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As filed with the Securities and Exchange Commission January , 1998
Registration No. 333-
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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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NASTECH PHARMACEUTICAL COMPANY INC.
(Exact Name of Registrant as Specified in Charter)
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Delaware 11-2658569
(State of other jurisdiction of incorporation or organization) (I.R.S Employer Identification No. )
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45 Davids Drive
Hauppauge, NY 11788
(516) 273-0101
(Address, including zip code and telephone number, including area code of
Registrant's Principal Executive Offices and Principal Place of Business)
Dr. Vincent D. Romeo
Chief Executive Officer
NASTECH PHARMACEUTICAL COMPANY INC.
45 Davids Drive
Hauppauge, NY 11788
(516) 273-0101
(Name, address, including zip code, and telephone number, including area code,
of Agent for service)
Copies to:
Bruce R. Thaw, Esq.
45 Banfi Plaza
Farmingdale, NY, 11735
(516) 752-1760
Approximate date of commencement of proposed sale to public: From time to time
after the effective date of this Registration Statement.
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, please 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 the earlier effective
registration statement for the same offering. [ ]
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If this form is a post-effective amendment filed to pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
Calculation of Registration Fee
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Titles of Each Class Proposed Proposed
of Securities to be Amount to be Maximum Offering Maximum Amount of
Registered Registered (1) Price Per Share (2) Aggregate Offering Registration Fee
Price
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Common Stock,
$.006 par value (3) 135,000 Shares $14.00 $1,890,000 $ 573.00
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Common Stock,
$.006 par value (4) 135,000 Shares $14.00 $1,890,000 $ 573.00
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Total Registration Fee ...................................................................................... $ 1,146.00
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(1) Pursuant to Rule 416, there are also being registered an
indeterminate number of shares of the Registrant's Common Stock
which may become issuable pursuant to the antidilution provisions of
the Underwriter's Warrants.
(2) Estimated solely for the purposes of calculating the registration
fee pursuant to Rule 457(c) based upon a price of $14.00 per share
which was the closing sale price as reported on the Nasdaq National
Market System on January 6, 1998.
(3) Common Stock issuable upon exercise of Representative's Warrants.
(4) Common Stock issuable upon exercise of Warrants contained within the
Units underlying the Representative's Warrants.
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 the
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.
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PRELIMINARY PROSPECTUS DATED JANUARY , 1998
SUBJECT TO COMPLETION NASTECH
PHARMACEUTICAL COMPANY INC.
270,000 Shares of Common Stock
The 270,000 Shares of Common Stock (the "Common Shares") of Nastech
Pharmaceutical Company Inc. (the "Company") offered hereby are to be sold for
the accounts of the selling securityholders set forth herein (the "Selling
Securityholders"). The Common Shares are being offered on behalf of the
assignees of the Underwriter's Warrants which were issued in connection with the
Company's public offering completed on December 7, 1993. The Company is
registering the Common Shares, at its expense, pursuant to certain demand and
piggy-back registration rights, and other contractual obligations incurred by
the Company in connection with the original issuance of such Common Shares. The
Company will not receive any of the proceeds from the sale of the Common Shares
by the Selling Securityholders, although it will receive warrant exercise fees
totaling $1,299,375 in connection with the issuance of the Common Shares. See
"Use of Proceeds." The Company estimates that its expenses in the aggregate will
be approximately $25,000 in connection with the offering (the "Offering") of the
Common Shares.
The Common Shares are quoted on the National Market System of the
National Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ") under the symbol NSTK. On January 6, 1998, the closing sale price of
the Common Shares was $14.00.
The Selling Securityholders directly, through agents designated from
time to time or through dealers or underwriters also to be designated, may sell
the Common Shares offered for sale pursuant to this Prospectus, from time to
time, on terms to be determined at the time of sale. To the extent required, the
purchase price, the public offering price, the names of any such agents, dealers
or underwriters and any applicable commissions or discount with respect to a
particular offer will be set forth in an accompanying Prospectus supplement. The
distribution of the Common Shares of the Selling Securityholders may be effected
in one or more transactions that may take place in the over-the-counter market,
including ordinary broker's transactions, privately negotiated transactions or
through sales to one or more dealers for resale of such securities as
principals, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices. Usual and customary or
specifically negotiated brokerage fees, commissions or discounts may be paid by
the Selling Securityholders in connection with such sales.
The Selling Securityholders and any broker-dealers, agents or
underwriters that participate with the Selling Securityholders in the
distribution of the Common Shares may be deemed to be "Underwriters" within the
meaning of the Securities Act of 1933, as amended (the "Act"), and any
commissions received by them and any profit on the resale of the Common Shares
purchased by them may be deemed to be underwriting commissions or discounts
under the Act. See "Selling Securityholders" for certain indemnification
arrangements.
THE PURCHASE OF THE COMMON SHARES OFFERED BY THIS PROSPECTUS
INVOLVES A SUBSTANTIAL DEGREE OF RISK. PROSPECTIVE INVESTORS SHOULD CAREFULLY
CONSIDER THE FACTORS SET FORTH UNDER "RISK FACTORS" ON PAGE 5 OF THIS
PROSPECTUS.
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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 January __, 1998
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ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission
(the "Commission"), a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, with respect to the Common Shares being offered hereby.
