AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 25, 1996
Registration Statement No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ALLIANCE PHARMACEUTICAL CORP.
(Exact name of registrant as specified in its charter)
NEW YORK 14-1644018
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3040 Science Park Road
San Diego, CA 92121
(619) 558-4300
(Address, including zip code, and telephone number, including area code
of registrant's principal executive offices)
DUANE J. ROTH
President
Alliance Pharmaceutical Corp.
3040 Science Park Road
San Diego, CA 92121
(619) 558-4300
(Name, address, including zip code, and telephone number, of agent
for service of process)
Copy to:
Melvin Epstein, Esq.
Stroock & Stroock & Lavan
Seven Hanover Square
New York, NY 10004-2594
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED
SALE TO THE PUBLIC: AS SOON AS PRACTICABLE AFTER
THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Shares Amount to be Aggregate Price Aggregate Amount of
to be Registered Registered Per Unit(1) Offering Price(1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock
$.01 par value 1,875,000 shares $17.625 per share $33,046,875 $11,396.00
- --------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) on the basis of the price of
the Common Stock on the NASDAQ National Market System on June 21, 1996.
</TABLE>
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.
1,875,000 SHARES
ALLIANCE
PHARMACEUTICAL CORP.
COMMON STOCK
------------
The Prospectus relates to 1,875,000 shares (the "Shares") of Common
Stock, $.01 par value (the "Common Stock"), which may be offered by certain
shareholders of the Company (the "Selling Shareholders"). The Shares may be
offered by the Selling Shareholders for their own account at any time and from
time to time in the over-the-counter market or otherwise in private sales at
prices to be negotiated. None of the proceeds of the sale of the Shares by the
Selling Shareholders will be received by the Company. The Company has agreed to
bear all expenses (other than underwriting discounts and selling commissions,
and fees and expense of advisers to the Selling Shareholders) in connection with
the registration of such securities by the Selling Shareholders.
The Company's Common Stock is traded over-the-counter on the NASDAQ
National Market System under the symbol ALLP. On June __, 1996, the last
reported sale price of the Common Stock as reported by NASDAQ was $__.__ per
share.
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE
"RISK FACTORS" ON PAGE 5 HEREOF.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is June __, 1996.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended June
30,1995, which was filed with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1995, which was filed with the Commission pursuant
to the Exchange Act on November 13, 1995, the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended December 31, 1995, which was filed with the
Commission pursuant to the Exchange Act on February 6, 1996, the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1996, which
was filed with the Commission pursuant to the Exchange Act on May 14, 1996, the
Company's Prospectus dated April 2, 1996, and the information under the caption
"Description of the Company's Securities" contained in the Company's
Registration Statement on Form 8-A, dated October 25, 1984, with respect to the
Company's Common Stock, are incorporated herein by reference and made a part of
this Prospectus as of the date hereof. All reports subsequently filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of the Common Stock offered hereby shall be deemed
to be incorporated by reference into this Prospectus. Any statement contained
herein or in a document incorporated or deemed to be 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 document
which is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to any person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the documents which have been incorporated by reference in this
Prospectus, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into the documents so incorporated.
Requests for such copies should be directed to Lloyd Rowland, Alliance
Pharmaceutical Corp., 3040 Science Park Road, San Diego, California 92121,
telephone (619) 558-4300.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Exchange Act and in accordance therewith files reports, proxy statements and
other information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities of
the Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W, Washington,
D.C. 20549, and at the Commission's New York Regional Office, Seven World Trade
Center, 13th Floor, New York, New York 10048, and at its Chicago Regional
Office, Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and copies of such materials can be obtained by mail
from the Public Reference Section of the Commission at 450 Fifth Street, N.W,
Washington, D.C. 20549, at prescribed rates. The Company's Common Stock is
listed on the Nasdaq National Market. Reports and other information concerning
the Company may be inspected at the offices of the National Association of
Securities Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be
read in conjunction with, the more detailed information and consolidated
financial statements in this Prospectus or previously filed with the Securities
and Exchange Commission and incorporated herein by reference. As used in this
Prospectus, the terms "Company" and "Alliance" refer to Alliance Pharmaceutical
Corp. and its consolidated subsidiaries.
