as the case may be; (ii) if
the Common Stock is not listed on a national securities exchange or quoted on
the NASDAQ National Market or NASDAQ SmallCap Market, but is traded in the
over-the-counter market, the closing bid price for the Common Stock on the last
trading day preceding the date of grant of an award hereunder for which such
quotations are reported by the National Quotation Bureau, Incorporated or
similar publisher of such quotations; and (iii) if the fair market value of the
Common Stock cannot be determined pursuant to clause (i) or (ii) above, such
price as the Committee shall determine, in good faith.
(m) "Holder" means a person who has received an award under the
Plan.
(n) "Incentive Stock Option" means any Stock Option intended to be
and designated as an "incentive stock option" within the meaning of Section 422
of the Code.
(o) "Non-Qualified Stock Option" means any Stock Option that is not
an Incentive Stock Option.
(p) "Normal Retirement" means retirement from active employment
with the Company or any Subsidiary on or after age 65.
(q) "Other Stock-Based Award" means an award under Section 9 below
that is valued in whole or in part by reference to, or is otherwise based upon,
Stock.
(r) "Parent" means any present or future parent corporation of the
Company, as such term is defined in Section 424(e) of the Code.
(s) "Plan" means the Flemington Pharmaceutical Corporation 1997
Stock Option Plan, as hereinafter amended from time to time.
(t) "Restricted Stock" means Stock, received under an award made
pursuant to Section 7 below, that is subject to restrictions under said
Section 7.
(u) "SAR Value" [Intentionally omitted.]
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(v) "Stock" means the Common Stock of the Company, par value $.01
per share.
(w) "Stock Appreciation Right" [Intentionally omitted.]
(x) "Stock Option" or "Option" means any option to purchase shares
of Stock which is granted pursuant to the Plan.
(y) "Stock Reload Option" means any option granted under
Section 5.3 as a result of the payment of the exercise price of a Stock Option
and/or the withholding tax related thereto in the form of Stock owned by the
Holder or the withholding of Stock by the Company.
(z) "Subsidiary" means any present or future subsidiary
corporation of the Company, as such term is defined in Section 424(f) of the
Code.
Section 2. Administration.
2.1 Committee Membership. The Plan shall be administered by the Board
or a Committee. Committee members shall serve for such term as the Board may in
each case determine, and shall be subject to removal at any time by the Board.
2.2 Powers of Committee. The Committee shall have full authority,
subject to Section 4.2 hereof, to award, pursuant to the terms of the Plan: (i)
Stock Options, (ii) Restricted Stock; (iii) Deferred Stock; (iv) Stock Reload
Options; and/or (v) Other Stock-Based Awards. For purposes of illustration and
not of limitation, the Committee shall have the authority (subject to the
express provisions of this Plan):
(a) to select the officers, key employees, directors and
consultants of the Company or any Subsidiary to whom Stock Options, Restricted
Stock, Deferred Stock, Stock Reload Options and/or Other Stock-Based Awards may
from time to time be awarded hereunder.
(b) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any award granted hereunder (including, but not
limited to, number of shares, share price, any restrictions or limitations, and
any vesting, exchange, surrender, cancellation, acceleration, termination,
exercise or forfeiture provisions, as the Committee shall determine);
(c) to determine any specified performance goals or such other
factors or criteria which need to be attained for the vesting of an award
granted hereunder;
(d) to determine the terms and conditions under which awards
granted hereunder are to operate on a tandem basis and/or in conjunction with or
apart from other equity awarded under this Plan and cash awards made by the
Company or any Subsidiary outside of this Plan;
(e) to permit a Holder to elect to defer a payment under the Plan
under such rules and procedures as the Committee may establish, including the
crediting of interest on deferred amounts denominated in cash and of dividend
equivalents on deferred amounts denominated in Stock;
(f) to determine the extent and circumstances under which Stock and
other amounts payable with respect to an award hereunder shall be deferred which
may be either automatic or at the election of the Holder; and
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(g) to substitute (i) new Stock Options for previously granted
Stock Options, which previously granted Stock Options have higher option
exercise prices and/or contain other less favorable terms, and (ii) new awards
of any other type for previously granted awards of the same type, which
previously granted awards are upon less favorable terms.
2.3 Interpretation of Plan.
(a) Committee Authority. Subject to Section 10 hereof, the
Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of the
Plan and any award issued under the Plan (and to determine the form and
substance of all Agreements relating thereto), and to otherwise supervise the
administration of the Plan. Subject to Section l0 hereof, all decisions made by
the Committee pursuant to the provisions of the Plan shall be made in the
Committee's sole discretion and shall be final and binding upon all persons,
including the Company, its Subsidiaries and Holders.
(b) Incentive Stock Options. Anything in the Plan to the contrary
notwithstanding, no term or provision of the Plan relating to Incentive Stock
Options (including but limited to Stock Reload Options rights granted in
conjunction with an Incentive Stock Option) or any Agreement providing for
Incentive Stock Options shall be interpreted, amended or altered, nor shall any
discretion or authority granted under the Plan be so exercised, so as to
disqualify the Plan under Section 422 of the Code, or, without the consent of
the Holder(s) affected, to disqualify any Incentive Stock Option under such
Section 422.
Section 3. Stock Subject to Plan.
3.1 Number of Shares. The total number of shares of Common Stock
reserved and available for distribution under the Plan shall be 500,000 shares.
Shares of Stock under the Plan may consist, in whole or in part, of authorized
and unissued shares or treasury shares. If any shares of Stock that have been
optioned cease to be subject to a Stock Option, or of any shares of Stock that
are subject to any Restricted Stock, Deferred Stock award, Stock Reload Option
or Other Stock-Based Award granted hereunder are forfeited or any such award
otherwise terminates without a payment being made to the Holder in the form of
Stock, such shares shall again be available for distribution in connection with
future grants and awards under the Plan. Only net shares issued upon a
stock-for-stock exercise (including stock used for withholding taxes) shall be
counted against the number of shares available under the Plan.
3.2 Adjustment Upon Changes in Capitalization, Etc. In the event of any
merger, reorganization, consolidation, recapitalization, dividend (other than a
cash dividend), stock split, reverse stock split, or other change in corporate
structure affecting the Stock, such substitution or adjustment shall be made in
the aggregate number of shares reserved for issuance under the Plan, in the
number and exercise price of shares subject to outstanding Options, in the
number of shares and in the number of shares subject to, and in the related
terms of, other outstanding awards (including but not limited to awards of
Restricted Stock, Deferred Stock, Stock Reload Options and Other Stock-Based
Awards) granted under the Plan as may be determined to be appropriate by the
Committee in order to prevent dilution or enlargement of rights, provided that
any fractional shares resulting from such adjustment shall be eliminated by
rounding to the next lower whole number of shares.