This Prospectus does not contain all the information set forth or incorporated
by reference in such Registration Statement and the exhibits and schedules
relating thereto, certain portions of which have been omitted as permitted by
the rules and regulations of the Commission. For further information with
respect to the Company and the Common Shares offered by this Prospectus,
reference is made to such Registration Statement and exhibits and schedules
thereto filed as part thereof, which may be examined without charge at the
offices of the Commission and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
Copies of such material may be obtained at prescribed rates by mail from the
Public Reference Section of the Commission. Statements contained in this
Prospectus or in any document incorporated by reference in this Prospectus as to
the contents of any contract or other document referred to are not necessarily
complete. In each instance reference is made to the copy of such contract or
other document filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by such reference.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 and, in accordance therewith, files periodic
reports, proxy statements and other information with the Commission. The
Registration Statement, reports, proxy statements and other information filed by
the Company with the Commission can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following Regional Offices of the Commission:
New York Regional Office, 7 World Trade Center, New York, NY 10048; and Chicago
Regional Office, Citicorp Center 500 West Madison Street, Suite 1400, Chicago,
IL 60661-2511. Copies of such material may be obtained at prescribed rates by
mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, and are also publicly available through the
Commissions web site (http://www.sec.gov).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 0-13789)
pursuant to the Exchange Act are incorporated by reference:
1. The Company's Transition Report on Form 10-K for the
transition period from July 1, 1996 to December 31, 1996;
2. The Company's Quarterly Reports on Form 10-Q for the
quarterly periods ended March 31, 1997, June 30, 1997 and September 30, 1997;
3. The Company's Current Report on Form 8-K filed with the
Commission on February 11, 1997;
4. The description of Common Stock contained in the
Company's Form 8-A Registration Statement filed with the Commission on October
6, 1985 and any amendment or report filed for the purpose of updating those
descriptions.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this
offering shall be deemed to be incorporated by reference in this Prospectus and
to be a part of this Prospectus from the date of filing thereof. Any statement
contained in a document 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 such 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 each person to whom a
copy of this Prospectus is delivered, upon the written or verbal request of any
such person, a copy of any or all of the documents which have been incorporated
by reference herein, other than exhibits to such documents (unless such exhibits
are specifically incorporated by
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reference into such documents). Requests for such documents should be directed
to Nastech Pharmaceutical Company Inc., 45 Davids Drive, Hauppauge, New York
11788, Attention: Secretary, Telephone (516) 273-0101.
The Company furnishes its shareholders annual reports containing
financial statements audited by independent public accountants and will furnish
its shareholders such interim and other reports as it deems appropriate or as
required by regulation.
PROSPECTUS SUMMARY
The following summary does not purport to be complete and is
qualified in its entirety by reference to the more detailed information and
financial statements (including the notes thereto) appearing elsewhere in this
Prospectus or incorporated herein by reference.
THE COMPANY
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and the Financial Statements and Notes thereto appearing elsewhere
in this Prospectus or incorporated herein by reference. This Prospectus contains
various "forward looking statements" within the meaning of Section 27a of the
Securities Act of 1933, as amended (the "Securities Act"), which represent the
Company's intentions, expectations or beliefs concerning future events. These
forward looking statements are qualified by important factors that could cause
actual results to differ materially from those in the forward looking
statements, including, without limitation, those discussed in "Risk Factors."
See "Risk Factors."
THE COMPANY
Nastech Pharmaceutical Company Inc. (the "Company") is engaged in
the research, development, manufacturing and commercialization of nasally
administered forms of prescription and over-the-counter pharmaceuticals that are
currently delivered in oral, injectable or other dosage forms. The nasal
delivery of certain pharmaceuticals enables more rapid systemic absorption,
lower required dosages, quicker onset of desired effect, and painless,
convenient patient self-administration, resulting in improved patient compliance
and pharmacoeconomics. The Company focuses its research activities primarily on
drugs with demonstrated safety and efficacy, which, through current delivery
forms, have certain bioavailability or patient compliance limitations that may
be improved with a novel delivery form. The Company's first commercially
available pharmaceutical is a prescription pain-reliever marketed as Stadol NS
by Bristol-Myers Squibb Company. In addition, on November 5, 1996, the Company
received marketing clearance from the FDA for Nascobal nasal gel used for the
treatment of chronic Vitamin B-12 deficiency anemia. Nascobal is now
commercially available in the United States and is being exclusively marketed by
Schwarz Pharma, Inc.
Although oral, injectable, patch and pulmonary delivery forms are
accepted for a variety of systemic pharmaceuticals, the Company believes that
nasal delivery may optimize the delivery of certain of these drugs. As an
example, certain drugs are delivered by injection due to significant liver or
gastrointestinal metabolism associated with oral administration, or due to the
inability of the stomach to absorb the drug properly and without irritation.
However, because of patient discomfort and the required assistance of a health
care professional, an injection is generally inconvenient and expensive for
frequent therapy, often resulting in patient non-compliance. The Company also
targets drugs, such as analgesics, sleep-aids and anti-nausea drugs, for which
quick onset of desired effect is important. For certain of these
pharmaceuticals, patients are seeking more rapid drug absorption than
experienced through currently available delivery forms such as oral or patch
administration. By addressing the limitations of current delivery forms for
certain pharmaceuticals, the Company believes that nasal delivery may expand
these markets through improved bioavailability, pharmacoeconomics and patient
acceptance, as demonstrated by the market growth of Stadol NS.
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The Company's objective is to become a leading drug delivery
specialist by leveraging the pharmacoeconomic and therapeutic advantages of
nasal delivery across multiple pharmaceuticals. To accomplish this objective,
the Company has developed a strategy that includes the following elements: (i)
focus efforts on approved drugs; (ii) internally fund development through later
stages; (iii) leverage strategic alliances; (iv) protect and expand intellectual
property; and (v) augment technology through licensing and acquisition.
The Company's offices are located at 45 Davids Drive, Hauppauge, New
York 11788, and its telephone number is (516) 273-0101.
THE OFFERING
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Securities Offered........................... 270,000 shares of Common Stock, $.006 par value
Common Shares Currently Outstanding.......... 6,101,157 shares (1)
Proceeds of the Offering..................... All of the proceeds from the sale of the Common
Shares offered hereby will be received by the Selling
Securityholders. The Company will not receive any of
the proceeds of this Offering. See "Use of Proceeds."
