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PROSPECTUS
1,659,683 Shares
VIRAGEN, INC.
COMMON STOCK, PAR VALUE $.01 PER SHARE
This Prospectus (the "Prospectus") relates to the offer and sale of up to
1,659,683 shares of Common Stock, $.01 par value (the "Common Stock"), of
Viragen, Inc. (the "Company" or "Viragen") by certain Selling Stockholders (the
"Selling Security Holders"). Of the 1,659,683 shares of Common Stock offered
hereby (the "Shares"), (i) up to an aggregate of 1,445,090 Shares are issuable
upon conversion of 5,000 shares of the Company's Convertible Preferred Stock,
Series C (the "Series C Preferred Stock") held by the Selling Security Holders;
and (ii) up to 214,593 Shares are issuable upon exercise of Common Stock
purchase warrants exercisable at $2.00 per Share on or prior to December 9, 1999
(the "Warrants").
THE SECURITIES OFFERED HEREBY INVOLVE A SIGNIFICANT DEGREE OF RISK. SEE
"HIGH RISK FACTORS" COMMENCING ON PAGE 6.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION, NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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The date of this Prospectus is March 17, 1997
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The conversion price for the Series C Preferred Stock is equal to the
lesser of (i) the average closing price of the Common Stock (as adjusted as
described herein), as reported by NASDAQ, for the five consecutive trading days
(the "Average Market Price") ending one day prior to the date of each
conversion, or (ii) the conversion price of $7.00, as agreed to by the Selling
Security Holders and the Company pursuant to the Private Securities Subscription
Agreement dated November 27, 1996 (the "Agreement") entered into by the parties.
The Warrants are exercisable for an aggregate of 214,593 shares at an exercise
price of $2.00 per share. Accordingly, the actual number of shares of Common
Stock issued to the Selling Security Holders and sold hereby will depend upon
the Average Market Price of the Common Stock at the time of the conversion of
the Series C Preferred Stock (or the fixed conversion price of $7.00 if lower).
The conversion price may not be lower than $3.46 per share.
The Company believes that the number of shares of Common Stock to which
this Prospectus relates should be the maximum number of shares of Common Stock
that are likely to be issued to the Selling Security Holders and sold hereby.
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The Selling Security Holders have advised the Company that they propose to
sell the Shares, from time to time, publicly through broker-dealers acting as
agents for others, or in private sales. See "Selling Security Holders" and "Plan
of Distribution." The Company will not receive any of the proceeds from the sale
of the Shares offered hereby by the Selling Security Holders except upon any
exercise of the Warrants.
The Company will pay all offering expenses for the offering, estimated at
approximately $15,000; including (i) the SEC registration fee ($1,510); (ii)
legal fees and expenses ($5,000); (iii) blue sky fees ($500); (iv) accounting
fees and expenses ($5,000); (v) printing expenses ($1,000); and (vi)
miscellaneous expenses ($1,990), but will not pay any discounts or commissions
incurred by the Selling Security Holders in connection with the sale of their
shares of Common Stock.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company may be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
at Northwestern Atrium Center, 500 West Madison
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Street, Suite 1400, Chicago, Illinois 60661-2511 and 7 World Trade Center, New
York, New York 10048. Copies of such material may be obtained from the Public
Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission also maintains a web
site on the internet that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission at http://www.sec.gov.
This Prospectus, which constitutes part of a Registration Statement filed
by the Company with the Commission under the Securities Act of 1933, as amended
(the "Act"), omits certain information contained in the Registration Statement
in accordance with the rules and regulations of the Commission. Reference is
hereby made to the Registration Statement and to the exhibits relating thereto
for further information with respect to the Company and the securities offered
hereby.
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TABLE OF CONTENTS
<TABLE>
<S> <C>
AVAILABLE INFORMATION.................................. 2
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE...... 5
HIGH RISK FACTORS...................................... 6
THE COMPANY............................................ 12
SELLING SECURITY HOLDERS .............................. 14
PLAN OF DISTRIBUTION................................... 17
DESCRIPTION OF SECURITIES.............................. 17
LEGAL MATTERS.......................................... 22
EXPERTS................................................ 23
INDEMNIFICATION........................................ 23
</TABLE>
The Common Stock of the Company is traded in the over-the-counter market,
and prices are quoted in the Nasdaq National Market under the symbol "VRGN." The
last sale price of the Common Stock as reported by NASDAQ on March 5, 1997 was
approximately $3.00 per share.
No person has been authorized to give any information or to make any
representations not contained in this Prospectus in connection with the offer
contained in this Prospectus, and if given or made, such information or
representations must not be relied upon as having been authorized by the Company
or the Selling Security Holders. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy the Shares offered hereby in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. Neither the delivery of this Prospectus nor
any sale hereunder shall under any circumstances create any implication that
there has been no change in the affairs of the Company since the date hereof.
The Company will not receive any proceeds from the sale of Common Stock for
the account of the Selling Security Holders. The Company has informed the
Selling Security Holders that the anti-manipulative rules under the Exchange
Act of 1934, Rule 10b-6 under Regulation M may apply to their sales in the
market and has furnished the Selling Security Holders with a copy of these
rules. The Company has also informed the Selling Security Holders of the need
for delivery of copies of this Prospectus in connection with any sale of
securities registered hereunder.
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THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN
THOSE TO WHICH IT RELATES OR AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO
BUY, IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH AN
OFFER IN SUCH JURISDICTION. THE DELIVERY OF THIS PROSPECTUS AT ANY TIME DOES NOT
IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS
DATE.
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The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and, in accordance therewith, files reports and other
information with the Securities and Exchange Commission.
The Company has previously and intends to furnish its stockholders with
annual reports containing audited financial statements and may distribute
quarterly reports containing unaudited summary financial information for each of
the first three quarters of each fiscal year.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed with the Commission are incorporated herein
by reference:
(a) Annual Report of the Company on Form 10-K for the fiscal year ended
June 30, 1996 as amended by Form 10-K/A filed October 18, 1996 and Form 10-K/A-1
filed December 19, 1996.
(b) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1996 as amended by Form 10-Q/A filed December 19, 1996.
(c) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended December 31, 1996.
(d) The Company's Current Report on Form 8-K dated June 7, 1996, as amended
by Form 8-K/A filed July 12, 1996 and Form 8-K/A-1 filed November 29, 1996.