THE COMPANY
Alliance is a pharmaceutical research and development company that
focuses on developing scientific discoveries into potential drug products and
licensing these products to multinational pharmaceutical companies in exchange
for fixed payments and royalties. To date, the Company has entered into
agreements with researchers for the rights to two innovative products, developed
these products through initial clinical (human) trials, and entered into
collaborative relationships with multinational pharmaceutical companies for the
final stages of development and worldwide marketing. These products are
Oxygent(TM), an intravascular oxygen carrier designed to reduce the need for
donor blood transfusions during surgery, which is currently in Phase IIb
clinical trials and is licensed to affiliates of Johnson & Johnson, and
LiquiVent(R), an intrapulmonary agent for use in treatment of acute respiratory
failure, which is currently in a pivotal Phase II/III clinical trial and is
licensed to Hoechst Marion Roussel, Inc., an affiliate of Hoechst AG. Alliance
intends to enter into a collaborative agreement for Imagent(R) US, an ultrasound
contrast agent for which the Company has begun a Phase I clinical trial.
The Company's strategy is to identify potential new pharmaceutical
products through scientific collaborations with researchers and clinicians in
universities and medical centers where many of the basic causes of disease and
potential targets for new therapies are discovered. Using its experience in
defining pharmaceutical formulations, designing manufacturing processes,
conducting preclinical pharmacology and toxicology studies, and conducting
early-phase human testing, Alliance endeavors to advance such discoveries into
clinical development. The Company seeks collaborative relationships for the
final stages of drug development, including completing late-phase human testing,
obtaining worldwide regulatory approvals, building large-scale manufacturing
capacities, and marketing.
Alliance's products currently in clinical development - Oxygent,
LiquiVent, and Imagent US - are based upon perfluorochemical ("PFC") and
emulsion technologies. PFCs are biochemically inert compounds and may be
employed in a variety of therapeutic and diagnostic applications. The Company's
primary drug substance is perflubron, a brominated PFC that has a high
solubility for respiratory gases and can be used to transport these gases safely
throughout the body.
Oxygent, an emulsion containing perflubron, is an intravascular oxygen
carrier to be used as a temporary "blood substitute" to provide oxygen to
tissues during elective surgeries where substantial blood loss is anticipated.
Oxygent has several potential advantages compared to allogeneic (donor) blood:
there is no risk of infectious disease transmission, it is compatible with all
blood types, it has a shelf-life in excess of one year, and it can be
sterilized. Oxygent can be used with autologous blood collection techniques,
including predonation, hemodilution, and salvage, to enhance safety by reducing
the need for allogeneic blood. Oxygent is currently in Phase IIb clinical trials
with surgical patients at multiple sites in the United States and Europe.
In August 1994, the Company entered into a license agreement (the "Ortho
License Agreement") with Ortho Biotech, Inc. and The R.W. Johnson Pharmaceutical
Research Institute, a division of Ortho Pharmaceutical Corporation, affiliates
of Johnson & Johnson (collectively referred to as "Ortho"), which provides Ortho
with worldwide marketing rights to the Company's injectable PFC emulsions
capable of transporting oxygen for therapeutic use, including Oxygent. The
product is being developed jointly by Alliance and Ortho, with Ortho responsible
for substantially all of the remaining costs of development and marketing. In
conjunction with the Ortho License Agreement, Johnson & Johnson Development
Corp. ("J&JDC") purchased equity securities of the Company for $15.0 million. In
addition, Ortho paid Alliance an initial license fee and will pay milestone
payments and royalties on product sales.
LiquiVent, sterile perflubron, is an intrapulmonary agent to treat
acute respiratory failure, a disorder that can result from many causes,
including serious infection, traumatic shock, severe burns, and inhalation of
toxic substances, and is characterized by impairment of normal lung function.