Section 4. Eligibility.
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4.1 General. Awards may be made or granted to key employees, officers,
directors and consultants who are deemed to have rendered or to be able to
render significant services to the Company or its Subsidiaries and who are
deemed to have contributed or to have the potential to contribute to the success
of the Company. No Incentive Stock Option shall be granted to any person who is
not an employee of the Company or a Subsidiary at the time of grant.
4.2 Directors' Awards. [Intentionally Omitted]
Section 5. Stock Options.
5.1 Grant and Exercise. Stock Options granted under the Plan may be of
two types: (i) Incentive Stock Options and (ii) Non-Qualified Stock Options.
Any Stock Option granted under the Plan shall contain such terms, not
inconsistent with this Plan, or with respect to Incentive Stock Options, the
Code, as the Committee may from time to time approve. The Committee shall have
the authority to grant Incentive Stock Options, Non-Qualified Stock Options, or
both types of Stock Options and may be granted alone or in addition to other
awards granted under the Plan. To the extent that any Stock Option intended to
qualify as an Incentive Stock Option does not so qualify, it shall constitute a
separate Non-Qualified Stock Option. An Incentive Stock Option may only be
granted within the ten year period commencing from the Effective Date and may
only be exercised within ten years of the date of grant (or five years in the
case of an Incentive Stock Option granted to optionee ("10% Stockholder") who,
at the time of grant, owns Stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or a Parent or Subsidiary.
5.2 Terms and Conditions. Stock Options granted under the Plan shall be
subject to the following terms and conditions:
(a) Exercise Price. The exercise price per share of Stock
purchasable under a Stock Option shall be determined by the Committee at the
time of grant and may be less than 100% of the Fair Market Value of the Stock as
defined above; provided, however, that (i) the exercise price of an Incentive
Stock Option shall not be less than 100% of the Fair Market Value of the Stock
(110%, in the case of 10% Stockholder); and (ii) the exercise price of a
Non-Qualified Stock Option shall not be less than 85% of the Fair Market Value
of the Stock as defined above.
(b) Option Term. Subject to the limitations in Section 5.1, the
term of each Stock Option shall be fixed by the Committee.
(c) Exercisability. Stock Options shall be exercisable at such time
or times and subject to such terms and conditions as shall be determined by the
Committee. If the Committee provides, in its discretion, that any Stock Option
is exercisable only in installments, i.e., that it vests over time, the
Committee may waive such installment exercise provisions at any time at or after
the time of grant in whole or in part, based upon such factors as the Committee
shall determine.
(d) Method of Exercise. Subject to whatever installment, exercise
and waiting period provisions are applicable in a particular case, Stock Options
may be exercised in whole or in part at any time during the term of the Option,
by giving written notice of exercise to the Company specifying the number of
shares of Stock to be purchased. Such notice shall be accompanied by payment in
full of the purchase price, which shall be in cash or, unless otherwise provided
in the Agreement, in shares of Stock (including Restricted Stock and other
contingent awards under this Plan) or, partly in cash and partly in such Stock,
or such other means which the Committee determines are consistent with the
Plan's purpose and
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<PAGE>
applicable law. Cash payments shall be made by wire transfer, certified or bank
check or personal check, in each case payable to the order of the Company;
provided, however, that the Company shall not be required to deliver
certificates for shares of Stock with respect to which an Option is exercised
until the Company has confirmed the receipt of good and available funds in
payment of the purchase price thereof. Payments in the form of Stock shall be
valued at the Fair Market Value of a share of Stock on the date prior to the
date of exercise. Such payments shall be made by delivery of stock certificates
in negotiable form which are effective to transfer good and valid title thereto
to the Company, free of any liens or encumbrances. Subject to the terms of the
Agreement, the Committee may, in its sole discretion, at the request of the
Holder, deliver upon the exercise of a Non-Qualified Stock Option a combination
of shares of Deferred Stock and Common Stock; provided that, notwithstanding the
provisions of Section 8 of the Plan, such Deferred Stock shall be fully vested
and not subject to forfeiture. A Holder shall have none of the rights of a
stockholder with respect to the shares subject to the Option until such shares
shall be transferred to the Holder upon the exercise of the Option.
(e) Transferability. No Stock Option shall be transferable by the
Holder otherwise than by will or by the laws of descent and distribution, and
all Stock Options shall be exercisable, during the Holder's lifetime, only by
the Holder.
(f) Termination by Reason of Death. If a Holder's employment by the
Company or a Subsidiary terminates by reason of death, any Stock Option held by
such Holder, unless otherwise determined by the Committee at the time of grant
and set forth in the Agreement, shall be fully vested and may thereafter be
exercised by the legal representative of the estate or by the legatee of the
Holder under the will of the Holder, for a period of one year (or such other
greater or lesser period as the Committee may specify at grant) from the date of
such death or until the expiration of the stated term of such Stock Option,
whichever period is the shorter.
(g) Termination by Reason of Disability. If a Holder's employment
by the Company or any Subsidiary terminates by reason of Disability, any Stock
Option held by such Holder, unless otherwise determined by the Committee at the
time of grant and set forth in the Agreement, shall be fully vested and may
thereafter be exercised by the Holder for a period of one year (or such other
greater or lesser period as the Committee may specify at the time of grant) from
the date of such termination of employment or until the expiration of the
stated term of such Stock Option, whichever period is the shorter.
(h) Other Termination. Subject to the provisions of Section 12.3
below and unless otherwise determined by the Committee at the time of grant and
set forth in the Agreement, if a Holder is an employee of the Company or a
Subsidiary at the time of grant and if such Holder's employment by the Company
or any Subsidiary terminates for any reason other than death or Disability, the
Stock Option shall thereupon automatically terminate, except that if the
Holder's employment is terminated by the Company or a Subsidiary without cause
or due to Normal Retirement, then the portion of such Stock Option which has
vested on the date of termination of employment may be exercised for the lesser
of three months after termination of employment or the balance of such Stock
Option's term.
(i) Additional Incentive Stock Option Limitation. In the case of an
Incentive Stock Option, the amount of aggregate Fair Market Value of Stock
(determined at the time of grant of the Option) with respect to which Incentive
Stock Options are exercisable for the first time by a Holder during any calendar
year (under all such plans of the Company and its Parent and any Subsidiary)
shall not exceed $100,000.
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(j) Buyout and Settlement Provisions. The Committee may at any time
offer to buy out a Stock Option previously granted, based upon such terms and
conditions as the Committee shall establish and communicate to the Holder at the
time that such offer is made.
(k) Stock Option Agreement. Each grant of a Stock Option shall be
confirmed by, and shall be subject to the terms of, the Agreement executed by
the Company and the Holder.