(e) The Company's Current Report on Form 8-K dated February 14, 1997.
(f) The Company's Current Report on Form 8-K dated March 7, 1997.
(g) The description of the Company's Common Stock contained in a
registration statement filed under the Securities Exchange Act
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of 1934, as amended, including any amendment or report filed for the purpose of
updating such description.
(h) All reports and documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act shall be deemed to be incorporated
by reference herein and to be a part hereof from the respective date of filing
of such documents.
Any statement incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document, which
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any statement modified or superseded shall not be
deemed, except as so modified or superseded, to constitute part of this
Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of the Prospectus has been
delivered, on the written or oral request of any such person, a copy of any or
all of the documents referred to above which have been or may be incorporated by
reference in this Prospectus, other than exhibits to such documents. Written
requests for such copies should be directed to Corporate Secretary, Viragen,
Inc. at the Company's principal executive office, 2343 West 76th Street,
Hialeah, Florida 33016, Telephone (305) 557-6000.
HIGH RISK FACTORS
The securities offered hereby involve a high degree of risk. Prospective
investors, prior to making an investment decision, should carefully consider the
following risk factors:
HISTORY OF LOSSES AND RISKS OF NEWLY DEVELOPED BUSINESS
From its inception through December 31, 1996, the Company has incurred
operating losses. The net loss for the fiscal year ended June 30, 1996 was
$4,672,271 and for the six months ended December 31, 1996 was $2,043,800. At
December 31, 1996, the Company had an accumulated deficit of $24,330,912.
Although the Company has begun to expand its operations and has undertaken
financings for its working capital and investing needs, there can be no
assurance that the Company will be able to obtain regulatory approvals necessary
for the commercialization of its natural human leukocyte alpha interferon
product (the "Product") or be able to produce and market its Product on a
profitable basis in the future. Results of operations in the future will be
influenced by numerous factors including technological developments, regulatory
costs and impediments, increases in expenses associated with sales growth,
market acceptance of the Company's Product, the capacity of the Company to
expand and maintain the quality of its Product,
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competition and the ability of the Company to control costs. There can be no
assurance that revenue growth or profitability on a quarterly or annual basis
can be obtained. Additionally, the Company will be subject to all the risks
incident to a rapidly developing business with only a limited history of active
operations, including unforeseen expenses, organizational difficulties,
complications and delays, as well as other factors such as the possibility of
competition with larger companies.
LACK OF FDA AND EU APPROVAL; ADDITIONAL FUNDING NEEDED; RISK OF SOLE PRODUCT
The Product has not been approved by the FDA or EU for use in the treatment
of patients, and the Company may only presently distribute the Product for its
approved HIV/AIDS protocol pursuant to its Florida license under Florida Statute
Section 499.018. The Company intends to seek FDA and EU approval of the Product
for use in treating certain diseases. The Company will require additional
clinical trials in order to obtain FDA and EU approvals. The FDA and EU approval
processes are unpredictable, and the process may take several years to obtain
either FDA or EU approval. There is, however, no assurance that any FDA or EU
approvals will be received at any time in the future. Further trials will also
require significant additional funding in addition to the proceeds obtained from
the financings previously undertaken. There is no assurance that such funding
can be obtained on a cost feasible basis to the Company.
Commencing in December 1994, the Company received notifications from the
Florida Department of Health and Rehabilitative Services ("HRS") (i) to postpone
enrollment of new patients under Viragen's Florida Statute 499 Program until
such time as the Company provided certain administrative reports to HRS and
satisfied certain FDA inspection-related comments concerning the Company's
manufacturing processes and facilities; and (ii) that the Company demonstrate
that its previous production technology complies with FDA current Good
Manufacturing Practices ("cGMP"). As a result of such notifications, changes in
the Company's production technology which have resulted in the development of
Viragen's Omniferon product and determination by the Company to establish new
facilities in Scotland and elsewhere in the United States in proximity to its
current facilities, the Company entered into a settlement with HRS which
resulted in the discontinuation of Viragen's statutory 499 Program. There can be
no assurances that the Company's current production technology and planned new
facilities will comply with FDA mandated cGMP standards.
Additionally, the Product is the Company's sole product and until such time
as the Product achieves FDA and EU approval, the Company has no other sources of
revenues. To the extent that the Product is the Company's only potential source
of revenues, the
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failure to attain approval by the FDA and/or the EU would eventually result in
the Company having to discontinue its operations.
COMPETITION
Competition in the immunological and pharmaceutical products industry is
intense. Competitors include major pharmaceutical, chemical, energy and food
companies, some of which are already marketing genetically engineered alpha and
beta interferon products for Multiple Sclerosis ("MS"), cancer and viral
treatments, and many of which are expanding into modern biotechnology.
Competition is expected to increase in the future based upon the perceived
potential commercial applications for such products. Various of Viragen's
competitors have existing programs, FDA approved and commercially marketed
products or products in the FDA clinical trial process, more experience in
research, development and clinical testing of pharmaceutical and biomedical
products, and substantially greater financial, marketing and human resources
than the Company.
RISK OF TECHNOLOGICAL OBSOLESCENCE
The research and development of new biomedical products is characterized by
rapid technological change, which can severely alter the production methods,
cost, marketing and acceptance of biomedical products. There is no assurance
that the Company will have the resources to keep pace with technological changes
or that products developed by others will not adversely affect the commercial
feasibility of products that Viragen may distribute.
GOVERNMENT REGULATION MAY AFFECT DEVELOPMENT AND DISTRIBUTION OF PRODUCT
All pharmaceutical manufacturers are subject to extensive state and federal
rules and regulations, and are required to maintain current Good Manufacturing
Practices as promulgated under FDA guidelines. Additional rules and regulations
are imposed by the EU. These rules and regulations are constantly changing and
may serve to restrict in whole or in part the ability of the Company to produce
and distribute its Product. If Viragen were not ultimately to achieve compliance
with these rules and regulations, it would likely have a material adverse effect
on the Company's activities and delay or preclude the development of
commercially viable operations.
