AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 6, 1999
REGISTRATION STATEMENT NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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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)
THEODORE D. 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 LLP
180 Maiden Lane
New York, NY 10038
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME 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]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
earlier effective registration statement for the same offering. [X] 333-63255
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] ---------
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Title of
Securities Amount Proposed Proposed Amount
To Be To Be Maximum Maximum of
Registered Registered(1) Offering Price Aggregate Registration
Per Unit(2) Offering Fee(3)
Price(2)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $0.01 par value 377,291 $3.219 $1,214,500.00 $337.64
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
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1. The number of shares of Common Stock included in the Registration
Statement is derived by dividing (a) $1,214,500, 20% of the Proposed
Maximum Aggregate Offering Price of the shares of Common Stock
registered under the Registrant's Registration Statement on Form S-3
(File No. 333-63255), by (b) $3.219, the Proposed Maximum Offering
Price Per Unit. See notes 2 and 3 below.
2. Estimated for the purpose of computing the registration fee, based on
the average of the high and low sales prices of the Common Stock as
reported on the Nasdaq National Market on December 31, 1998 in
accordance with Rule 457 under the Securities Act of 1933.
3. 1,750,000 shares were registered under SEC File No. 333-63255, for
which a filing fee of $1,688.16 was paid.
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Registration Statement filed pursuant to Rule 462(b) and General
Instruction IV of Form S-3, both promulgated under the Securities Act of 1933,
as amended, hereby incorporates by reference the contents of the Registration
Statement on Form S-3 (File No. 333-63255) filed on September 11, 1998, as
amended by Amendment No. 1 filed on October 16, 1998.
<PAGE>
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.*
- --------
* Filed herewith
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form 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 January 5, 1999.
ALLIANCE PHARMACEUTICAL CORP.
(Registrant)
Date: January 5, 1999 By: /S/ THEODORE D. ROTH
-------------------------
Theodore D. Roth
President and Chief Operating Officer
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 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.
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.
SIGNATURE TITLE DATE
---------- ------ -----
/S/ DUANE J. ROTH Chairman of the Board January 5, 1999
- ----------------------- of Directors and Chief
Duane J. Roth Executive Officer
/S/ THEODORE D. ROTH Director, President and Chief January 5, 1999
- ------------------------ Operating Officer
Theodore D. Roth
/S/ TIM T. HART Chief Financial Officer, January 5, 1999
- ------------------------ Treasurer and Chief
Tim T. Hart Accounting Officer
/S/ PEDRO CUATRECASAS, M.D. Director January 5, 1999
- --------------------------
Pedro Cuatrecasas, M.D.
/S/ CARROLL O. JOHNSON Director January 5, 1999
- -------------------------
Carroll O. Johnson
/S/ STEPHEN M. MCGRATH Director January 5, 1999
- ------------------------
Stephen M. McGrath
/S/ HELEN M. RANNEY, M.D. Director January 5, 1999
- -------------------------
Helen M. Ranney, M.D.
- -------------------------- Director
Thomas F. Zuck, M.D.
/S/ DONALD E. O'NEILL Director January 5, 1999
- -------------------------
Donald E. O'Neill
- ------------------------- Director
Jean G. Riess, Ph.D.
<PAGE>
EXHIBITS INDEX
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.*
- --------
* Filed herewith
Exhibit 5.1
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, New York 10038-4982
January 6, 1999
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 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 "Securities Act"), of a Registration Statement on
Form S-3 (the "Registration Statement") relating to 377,291 shares of common
stock of the Company, $.01 par value (the "Shares"), issuable upon conversion of
the Company's Series E-1 Preferred Stock, and the proposed resale of the Shares
by certain shareholders (the "Selling Shareholders"). The Registration Statement
is being filed pursuant to Rule 462 (b) of the Rules and Regulations under the
Securities Act and is with respect to the Company's registration statement on
Form S-3 (File No. 33-63255). The Shares are to be sold by the Selling
Shareholders from time to time as set forth in the Registration Statement, the
prospectus contained therein and any amendments or supplements thereto.
As counsel to the Company, we have examined copies of the Amended Certificate of
Incorporation and Bylaws of the Company, each as in effect as of the date
hereof, and the Registration Statement. We also have examined the original or
reproduced or certified copies of all such records of the Company, all such
agreements, certificates of officers and representatives of the Company and
others, and such other documents, papers, statutes and authorities as we deemed
necessary to form the basis of the opinions hereinafter expressed. In such
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 copies of documents supplied to us by the Company and
others. As to certain matters of fact relevant to the opinions hereinafter
expressed, we have relied upon statements and certificates of officers 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 Selling Shareholders, when 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 reference to us in the prospectus forming a
part of 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 or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ STROOCK & STROOCK & LAVAN LLP
STROOCK & STROOCK & LAVAN LLP
Exhibit 23.(b)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Alliance
Pharmaceutical Corp. for the registration of its common stock and to the
incorporation by reference therein of our report dated July 31, 1998 (except
Note 8, as to which the date is August 14, 1998), with respect to the
consolidated financial statements of Alliance Pharmaceutical Corp. included in
its Annual Report (Form 10-K) for the year ended June 30, 1998, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Diego, California
January 4, 1999