5.3 Stock Reload Option. The Committee may also grant to the Holder
(concurrently with the grant of an Incentive Stock Option and at or after the
time of grant in the case of a Non-Incentive Stock Option) a Stock Reload Option
up to the amount of shares of Stock held by the Holder for at least six months
and used to pay all or part of the exercise price of an Option and, if any,
withheld by the Company as payment for withholding taxes. Such Stock Reload
Option shall have an exercise price of the Fair Market Value as of the date of
the Stock Reload Option grant. Unless the Committee determines otherwise, a
Stock Reload Option may be exercised commencing one year after it is granted and
shall expire on the date of expiration of the Option to which the Reload Option
is related.
Section 6. Stock Appreciation Rights. [Intentionally omitted.]
Section 7. Restricted Stock.
7.1 Grant. Shares of Restricted Stock may be awarded either alone or in
addition to other awards granted under the Plan. The Committee shall determine
the eligible persons to whom, and the time or times at which, grants of
Restricted Stock will be awarded the number of shares to be awarded, the price
(if any) to be paid by the Holder, the time or times within which such awards
may be subject to forfeiture (the "Restriction Period"), the vesting schedule
and rights to acceleration thereof, and all other terms and conditions of the
awards.
7.2 Terms and Conditions. Each Restricted Stock award shall be subject
to the following terms and conditions:
(a) Certificates. Restricted Stock, when issued, will be
represented by a stock certificate or certificates registered in the name of the
Holder to whom such Restricted Stock shall have been awarded. During the
Restriction Period, certificates representing the Restricted Stock and any
securities constituting Retained Distributions (as defined below) shall bear a
legend to the effect that ownership of the Restricted Stock (and such Retained
Distributions), and the enjoyment of all rights appurtenant thereto, are subject
to the restrictions, terms and conditions provided in the Plan and the
Agreement. Such certificates shall be deposited by the Holder with the Company,
together with stock powers or other instruments of assignment, each endorsed in
blank, which will permit transfer to the Company of all or any portion of the
Restricted Stock and any securities constituting Retained Distributions that
shall be forfeited or that shall not become vested in accordance with the Plan
and the Agreement.
(b) Rights of Holder. Restricted Stock shall constitute issued and
outstanding shares of Common Stock for all corporate purposes. The Holder will
have the right to vote such Restricted Stock, to receive and retain all regular
cash dividends and other cash equivalent distributions as the Board may in its
sole discretion designate, pay or distribute on such Restricted Stock and to
exercise all other rights, powers and privileges of a holder of Common Stock
with respect to such Restricted Stock, with the exceptions that (i) the Holder
will not be entitled to delivery of the stock certificate or certificates
representing such Restricted Stock until the Restriction Period shall have
expired and unless all other vesting requirements with respect thereto shall
have been fulfilled; (ii) the Company will retain custody of
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the stock certificate or certificates representing the Restricted Stock during
the Restriction Period; (iii) other than regular cash dividends and other cash
equivalent distributions as the Board may in its sole discretion designate, pay
or distribute, the Company will retain custody of all distributions ("Retained
Distributions") made or declared with respect to the Restricted Stock (and such
Retained Distributions will be subject to the same restrictions, terms and
conditions as are applicable to the Restricted Stock) until such time, if ever,
as the Restricted Stock with respect to which such Retained Distributions shall
have been made, paid or declared shall have become vested and with respect to
which the Restriction Period shall have expired; (iv) a breach of any of the
restrictions, terms or conditions contained in this Plan or the Agreement or
otherwise established by the Committee with respect to any Restricted Stock or
Retained Distributions will cause a forfeiture of such Restricted Stock and any
Retained Distributions with respect thereto.
(c) Vesting; Forfeiture. Upon the expiration of the Restriction
Period with respect to each award of Restricted Stock and the satisfaction of
any other applicable restrictions, terms and conditions (i) all or part of such
Restricted Stock shall become vested in accordance with the terms of the
Agreement, and (ii) any Retained Distributions with respect to such Restricted
Stock shall become vested to the extent that the Restricted Stock related
thereto shall have become vested. Any such Restricted Stock and Retained
Distributions that do not vest shall be forfeited to the Company and the Holder
shall not thereafter have any rights with respect to such Restricted Stock and
Retained Distributions that shall have been so forfeited.
Section 8. Deferred Stock.
8.1 Grant. Shares of Deferred Stock may be awarded either alone or in
addition to other awards granted under the Plan. The Committee shall determine
the eligible persons to whom and the time or times at which grants of Deferred
Stock shall be awarded, the number of shares of Deferred Stock to be awarded to
any person, the duration of the period (the "Deferral Period") during which, and
the conditions under which receipt of the shares will be deferred, and all other
terms and conditions of the awards.
8.2 Terms and Conditions. Each Deferred Stock award shall be subject to
the following terms and conditions:
(a) Certificates. At the expiration of the Deferral Period (or the
Additional Deferral Period referred to in Section 8.2(c) below, where
applicable), share certificates shall be delivered to the Holder, or his legal
representative, representing the number equal to the shares covered by the
Deferred Stock award.
(b) Vesting; Forfeiture. Upon the expiration of the Deferral
Period (or the Additional Deferral Period, where applicable) with respect to
each award of Deferred Stock and the satisfaction of any other applicable
limitations, terms or conditions, such Deferred Stock shall become vested in
accordance with the terms of the Agreement. Any Deferred Stock that does not
vest shall be forfeited to the Company and the Holder shall not thereafter have
any rights with respect to such Deferred Stock that has been so forfeited.
(c) Additional Deferral Period. A Holder may request to, and the
Committee may at any time, defer the receipt of an award (or an installment of
an award) for an additional specified period or until a specified event (the
"Additional Deferral Period"). Subject to any exceptions adopted by the
Committee, such request must generally be made at least one year prior to
expiration of the Deferral Period for such Deferred Stock award (or such
installment).
Section 9. Other Stock-Based Awards.
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9.1 Grant and Exercise. Other Stock-Based Awards may be awarded,
subject to limitations under applicable law, that are denominated or payable in,
valued in whole or in part by reference to, or otherwise based on, or related
to, shares of Common Stock, as deemed by the Committee to be consistent with the
purposes of the Plan including, without limitation, purchase rights, shares of
Common Stock awarded which are not subject to any restrictions or conditions,
convertible or exchangeable debentures, or other rights convertible into shares
of Common Stock and awards valued by reference to the value of securities of or
the performance of specified Subsidiaries. Other Stock-Based Awards may be
awarded either alone or in addition to or in tandem with any other awards under
this Plan or any other plan of the Company.
9.2 Eligibility. The Committee shall determine the eligible persons to
whom and the time or times at which grants of such awards shall be made, the
number of shares of Common Stock to be awarded pursuant to such awards, and all
other terms and conditions of the awards.