Selling Securityholders...................... The Common Shares offered hereby are to be sold for
the accounts of the Selling Securityholders as set forth
herein such Selling Securityholders being the
assignees of the Underwriter's Warrants which
were issued in connection with the Company's
public offering completed on December 7, 1993.
NASDAQ Symbol for the Common Shares.......... NSTK
Risk Factors................................. The securities of the Company offered hereby
are speculative and involve a high degree of
risk. See "Risk Factors" for information
investors should carefully consider before
purchasing the Common Stock offered hereby.
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(1) Does not include (i) 700,000 shares of Common Stock reserved for issuance
under the Company's Stock Option Plans and (ii) 69,000 shares of Common Stock
issuable upon the exercise of outstanding warrants expiring on January 23, 2002.
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RISK FACTORS
In addition to the other information contained in this Prospectus, the
following risk factors should be considered carefully in evaluating the Company
and its business before purchasing shares of Common Stock offered hereby.
History of Losses; Uncertainty of Profitability. From inception in March
1983 to September 30, 1997, the Company has accumulated net losses of
approximately $9.1 million. Because the Company's proposed products will require
significant additional clinical testing and investment prior to
commercialization, such losses may increase in the near-term as the Company
expands its research, development and clinical trials in an effort to seek
regulatory approval of such products. The Company expects its research and
development expenses to increase in the foreseeable future, and as a result it
does not expect to achieve sustained profitability unless products now under
development are licensed or commercialized successfully, of which there can be
no assurance. There can be no assurance that any of the Company's products will
meet applicable regulatory standards, obtain required regulatory approvals, be
capable of being produced in commercial quantities at reasonable costs or be
successfully marketed. Consequently, the Company may incur substantial operating
losses unless and until product sales, royalty payments or milestone payments
generate sufficient revenues to fund its continuing operations. The Company also
expects to have quarter-to-quarter fluctuations in revenues and expenses which
may result in fluctuations in operating results.
Dependence on Strategic Alliances. Most of the Company's current and
anticipated revenues are derived from collaborative agreements with
Bristol-Myers Squibb Company ("BMS") and Schwarz Pharma, Inc. ("Schwarz"). The
marketing responsibilities pursuant to these agreements have been undertaken by
the respective collaborative partners and are not within the control of the
Company. The BMS Agreement does not provide for minimum royalties and may be
terminated by BMS at any time upon 60 days notice. As a result, there is no
assurance that the Company will continue to receive royalty payments in the
future or on a consistent basis. In addition, Stadol NS, the subject of the BMS
Agreement has been recently classified by the United States Food and Drug
Administration as a controlled substance, which could negatively affect future
sales by BMS and royalties to the Company. The Schwarz agreement provides for $2
million in minimum royalties on the sale of Nascobal in 1998.
The Company's strategy for research, development and commercialization of
some of its products has been to rely upon various strategic alliances with
licensees, distributors and other third parties in performing preclinical and
clinical testing, obtaining regulatory approval, and performing manufacturing
and marketing functions. There can be no assurance that the Company will be able
to negotiate acceptable collaborative arrangements or that such arrangements
will be successful. Further, the Company cannot predict to what extent new
collaborative agreements, if any, will affect revenue and profitability in
future periods.
Limited Marketing, Sales and Manufacturing Capabilities. The Company may
independently develop and market certain nasal drug products, such as certain
prescription products for which there are a relatively limited number of
clinicians specializing in the treatment of a condition that can be treated with
one of the Company's products. The Company has limited experience in marketing,
distributing or selling pharmaceutical products and will have to develop such
expertise or rely on licensees or on arrangements with others to provide for the
marketing, distribution and sales of its products. The Company has, by sales and
licensing agreements, established marketing, distribution and sales capabilities
with respect to Stadol NS and Nascobal. However, there can be no assurance that
the Company will be able to make satisfactory arrangements with licensees or
others to perform such activities with respect to other proposed products and
such inability would have a material adverse effect on the Company's business or
prospects.
Although the Company is producing and formulating small amounts of certain
drug formulations which are the subject of preclinical and clinical trials under
current good manufacturing practices ("GMP"), which are stringent manufacturing
standards prescribed by the FDA, the Company has not yet manufactured or
marketed any products in high-volume commercial quantities, and the current
facilities and equipment of the Company may not be adequate for high-volume
commercial scale production under GMP. The Company has, however, commenced the
manufacture of its Nascobal product in commercial quantities. To be successful,
Nascobal and the Company's other proposed products
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must be manufactured in commercial quantities under GMP and at acceptable costs.
Therefore, the Company will need to further develop its own GMP manufacturing
facility or depend on contract manufacturers, licensees or others for the
commercial manufacture of its products. The Company has limited experience in
such high-volume commercial manufacturing and no assurance can be given that the
Company will be able to make the transition to commercial production
successfully or at an acceptable cost. In addition, no assurance can be given
that the Company will be able to make arrangements with third parties to
manufacture its products on acceptable terms.
Management of Growth. The Company has recently experienced significant
growth in total revenues related primarily to royalties received from sales of
Stadol NS and interest income. The Company's recent growth, anticipated growth
from sales of Nascobal and potential additional licensing transactions may
result in significant demands on the Company's management, operations and
resources, including working capital. To manage its growth effectively, the
Company will be required to continue to improve its operational, financial and
management information systems, procedures and controls, and to hire and train
new executives and other employees. There can be no assurance that the Company
will be able to manage its growth effectively, and the Company's failure to do
so could have a material adverse affect on the Company's business, research and
development efforts and financial performance.