UNCERTAINTY OF HEALTH CARE REFORM MEASURES AND THIRD PARTY REIMBURSEMENT
The Company's ability to successfully commercialize its products may depend
in part on the extent to which reimbursement for the costs of such products and
related treatments will be available from government health administration
authorities,
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private health coverage insurers and other organizations. In September 1993,
President Clinton announced a series of legislative and regulatory proposals
aimed at reforming the health care system. Although the legislative and
regulatory proposals have been tabled temporarily and while the Company cannot
predict whether any such future legislative or regulatory proposals will be
adopted, the pendency of such proposals could have a material adverse effect on
the Company's ability to raise capital. Any such reform measures, if adopted,
could adversely affect the pricing of therapeutic products in the United States
or the amount of reimbursement available from United States governmental
agencies or third party insurers and could materially adversely affect the
Company in general.
In both domestic and foreign markets, sales of the Company's Product will
depend in part on the availability of reimbursement from third-party payors such
as government health administration authorities, private health insurers and
other organizations. Third-party payors are increasingly challenging the price
and cost effectiveness of medical products and services. Significant uncertainty
exists as to the reimbursement status of newly approved health care products.
There can be no assurance that the Company's Product will be considered cost
effective or that adequate third-party reimbursement will be available to enable
the Company to maintain price levels sufficient to realize an appropriate return
on its investment in product development. Legislation and regulations affecting
the pricing of pharmaceuticals may change before the Company's Product is
approved for marketing. Adoption of such legislation or regulations could
further limit reimbursement for medical products and services.
RISK THAT PATENTS AND PROPRIETARY TECHNOLOGY MAY NOT PROVIDE PROPRIETARY
PROTECTION
The Company has pending a U.S. Patent application relating to interferon
manufacturing technology and processes. Viragen intends to rely in part on
certain proprietary technology in the production of the Product. There can be no
assurances that such proprietary technology will enable the Company to
manufacture its Product more efficiently and with greater efficacy so as to
enable Viragen to compete effectively with other manufacturers of competitive
immunological and pharmaceutical products. In addition, there is no assurance
that others may not independently develop the same or superior technology to
Viragen's technology. Furthermore, to the extent that Viragen's production of
the Product is alleged to breach a third party's patents or proprietary
technology, it could have an adverse impact on the Company, even if the Company
were ultimately determined not to have breached such party's patents or
proprietary technology. There can be no assurance that Viragen's pending patent
applications will be approved, and if granted, whether such patents will provide
substantial protection to the Company.
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RISKS OF TECHNOLOGY TRANSFERS
One of the Company's proposed marketing strategies is to sell the right to
use Viragen's technology and manufacturing protocols to third parties who will
use them to produce the Product outside the United States. There can be no
assurance that the Company's marketing program or the efforts of any brokers
engaged to assist the Company will be commercially successful.
PRODUCT LIABILITY AND LIMITATIONS OF PRODUCT LIABILITY INSURANCE
The Company may be subject to claims for personal injuries or other damages
resulting from the Product. A successful claim could have a materially adverse
effect on the Company. The Company maintains product liability insurance in the
amount of $1,000,000 per occurrence and $2,000,000 in the aggregate, but there
can be no assurance that such insurance will be available in the future at
commercially acceptable rates or that such coverage will be adequate for the
Company's purposes.
RELIANCE ON FOREIGN THIRD PARTY MANUFACTURER MAY DISRUPT OPERATIONS
Viragen (Scotland) Ltd. ("VSL"), a wholly-owned subsidiary of Viragen
(Europe) Ltd., a consolidated majority-owned subsidiary of the Company, has
entered into a License and Manufacturing Agreement with The Common Services
Agency of Scotland, an agency acting on behalf of the Scottish National Blood
Transfusion Service ("SNBTS"). Use of an offshore manufacturer will not provide
for fixed price U.S. denominated pricing, which could expose VSL to the risk of
fluctuations in exchange rates of foreign currencies. In addition, reliance on
such foreign manufacturer is subject to all the risks of dealing with a foreign
manufacturing facility including governmental regulations, tariffs, import and
export restrictions, transportation and taxes and local health and safety
regulations. Consummation of such foreign manufacturing arrangements could lead
to disruption of the operations of the Company, product and service
deficiencies, unanticipated and fluctuating expenses and revenues and sales and
marketing dislocations that are beyond the Company's ability to control, and
which may have a material adverse effect on the Company's business and
operations.
RISK OF DEPENDENCE ON KEY PERSONNEL
The Company's day-to-day operations are managed by its Chairman of the
Board and President, Mr. Gerald Smith, its Chief Executive Officer, Robert H.
Zeiger, its Executive Vice President and Chief Financial Officer, Mr. Dennis W.
Healey, and its Executive Vice President, Mr. Charles F. Fistel. The Company has
entered into employment agreements with Messrs. Smith, Zeiger, Healey and
Fistel, which restrict competitive activities by them during the term of their
agreements and for a two-year period
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thereafter. Although the Company intends to apply for "key man" life insurance
on the lives of Messrs. Smith, Zeiger, Healey and Fistel for its benefit in the
amount of $1,000,000 each, the loss of their services would adversely affect the
conduct of the Company's business. The Company's future success will depend in
significant part on its ability to attract and retain additional skilled
personnel in various phases of its operations.
NO DIVIDENDS ANTICIPATED TO BE PAID
The Company has not paid any cash dividends on its Common Stock since its
inception and does not anticipate paying cash dividends on its Common Stock in
the foreseeable future. The future payment of dividends is directly dependent
upon future earnings of the Company, the capital requirements of the Company,
its financial requirements and other factors to be determined by the Company's
Board of Directors. For the foreseeable future, it is anticipated that earnings,
if any, which may be generated from the Company's operations will be used to
finance the growth of the Company, and that cash dividends will not be paid to
common stockholders.
IMMEDIATE SUBSTANTIAL DILUTION TO PURCHASERS IN THIS OFFERING
Initial purchasers of the Common Stock of the Company offered hereby will
incur an immediate and substantial dilution from the purchase price of their
shares. As of December 31, 1996, the net tangible book value of the Company's
Common Stock was approximately $0.55 per share.
POSSIBLE RESALES OF SECURITIES BY CURRENT STOCKHOLDERS AND DEPRESSIVE EFFECT ON
MARKET
As of December 31, 1996, there were 7,788,588 shares of the Company's
Common Stock outstanding which were "restricted securities" as that term is
defined by Rule 144 under the Securities Act of 1933 (the "Securities Act").