The Company is conducting a multi-center pivotal Phase II/III clinical trial
with LiquiVent in pediatric patients with acute respiratory failure, and
separate multi-center Phase II clinical trials in adults and premature infants
are underway. The U.S. Food and Drug Administration ("FDA") has granted Subpart
E status (expedited review) for the development of LiquiVent.
In February 1996, the Company entered into a license agreement (the
"HMRI License Agreement" and, together with the Ortho License Agreement, the
"License Agreements") with Hoechst Marion Roussel, Inc. ("HMRI"), which provides
HMRI with worldwide marketing rights to the intratracheal administration of
liquids, including LiquiVent, which perform bronchoalveolar lavage or liquid
ventilation. The product will be developed jointly by Alliance and HMRI, with
HMRI responsible for substantially all of the costs of development and
marketing. In conjunction with the HMRI License Agreement, HMRI agreed to
purchase equity securities of the Company for $22.0 million. In addition, HMRI
will pay Alliance license fees, milestone payments, and royalties on product
sales.
Imagent US is a PFC-based intravenous ultrasound contrast agent being
developed to aid in the assessment of cardiac function and myocardial perfusion,
as well as the detection of solid organ lesions and blood flow abnormalities
caused by vascular diseases. In preclinical studies, this agent has been found
to enhance the signal from perfused tissues and blood vessels using traditional
gray-scale and color Doppler technologies, as well as the emerging harmonic
ultrasound imaging technique. The Company filed an investigational new drug
application ("IND") with the FDA in February 1996, and began a Phase I clinical
trial in the United States in March 1996.
Alliance is assessing an apoptotic factor for regulation of cancerous
cell death and has ongoing research activities to exploit its expertise in PFC,
emulsion, and surfactant technologies. In addition, the Company is evaluating
its antigenized antibody technology for use in developing a prototype vaccine
for an infectious disease and a prototype tolerogen for an autoimmune disease.
The Company's headquarters are located at 3040 Science Park Road, San
Diego, California 92029, and its telephone number is (619) 558-4300.
RISK FACTORS
An investment in the Common Stock offered hereby involves a high degree
of risk. The following factors and cautionary statements should be carefully
considered in evaluating the Company and its business:
Limited Product Revenues; History of Operating Losses. Substantially
all of the Company's revenues to date have consisted of licensing fees,
milestone payments, and payments to fund research and development activities
under joint development and license agreements. The Company has had net
operating losses since its inception and expects such losses to continue unless
and until such time as revenues are sufficient to fund its continuing
operations. As of March 31, 1996, the Company had an accumulated deficit of
$207.6 million, of which approximately $35.8 million reflects non-cash charges
from the Company's acquisition by merger of Fluoromed Pharmaceutical, Inc. on
February 24, 1989. There can be no assurance that the Company will be able to
achieve profitability at all or on a sustained basis.
Reliance on Collaborative Partners; Future Collaborations. The Company
has entered into the License Agreements to support the development and
commercialization of Oxygent and LiquiVent and to raise capital. Pursuant to the
License Agreements, the Company has granted significant licensing rights. The
Company's strategy is to seek additional collaborations. However, there can be
no assurance that the Company will be able to negotiate acceptable collaborative
arrangements in the future, or that any current or future arrangements will
ultimately be successful. Under the License Agreements, the Company will depend
on Ortho and HMRI for development, regulatory approval, and marketing of
products. The termination of either of the License Agreements, which can occur
on at least one month's advance notice, or any other future collaborative
arrangement could adversely affect the Company's research, development or,
ultimately, product distribution plans. The Company's revenues from milestone
payments or sales of any product will depend in large part upon the efforts and
abilities of the collaborative partner to perform clinical testing, to obtain
regulatory approvals, and to manufacture and market the product. The amount and
timing of resources devoted to these activities will not be completely within
the Company's control. The collaborative partner will have certain discretion in
deciding whether to commercialize the product. There can be no assurance that
the corporate interests and motivations of the Company's collaborative partners
will remain consistent with those of the Company.