Government Regulation. The United States Food and Drug Administration
("FDA") and comparable agencies in foreign countries impose requirements on the
introduction of therapeutic pharmaceutical products into the marketplace. Prior
to marketing, any therapeutic product developed by the Company must undergo
rigorous preclinical and clinical testing, as well as an extensive regulatory
approval process mandated by the FDA and foreign regulatory agencies. These
procedures require the expenditure of substantial resources, may take several
years or longer and may vary substantially based upon the type, complexity and
novelty of the pharmaceutical product. Government regulation also affects the
manufacturing, marketing and pricing of pharmaceutical products.
Government regulation may delay or prevent the marketing of the Company's
products or proposed products for a considerable period of time, impose costly
procedures upon the Company's activities and confer a competitive advantage to
larger companies or companies more experienced in regulatory affairs that
compete with the Company. There can be no assurance that FDA or other regulatory
approval for any products developed by the Company will be granted on a timely
basis, or at all. Delay in obtaining or failure to obtain such regulatory
approvals will materially adversely affect the Company's business, liquidity and
capital resources.
Uncertainty Regarding Patents and Proprietary Information. The Company's
ability to compete effectively with other companies is materially dependent upon
the proprietary nature of its patents and technologies. The Company is the
exclusive licensee of six U.S. patents and presently owns four additional
patents in the United States and corresponding or related foreign patents. All
of such patents relate to the nasal delivery of specific therapeutic agents and
the compositions for such delivery.
The patent positions of pharmaceutical firms are generally uncertain and
involve complex legal and factual questions. The invalidation of key patents or
proprietary rights owned or licensed by the Company could have an adverse effect
on the Company and on its business prospects. Because of differences in patent
laws and laws concerning proprietary rights, the extent of protection provided
by United States patents or proprietary rights owned by or licensed to the
Company may differ from that provided by their foreign counterparts. No
assurance can be given that patents issued to or licensed by the Company will
not be challenged, invalidated or circumvented, or that any rights granted
thereunder will provide competitive advantages to the Company. Further, the
Company's existing patents may expire prior to regulatory approval and
commercial development of a proposed pharmaceutical product. The earliest
expiration date of a United States patent owned by or licensed to the Company is
1999. The patent related to Stadol NS expires in 2001.
The Company could incur substantial costs in defending any patent
infringement suits brought against the Company or in asserting the Company's
patent rights, including those granted by third parties, in a suit against
another party. In addition, proceedings may be instituted by third parties in
the United States Patent and Trademark Office against
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the Company in connection with one or more of the Company's patents and such
proceedings could result in an adverse decision as to the validity or scope of
the patents.
The Company also relies on trade secrets, know-how and continuing
technological advancement to maintain its competitive position. The Company has
utilized confidentiality agreements relating to such information with third
parties. No assurances can be given that such obligations of confidentiality
will be honored or that the Company can effectively protect its rights to any
unpatented trade secrets.
Future Capital Needs. The Company's operations to date have consumed
substantial amounts of cash, primarily for research and development. The
Company's future capital requirements will depend upon numerous factors,
including: the progress of the Company's product development programs; the time
required to obtain regulatory approvals; the resources that the Company devotes
to the development of self-funded products; the ability of the Company to obtain
additional collaborative partners; and the demand for its products, if and when
approved. Based upon current expectations for operating losses and capital
expenditures, the Company believes that its existing cash, cash equivalents and
short-term investments, together with the cash flows generated from planned
business operations, will be sufficient to meet its operating expenses and
capital expenditure requirements through at least 1998. However, there can be no
assurance that the Company will not require additional financing depending upon
future business strategies, results of clinical trials, management decisions to
accelerate certain research and development programs and other factors. Adequate
funds, whether through financial markets or from other sources, may not be
available when needed or on terms acceptable to the Company. Insufficient funds
may require the Company to delay, scale back or curtail product development
activities.
Uncertainty of Health Care Reimbursement. The Company's ability to
commercialize therapeutic nasal pharmaceuticals successfully may depend in part
on the extent to which reimbursement for the cost of such products will be
available from government health administration authorities, private health
coverage insurers and other organizations. The Company believes that the U.S.
Congress and state legislatures may continue to consider health care reform
proposals which, if enacted, would significantly affect health care,
pharmaceutical and drug delivery companies, among others. Any such measures, if
adopted, could adversely affect the pricing of pharmaceutical products or the
amount of reimbursement from governmental agencies or third party payors, and
consequently could be adverse to the Company. Health care reform may adversely
affect the Company's business, particularly to the extent the Company develops
products for prescription drug applications. The Company is unable to predict,
however, when any proposed health care reforms will be implemented, if ever, or
the effect of any implemented reforms on the Company's business or prospects.
Further, significant uncertainty exists as to the reimbursement status of newly
approved health care products, and there can be no assurance that adequate
third-party coverage will be available for the Company to maintain price levels
sufficient for realization of an appropriate return on its investment in product
development.
Dependence Upon Key Personnel and Attraction of Qualified Personnel. The
Company is highly dependent on the services of its Chief Executive Officer, Dr.
Vincent D. Romeo. There is no assurance that, if the Company should lose the
services of Dr. Romeo, a qualified replacement could be engaged. Although the
Company has entered into an employment agreement with Dr. Romeo, the loss of his
services could have a material adverse effect on the Company's business and
prospects. Due to the specialized nature of the Company's business, the Company
is also highly dependent upon its ability to attract and retain qualified
scientific, technical and key management personnel. There is intense competition
for qualified personnel in the areas of the Company's activities and there can
be no assurance that the Company will be able to locate, attract and retain
qualified personnel necessary for the development of its existing business and
its expansion into areas and activities requiring additional expertise, such as
clinical testing, government approvals, production and marketing. The loss of,
or failure to recruit scientific, technical and managerial personnel could have
a material adverse effect on the Company.