Such shares will be eligible for public sale only if registered under the
Securities Act or if sold in accordance with Rule 144. Under Rule 144, a person
who has held restricted securities for a period of two years may sell a limited
number of shares to the public in ordinary brokerage transactions. Sales under
Rule 144 may have a depressive effect on the market price of the Company's
Common Stock due to the potential increased number of publicly held securities.
The timing and amount of sales of Common Stock covered by the Registration
Statement of which this Prospectus is a part, as well as such subsequently filed
registration statement, could also have a depressive effect on the market price
of the Company's Common Stock.
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USE OF PREFERRED STOCK TO RESIST TAKEOVERS; POTENTIAL ADDITIONAL DILUTION
The Company's Certificate of Incorporation authorizes 1,000,000 shares of
Preferred Stock, of which at February 28, 1997, 2,650 shares of Series A
Preferred Stock, 13,864 shares of Series B Preferred Stock, 5,000 shares of
Series C Preferred Stock 15,000 Shares of Series D Preferred Stock and 5,000
Shares of Series E Preferred Stock were issued and outstanding. As provided in
the Company's Certificate of Incorporation, Preferred Stock may be issued by
resolutions of the Company's Board of Directors from time to time without any
action of the stockholders. The Company anticipates issuing additional shares of
Preferred Stock as part of its financing program. Such resolutions may authorize
issuance of the Preferred Stock in one or more series and may fix and determine
dividend and liquidation preferences, voting rights, conversion privileges,
redemption terms and other privileges and rights of the shares of each
authorized series. While the Company includes such Preferred Stock in its
capitalization in order to enhance its financial flexibility, such Preferred
Stock could possibly be used by the Company as a means to preserve control by
present management in the event of a potential hostile takeover of the Company.
In addition, the issuance of large blocks of Preferred Stock could possibly
have a dilutive effect with respect to existing holders of Common Stock of the
Company. The Company has received a commitment for additional shares of
Preferred Stock, subject to market and other conditions, which while subject to
negotiation of the specific terms thereof, is likely to be comparable in part to
the shares of Series C Preferred Stock currently issued.
THE COMPANY
Viragen, Inc. was organized in December 1980 to engage in research,
development and manufacture of certain immunological products for commercial
application, particularly human leukocyte interferon, for antiviral and
therapeutic applications and as anticancer agents. Viragen's primary product
(the "Product") is a natural human leukocyte alpha interferon ("Natural
Interferon"). Natural Interferon is a protein substance that inhibits malignant
cell growth without materially interfering with normal cells. Natural Interferon
stimulates and modulates the human immune system and, in addition, impedes the
growth and propagation of various viruses. The Product is a natural product
produced from human white blood cells. Alpha Leukoferon(TM) and Omniferon(TM)
are the trade names for Viragen's Product in injectable form. The Company's
Product has not been approved by the United States Food and Drug Administration
("FDA") or the European Union ("EU"), and there can be no assurances that
approval of the Product will be obtained at any time in the future.
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The Company intends to seek to obtain FDA and EU approvals for various uses
of its Omniferon product in the future. Such approval is expected to require
several years of clinical trials and substantial additional funding. To date,
Viragen has not distributed the Product other than for research and pursuant to
its investigatory license from the Florida Department of Health and
Rehabilitative Services and until May 1993, Viragen had not actively operated
due to insufficient funds. Viragen expects to concentrate its efforts in
preparing, filing and processing its applications and obtaining approvals for
its Product from the FDA and the EU. The Company has assembled an advisory
committee consisting of scientists, medical researchers and clinicians to assist
the Company in its applications to the FDA and the EU.
The Company's majority owned subsidiary, Viragen (Europe) Ltd., acting
through its wholly-owned subsidiary Viragen (Scotland) Ltd., entered into a
License and Manufacturing Agreement with The Common Services Agency of Scotland
(the "Agency") an agent acting on behalf of the Scottish National Blood
Transfusion Service ("SNBTS"). Pursuant to such Licensing and Manufacturing
Agreement, SNBTS on behalf of VSL, will assist in the manufacture of VSL's
Omniferon product for exclusive distribution within the EU and non-exclusively
worldwide in return for certain royalties and preferential access to the Product
for Scottish Agency patients at preferential prices. The Agency has committed to
assist in the manufacture of Omniferon in sufficient scale to accommodate the EU
Clinical Trials and, subsequently, for limited commercial sales in amounts to be
agreed upon by the parties. The Agency will also work with the Company in
conducting studies relevant to Omniferon and cooperate with the Company to
enable it to comply with the laws and regulations of the EU in connection with
production, clinical trials and distribution of Omniferon.
In June 1996, the Company entered into a Letter of Intent with the American
Red Cross -- Biomedical Services Division. It is the Company's intention to form
a strategic alliance with the American Red Cross focusing on joint research
projects relating to the development of blood-derived products and processes
including the Company's Omniferon product in the United States. The Company is
currently negotiating the terms of the agreement establishing the scope of the
relationship and respective obligations of the parties.
Viragen's administrative office and research facilities are located at 2343
West 76th Street, Hialeah, Florida 33016 (Telephone No. (305) 557-6000;
Facsimile No. (305) 364-8158).
EXCEPT FOR HISTORICAL INFORMATION CONTAINED HEREIN, THE MATTERS SET FORTH
IN THIS PROSPECTUS ARE FORWARD LOOKING AND INVOLVE A NUMBER OF RISKS AND
UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE
DESCRIBED FOR A VARIETY OF FACTORS. SUCH FACTORS COULD INCLUDE, BUT ARE NOT
LIMITED TO,
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THOSE DISCUSSED IN "RISK FACTORS" AND "MANAGEMENT'S DISCUSSION AND ANALYSIS" IN
THE COMPANY'S FORM 10K-A-1 ANNUAL REPORT FILED FOR THE FISCAL YEAR ENDING JUNE
30, 1996, AS WELL AS THOSE DISCUSSED ELSEWHERE IN OTHER PUBLIC FILINGS MADE BY
THE COMPANY WITH THE SECURITIES AND EXCHANGE COMMISSION. FORWARD LOOKING
STATEMENTS INCLUDE THE COMPANY'S STATEMENTS REGARDING LIQUIDITY, ANTICIPATED
CASH NEEDS AND AVAILABILITY, AND ANTICIPATED EXPENSE LEVELS IN "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS"
INCLUDING EXPECTED PRODUCT CLINICAL TRIAL INTRODUCTIONS, EXPECTED RESEARCH AND
DEVELOPMENT EXPENDITURES, NEW FACILITY COMPLETION DATES AND RELATED ANTICIPATED
COSTS. ALL FORWARD LOOKING STATEMENTS INCLUDED IN THIS DOCUMENT ARE BASED ON
INFORMATION AVAILABLE TO THE COMPANY ON THE DATE HEREOF, AND THE COMPANY ASSUMES
NO OBLIGATION TO UPDATE ANY SUCH FORWARD LOOKING STATEMENTS. IT IS IMPORTANT TO
NOTE THAT THE COMPANY'S ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE IN
SUCH FORWARD LOOKING STATEMENTS.