Government Regulation; Uncertainties Related to Clinical Trial Results. The
production and marketing of the Company's products and its research and
development activities are subject to regulation for safety and efficacy by
numerous government authorities in the United States and other countries.
Clinical trials and the manufacturing and marketing of the Company's products
are subject to the testing and approval process of the FDA and foreign
regulatory authorities. The FDA and other regulatory authorities require that
the safety and efficacy of a drug be supported by results from adequate and
well-controlled clinical trials before approval for commercial sale. If the
results of the clinical trials of the Company's products do not demonstrate the
safety and efficacy of the products, the Company will not be able to submit a
New Drug Application ("NDA") to the FDA. Even if the Company believes the
clinical trials demonstrate the safety and efficacy of a product, the FDA and
other regulatory authorities may not accept the Company's assessment of the
results. In either case, the Company may have to conduct additional clinical
trials in an effort to demonstrate the safety and efficacy of the product. The
process of obtaining regulatory clearances or approvals is costly and
time-consuming. The Company cannot predict how long preclinical and clinical
trials will take or whether they will be successful, nor can the Company predict
how long the necessary regulatory approvals or clearances will take. Therefore,
there can be no assurance that the necessary clearances or approvals will be
obtained, or obtained on a timely basis. Without acceptable results and
regulatory approval, the Company would not be able to commercialize its
products, which would have a material adverse effect on the Company. There can
be no assurance that the results of any of the Company's clinical trials will be
favorable or that the Company's products will obtain regulatory approval for
commercialization. The effect of governmental regulations which might arise from
future legislative or administrative action cannot be predicted.
Uncertainty of Development and Commercialization Efforts. The Company's
products require substantial development efforts. The Company or its
collaborative partners may encounter unforeseen technological or scientific
problems, including side effects, which may force abandonment or substantial
change in the development of a specific product or process, or technological
change or product developments by others, any of which may have a material
adverse effect on the Company. Further, even after successful technical
development and receipt of governmental approval, a product may not achieve
commercial success. To date, the Company has received regulatory approval for
the commercial sale of only one of its drug products, the sales of which were
discontinued due to limited revenue potential.
Future Capital Needs; Uncertainty of Additional Financing. The Company
believes that its existing capital resources, including expected revenues from
the License Agreements and investments will be adequate to satisfy its capital
requirements for at least the next 24 months. The Company will need additional
financing to support its long-term product development programs. The Company's
future capital requirements will depend on many factors, including continued
scientific progress in its research and development programs, progress with
preclinical testing and clinical trials, the time and cost involved in obtaining
regulatory approvals, patent costs, competing technological and market
developments, changes in existing collaborative relationships, the Company's
ability to establish development, sales, and marketing arrangements, and the
cost of manufacturing scale up, if necessary. No assurance can be given that
adequate financing will be available to the Company in the future or on terms
acceptable to the Company.
Unpredictability of Patent Protection; Proprietary Technology. The
Company believes that its success will depend largely on its ability to obtain
and maintain patent protection for its own inventions and licenses for the use
of patents owned by third parties. The Company has obtained patents covering
certain intermediate and high concentration PFC emulsions, as well as patents
related to liquid ventilation. The Company has filed, and when appropriate will
file, other patent applications with respect to its products and processes in
the United States and in foreign countries. There can be no assurance, however,
that the Company will develop any additional products and processes which may be
patentable or that any additional patents will be issued. It is possible that
patents issued to the Company or any patents licensed to the Company may be
challenged successfully, that the Company may infringe patents of third parties
unintentionally, and that the Company may have to alter its products or
manufacturing processes to take into account the patents of third parties,
causing delays in product development. Litigation, which could result in a
substantial cost to the Company, may be necessary to enforce any patents issued
to the Company and/or to determine the scope and validity of others' proprietary
rights. The Company also attempts to protect its proprietary products and
processes by relying on trade secret laws and non-disclosure and confidentiality
agreements with its employees and certain other persons who have access to its
products or processes. No assurance can be given that others will not develop
such products or processes independently or obtain access to such products or
processes. To the extent that others develop or obtain similar products or
processes, the Company's competitive position may be affected adversely.