Product Liability Exposure; Limited Insurance Coverage. The testing,
marketing and sale of human health care products entail an inherent risk of
allegations of product liability, and there can be no assurance that substantial
product liability claims will not be asserted against the Company. The Company
currently has product liability insurance
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coverage in connection with its Nascobal product and its ongoing clinical
trials. The Company intends to obtain additional product liability insurance if
and when other products are commercialized and marketed by the Company; however,
there can be no assurance that adequate insurance will be available at
acceptable costs, if at all, that such insurance will be sufficient to cover all
possible liabilities, or that a product liability claim would not have a
material adverse effect on the business or financial condition of the Company.
Failure to maintain adequate product liability insurance could, in the event a
product liability claim were asserted against the Company, have a material
adverse impact upon the Company and its business.
Intense Competition. The Company is engaged in the pharmaceutical, drug
delivery systems industry which is characterized by extensive research efforts,
rapid technological progress and intense competition. Competitors of the Company
in the United States and abroad are numerous and include, among others, major
pharmaceutical companies, biotechnology firms, universities and other research
institutions. At the present time, the Company does not know of another
pharmaceutical company engaging exclusively in the development of drugs to be
administered nasally for systemic absorption. However, other pharmaceutical
companies which are larger than the Company are known to be engaged
non-exclusively in researching some nasally administered pharmaceuticals, and
may be expected to enter this field if the nasal route becomes a preferred
method of delivery for the administration of certain classes of drugs.
Further, there can be no assurance that the Company's competitors will not
succeed in developing technologies and products that are more effective than the
nasal technology being developed by the Company or that would render the
Company's technology and products obsolete or noncompetitive. Many of these
competitors have substantially greater financial and technical resources and
production and marketing capabilities than the Company. Many of these
competitors also have greater experience than the Company in conducting
preclinical testing and clinical trials of pharmaceutical products and obtaining
FDA and other regulatory approvals. Accordingly, the Company's competitors may
succeed in obtaining FDA approval for products more rapidly than the Company. As
the Company commences commercial sales of its products, it will also be
competing with respect to manufacturing efficiency and marketing capabilities,
areas in which it has limited or no experience.
Potential Volatility of Stock Price. The stock market recently has
experienced significant price and volume fluctuations that were often unrelated
to the operating performance of particular companies. The market price of the
Common Stock, as with that of securities of many similar companies, is likely to
be highly volatile. Factors such as the results of pre-clinical studies and
clinical trials by the Company or its competitors, regulatory progress or the
lack thereof with respect to products in the Company's pipeline or those of the
Company's competitors, evidence of the safety, efficacy or market acceptance of
the products of the Company or its competitors, announcements of technological
innovations or new products by the Company or its competitors, changes in
governmental regulation, developments in patent or other proprietary rights of
the Company or its competitors, including litigation, fluctuations in the
Company's operating results and changes in general market conditions for drug
delivery or other pharmaceutical companies could have a significant impact on
the market price of the Common Stock.
Authorization of Preferred Stock; Anti-takeover Provisions. The Company's
Certificate of Incorporation authorizes the issuance of up to 100,000 shares of
"blank check" preferred stock in amounts and with such designations, rights and
preferences as may be determined from time to time by the Board of Directors.
Accordingly, the Board of Directors is empowered, without stockholder approval,
to issue preferred stock with dividend, liquidation, conversion, voting or other
rights which could adversely affect the voting power or other rights of the
holders of the Company's Common Stock. In the event of issuance, the preferred
stock could be utilized, under certain circumstances, as a method of
discouraging, delaying or preventing a change in control of the Company.
In addition, the Company is subject to the anti-takeover provisions of
Section 203 of the Delaware General Corporation Law. In general, the statute
prohibits a publicly held Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
For purposes of Section 203, a "business combination" includes mergers, asset
sales and similar transactions between the
- 8 -
<PAGE> 11
corporation and the interested stockholder, and other transactions resulting in
a financial benefit to the stockholder. An "interested stockholder" is a person
who, together with affiliates and associates, owns 15% or more of the
corporation's voting stock or who is an affiliate or associate of the
corporation and, together with his affiliates and associates, has owned 15% or
more of the corporation's voting stock within three years.
Shares Eligible for Future Sale. Upon completion of this offering, the
Company will have outstanding 6,371,157 shares of Common Stock, assuming (i) no
exercise of 700,000 options outstanding as of the date of this Prospectus, and
(ii) no exercise of outstanding warrants to acquire 69,000 shares of Common
Stock expiring January 23, 2002. On the date of this Prospectus, 5,386,298
shares of Common Stock, including the 270,000 shares offered hereby, will be
immediately available for sale without restriction in the public market and
approximately 980,000 shares are "restricted securities" as that term is defined
by Rule 144 under the Securities Act ("Rule 144"), and are now eligible to be
sold in compliance with Rule 144. Ordinarily, under Rule 144 a person holding
restricted stock for a period of one year may, every three months, sell in
brokerage transactions an amount equal to the greater of 1% of the Company's
outstanding Common Stock, or, if the Common Stock is quoted on Nasdaq, the
average weekly volume of trading in the Common Stock reported for the preceding
four weeks. After the expiration of two years, stock held by persons not
affiliated with the Company will not be subject to the above limitations.
No prediction can be made as to the effect, if any, that market sales of
shares of Common Stock or the availability of such shares for sale will have on
the market prices prevailing from time to time. Nevertheless, the possibility
that substantial amounts of shares of Common Stock may be sold in the public
market may adversely affect prevailing market prices for the shares of Common
Stock and could impair the Company's ability to raise capital through the sale
of its equity securities.