SELLING SECURITY HOLDERS
PRIVATE SECURITIES SUBSCRIPTION AGREEMENTS
The Selling Security Holders purchased the Series C Preferred Stock and
Warrants in a private placement transaction pursuant to separate Private
Securities Subscription Agreements dated November 27, 1996. The stated value of
the Series C Preferred Stock is $1,000 per share. In addition, Warrants to
purchase an aggregate of 214,593 shares of Common Stock, exercisable at $2.00
per share on or prior to December 9, 1999, were issued pursuant to the Private
Securities Subscription Agreements.
At the option of the holder of the Series C Preferred Stock, up to 25% of
such shares may be convertible, on or after 10 days from the date that the
underlying shares of Common Stock have been registered with the SEC for public
resale, into shares of the Company's Common Stock on the basis of one share of
Series C Preferred Stock for shares of Common Stock equal in number to the
amount determined by dividing $1,000 (representing the stated value thereof) by
the closing price of the Company's Common Stock over the five-day trading period
ending on the day prior to the conversion of the Series C Preferred Stock. An
additional 25% of the Series C Preferred Stock will be convertible on or after
the 30th, 60th and 90th day thereafter on a cumulative basis. The conversion
price per share may not be less than $3.46 nor more than $7.00; provided,
however, in the event the conversion price would be less than $3.46 but for such
minimum conversion price, the difference between $3.46 and what the conversion
price would have been except for such minimum price, multiplied by the number of
shares of Common Stock issued upon conversion, will be paid to the holder in
cash upon conversion. Any shares of Series C Preferred Stock which are
outstanding on December 5, 1997 will be automatically converted into shares of
Common Stock based on the
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<PAGE> 15
conversion price at such time computed in accordance with the above procedure.
With respect to the Warrants, as to each Holder, an amount equal to 25% of
such Warrants are exercisable on or after the first conversion date of the
Series C Preferred Stock, with an additional 25% becoming exercisable, 30, 60
and 90 days following the first exercise date on a cumulative basis. The Holders
of the Warrants are not entitled to any rights of a stockholder of the Company.
In addition, holders are entitled to an adjustment in the exercise price and/or
the number of shares of Common Stock to be received upon exercise of the
Warrants in the event the Company undertakes certain transactions including
payment of dividends or distributions with respect to its Common Stock,
subdivisions or combinations of its outstanding Common Stock and
recapitalizations in connection with a consolidation or merger in which the
Company is the continuing corporation.
Shoreline Pacific Institutional Finance, the Institutional Division of
Financial West Group, received a placement fee of $250,000 in connection with
the transaction.
In connection with the Private Securities Subscription Agreement, the
Company and the Selling Security Holders entered into a Registration Rights
Agreement pursuant to which the Company agreed to file a Registration Statement
registering the resale by the Selling Security Holders of the Shares underlying
the Series C Preferred Stock and Warrants. The Registration Statement has been
filed by the Company to fulfill these obligations to the Selling Security
Holders under the Registration Rights Agreement. The Company is required to
maintain the effectiveness of the Registration Statement covering the resale of
the Shares of the Selling Security Holders until the earlier of (i) the date on
which the Selling Security Holders may sell all of their Shares without
restriction pursuant to Rule 144(k) promulgated under the Securities Act of
1933, or (ii) the date on which the Selling Security Holders have sold all of
their Shares included in the Prospectus and none of the shares of Series C
Preferred Stock remain outstanding.
The Company has agreed to indemnify each of the Selling Security Holders
against any liabilities under the Securities Act of 1933 or otherwise, arising
out of or based upon any untrue or alleged untrue statement of a material fact
in the Registration Statement or this Prospectus or by any omission of a
material fact required to be stated therein except to the extent that such
liabilities arise out of or are based upon any untrue or alleged untrue
statement or omission in any information furnished in writing to the Company by
the Selling Security Holders expressly for use in the Registration Statement.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling the Company pursuant
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<PAGE> 16
to its Certificate of Incorporation and By-laws, the Company has been informed
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
In connection with the registration of the resale of the Shares offered
hereby, the Company will supply Prospectuses to the Selling Security Holders and
use its best efforts to qualify the Shares for sale in any states wherein
qualification is required.
STOCK OWNERSHIP
The following table sets forth the name of the Selling Security Holders,
the amount of shares of Common Stock held directly or indirectly or underlying
the Series C Preferred Stock and Warrants of the Company owned by the Selling
Security Holders on the date hereof, the amount of shares of Common Stock to be
offered by the Selling Security Holders, the amount to be owned by the Selling
Security Holders following sale of such shares of Common Stock and the
percentage of shares of Common Stock to be owned by the Selling Security Holders
following completion of such offering. As of December 31, 1996, there were
outstanding 38,629,091 shares of Common Stock of the Company.
<TABLE>
<CAPTION>
Percentage
Percentage Shares to be to be Owned
Name of Selling Number of Shares to Owned Before Owned After After
Security Holder Shares Owned(1) be Offered Offering Offering Offering
- --------------- --------------- ---------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Strome Hedgecap
Limited(2) 99,581 99,581 0.2% 0 --
Strome Offshore
Limited(3) 730,261 730,261 1.9% 0 --
Strome Partners,
L.P.(4) 597,485 597,485 1.5% 0 --
Strome Susskind
Hedgecap, L.P.(5) 232,356 232,356 0.8% 0 --
</TABLE>
- ----------------
(1) Represents maximum number of shares of Common Stock issuable upon
exercise of Series C Preferred Stock based on a minimum conversion
price of $3.46 per share and exercise of the Warrants.