Limited Manufacturing Capability and Experience. While the Company believes
that it can produce materials for clinical trials and the initial market launch
for its emulsion products at its existing San Diego facility and for LiquiVent
at its Otisville facility, it may need to expand its commercial manufacturing
capabilities for its products in the future. This expansion may occur in stages,
each of which would require regulatory approval, and product demand could at
times exceed supply capacity. The Company has not selected a site or obtained
any regulatory approvals for construction of a commercial production facility
for its products, nor can there be any assurance that it will be able to do so.
The projected location and completion date of any production facility will
depend upon regulatory and development activities and other factors. The Company
cannot predict the amount that it will expend for the construction of such a
production facility, and there can be no assurance as to when or whether the FDA
will determine that such facility complies with Good Manufacturing Practices.
Construction of a facility will depend on regulatory approvals, product
development, and capital resources, among other things. The Ortho License
Agreement provides an option to Ortho to elect to manufacture the emulsion
products referred to therein, or to require the Company to manufacture such
products at a negotiated price. The HMRI License Agreement requires the Company
to manufacture LiquiVent at its Otisville facility for a period of time after
market launch and to sell the product to HMRI at a negotiated price. HMRI will
be responsible for establishing production capacity beyond the maximum capacity
of the Otisville facility.
Uncertainty of Third-Party Reimbursement. The Company's ability to
commercialize its products successfully will depend in part on the extent to
which appropriate reimbursement levels for the cost of the products and related
treatment are obtained from government authorities, private health insurers and
other organizations, such as health maintenance organizations ("HMOs").
Third-party payors are increasingly challenging the prices charged for medical
products and services. Also, the trend toward managed health care in the United
States, the growth of organizations such as HMOs, and legislative proposals to
reform healthcare and government insurance programs could significantly
influence the purchase of healthcare services and products, resulting in lower
prices and reducing demand for the Company's products. The cost containment
measures that healthcare providers are instituting and any healthcare reform
could affect the Company's ability to sell its products and may have a material
adverse effect on the Company. There can be no assurance that reimbursement in
the United States or foreign countries will be available for any of the
Company's products, that any reimbursement granted will be maintained, or that
limits on reimbursement available from third-party payors will not reduce the
demand for, or negatively affect the price of, the Company's products. The
unavailability or inadequacy of third-party reimbursement for the Company's
products would have a material adverse effect on the Company. The Company is
unable to forecast what additional legislation or regulation relating to the
healthcare industry or third-party coverage and reimbursement may be enacted in
the future, or what effect the legislation or regulation would have on the
Company's business.
Dependence Upon Key Personnel. The Company's success in developing
marketable products and achieving a competitive position will depend, in part,
on its ability to attract and retain qualified scientific and management
personnel. Competition for such personnel is intense, and no assurance can be
given that the Company will be able to attract and retain such personnel.
Scientific advisors to the Company are employed by or have consulting
arrangements with third parties which may conflict with their obligations to the
Company. The Company's anticipated growth and expansion will require additional
expertise and are expected to place additional demands on the Company's
management and financial resources.
Competition; Rapid Technological Change. Biotechnology and
pharmaceutical companies are highly competitive. There are many pharmaceutical
companies, biotechnology companies, public and private universities, and
research organizations actively engaged in research and development of products
that may be similar to, or seek to attack the same targets as, Alliance's
products. Many of the Company's existing or potential competitors have
substantially greater financial, technical, and human resources than the Company
and may be better equipped to develop, manufacture, and market products. These
companies may develop and introduce products and processes competitive with or
superior to those of the Company. In addition, other technologies or products
may be developed that have an entirely different approach or means of
accomplishing the intended purposes of the Company's products which might render
the Company's technology and products uncompetitive or obsolete. There can be no
assurance that the Company will be able to compete successfully.