Forward-Looking Statements. Some of the statements made in this Prospectus
or incorporated by reference are forward-looking in nature, including but not
limited to the Company's business strategy, product development strategy, plans
concerning the commercialization of products, certain financial information and
other statements that are not historical facts, as well as statements regarding
management's expectations with respect to FDA approval of new products,
technology and product development milestones, the ability of the Company to
leverage its product development and negotiate favorable collaborative
agreements, the commencement of sales and the sufficiency of the Company's cash
flow for the Company's future liquidity and capital resource needs. The
occurrence of the events described, and the achievement of the intended results
are subject to the future occurrence of certain events and scientific results,
some or all of which are not predictable or within the Company's control;
therefore, actual results may differ materially from those anticipated in any
forward-looking statements.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of
the Common Shares offered hereby, all of which will be received by the Selling
Securityholders. The expenses of this offering are estimated to be approximately
$25,000, which will be paid by the Company.
SELLING SECURITYHOLDERS
The following table sets forth certain information with respect to
persons as to which the Company is registering the Common Shares for resale to
the public. Because the Selling Securityholders may offer all or some part of
the Common Shares pursuant to this Prospectus and because the offering is not
being underwritten on a firm commitment basis, no estimate can be given as to
the amount of securities to be offered for sale by the Selling Securityholders
upon termination of this offering. See "Plan of Distribution." The Selling
Securityholders are all current officers of Barber & Bronson Incorporated, the
underwriter in the Company's 1993 public offering:
- 9 -
<PAGE> 12
<TABLE>
<CAPTION>
Common Stock
Common Stock Beneficial Ownership
Beneficial Ownership Maximum After Offering if
Selling Securityholder Prior to Offering Amount Maximum is Sold
---------------------- ----------------- to be Sold ---------------
----------
Amount Percent Amount Percent
------ ------- ------ -------
<S> <C> <C> <C> <C> <C>
Steven N. Bronson 217,352 3.6% 217,352 0 0%
Bruce C. Barber 51,852 * 41,852 10,000 *
Eric Elliott 10,796 * 10,796 0 0%
</TABLE>
--------------------
* Less than 1%
Pursuant to the terms of the Underwriter's Warrants issued by the
Company to the assignees of Barber & Bronson, Incorporated on December 14, 1993,
the Company has agreed, upon the request of the Selling Securityholders, to
register the Common Shares underlying the Underwriter's Warrants under the Act
on one occasion and to include such Common Shares in any appropriate
registration statement which is filed by the Company during that period. The
Company has agreed to pay all registration expenses in connection with any
requested registration, except that the Selling Securityholders will pay any
fees and expenses of counsel for the Selling Securityholders and, to the extent
that the Selling Securityholders retain an underwriter with respect to such
registration, underwriting discounts, commissions and fees relating thereto. The
Company has agreed to indemnify the Selling Securityholders against certain
liabilities in respect of this offering, including liabilities under the Act.
PLAN OF DISTRIBUTION
Any or all of the Common Shares offered hereby may be sold, from
time to time, to purchasers directly by the Selling Securityholders. The Selling
Securityholders and any underwriters, dealers or agents that participate in the
distribution of Common Shares may be deemed to be underwriters under the Act,
and any profit on the sale of the Common Shares by them and any discounts,
commissions or concessions received by them may be deemed to be underwriting
discounts and commissions under the Act. The Common Shares may be sold, from
time to time, in one or more transactions at a fixed offering price, which may
be changed, or at varying prices determined at the time of sale or at negotiated
prices. The distribution of securities by the Selling Securityholders may be
effected in one or more transactions that may take place on the over-the-counter
market, including ordinary broker's transactions and private transactions. Usual
and customary or specifically negotiated brokerage fees, discounts and
commissions may be paid by the Selling Securityholders in connection with such
sales of securities.
The Company will not receive any of the proceeds from the sale by
the Selling Securityholders of the Common Shares offered hereby. All of the
filing fees and the expenses of this Registration Statement will be borne in
full by the Company, other than any fees or expenses of counsel to the Selling
Securityholders and, to the extent that the Selling Securityholders retain an
underwriter with respect to such registration, underwriting fees, discounts and
commissions relating to this offering.
Under applicable rules and regulations under the Exchange Act, any
person engaged in a distribution of the Common Shares may not simultaneously
engage in market making activities with respect to the Common Shares for a
period of two business days prior to the commencement of such distribution. In
addition and without limiting the foregoing, the Selling Securityholders will be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including without limitation Rules 10b-6 and 10b-7,
which provisions may limit the timing of purchases and sales of the Common
Shares by the Selling Securityholders.
- 10 -
<PAGE> 13
In order to comply with certain states' securities laws, if
applicable, the Common Shares will be sold in such jurisdiction only through
registered or licensed brokers or dealers. In certain states the Common Shares
may not be sold unless the securities have been registered or qualified for sale
in such state, or unless an exemption from registration or qualification is
available and is obtained.
The Common Shares originally issued by the Company to the Selling
Securityholders bear legends as to their restricted transferability. Upon the
effectiveness of the Registration Statement of which this Prospectus is a part,
and the transfer by the Selling Securityholders of any of the Common Shares
pursuant thereto, new certificates representing such Common Shares will be
issued to the transferee, free of any such legends unless otherwise required by
law.
In addition to sales pursuant to the Registration Statement of which
this Prospectus is a part, the Common Shares offered hereby may be sold pursuant
to Rules 144, 144A or 904 under the Securities Act provided the requirements of
such rules, including, without limitation, the holding period and the manner of
sale requirements are met.
LEGAL MATTERS
The validity of the issuance of Common Shares offered hereby will be
passed upon for the Company by the Law Offices of Bruce R. Thaw, 45 Banfi Plaza,
Farmingdale, NY 11735. Bruce R. Thaw is a Director of the Company and owns
78,000 shares of the Company's Common Stock.