(2) Address is Corporate Centre, West Bay Road, P.O. Box 31106 SMB, Grand
Cayman, Cayman Island. Includes 12,876 shares of Common Stock
underlying the Warrants.
(3) Address is Corporate Centre, West Bay Road, P.O. Box 31106 SMB, Grand
Cayman, Cayman Island. Includes 94,421 shares of Common Stock
underlying the Warrants.
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<PAGE> 17
(4) Address is 100 Wilshire Boulevard, 15th Floor Santa Monica, California
90401. Includes 77,253 shares of Common Stock underlying the Warrants.
(5) Address is 100 Wilshire Boulevard, 15th Floor, Santa Monica,
California 90401. Includes 30,043 shares of Common Stock underlying
the Warrants.
None of the Selling Security Holders nor their affiliates have held any
position, office or had any material relationship with the Company previously.
The Company has agreed to pay for all costs and expenses incident to the
issuance, offer, sale and delivery of the Shares, including, but not limited to,
all expenses and fees of preparing, filing and printing the Registration
Statement and Prospectus and related exhibits, amendments and supplements
thereto and mailing of such items. The Company will not pay selling commissions
and expenses associated with any such sales by the Selling Security Holders. The
Company has agreed to indemnify the Selling Security Holders against civil
liabilities including liabilities under the Securities Act of 1933.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Security Holders or
their pledgees or donees. Such sales may be made in the over-the-counter market
or in negotiated transactions, at prices and on terms then prevailing or at
prices related to the then current market price, or at negotiated prices. The
Shares may be sold by means of: (i) purchases by a broker or dealer as principal
and resale by such broker or dealer for its account pursuant to this Prospectus
and/or (ii) ordinary brokerage transactions and transactions in which the broker
solicits purchasers. In effecting sales, brokers or dealers engaged by the
Selling Security Holders may arrange for other brokers or dealers to
participate. Brokers or dealers will receive commissions or discounts from the
Selling Security Holders in amounts to be negotiated immediately prior to the
sale, which amounts will not be greater than that normally paid in connection
with ordinary trading transactions.
DESCRIPTION OF SECURITIES
The Company is currently authorized to issue up to 75,000,000 shares of
Common Stock, par value $.01 per share, of which 38,629,091 shares were
outstanding as of December 31, 1996. The Company is also authorized to issue up
to 1,000,000 shares of Preferred Stock, par value $1.00 per share, of which
2,650 shares of Series A Preferred Stock, 13,864 shares of Series B Preferred
Stock, 5,000 shares of Series C Preferred Stock, 15,000 Shares of Series D
Preferred Stock and 5,000 Shares of Series E Preferred Stock were outstanding as
of February 28, 1997.
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<PAGE> 18
COMMON STOCK
Subject to the dividend rights of the holders of Preferred Stock, holders
of shares of Common Stock are entitled to share, on a ratable basis, such
dividends as may be declared by the Board of Directors out of funds, legally
available therefor. Upon liquidation, dissolution or winding up of the Company,
after payment to creditors and holders of Preferred Stock that may be
outstanding, the assets of the Company will be divided pro rata on a per share
basis among the holders of the Common Stock.
Each share of Common Stock entitles the holders thereof to one vote.
Holders of Common Stock do not have cumulative voting rights which means that
the holders of more than 50% of the shares voting for the election of Directors
can elect all of the Directors if they choose to do so, and, in such event, the
holders of the remaining shares will not be able to elect any Directors. The
By-Laws of the Company require that only a majority of the issued and
outstanding shares of Common Stock of the Company need be represented to
constitute a quorum and to transact business at a stockholders' meeting. The
Common Stock has no preemptive, subscription or conversion rights and is not
redeemable by the Company.
PREFERRED STOCK
The Company is authorized to issue a total of 1,000,000 shares of Preferred
Stock, par value $1.00 per share. The Preferred Stock may be issued by
resolutions of the Company's Board of Directors from time to time without any
action of the stockholders. Such resolutions may authorize issuances of such
Preferred Stock in one or more series and may fix and determine dividend and
liquidation preferences, voting rights, conversion privileges, redemption terms
and other privileges and rights of the shares of each authorized series. While
the Company includes such Preferred Stock in its capitalization in order to
enhance its financial flexibility, such Preferred Stock could possibly be used
by the Company as a means to preserve control by present management in the event
of a potential hostile takeover of the Company. In addition, the issuance of
large blocks of Preferred Stock could possibly have a dilutive effect with
respect to the existing holders of Common Stock of the Company.
SERIES A PREFERRED STOCK
The Company is authorized to issue 375,000 shares of Series A Preferred
Stock. The Company currently has 2,650 shares of Series A Preferred Stock
outstanding. The Series A Preferred Stock was established by the Board of
Directors in January 1984. Each share of Series A Preferred Stock is immediately
convertible into 4.26 shares of Common Stock. Dividends on the Series A
Preferred Stock
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<PAGE> 19
are cumulative, have priority to the Common Stock and are payable in either cash
or Common Stock, at the option of the Company.
The Series A Preferred Stock has voting rights only if dividends are in
arrears for five annual dividends. Upon such occurrence, the voting would be
limited to the election of two directors. Voting rights terminate upon payment
of the cumulative dividends. The Series A Preferred Stock is redeemable at the
option of the Company at any time after expiration of ten consecutive business
days during which the bid or last sale price for the Common Stock is $6.00 per
share or higher. There is no mandatory redemption or sinking fund obligation
with respect to the Series A Preferred Stock.
Owners of the Series A Preferred Stock, of which there are eight record
holders, will be entitled to receive $10.00 per share (plus accrued and unpaid
dividends) before any distribution or payment is made to holders of the Common
Stock or other stock of the Company junior to the Series A Preferred Stock upon
liquidation, dissolution or winding up of the Company. Cumulative dividends of
$16,000 were declared and paid to the holders of Series A Preferred Stock on
October 11, 1996. If in any such event the assets of the Company distributable
among the holders of Series A Preferred Stock or any stock of the Company
ranking on a par with the Series A Preferred Stock upon liquidation, dissolution
or winding up are insufficient to permit such payment, the holders of the Series
A Preferred Stock and of such other stock will be entitled to ratable
distribution of the available assets in accordance with the respective amounts
that would be payable on such shares if all amounts payable thereon were paid in
full.