Product Liability Claims and Uninsured Risks. Products or processes that
may be developed, licensed, or sold by the Company may expose the Company to
potential liability from claims by end-users of such products or of products
manufactured by such processes, or by manufacturers or others selling such
products, either directly or as a component of other products. The Company
currently maintains limited product liability insurance coverage. There can be
no assurance that the Company will be able to maintain such coverage or obtain
additional coverage on acceptable terms, or that such insurance will provide
adequate coverage against all potential claims.
Volatility of Stock Price; Liquidation Preference; and Lack of
Dividends. The market prices for securities of biopharmaceutical companies
historically have been highly volatile. Announcements concerning the Company or
its competitors, including the results of testing and clinical trials,
technological innovations, or commercial products, government regulations,
developments concerning proprietary rights, including patents and litigation
matters, a change in status of a collaborative partner, public concern relating
to the commercial value or safety of the Company's products, and stock market
conditions in general may have a significant impact on the price of the Common
Stock.
The Company has 200,000 shares of Series C Preferred Stock outstanding
entitled to a liquidation preference of $.01 per share.
The Company has not paid dividends on its Common Stock since its inception
and does not intend to pay any such dividends in the foreseeable future. For the
years ended June 30, 1991, 1992, 1993, 1994 and 1995 and the nine months ended
March 31, 1995 and 1996, the Company has incurred net losses of $17,702,000,
$21,766,000, $26,380,000, $36,946,000, $29,717,000, $22,037,000 and $18,565,000,
respectively.
Shares Eligible for Future Sale. As of June 20, 1996, 3,279,662 shares of
Common Stock (or 10% of the total number of shares outstanding on a fully
diluted basis) were issuable upon the exercise of outstanding options and
warrants. Additional shares may be issued upon the conversion of preferred
stock. The existence of such warrants, options and convertible securities, as
well as certain registration rights, may adversely affect the terms on which the
Company may obtain additional equity financing. The holders of the outstanding
warrants and options are likely to exercise their securities at a time when the
Company would otherwise be able to obtain capital on terms more favorable than
those provided by the exercise or conversion prices thereof.
SELLING SHAREHOLDERS
The following table shows the names of the Selling Shareholders, the
shares of Common Stock owned beneficially and/or of record by each of them, or
by nominees, as of June 20, 1996 the number of Shares being offered by each of
them and the number of Shares to be owned by each of them after completion of
the offering, assuming all of the Shares being offered are sold.
<TABLE>
<CAPTION>
Beneficial Beneficial
Ownership Shares Ownership
Selling Prior to Being after
Shareholder Offering Offered Offering
<S> <C> <C> <C>
Hoechst Marion Roussel, Inc 1,059,375 759,375 300,000
("HMRI")(1)
Johnson & Johnson 1,305,625 1,115,625 190,000
Development Corp.
("J&JDC")(2)
TOTAL _________ _________ _______
2,365,000 1,875,000 490,000
</TABLE>
(1) 750,000 of the shares of Common Stock being offered by HMRI hereby
were acquired by HMRI upon the automatic conversion of the 750,000 shares of
Series B Preferred Stock held by HMRI into a like number of shares of Common
Stock when the Company's Common Stock average closing price per share was at
least $20.00 over twenty consecutive days; the other 9,375 shares offered hereby
were paid by the Company to HMRI in satisfaction of the accumulated and unpaid
dividends on such Series B Preferred Stock from their date of issuance to
conversion. HMRI holds a warrant to purchase an additional 300,000 shares of
Common Stock of the Company exercisable at $15.00 per share.
(2) 750,000 of the shares of Common Stock being offered by J&JDC hereby
were acquired by J&JDC upon the automatic conversion of the 1,500,000 shares of
Series A Preferred Stock held by J&JDC into 750,000 shares of Common Stock when
the Company's Common Stock average closing price per share was at least $20.00
over twenty consecutive days. 65,625 shares of Common Stock being offered hereby
by J&JDC were paid by the Company to J&JDC in satisfaction of the accumulated
and unpaid dividends on such Series A Preferred Stock from the date of their
issuance to conversion. The remaining 300,000 shares of Common Stock being
offered by J&JDC were acquired upon its exercise of a warrant for 300,000 shares
of Common Stock obtained by J&JDC in August 1994 in connection with its entering
into the Ortho License Agreement.