EXPERTS
The financial statements as of June 30, 1995 and 1996, and for each
of the two years in the period ended June 30, 1996 of Nastech Pharmaceutical
Company Inc. have been incorporated by reference in this Prospectus and
elsewhere in the Registration Statement in reliance upon the report of Robbins,
Greene, Horowitz, Lester & Co., LLP, independent certified public accountants,
to the extent and for the periods set forth in their report incorporated by
reference and upon the authority of said firm as experts in auditing and
accounting.
The financial statements for the six month transition period ending
December 31, 1996 of Nastech Pharmaceutical Company Inc. have been incorporated
by reference in this Prospectus and elsewhere in the Registration Statement in
reliance upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, to the extent and for the period set forth in their report
incorporated by reference and upon the authority of said firm as experts in
auditing and accounting.
On January 2, 1997, the appointment of Robbins, Greene, Horowitz,
Lester & Co., LLP as independent auditors for the Company was terminated by the
Company and KPMG Peat Marwick LLP was engaged as independent auditors. The
decision to change independent auditors was approved by the Audit Committee and
Board of Directors of the Company. During the fiscal years ended June 30, 1995
and 1996, and the subsequent interim period through January 2, 1997, there were
no disagreements between the Company and Robbins, Greene, Horowitz, Lester &
Co., LLP on any matter of accounting principles or practices, financial
statement disclosure, or auditing scope or procedures which disagreements if not
resolved to the satisfaction of Robbins, Greene, Horowitz, Lester & Co., LLP
would have caused them to make reference to the subject matter of the
disagreement in connection with their report. The audit reports of Robbins,
Greene, Horowitz, Lester & Co., LLP on the Company's financial statements as of
and for the years ended June 30, 1995 and 1996 did not contain an adverse
opinion or disclaimer of opinion, nor were they qualified or modified as to
uncertainty, audit scope, or accounting principles.
- 11 -
<PAGE> 14
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY, NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN
WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION
OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. 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.
--------------------
TABLE OF CONTENTS
Page
Additional Information.................................
Incorporation of Certain
Documents By Reference................................
Prospectus Summary.....................................
Risk Factors...........................................
Use of Proceeds........................................
Selling Securityholders................................
Plan of Distribution...................................
Legal Matters..........................................
Experts................................................
--------------------
NASTECH PHARMACEUTICAL
COMPANY INC.
270,000 Shares
----------------
PROSPECTUS
----------------
January , 1998
<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses relative to this
offering, all of which are to be borne by the Registrant. Expenses other than
filing fees are estimated.
<TABLE>
<S> <C>
Registration Fee $ 1,186.00
Accounting Fees and Expenses $ 10,000.00
Legal Fees and Expenses $ 10,000.00
Printing Fees $ 2,000.00
Miscellaneous $ 1,814.00
-----------
Total Expenses $ 25,000.00
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Delaware General Corporation Law, as amended, provides for the
indemnification of the Company's officers, directors and corporate employees and
agents under certain circumstances as follows:
DEL. CODE ANN. TITLE 8
Sec. 145. Indemnification of officers, directors, employees
and agents; insurance
a) A corporation may 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 (other than an action 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 attorney's fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit 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. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good
faith and in a manner which 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 reasonable cause to
believe that his conduct was unlawful.
b) A corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor 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), actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be
II-1
<PAGE> 16
in or not opposed to the best interests of the corporation and
except that 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 to the corporation unless and only to the
extent that the Court of Chancery 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.
c) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or
otherwise in defense of any action suit or proceeding referred to
in subsections (a) and (b) of this section, or in defense of any
claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
d) Any indemnification under subsection (a) and (b) of
this section (unless 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 subsections (a) and
(b) of this section. 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 proceedings,
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.
e) Expenses incurred by an officer or director in
defending a civil or criminal action, suit or proceeding may be
paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified
by the corporation as authorized in this section. Such expenses
incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems
appropriate.
f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this
section shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be
entitled under any bylaw, 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.
g) A corporation shall have power to 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
this section.
h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent
II-2
<PAGE> 17
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
this section with respect to the resulting or surviving
corporation as he would have with respect to such
constituent corporation if its separate existence had
continued.
i) For purposes of this section, references to
"other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the
corporation" shall include any service as a director,
officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he
reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to
the best interests of the corporation" as referred to in
this section.
j) The indemnification and advancement of
expenses provided by, or granted pursuant to, this section
shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be
director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of
such a person.
The Certificate of Incorporation of the Company provides that the
indemnification provisions of Sections 102(b)(7) and 145 of the Delaware
Corporation Law shall be utilized to the fullest extent possible. Further, the
Certificate of Incorporation contains provisions to eliminate the liability of
the Company's directors to the Company or its stockholders to the fullest extent
permitted by Section 102(b)(7) of the Delaware General Corporation Law, as
amended from time to time.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, is permitted to directors, officers or
controlling persons of the Registrant, pursuant to the above mentioned statutes
or otherwise, the Registrant understands that the Securities and Exchange
Commission is of the opinion that such indemnification may contravene federal
public policy, as expressed in said Act, and therefore, may be unenforceable.
Accordingly, in the event that a claim for such indemnification is asserted by
any director, officer or a controlling person of the Company, and the Commission
is still of the same opinion, the Registrant (except insofar as such claim seeks
reimbursement by the Registrant of expenses paid or incurred by a director,
officer of controlling person in successful defense of any action, suit or
proceeding) will, unless the matter has theretofore been adjudicated by
precedent deemed by counsel for the Registrant to be controlling, submit to a
court of appropriate jurisdiction the question whether or not indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue. The Underwriter's Warrants provide for
reciprocal indemnification and such provisions are incorporated by reference
herein.
ITEM 16. EXHIBITS
5.1 Opinion of Counsel as to the legality
of securities being registered.
23.1 Consent of Bruce R. Thaw, Counsel to the Company
(included in Exhibit 5.1).