SERIES B PREFERRED STOCK
The Series B Preferred Stock (as represented by the stated value) are
convertible into shares of Common Stock commencing August 21, 1996. The
conversion price is equal to the lesser of 77% of the Average Market Price of
the Common Stock at the time of conversion or $8.74. The percentage of the
Average Market Price or the fixed conversion price which determines the
conversion price of the Series B Preferred Stock is adjustable downward in the
event a Triggering Event occurs. Should a Triggering Event occur, the percentage
of the Average Market Price which determines the conversion price or the fixed
conversion price for the Series B Preferred Stock will be reduced by the number
of percentage points equal to two times the sum of the number of months
(prorated) during which a Triggering Event exists. Should a Triggering Event
occur subsequent to conversion of the Series B Preferred Stock, but prior to the
sale of the Common Stock obtained upon conversion by the holder of the Series B
Preferred Stock, then upon such holder's sale of such Common Stock, the Company
will pay to the holder an amount equal to the Average Market Price of the Common
Stock received upon conversion ending one trading day prior to such
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<PAGE> 20
conversion, multiplied by two-hundredths (.02) times the sum of the number of
months (prorated) during which a Triggering Event exists. At the option of the
Company, such amount may be paid in Common Stock of the Company based on the
Average Market Price of the Common Stock on the date prior to the sale of such
shares of Common Stock issued upon conversion of the Series B Preferred Stock,
or in cash provided that the Company is required to pay such amount in cash if
the Triggering Event which occurred was the Company's failure to maintain the
listing of the Common Stock on NASDAQ or other markets specified in the
Certificate of Designations, Preferences and Rights of 5% Cumulative Convertible
Series B Preferred Stock (the "Certificate of Designations").
The Series B Preferred Stock provides for a cash dividend of 5% per annum
of the stated value of the Series B Preferred Stock on a cumulative basis.
Dividends accrue from the date of issuance and are payable quarterly commencing
September 7, 1996 through and including the date on which the Series B Preferred
Stock are converted. Subject to certain limitations provided in the Certificate
of Designations, dividends may be paid at the Company's option in cash or Common
Stock of the Company. Commencing 180 days following the effective date of the
Registration Statement of which this Prospectus is a part, the Company may
require the holders of the then outstanding shares of Series B Preferred Stock
to convert all of the remaining shares of Series B Preferred Stock into Common
Stock of the Company at the conversion price previously described. The Series B
Preferred Stock has no voting rights, except as required by law and except that
a majority of the outstanding Series B Preferred Stock is required to approve a
consolidation, merger or reclassification of outstanding shares of the Series B
Preferred Stock, and the approval of two-thirds of the outstanding Series B
Preferred Stock is required to amend the Certificate of Designations.
Pursuant to the terms of the Certificate of Designations, the holders of
the Series B Preferred Stock may not convert the Series B Preferred Stock, and
the Company may not require the conversion of the Series B Preferred Stock or
issue Common Stock of the Company in lieu of cash dividends attributable to the
Series B Preferred Stock or issue the Additional Shares in the event a
Triggering Event occurs if, as a result thereof, the shares of Common Stock
beneficially owned by any such holders (if their collective holdings would be
aggregated under the Securities Exchange Act of 1934) would exceed 4.9% of the
outstanding shares of Common Stock of the Company.
SERIES D PREFERRED STOCK
The Series D Preferred Stock (as represented by the stated value) is
convertible into shares of Common Stock of the Company by dividing the stated
value of the Series D Preferred Stock to be converted by the conversion price in
effect at the time of
20
<PAGE> 21
conversion. The conversion price shall be calculated at 18% discounted from the
average closing bid price of the Company's Common Stock, as reported by
Bloomberg L.P., over the five-day trading period on the day prior to conversion
(the "Conversion Price"). Notwithstanding the foregoing, the Conversion Price
may not be more than $7.00 per share of Common Stock nor less than $2.00 per
share of Common Stock (the "Floor"). In addition, the Holder may not convert any
Series D Preferred Stock during the conversion period if the Conversion Price,
averaged over any rolling consecutive five-day trading period, falls below the
Floor (a "Non-Converting Period"). Upon occurrence of the twenty-first
Non-Converting Period, the Holder shall thereafter have the right to convert,
but the Company shall have the right to (i) pay to the Holder cash equal to the
amount originally paid by the Holder for the outstanding Series D Preferred
Stock to be converted plus 10% of such amount (the "Cash-Out Option"), or (ii)
convert the outstanding Series D Preferred Stock held by the Holder to be
converted into the full amount of Common Stock to which the Holder would be
entitled at the Conversion Price irrespective of the Floor. Any Series D
Preferred Stock remaining outstanding on February 5, 1999 will be automatically
converted into Common Stock of the Company on such date subject to certain
limitations. The Holder of the Series D Preferred Stock may not convert his/her
shares if, as a result thereof, the shares of Common Stock beneficially owned by
the Holder will exceed 4.9% of the outstanding shares of Common Stock of the
Company.
The Series D Preferred Stock provides for a cash dividend of 6% per annum
of the stated value of the Series D Preferred stock on a cumulative basis.
Dividends accrue from the date of issuance and are payable quarterly commencing
March 31, 1997. Except as otherwise provided by law, the Holders of Series D
Preferred stock do not have voting rights. Upon liquidation, dissolution or
winding-up of the Company, no distribution may be made to the holders of shares
of capital stock ranking junior to the Series D Preferred Stock unless, prior
thereto, the Holders of the Series D Preferred Stock shall have received $1,000
per share, plus an amount equal to declared and unpaid dividends thereon to the
date of such payment. A vote of not less than two-thirds of then outstanding
shares of Series D Preferred Stock is required prior to any amendment,
alteration, change or repeal of any of the designations of the Series D
Preferred Stock.