9.3 Terms and Conditions. Each Other Stock-Based Award shall be subject
to such terms and conditions as may be determined by the Committee.
Section 10. Amendment and Termination.
The Board may at any time, and from time to time, amend, alter, suspend
or discontinue any of the provisions of the Plan, but no amendment, alteration,
suspension or discontinuance shall be made which would impair the rights of a
Holder under any Agreement theretofore entered into hereunder, without his
consent.
Section 11. Term of Plan.
11.1 Effective Date. The Plan shall be effective as of January 1, 1997
("Effective Date"). Any awards granted under the Plan prior to such approval
shall be effective when made (unless otherwise specified by the Committee at the
time of grant), but shall be conditioned upon, and subject to, such approval of
the Plan by the Company's stockholders and no awards shall vest or otherwise
become free of restrictions prior to such approval.
11.2 Termination Date. Unless terminated by the Board, this Plan shall
continue to remain effective until such time no further awards may be granted
and all awards granted under the Plan are no longer outstanding. Notwithstanding
the foregoing, grants of Incentive Stock Options may only be made during the ten
year period following the Effective Date.
Section 12. General Provisions.
12.1 Written Agreements. Each award granted under the Plan shall be
confirmed by, and shall be subject to the terms of the Agreement executed by
the Company and the Holder. The Committee may terminate any award made under the
Plan if the Agreement relating thereto is not executed and returned to the
Company within sixty (60) days after the Agreement has been delivered to the
Holder for his or her execution.
12.2 Unfunded Status of Plan. The Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Holder by the
9
<PAGE>
Company, nothing contained herein shall give any such Holder any rights that are
greater than those of a general creditor of the Company.
12.3 Employees.
(a) Engaging in Competition With the Company. In the event an
employee Holder terminates his employment with the Company or a Subsidiary for
any reason whatsoever, and within one year after the date thereof accepts
employment with any competitor of, or otherwise engages in competition with, the
Company, the Committee, in its sole discretion may require such Holder to return
to the Company the economic value of any award which was realized or obtained
(measured at the date of exercise, vesting or payment) by such Holder at any
time during the period beginning on that date which is six months prior to the
date of such Holder's termination of employment with the Company.
(b) Termination for Cause. The Committee may, in the event an
employee is terminated for cause, annul any award granted under this Plan to
such employee and, in such event, the Committee, in its sole discretion, may
require such Holder to return to the Company the economic value of any award
which was realized or obtained (measured at the date of exercise, vesting or
payment) by such Holder at any time during the period beginning on that date
which is six months prior to the date of such Holder's termination of employment
with the Company.
(c) No Right of Employment. Nothing contained in the Plan or in
any award hereunder shall be deemed to confer upon any employee of the Company
or any Subsidiary any right to continued employment with the Company or any
Subsidiary, nor shall it interfere in any way with the right of the Company or
any Subsidiary to terminate the employment of any of its employees at any time.
12.4 Investment Representations. The Committee may require each person
acquiring shares of Stock pursuant to a Stock Option or other award under the
Plan to represent to and agree with the Company in writing that the Holder is
acquiring the shares for investment without a view to distribution thereof.
12.5 Additional Incentive Arrangements. Nothing contained in the Plan
shall prevent the Board from adopting such other or additional incentive
arrangements as it may deem desirable, including, but not limited to, the
granting of stock options and the awarding of stock and cash otherwise than
under the Plan; and such arrangements may be either generally applicable or
applicable only in specific cases.
12.6 Withholding Taxes. Not later than the date as of which an amount
first becomes includable in the gross income of the Holder for Federal income
tax purposes with respect to any Option or other award under the Plan, the
Holder shall pay to the Company, or make arrangements satisfactory to the
Committee regarding the payment of, any Federal, state and local taxes of any
kind required by law to be withheld or paid with respect to such amount. If
permitted by the Committee, tax withholding or payment obligations may be
settled with Common Stock, including Common Stock that is part of the award that
gives rise to the withholding requirement. The obligations of the Company under
the Plan shall be conditional upon such payment or arrangements satisfactory to
the Company and the Company or the Holder's employer (if not the Company) shall,
to the extent permitted by law, have the right to deduct any such taxes from any
payment of any kind otherwise due to the Holder from the Company or any
Subsidiary.
12.7 Governing Law. The Plan and all awards made and actions taken
thereunder shall be governed by and construed in accordance with the laws of the
State of New Jersey (without regard to choice of law provisions).
10
<PAGE>
12.8 Other Benefit Plans. Any award granted under the Plan shall not be
deemed compensation for purposes of computing benefits under any retirement plan
of the Company or any Subsidiary and shall not affect any benefits under any
other benefit plan no or subsequently in effect under which the availability or
amount of benefits is related to the level of compensation (unless required by
specific reference in any such other plan to awards under this Plan).
12.9 Non-Transferability. Except as otherwise expressly provided in the
Plan, no right or benefit under the Plan may be alienated, sold, assigned,
hypothecated, pledged, exchanged, transferred, encumbranced or charged, and any
attempt to alienate, sell, assign, hypothecate, pledge, exchange, transfer,
encumber or charge the same shall be void.
12.10 Applicable Laws. The obligations of the Company with respect to
all Stock Options and awards under the Plan shall be subject to (i) all
applicable laws, rules and regulations and such approvals by any governmental
agencies as may be required, including, without limitation, the effectiveness of
a registration statement under the Securities Act of 1933, as amended, and (ii)
the rules and regulations of any securities exchange on which the Stock may be
listed.
12.11 Conflicts. If any of the terms or provisions of the Plan conflict
with the requirements of (with respect to Incentive Stock Options), Section 422
of the Code, then such terms or provisions shall be deemed inoperative to the
extent they so conflict with the requirements of said Section 422 of the Code.
Additionally, if this Plan does not contain any provision required to be
included herein under Section 422 of the Code, such provision shall be deemed to
be incorporated herein with the same force and effect as if such provision had
been set out at length herein.
12.12 Non-Registered Stock. The shares of Stock being distributed under
this Plan have not been registered under the Securities Act of 1933, as amended
(the "1933 Act"), or any applicable state or foreign securities laws and the
Company has no obligation to any Holder to register the Stock or to assist
Holder in obtaining an exemption from the various registration requirements, or
to list the Stock on a national securities exchange or inter-dealer quotation
system.
Accepted by the Board FLEMINGTON PHARMACEUTICAL CORPORATION
of Directors:
January 1, 1997
By: _________________________________
Robert F. Shaul, Secretary
11
<PAGE>
AGREEMENT
EFFECTIVE DATE: June 2, 1992
BETWEEN: FLEMINGTON PHARMACEUTICAL CORPORATION,
43 Emery Avenue, Flemington,
New Jersey 08822 (Flemington);
AND: RAPID SPRAY, GmbH. & CO. KG, 7958 Laupheim,
Germany (Rapid Spray).