LEGAL OPINIONS
The legality of the issuance of the shares of Common Stock offered
hereby will be passed upon for the Company by Stroock & Stroock & Lavan.
EXPERTS
The consolidated financial statements of Alliance Pharmaceutical Corp.
at June 30, 1994 and 1995, and for each of the two years in the period ended
June 30, 1995, incorporated by reference in this Prospectus and Registration
Statement and appearing in the Company's Annual Report on Form 10-K for the year
ended June 30, 1995, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report, which is included and incorporated
herein by reference, in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The consolidated financial statements of Alliance Pharmaceutical Corp.
for the year ended June 30, 1993, incorporated by reference in this Prospectus
and Registration Statement from the Company's Annual Report on Form 10-K for the
year ended June 30, 1995, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference. Such financial statements have been so incorporated by reference in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the offering, all of which
will be borne by the Registrant, are as follows:
SEC Registration Fee........................................ 11,396.00
Blue Sky Fees and Expenses.................................. 5,000.00
Legal Fees and Expenses..................................... 10,000.00
Accounting Fees and Expenses................................ 4,000.00
Miscellaneous............................................... 1,604.00
----------
Total.....................................................$32,000.00
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Article VI of the By-Laws of the Company (filed as
Exhibit 3(b) to the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1989) and to Sections 721-727 of the New York Business
Corporation Law, which, among other things and subject to certain conditions,
authorize the Company to indemnify each of its officers and directors against
certain liabilities and expenses incurred by such persons in connection with
claims made by reason of their being such officers or directors. Reference is
further made to the Company's 1984 underwriting agreement (filed as Exhibit 1(a)
to the Registration Statement on Form S-1 (No. 2-88597) as filed on February 17,
1984), to the Company's 1987 underwriting agreement filed as Exhibit 1(a) to the
Registration Statement on Form S-1 (No. 33-12679) as filed on March 17, 1987),
to the Company's 1989 underwriting agreement (filed as Exhibit 1 to the
Registration Statement on Form S-2 (No. 33-28259) as filed on April 19, 1989
(the "1989 S-2")), to the Company's 1991 underwriting agreement (filed as
Exhibit 1 to the Registration Statement on Form S-3 (No. 33-42551)) and to the
Indemnification Agreement (filed as Exhibit 10(www) to the 1989 S-2), each of
which contains provisions for the indemnification of directors, officers and
controlling persons of the Company under certain circumstances.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) List of Exhibits
5. Opinion of Stroock & Stroock & Lavan, counsel for Registrant.
23. (a) Consent of Stroock & Stroock & Lavan (included in Exhibit 5 hereof).
(b) Consent of Ernst & Young LLP.
(c) Consent of Deloitte & Touche LLP.
24. Power of Attorney.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(b) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 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 question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(d) 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(c)(3) of the
Securities Act of 1933;
(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.
provided, however, that paragraphs (d)(1)(i) and (d)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities and Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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 S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on June 24, 1996.
ALLIANCE PHARMACEUTICAL CORP.
(Registrant)
Date: June 24,1996 By /s/ Duane J. Roth
Duane J. Roth
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ Duane J. Roth Chairman of Board of Directors,
Duane J. Roth Chief Executive Officer June 24, 1996
/s/ Theodore D. Roth Executive Vice President
Theodore D. Roth and Chief Financial Officer June 24, 1996
(Chief Financial Officer)
/s/ Tim T. Hart Treasurer and Controller
Tim T. Hart (Chief Accounting Officer) June 24, 1996
* Director June 24, 1996
- -----------------------
Carroll O. Johnson
* Director June 24, 1996
- -----------------------
Stephen M. McGrath
* Director June 24, 1996
- -----------------------
Donald E. O'Neill
* Director June 24, 1996
- -----------------------
Dr. Helen M. Ranney
* Director June 24, 1996
- -----------------------
Dr. Jean G. Riess
* Director June 24, 1996
- -----------------------
Dr. Thomas F. Zuck
*by: /s/ Theodore D. Roth
Theodore D. Roth
Attorney-in-Fact
Exhibit 5
[Letterhead of Stroock & Stroock & Lavan]
June 25, 1996
Alliance Pharmaceutical Corp.