SERIES E PREFERRED STOCK
The Series E Preferred Stock (as represented by the stated value) is
convertible into shares of Common Stock of the Company commencing May 8, 1997 by
dividing the stated value of the Series E Preferred Stock to be converted by the
conversion price in effect at the time of conversion. The conversion price shall
be (i) the lesser of the market price for the Common Stock of the Company, as
defined in the Certificate of Designations, multiplied by 85%,
21
<PAGE> 22
subject to adjustment, or (ii) $7.00, subject to adjustment. The Company also
has the right to compel conversion of the Series E Preferred Stock at any time
subsequent to 270 days after February 21, 1997. The holder of the Series E
Preferred Stock may not convert the shares of Series E Preferred Stock if, as a
result thereof, the shares of Common Stock beneficially owned by the holder
would exceed 4.9% of the outstanding shares of Common Stock of the Company.
The Series E Preferred Stock provides for a dividend of 5% per annum of the
stated value of the Series E Preferred Stock on a cumulative basis. Dividends
accrue from the date of issuance and are payable quarterly commencing April 1,
1997. Dividends may be paid in cash or, at the Company's option and subject to
certain other conditions, in shares of Common Stock of the Company. Except as
otherwise provided by law, the holders of Series E Preferred Stock do not have
voting rights. Upon liquidation, dissolution or winding-up of the Company, no
distribution may be made to the holders of shares of capital stock ranking
junior to the Series E Preferred Stock unless, prior thereto, the holders of the
Series E Preferred Stock shall have received $1,000 per share plus an amount
equal to declared and unpaid dividends thereon to the date of such payment. A
vote of not less than two-thirds of the then outstanding shares of Series E
Preferred Stock is required prior to any amendment, alteration, change or repeal
of any of the designations of the Series E Preferred Stock.
OVER-THE-COUNTER MARKET
The Company's Common Stock is traded on NASDAQ under the symbol "VRGN." If
for any reason the Common Stock does not remain accepted for inclusion on
NASDAQ, then in such case the Company's Common Stock would be expected to
continue to be traded in the over-the-counter markets through the "pink sheets"
or the NASD's OTC Bulletin Board. In the event the Common Stock were not
included on NASDAQ, the Company's Common Stock would be covered by a Securities
and Exchange Commission rule that imposes additional sales practice requirements
on broker-dealers who sell such securities to persons other than established
customers and accredited investors (generally institutions with assets in excess
of $5,000,000 or individuals with net worth in excess of $1,000,000 or annual
income exceeding $200,000 or $300,000 jointly with their spouse). For
transactions covered by the rule, the broker-dealer must make a special
suitability determination for the purchaser and receive the purchaser's written
agreement to the transaction prior to the sale. Consequently,the rule may affect
the ability of broker-dealers to sell the Company's securities and also may
affect the ability of purchasers in this offering to sell their shares in the
secondary market. The ability of the Company to secure a symbol on NASDAQ, does
not imply that a meaningful trading market in its Common Stock will ever
develop.
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<PAGE> 23
TRANSFER AGENT
The Transfer Agent for the shares of Common Stock is Chase Mellon
Shareholder Services, Overpeck Centre, 85 Challenger Road, Ridgefield Park, New
Jersey 07660-2108.
LEGAL MATTERS
Certain legal matters in connection with the Shares being offered hereby
will be passed upon for the Company by Atlas, Pearlman, Trop & Borkson, P.A.,
200 East Las Olas Boulevard, Suite 1900, Fort Lauderdale, Florida 33301. Members
of that firm or members of their family own an aggregate of 37,000 shares of
Common Stock of the Company.
EXPERTS
The consolidated financial statements of Viragen, Inc. incorporated by
reference in the Viragen, Inc. Annual Report (Form 10-K/A1) for the year ended
June 30, 1996, have been audited by Ernst & Young LLP, Certified Public
Accountants, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
INDEMNIFICATION
Section 145 of the General Corporation Law of Delaware, under which
jurisdiction the Company is incorporated, empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he or she
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 or enterprise. A corporation may indemnify against
expenses (including attorneys' fees) and, other than in respect of an action by
or in the right of the corporation, against judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action, suit
or proceeding if the person indemnified acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. In the case of an
action by or in the right of the corporation, no indemnification of expenses may
be made in respect to any claim, issue or matter as to which such person shall
have been adjudged to
23
<PAGE> 24
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action was brought shall determine that,
despite the adjudication of liability, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 of the General Corporation Law of Delaware further provides that to
the extent a director, officer, employee or agent of the corporation has been
successful in the defense of any action, suit or proceeding referred to above or
in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
Article VII of the By-Laws of the Company require the Company to indemnify
its Directors and officers as follows:
"The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including any action or suit by or in the right of the
corporation) 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 or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
suit, action or proceeding 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, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, provided, however,
that in the case of an action or suit by or in the right of the
corporation, (a) such person shall be indemnified only to the extent of his
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement thereof and not for any
judgments, fines or amounts paid in settlement and (b) no indemnification
shall be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation unless, and only to the
extent that, the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper."
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<PAGE> 25
Any indemnification hereunder (unless required by law or ordered by a
court) shall be made by the corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct set forth in this Article. Such determination shall be made (1) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders of the corporation.
The indemnification provided herein shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any statute,
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
The corporation may purchase and maintain insurance on behalf of any person
who 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 or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of the General Corporation Law of the State of Delaware or of
these By-Laws.
The corporation's indemnity of any person who 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 or other enterprise, shall be
reduced by any amounts such person may collect as indemnification (i) under any
policy of insurance purchased and maintained on his behalf by the corporation or
(ii) from such other corporation, partnership, joint venture, trust or other
enterprise.
Nothing contained in this Article VII, or elsewhere in these By-Laws, shall
operate to indemnify any director or officer of such indemnification is for any
reason contrary to law, either as a matter of public policy, or under the
provisions of the Federal Securities Act of 1933, the Securities Exchange Act of
1934, or any other applicable state or federal law.
25
<PAGE> 26
For the purposes of this Article, references to "the corporation" include
all constituent corporations absorbed in a consolidation or merger as well as
the resulting or surviving corporations so that any person who is or was a
director, officer, employee or agent of such a constituent corporation or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise shall stand in the same position under the provisions
of this Article with respect to the resulting or surviving corporation as he
would if he had served the resulting or surviving corporation in the same
capacity.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the Company has been advised that in
the opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
26