WHEREAS Rapid spray has developed aerosol dosage formulations containing
Clemastine as its effective ingredient, as set forth in detail in Exhibit A,
which is attached to and made a part of this Agreement (the Product); and,
WHEREAS, Flemington intends to obtain regulatory approval permitting Flemington
to market the Product within the Territory (defined below); and,
WHEREAS, Flemington is willing to undertake the project of procuring
bioavailability studies, in order to obtain approval by regulatory authorities
within the Territory for the marketing of the Product within the Territory;
and,
WHEREAS, following approval by the various regulatory authorities, Flemington
wishes to obtain the right to purchase Product from Rapid Spray, together with
the exclusive right to sell and distribute Product within the Territory;
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
undertakings
<PAGE>
contained in this Agreement, the parties agree as follows.
1. Promptly following execution of this Agreement, Rapid Spray shall provide
Flemington with a sample of Product as described in Exhibit A, which sample
shall have been synthesized by a process approved by the United States Food and
Drug Administration (FDA), and which sample (together with the process by
which it was synthesized) shall not infringe on any rights or patents held by
others. The Product shall have been manufactured by Rapid Spray in accordance
with then current Good Manufacturing Practices (GMP), as established by FDA or
other regulatory authorities from time to time.
2. Within a reasonable time after Flemington has been provided by Rapid Spray
with necessary ancillary documentation, Flemington shall initiate or cause to be
initiated, and thereafter shall pursue diligently, all necessary clinical
studies required to prepare and file an application(s) with FDA and
other regulatory authorities, and, following completion thereof to Flemington's
satisfaction, Flemington shall prepare, file and diligently pursue the
application(s). Rapid Spray agrees to supply Flemington with manufacturing and
quality control procedures and data, including stability testing using approved
stability assay procedures of a chemical and pharmaceutical nature necessary
to support an Abbreviated New Drug Application (ANDA) or New Drug Application
(NDA). Upon approval of the application(s), all right, title and interest in
and to them shall be and remain the sole and exclusive property of Flemington.
Flemington shall use its best efforts to maintain the approved application(s)
in force, including, without limitation, the filing of all necessary
2
<PAGE>
reports, and the maintenance of all necessary records, required by any or all
regulatory authorities having jurisdiction, and Rapid Spray shall cooperate with
Flemington in all ways necessary to discharge this obligation.
3. Rapid Spray hereby appoints Flemington as its sole and exclusive distributor
of the Product within the Western Hemisphere, Europe and Japan (the Territory).
Except as provided in paragraph 14(a), below, Flemington agrees to purchase from
Rapid Spray all of Flemington's requirements of Product for sale in the
Territory. Flemington agrees, from time to time, to provide Rapid Spray with
forecasts of Flemington's requirements for Product, as described below.
4. Nothing contained in this Agreement is intended by the parties to grant to
Flemington any right or license to manufacture Product under any inventions,
secret formulae, secret processes or other secret technical information owned
or controlled by Rapid Spray, whether or not patented, relating to the Product
or its manufacture.
5. Flemington shall use its best efforts to keep Rapid Spray as reasonably
informed as possible of the progress of the application(s) and the date upon
which Flemington expects to receive approval. On approval by FDA, or other
regulatory authorities having jurisdiction, of the application, or as long
before that date as is reasonably possible, Flemington shall provide Rapid Spray
with an estimate of Flemington's anticipated monthly requirements for Product
for the then current and following calendar year. The estimate given by
Flemington shall not be construed to require Flemington to purchase
3
<PAGE>
any particular amount of Product during the Period covered by it. Thereafter, on
or before October 1 of any given year, Flemington shall provide Rapid Spray with
a similar non-binding estimate of Flemington's requirements for Product during
the next calendar year.
6. From time to time after FDA approval (or, as to registration(s) outside the
United States, of the appropriate regulatory authorities), Flemington shall
place with Rapid Spray firm purchase orders for Product. Any order given shall
not call for delivery more than three months after the date of order placement,
unless otherwise agreed to by Rapid Spray. So long as the total of orders placed
with Rapid Spray by Flemington calling for delivery within a given month do not
exceed Flemington's estimated forecast of its requirements of Product for such
month by more than 150 percent, such orders shall be deemed to have been
accepted by Rapid Spray upon order placement by Flemington. If Flemington's
orders for any given month exceeds Flemington's estimated forecast for such
month by more than 150 percent, Rapid Spray shall use its best efforts to fill
such portion of the order(s) which exceeds the 150 percent level.
7. Any order for Product placed by Flemington with Rapid Spray shall be in a
minimum quantity of _____________ canisters per order.
8. The price to be charged by Rapid Spray to Flemington for Product is set forth
on Exhibit B, which is attached to and made a part of this Agreement. Prices are
F.O.B. Laupheim, insurance and freight prepaid for Flemington's account for each
order a letter of credit payable 60 days after shipment from Rapid Spray at
______________ Bank in the amount of the invoice including insurance and freight
is to be given. See German version from March 30, 1992, paragraph 8. If market
conditions or other circumstances either in the Territory or the place of
manufacture should
4
<PAGE>
change so that either party to this Agreement is unable to make a reasonable
profit (which shall be evaluated according to gross margins historically
achieved by such party on Product hereunder), the parties shall meet and
negotiate a good faith adjustment of the price of the Product.
9. Any duties or other import taxes or exactions imposed by any jurisdiction
within the Territory into which Flemington is importing Product from Rapid Spray
shall be paid for by Flemington for its own account.
10. Invoices from Rapid Spray to Flemington for deliveries of Product shall be
due and payable by Flemington to Rapid Spray 60 days after shipment of Product
by Rapid Spray.
11. Product supplied by Rapid Spray to Flemington shall comply strictly with the
specifications set forth in Exhibit A, or such other specifications as the
parties mutually shall agree upon from time to time. Any claim by Flemington for
defect(s) in Product shall be made by it, in writing, with full particulars,
within 60 days after actual receipt by Flemington of the allegedly defective
Product. All quality assurance testing for acceptance shall be based upon the
criteria set forth in Exhibit A. After acceptance of Product by Flemington, or
the expiration of 60 days after receipt of Product by Flemington without any.
objection by it, no claim shall be made by Flemington for failure to comply with
the specifications set forth in Exhibit A, with the exception of subsequently
discovered failure to meet stability requirements, which may be raised at any
time. If a timely objection to Product is
5
<PAGE>
made by Flemington and the Product is found not to meet specifications, Rapid
Spray shall replace the defective Product with complying Product, and Rapid
Spray shall hold Flemington harmless from any cost or expense incurred by
Flemington as a result of such non-compliance. Any dispute about whether or not
Product complies with specifications shall be referred to an independent
laboratory mutually acceptable to the parties. The cost of the assay, and any
other related services of the independent laboratory, shall be borne by the
party whose analysis was found to be in error.