23.2 Consent of Robbins, Greene, Horowitz, Lester & Co. LLP,
Certified Public Accountants.
II-3
<PAGE> 18
23.3 Consent of KPMG Peat Marwick LLP, Certified
Public Accountants.
24.1 Power of Attorney - See Signature Page
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
additional or changed material information with respect to the plan of
distribution.
(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.
(4) 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 any charge provision, by-law contract,
arrangements statute, 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 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by 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 against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
(5) That, for the purpose 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 shall be deemed to be part
of this registration statement as of the time it was declared effective.
II-4
<PAGE> 19
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 at Hauppauge, New York on the 5th day of January, 1998.
NASTECH PHARMACEUTICAL COMPANY INC.
By:/s/ Dr. Vincent D. Romeo
---------------------------
DR. VINCENT D. ROMEO, Chief Executive Officer
KNOW ALL MEN BY THESE PRESENT, that each of the undersigned whose
signature appears below constitutes and appoints Dr. Vincent D. Romeo and Devin
N. Wenig, and each of them (with full power of each of them to act alone), his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution for him and on his behalf, and in his name, place and stead,
in any and all capacities to execute and sign any and all amendments or
post-effective amendments to this registration statement, or subsequent
registration statements related to the shares registered hereby and to file the
same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or 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 and agents or any of them or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof and the
Registrant hereby confers like authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/Dr. Vincent D. Romeo Chief Executive Officer, January 5, 1998
----------------------------- (Principal Executive Officer)
DR. VINCENT D. ROMEO
/s/ Robert H. Rosen President January 5, 1998
-----------------------------
ROBERT H. ROSEN
/s/ Devin N. Wenig Chairman of the Board January 5, 1998
-----------------------------
DEVIN N. WENIG
/s/ Andrew P. Zinzi Chief Financial Officer January 5, 1998
----------------------------- (Principal Financial and Accounting Officer)
ANDREW P. ZINZI
/s/ Joel Girsky Director, Secretary/Treasurer January 5, 1998
-----------------------------
JOEL GIRSKY
/s/ Ian R. Ferrier Director January 5, 1998
-----------------------------
IAN R. FERRIER
/s/ Alvin Katz Director January 5, 1998
-----------------------------
ALVIN KATZ
/s/ John V. Pollock. Director January 5, 1998
-----------------------------
JOHN V. POLLOCK
/s/ Grant W. Denison Director January 5, 1998
-----------------------------
GRANT W. DENISON
</TABLE>
II-5
<PAGE> 20
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page No.
<S> <C>
5 Opinion of Counsel as to the legality of
securities being registered
23A Consent of KPMG Peat Marwick LLP,
Certified Public Accountants.
23B Consent of Robbins, Greene, Horowitz, Lester & Co., LLP,
Certified Public Accountants
</TABLE>
<PAGE> 1
EXHIBIT 5
Law Offices
BRUCE R. THAW
45 Banfi Plaza
Farmingdale, NY 11735
(516) 752-1760
January 6, 1998
Nastech Pharmaceutical Company Inc.
and its Selling Stockholders
45 Davids Drive
Hauppauge, NY 11788
To whom it may concern:
We have acted as counsel for Nastech Pharmaceutical Company Inc., a
Delaware corporation (the "Company") and certain Selling Stockholders in
connection with the proposed issuance and sale by certain Selling Stockholders
of 270,000 shares of Common Stock, $.006 par value (the "Common Stock").
As counsel to the Company, we have examined the minute books of the
Company, together with copies of its certificate of incorporation, as amended,
and By-laws. We have also examined the proposed Registration Statement on Form
S-3 (Securities and Exchange Commission File No. 333- ), and the exhibits to
said Registration Statement. Based upon the foregoing, and our examination of
such other documents as we deemed pertinent, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing
and in good standing under and by virtue of the laws of the State of Delaware.
2. The authorized capital of the Company consists of (i) 100,000
shares of Preferred Stock, par value $.01 per share, and (ii) 25,000,000 shares
of Common Stock, par value $.006 per share, of which 6,101,157 shares are issued
and outstanding, fully paid and non-assessable shares of Common Stock of the
Company as of this date.
3. The 270,000 shares being offered by the Selling Stockholders and
which are the subject of the Registration Statement have been duly authorized
and the shares when sold and transferred by the Selling Stockholders and
delivered against payment therefor will be legally issued and outstanding, fully
paid and non-assessable.
Very truly yours,
/s/ Bruce R. Thaw
BRUCE R. THAW
<PAGE> 1
EXHIBIT 23A
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Nastech Pharmaceutical Company Inc.:
We consent to incorporation by reference in the Registration Statement No.
333-________ on Form S-3 of Nastech Pharmaceutical Company Inc. of our report
dated March 24, 1997, relating to the balance sheet of Nastech Pharmaceutical
Company Inc. as of December 31, 1996, and the related statements of operations,
stockholders' equity and cash flows for the six months ended December 31, 1996,
which report appears in the December 31, 1996 transition report on Form 10-K of
Nastech Pharmaceutical Company Inc.
KPMG PEAT MARWICK LLP
Jericho, New York
January 5, 1998
<PAGE> 1
EXHIBIT 23B
The Board of Directors
Nastech Pharmaceutical Company Inc.:
We consent to incorporation by reference in the registration statement (No.
333-________) on Form S-3 of Nastech Pharmaceutical Company Inc. of our report
dated August 15, 1996, relating to the balance sheet of Nastech Pharmaceutical
Company Inc. as of June 30, 1996 and 1995, and the related statements of
operations, stockholders' equity and cash flows for each of the three years in
the period ended June 30, 1996, which report appears in the December 31, 1996
transition report on Form 10-K of Nastech Pharmaceutical Company Inc.
Robbins, Greene, Horowitz, Lester & Co., LLP
New York, New York
January 5, 1998
