As filed with the Securities and Exchange Commission on November 12, 1996
Registration Statement No. 333-15905
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
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]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum
Title of Shares Amount to be Aggregate Price Aggregate Amount of
to be Registered Registered(1) Per Unit (1) Offering Price (1) Registration Fee (2)
Common Stock
$.01 par value.... 3,934,782 shares $11.50 per share $45,250,000 $13,712.12
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) on the basis of the average of the high and low
prices of the Common Stock reported on the Nasdaq National Market on November 5,
1996.
(2) Previously paid.
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.
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:
<TABLE>
<CAPTION>
<S> <C>
SEC Registration Fee 13,712.12
Blue Sky Fees and Expenses 5,000.00
Legal Fees and Expenses 10,000.00
Accounting Fees and Expenses 4,000.00
Miscellaneous 1,287.88
----------
Total $34,000.00
==========
</TABLE>
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.
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, Independent Auditors.*
24. Power of Attorney.**
- ---------
* Previously filed
** Filed herewith
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 Amendment No. 1 to 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 November 12,
1996.
ALLIANCE PHARMACEUTICAL CORP.
(Registrant)
Date: November 12, 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 on November 12, 1996, by the following
persons in the capacities indicated.
/s/ Duane J. Roth Chairman of Board of Directors,
- --------------------- Chief Executive Officer
Duane J. Roth
/s/ Theodore D. Roth Executive Vice President
- ----------------------- and Chief Financial Officer
Theodore D. Roth (Chief Financial Officer)
/s/ Tim T. Hart Treasuer and Controller
- ------------------------ (Chief Accounting Officer)
Tim T. Hart
* Director
- ----------------------
Dr. Pedro Cuatrecasas
* Director
- -----------------------
Carroll O. Johnson
* Director
- ------------------------
Stephen M. McGrath
* Director
- ------------------------
Donald E. O'Neill
* Director
- ------------------------
Dr. Helen M. Ranney
* Director
- ------------------------
Dr. Jean G. Riess
* Director
- -------------------------
Dr. Thomas F. Zuck
*by: /s/ Theodore D. Roth
--------------------
Theodore D. Roth
Attorney-in-Fact
Exhibit 5
November 12, 1996
Alliance Pharmaceutical Corp.
3040 Science Park Road
San Diego, California 92121
Gentlemen:
We have acted as counsel to Alliance Pharmaceutical Corp., a New York
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), of a Registration Statement on Form S-3
(the "Registration Statement"), relating to the proposed public offering (the
"Offering") of the shares of the Company's common stock, par value $.01 per
share (the "Shares") covered by the Registration Statement.
As such counsel, we have examined copies of (i) the Restated Certificate of
Incorporation and Restated Bylaws of the Company, each as in effect as of the
date hereof, (ii) the Registration Statement and the exhibits thereto and (iii)
the Prospectus which forms a part of the Registration Statement. We have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records of the Company, and such documents,
records, agreements, instruments, certificates of officers and representatives
of the Company and others and have made such examinations of law as we have
deemed necessary to form the basis for the opinion hereinafter expressed. In our
examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all copies submitted to us as copies thereof. As to
various questions of fact material to such opinion, we have relied upon
statements and certificates of officers and representatives of the Company and
others.
Attorneys involved in the preparation of this opinion are admitted to
practice law in the State of New York and we do not purport to be experts on, or
to express any opinion herein concerning, any law other than the laws of the
State of New York and the federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares to be offered by the Company, when issued and sold under the
circumstances contemplated in the Registration Statement, will be legally
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to this firm under the caption
"Legal Matters" in the Prospectus. 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 Act or the Rules and Regulations of the Commission
thereunder.
Very truly yours,
STROOCK & STROOCK & LAVAN
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Theodore D. Roth and Hal DeLong, 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
to be issued pursuant to the terms of the Agreement and Plan of Merger dated
October 8, 1996, between the Corporation and MDV Technologies, Inc., 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 hereof.
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/ Director November 6, 1996
- ------------------------
Duane J. Roth
/s/ Director November 6, 1996
- ------------------------
Pedro Cuatrecasas
/s/ Director November 6, 1996
- ------------------------
Carroll O. Johnson
/s/ Director November 6, 1996
- ------------------------
Stephen M. McGrath
/s/ Director November 6, 1996
- ------------------------
Helen M. Ranney, M.D.
/s/ Director November 6, 1996
- ------------------------
Donald E. O'Neill
/s/ Director November 6, 1996
- ------------------------
Jean Riess, Ph.D.
/s/ Director November 6, 1996
- ------------------------
Thomas F. Zuck, M.D.
<PAGE>
ALLIANCE PHARMACEUTICAL CORP.
3040 Science Park Road
San Diego, CA 92121
November 12, 1996
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, NW
Washington, DC 20549
Re: Alliance Pharmaceutical Corp.
Registration Statement on Form S-3
Registration No. 333-15905
Gentlemen:
Alliance Pharmaceutical Corp. (the "Registrant") hereby requests that the
effective date for the Registration Statement referred to above be accelerated
so that it will be declared effective as of 11:00 a.m. on November 13, 1996, or
as soon thereafter as practicable.
Please notify Matthew Mayers, Esq., of Stroock & Stroock & Lavan, counsel
to the Registrant, at (212) 806-5844 as soon as possible as to the time the
Registration Statement has been declared effective pursuant to this acceleration
request.
Very truly yours,
By: /s/ Lloyd Rowland
--------------------
Lloyd Rowland
Assistant Secretary