12. Rapid Spray makes no representations, extends no warranties of any kind,
express or implied, nor assumes any responsibility whatsoever, including
responsibility for any claim of toxicity, side effects, adverse drug reactions
or lack of efficacy, to any third party or to Flemington with respect to the
manufacture or use of the Product, except that the Product shall comply with the
specifications set forth in Exhibit A at the time of shipping, and that the
Product shall be supplied to Flemington from manufacturing facilities operated
in compliance with GMP of FDA or other applicable regulatory authorities. Rapid
Spray agrees to permit representatives of Flemington to examine Rapid Spray's
facilities at any reasonable time during regular business hours, and to adopt
such recommendations as reasonably may be made to assure compliance with all GMP
regulations and requirements. Notwithstanding the foregoing, Flemington agrees
to indemnify Rapid Spray, and hold it harmless, from any and all liability to
third parties beyond what liability would, or could, be imposed upon Rapid Spray
under the laws and regulations of the European Community, except with respect to
any failure of Rapid Spray to comply
6
<PAGE>
with GMP regulations, or any more stringent regulations which may apply within
any jurisdiction other than the United States of America in which the Product is
known by the parties to be marketed.
13. Flemington shall use its best efforts to begin marketing Product in the
Territory approximately three months after approval by the appropriate
regulatory authority(ies) having jurisdiction over the application(s) covering
the Product in a given jurisdiction, and shall devote such efforts to marketing
the Product as it would to products developed by it having similar sales and
profit potential.
14(a). This Agreement shall be effective as of the date specified above and
shall continue for the life of the Product or the end of Flemington's obligation
to pay royalties to Rapid Spray as elsewhere provided for below in this
Agreement. The obligation of Rapid Spray to supply Product to Flemington in
accordance with this Agreement shall continue until the expiration of the term
of any patent(s) covering the Product, or of the tenth complete calendar year
after the beginning of marketing of Product in the Territory, whichever comes
later; provided, however, either party may renew its rights for an additional
five year period by giving written notice to that effect to the other party
before the expiration of the ninth complete calendar year after the beginning of
the marketing of Product within the Territory. If, at any time during the Term
of this Agreement, it should appear to Flemington that market conditions
relevant to the Product have changed, or are changing, in such a way that
Flemington's ability to market the Product has been, or is being, adversely
7
<PAGE>
affected in a material manner, the parties agree, to negotiate in good faith
such modifications to this Agreement, and the parties' relationship, as will
reasonably enable each party most closely to satisfy their mutual intentions and
expectations in entering into this Agreement.
14(b). Either party may terminate this Agreement in its entirety if the other
party shall be in default of any of its obligations hereunder, and such default
shall not have been remedied within a 60 day period after the giving of a notice
of default, which notice shall specify the particulars of the alleged default.
Notice shall be given in the manner provided below. If the party to which notice
of default was given shall not cure the default within the 60 day period, the
party giving the notice shall have the absolute right to terminate this
Agreement, by giving written notice of its exercise of such right to the other;
upon the giving of such notice this Agreement shall terminate immediately. In
addition, if either party shall begin, in the capacity of a debtor, any
proceedings under any bankruptcy, insolvency, reorganization, readjustment of
debt, receivership, assignment for the benefit of creditors, dissolution or
liquidation law, of any government having jurisdiction over the subject matter
or the parties, or if any such proceedings have been begun against either party,
and any trustee or receiver of either party shall be appointed in such
proceeding, and such party by any act or failure to act shall indicate approval,
consent or acquiescence in such proceedings or the appointment of such trustee
or receiver; or if any warrant or attachment shall be issued against all of the
assets of a party and shall not be dismissed or released within 30 days after
levy; then, in any such case,the other party not involved in any such
proceedings shall have the right to terminate this Agreement by giving written
notice of the exercise of that
8
<PAGE>
right to the party involved in such proceedings, and upon the giving of that
notice this Agreement shall terminate.
15. The parties agree that any dispute arising between them in connection with
this Agreement shall be finally settled under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce, by one or more arbitrators
appointed in accordance with such Rules. The arbitration shall be held in a
mutually agreeable place, but if the parties cannot agree upon a place they
shall be held in Brussells, Belgium.
16. Except as may expressly be authorized in writing, neither party shall
possess, nor hold itself out to third parties as possessing, any power or
authority to bind or act as the agent of the other
17. The performance by either party of any covenant or obligation on its part to
be performed hereunder (other than an obligation of either party to pay money to
the other) shall be excused because of any reason customarily recognized as
constituting force majure; provided, however, that the party affected shall
exert its best efforts to eliminate, cure or overcome any of such causes and
resume performance hereunder. Promptly following execution hereof, the parties
shall confer for the purpose of identifying one or more alternative sites of
manufacture to be used if Rapid Spray's production of Product should be
interrupted because of force majure.
9
<PAGE>
18. Neither this Agreement nor the rights or obligations of either party to it
may be assigned, either in whole or in part, by either party without the advance
written consent of the other, except that Rapid Spray is permitted to assign to
any person or entity owning more than 5O% of its shares; provided, however, in
the case of an assignment in connection with the sale or transfer of all or
substantially all of a party's pharmaceutical business, or its merger or
consolidation with another company, such consent shall not be withheld
unreasonably.
19. Any notice required or permitted under this Agreement (not intended to
include ordinary day-to-day communications) shall be given in writing, by fax
transmission, to the other party's principal office, addressed to the chief
executive officer of the recipient, with confirming hard copy being sent by
international overnight letter or service. Communications are effective upon
delivery.
20. Any and all written information, data or know/how received by either party
from the other shall be maintained in confidence by the receiving party during
the term of this Agreement and for five years thereafter; provided, however,
that this obligation shall not apply to any information which the recipient can
establish was known to it before disclosure, or is in or enters the public
domaine through a third party not under obligation of confidentiality to the
receiving party.
2i. This Agreement may not be amended except by a writing identifying itself as
10
<PAGE>
such, executed with the same formality as this Agreement. This requirement of
written amendment may not be waived orally.
22. This Agreement shall bind and benefit the parties and their permitted
successors and assigns.
IN WITNESS WHEREOF, this Agreement has been signed by the duly authorized
representatives of the parties, effective the date set forth above.
FLEMINGTON PHARMACEUTICAL CORP.