3040 Science Park Road
San Diego, CA 92121
Re: Alliance Pharmaceutical Corp.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to you (the "Corporation") in connection with the
preparation and filing of the above-captioned Registration Statement on Form S-3
(the "Registration Statement") under the Securities Act of 1933, as amended,
covering 1,875,000 shares of the Corporation's Common Stock, $.01 par value per
share (the "Shares"), to be sold by the Corporation.
We have examined copies of the Certificate of Incorporation and By-laws of the
Corporation, each as amended to date, the minutes of various meetings of the
Board of Directors of the Corporation, and the original, photostat or certified
copies of all such records of the Corporation, and all such agreements,
certificates of public officials, certificates of officers and representatives
of the Corporation or others, and such other documents, papers, statutes and
authorities as we have deemed necessary to form the basis of the opinions
hereinafter expressed. In such examination, we have assumed the genuineness of
signatures and the conformity to original documents of the documents supplied to
us as copies. As to various questions of fact material to such opinions, we have
relied upon statements and certificates of officers of the Corporation and
others.
Based upon the foregoing, we are of the opinion that all of the Shares covered
by the Registration Statement have been duly authorized, validly issued, fully
paid and are nonassessable.
We hereby consent to the reference to our firm under the caption "Legal Matters"
in the Prospectus. We further consent to your filing a copy of this opinion as
an exhibit to the Registration Statement. In giving such consent, we do not
admit hereby that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Stroock & Stroock & Lavan
STROOCK & STROOCK & LAVAN
<PAGE>
Exhibit 23.(b)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the catption "Experts" in the
Registration Statement (Form S-3) and related prospectus of Alliance
Pharmaceutical Corp. for the registration of shares of its common stock and to
the incorporation by reference therein of our report dated July 26, 1995, with
respect to the consolidated finance statements of Alliance Pharmaceutical Corp.
included in its Annual Report (Form 10-K), for the year ended June 30, 1995,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Diego, California
June 24, 1996
<PAGE>
Exhibit 23.(c)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Alliance Pharmaceutical Corp. on Form S-3 of our report dated July 27, 1993,
appearing in the Annual Report on Form 10-K of Alliance Pharmaceutical Corp. for
the year ended June 30, 1995 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche
- ---------------------
San Diego, California
June 24, 1996
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Duane J. Roth and Theodore D. Roth, or
either of them, his true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3 or such
other form as counsel to Alliance Pharmaceutical Corp. (the "Corporation") may
recommend in connection with the registration of common stock of the Corporation
issued (i) to Johnson & Johnson Development Corp. upon conversion of the Series
A Preferred Stock of the Corporation, including dividends paid in common stock,
and upon exercise of the warrant dated September 16, 1994, and (ii) to Hoechst
Marion Roussel, Inc. upon conversion of Series B Preferred Stock of the
Corporation, including dividends paid in common stock, and any and all
amendments to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent 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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact, agent, or their substitutes may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned have each caused this power of
attorney to be executed as of the date set forth beside their name.
/s/ Carroll O. Johnson Director June 24, 1996
- ---------------------
Carroll O. Johnson
/s/ Stephen M. McGrath Director June 24, 1996
- ----------------------
Stephen M. McGrath
/s/ Helen M. Ranney Director June 24, 1996
Helen M. Ranney, M.D.
/s/ Donald E. O'Neill Director June 24, 1996
- ----------------------
Donald E. O'Neill
/s/ Jean Riess Director June 24, 1996
- ----------------------
Jean Riess, Ph.D.
/s/ Thomas F. Zuck Director June 24, 1996
- ------------------------
Thomas F. Zuck, Ph.D.