By: /s/ Harry A. Dugger
----------------------------
RAPID SPRAY, GmbH. & Co. KG
By: /s/ Laupheim, der 02.06.92
----------------------------
11
<PAGE>
AGREEMENT
EFFECTIVE DATE: June 2nd ,1992
BETWEEN: FLEMINGTON PHARMACEUTICAL CORPORATION,
43 Emery Avenue, Flemington, New Jersey 08822
(Flemington);
AND: RAPID SPRAY, GmbH. & CO. KG, 7958 Laupheim,
Germany (Rapid Spray).
WHEREAS, Rapid Spray has developed aerosol dosage formulations containing
nitroglycerine as its effective ingredient, as set forth in detail in Exhibit A,
which is attached to and made a part of this Agreement (the Product); and;
WHEREAS, Flemington intends to obtain regulatory approval permitting Flemington
to market the Product within the Territory (deemed below); and,
WHEREAS, Flemington is willing to undertake the project of procuring
bioavailability studies, in order to obtain approval by regulatory authorities
within the Territory for the marketing of the Product within the Territory; and,
WHEREAS, following approval by the various regulatory authorities, Flemington
wishes to obtain the right to purchase Product from Rapid Spray, together with
the exclusive right to sell and distribute Product within the Territory;
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
undertakings contained in this Agreement, the parties agree as follows.
<PAGE>
1. Promptly following execution of this Agreetnent, Rapid Spray shall provide
Flemington with a sample of Product as"described in Exhibit A, which sample
shall have been synthesized by a process approved by the United States Food and
Drug Administration (FDA), and which sample (together with the process by which
it was synthesized) shall not infringe on any rights or patents held by others,
the Product shall have been manufactured by Rapid Spray in accordance with
then current Good Manufacturing Practices (GMP), as established by FDA or other
regulatory authorities from time to time.
2. Within a reasonable time after Flemington has been provided by Rapid Spray
with necessary ancillary documentation, Flemington shall initiate or cause to be
initiated, and thereafter shall pursue diligently, all necessary clinical
studies required to prepare and file an application(s) with FDA and other
regulatory authorities, and, following completion thereof to Flemington's
satisfaction, Flemington shall prepare, file and diligently pursue the
application(s). Rapid Spray agrees to supply Flemington with manufacturing and
quality control procedures and data, including stability testing using approved
stability assay procedures of a chemical and pharmaceutical nature necessary to
support an Abbreviated New Drug Application (ANDA) or New Drug Application
(NDA). Upon approval of the application(s), all right, title and interest in
and to them shall be and remain the sole and exclusive property of Flemington.
Flemington shall use its best efforts to maintain the approved application(s) in
force, including, without limitation, the filing of all necessary
2
<PAGE>
reports, and the maintenance of all necessary records, required by any or all
regulatory authorities having jurisdiction, and Rapid Spray shall cooperate with
Flemington in all ways necessary to discharge this obligation.
3. Rapid Spray hereby appoints Flemington as its sole and exclusive distributor
of the Product within the Western Hemisphere, Europe and Japan (the Territory).
Except as provided in paragraph 14(a), below, Flemington agrees to purchase from
Rapid Spray all of Flemington's requirements of Product for sale in the
Territory. Flemington agrees, from time to time, to provide Rapid Spray with
forecasts of Flemington's requirements for Product, as described below.
4. Nothing contained in this Agreement is intended by the parties to grant to
Flemington any right or license to manufacture Product under any inventions,
secret formulae, secret processes or other secret technical information owned or
controlled by Rapid Spray, whether or not patented, relating to the Product or
its manufacture.
5. Flemington shall use its best efforts to keep Rapid Spray as reasonably
informed as possible of the progress of the application(s) and the date upon
which Flemington expects to receive approval. On approval by FDA, or other
regulatory authorities having jurisdiction, of the application, or as long
before that date as is reasonably possible, Flemington shall provide Rapid Spray
with an estimate of Flemington's anticipated monthly requirements for Product
for the then current and following calendar year. The estimate given by
Flemington shall not be construed to require Flemington to purchase
3
<PAGE>
any particular amount of Product during the period covered by it. Thereafter, on
or before October 1 of any given year, Flemington shall provide Rapid Spray with
a similar non-binding estimate of Flemington's requirements for Product during
the next calendar year.
6. From time to time after FDA approval (or, as to registration(s) outside the
United States, of the appropriate regulatory authorities), Flemington shall
place with Rapid Spray firm purchase orders for Product. Any order given shall
not call for delivery more than three months after the date of order placement,
unless otherwise agreed to by Rapid Spray. So long as the total of orders placed
with Rapid Spray by Flemington calling for delivery within a given month do not
exceed Flemington's estimated forecast of its requirements of Product for such
month by more than 150 percent, such orders shall be deemed to have been
accepted by Rapid Spray upon order placement by Flemington. If Flemington's
orders for any given month exceeds Flemington's estimated forecast for such
month by more than 150 percent, Rapid Spray shall use its best efforts to fill
such portion of the order(s) which exceeds the 150 percent level.
7. Any order for Product placed by Flemington with Rapid Spray shall be in a
minimum quantity of ______________ canisters per order.
8. The price to be charged by Rapid Spray to Flemington for Product is set forth
on Exhibit B, which is attached to and made a part of this Agreement. Prices are
F.O.B. Laupheim, insurance and freight prepaid for Flemington's account for each
order a letter of credit payable 60 days after shipment from Rapid Spray at
_____ Bank in the amount of the invoice including insurance and freight is to be
given, see German version from March 30, 1992, paragraph 8. If market conditions
or other circumstances either in the Territory or the place of manufacture
should
<PAGE>
change so that either party to this Agreement is unable to make a reasonable
profit (which shall be evaluated according to gross margins historically
achieved by such party on Product hereunder), the parties shall meet
and negotiate a good faith adjustment of the price of the Product.
9. Any duties or other import taxes or exactions imposed by any jurisdiction
within the Territory into which Flemington is importing Product from Rapid Spray
shall be paid for by Flemington for its own account.
10. Invoices from Rapid Spray to Flemington for deliveries of Product shall be
due and payable by Flemington to Rapid Spray 60 days after shipment of Product
by Rapid Spray.
11. Product supplied by Rapid Spray to Flemington shall comply strictly with the
specffications set forth in Exhibit A, or such other specifications as the
parties mutually shall agree upon from time to time. Any claim by Flemington for
defect(s) in Product shall be made by it, in writing, with full particulars,
within 60 days after actual receipt by Flemington of the allegedly defective
Product. All quality assurance testing for acceptance shall be based upon the
criteria set forth in Exhibit A. After acceptance of Product by Flemington, or
the expiration of 60 days after receipt of Product by Flemington without any
objection by it, no claim shall be made by Flemington for failure to comply
with the specifications set forth in Exhibit A, with the exception of
subsequently discovered failure to meet stability requirements, which may be
raised at any time. If a timely objection to Product is
5
<PAGE>
made by Flemington and the Product is found not to meet specifications, Rapid
Spray shall replace the defective Product with complying Product, and Rapid
Spray shall hold Flemington harmless from any cost or expense incurred by
Flemington as a result of such non-compliance. Any dispute about whether or not
Product complies with specifications shall be referred to an independent
laboratory mutually acceptable to the parties. The cost of the assay, and any
other related services of the independent laboratory, shall be borne by the
party whose analysis was found to be in error.
12. Rapid Spray makes no representations, extends no warranties of any kind,
express or implied, nor assumes any responsibility whatsoever, including
responsibility for any claim of toxicity, side effects, adverse drug reactions
or lack of efficacy, to any third party or to Flemington with respect to the
manufacture or use of the Product, except that the Product shall comply with the
specifications set forth in Exhibit A at the time of shipping, and that the
Product shall be supplied to Flemington from manufacturing facilities operated
in compliance with GMP of FDA or other applicable regulatory authorities. Rapid
Spray agrees to permit representatives of Flemington to examine Rapid Spray's
facilities at any reasonable time during regular business hours, and to adopt
such recommendations as reasonably may be made to assure compliance with all GMP
regulations and requirements. Notwithstanding the foregoing, Flemington agrees
to indemnify Rapid Spray, and hold it harmless, from an and all liability to
third parties beyond what liability would, or could, be imposed upon Rapid Spray
under the laws and regulations of the European Community, except with respect
to any failure of Rapid Spray to comply
6
<PAGE>
with GMP regulations, or any more stringent regulations which may apply within
any jurisdiction other than the United States of America in which the Product is
known by the parties to be marketed.
13. Flemington shall use its best efforts to begin marketing Product in the
Territory approximately three months after approval by the appropriate
regulatory authority(ies) having jurisdiction over the application(s) covering
the Product in a given jurisdiction and shall devote such efforts to marketing
the Product as it would to products developed by it having similar sales and
profit potential.
14(a). This Agreement shall be effective as of the date specified above and
shall continue for the life of the Product or the end of Flemington's obligation
to pay royalties to Rapid Spray as elsewhere provided for below in this
Agreement. The obligation of Rapid Spray to supply Product to Flemington in
accordance with this Agreement shall continue until the expiration of the term
of any patent(s) covering the Product, or of the tenth complete calendar year
after the beginning of marketing of Product in the Territory, whichever comes
later; provided, however, either party may renew its rights for an additional
five year period by giving written notice to that effect to the other party
before the expiration of the ninth complete calendar year after the beginning of
the marketing of Product within the Territory. If, at any time during the Term
of this Agreement, it should appear to Flemington that market conditions
relevant to the Product have changed, or are changing, in such a way that
Flemington's ability to market the Product has been, or is being, adversely
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affected in a material manner, the parties agree to negotiate in good faith such
modifications to this Agreement, and the parties' relationship, as will
reasonably enable each party most closely to satisfy their mutual intentions and
expectations in entering into this Agreement.
14(b). Either party may terminate this Agreement in its entirety if the other
party shall be in default of any of its obligations hereunder, and such default
shall not have been remedied within a 60 day period after the giving of a notice
of default, which notice shall specify the particulars of the alleged default.
Notice shall be given in the manner provided below. If the party to which notice
of default was given shall not cure the default within the 60 day period, the
party giving the notice shall have the absolute right to terminate this
Agreement, by giving written notice of its exercise of such right to the other;
upon the giving of such notice this Agreement shall terminate immediately. In
addition, if either party shall begin, in the capacity of a debtor, any
proceedings under any bankruptcy, insolvency, reorganization, readjustment of
debt, receivership, assignment for the benefit of creditors, dissolution or
liquidation law, of any government having jurisdiction over the subject matter
or the parties, or if any such proceedings have been begun against either party,
and any trustee or receiver of either party shall be appointed in such
proceeding, and such party by any act or failure to act shall indicate approval,
consent or acquiescence in such proceedings or the appointment of such trustee
or receiver; or if any warrant or attachment shall be issued against all of the
assets of a party and shall not be dismissed or released within 30 days after
levy; then, in any such case, the other party not involved in any such
proceedings shall have the right to terminate this Agreement by giving written
notice of the exercise of that
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right to the party involved in such proceedings, and upon the giving of that
notice this Agreement shall terminate.
15. The parties agree that any dispute arising between them in connection with
this Agreement shall be finally settled under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce, by one or more arbitrators
appointed in accordance with such Rules. The arbitration shall be held in a
mutually agreeable place, but if the parties cannot agree upon a place they
shall be held in Brussells, Belgium.
16. Except as may expressly be authorized in writing, neither party shall
possess, nor hold itself out to third parties as possessing, any power or
authority to bind or act as the agent of the other.
17. The performance by either party of any covenant or obligation on its part to
be performed hereunder (other than an obligation of either party to pay money to
the other) shall be excused because of any reason customarily recognized as
constituting force majure; provided, however, that the party affected shall
exert its best efforts to eliminate, cure or overcome any of such causes and
resume performance hereunder. Promptly following execution hereof, the parties
shall confer for the purpose of identifying one or more alternative sites of
manufacture to be used if Rapid Spray's production of Product should be
interrupted because of force majure.
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18. Neither this Agreement nor the rights or obligations of either party to it
may be assigned, either in whole or in part, by either party without the advance
written consent of the other, except that Rapid Spray is permitted to assign to
any person or entity owning more than 50% of its shares; provided, however, in
the case of an assignment in connection with the sale or transfer of all or
substantially all of a party's pharmaceutical business, or its merger or
consolidation with another company, such consent shall not be withheld
unreasonably.
19. Any notice required or permitted under this Agreement (not intended to
include ordinary day-to-day communications) shall be given in writing, by fax
transmission, to the other party's principal office, addressed to the chief
executive officer of the recipient, with confirming hard copy being sent by
international overnight letter or service. Communications are effective upon
delivery.
20. Any and all written information, data or know/how received by either party
from the other shall be maintained in confidence by the receiving party during
the term of this Agreement and for five years thereafter; provided, however,
that this obligation shall not apply to any information which the recipient can
establish was known to it before disclosure, or is in or enters the public
domaine through a third party not under obligation of confidentiality to the
receiving party.
21. This Agreement may not be amended except by a writing identifying itself as
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such, executed with the same formality as this Agreement. This requirement of
written amendment may not be waived orally.
22. This Agreement shall bind and benefit the parties and their permitted
successors and assigns.
IN WITNESS WHEREOF, this Agreement has been signed by the duly authorized
representatives of the parties, effective the date set forth above.
FLEMINGTON PHARMACEUTICAL CORP.
By: /s/ Harry A. Dugger
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RAPID SPRAY, GmbH. & Co. KG
By: /s/ Laupheim, der 02.06.92
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