As filed with the Securities and Exchange Commission on August 28, 1997
Registration No. 33-__________
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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
MACROCHEM CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 04-2744744
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) ________________ Identification No.)
110 Hartwell Avenue
Lexington, Massachusetts 02173
(617) 862-4003
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ALVIN J. KARLOFF Copy to:
PRESIDENT AND CHIEF EXECUTIVE OFFICER DWIGHT W. QUAYLE, ESQUIRE
MacroChem Corporation ROPES & GRAY
110 Hartwell Avenue One International Place
Lexington, Massachusetts 02173 Boston, MA 02110-2624
(617) 862-4003 (617) 951-7406
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Approximate date of commencement of proposed sale to the public: From time to
time after the effectiveness of the 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, 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. [ ]________
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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CALCULATION OF REGISTRATION FEE
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Title of Shares Amount Proposed Maximum Proposed Maximum Amount of
to be Registered to be Offering Price Aggregate Offering Registration
Registered Per Share (1) Price (1) Fee
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Common Stock - 1,186,800 $ 5.188 $ 6,157,118 $ 1,866
$.01 Par Value Shares
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(1) Estimated, pursuant to Rule 457(c), solely for purposes of calculating the
registration fee based on the average of the bid and the asked price of the
Registrant's Common Stock as of a date within five business days of the date of
this Registration Statement.
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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
PROSPECTUS SUBJECT TO COMPLETION
AUGUST 28, 1997
MACROCHEM CORPORATION
1,186,800 Shares of Common Stock
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All of the shares of MacroChem Corporation, a Delaware corporation (the
"Company"), Common Stock, par value $.01 per share (the "Common Stock"), offered
hereby are being sold by the holders of the Common Stock named herein under
"Selling Stockholders" (the "Selling Stockholders"). The Common Stock is traded
on NASDAQ under the symbol "MCHM." On August 25, 1997, the closing bid and ask
prices of the Common Stock were $5 1/8 and $5 1/4, respectively.
The Company will not receive any of the proceeds from the sale of the
Common Stock. Any or all of such Common Stock covered by this Prospectus may be
sold, from time to time, by means of ordinary brokerage transactions or
otherwise. See "Plan of Distribution."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------------
The Selling Stockholders named herein, or any pledgees, donees, transferees
or other successors in interest, directly, through agents to be designated from
time to time, or through dealers or underwriters also to be designated, may sell
the Common Stock from time to time in one or more transactions in the
over-the-counter market and in negotiated transactions, on terms to be
determined at the time of sale. To the extent required, the specific Common
Stock to be sold, the names of the Selling Stockholders, the respective purchase
prices and public offering prices, the names of any such agent, dealer or
underwriter, and any applicable commissions or discounts with respect to a
particular offer will be set forth in any accompanying prospectus supplement or,
if appropriate, a post-effective amendment to the Registration Statement of
which this Prospectus is a part. See "Plan of Distribution." By agreement, the
Company will pay all the expenses of the registration of the Common Stock by the
Selling Stockholders other than underwriting discounts and commissions and
transfer taxes, if any.
The Selling Stockholders and any broker-dealers, agents or underwriters
that participate with the Selling Stockholders in the distribution of the Common
Stock may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), and any commissions received by
them and any profit on the resale of the Common Stock purchased by them may be
deemed underwriting commissions or discounts under the Securities Act.
------------------------
The date of this Prospectus is August ___, 1997
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be acceptable prior to the time the registration statement becomes
effective. 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.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, is required to file periodic reports, proxy materials and other
information with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements and other information can be inspected and copied at
the public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at its
regional offices located at Suite 1400, Citicorp Center, 500 West Madison
Street, Chicago, Illinois 60661, and at Seven World Trade Center, New York, New
York 10048, and copies of such material can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. In addition, the Commission maintains a web site (at
http://www.sec.gov) that contains reports, proxy and information statements, and
other information regarding registrants, including the Company, that file
electronically with the Commission.
The Company has filed with the Commission a Registration Statement (which
term shall include all amendments, exhibits and schedules thereto) on Form S-3
under the Securities Act with respect to the securities offered hereby. This
Prospectus does not contain all information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission, and to which reference is hereby made. Statements
made in this Prospectus as to the contents of any document referred to are not
necessarily complete. With respect to each such document filed as an exhibit to
the Registration Statement, reference is made to the exhibit for a more complete
description of the matter involved, and each such statement shall be deemed
qualified in its entirety by such reference. The Registration Statement may be
inspected at the public reference facilities maintained by the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
Copies of such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Registration Statement was filed electronically with the Commission
and is available on the Commission's web site (at http://www.sec.gov).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference in this Prospectus and made a part hereof:
(i) Annual Report on Form 10-K for the fiscal year ended December 31,
1996, including portions of the Company's Proxy Statement dated
April 17, 1997, relating to the Company's 1997 Annual Meeting of
Stockholders, incorporated therein.
(ii) Quarterly Reports on Form 10-Q for the quarters ended March 31,
1997 and June 30, 1997.
(iii) The Description of the Company's Common Stock contained in its
registration statement on Form 8-A, File No. 0-13634, including
any amendment or report filed for the purpose of updating such
description.
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All documents subsequently filed by the Company pursuant to Section 13(a),
Section 13(c), Section 14 and Section 15(d) of the Exchange Act (i) after the
date of filing of the Registration Statement and prior to the effectiveness of
the Registration Statement and (ii) after the date of this Prospectus and prior
to the termination of the offering shall be deemed incorporated herein by
reference from the date of filing of such documents. 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 that also is
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, upon request, without charge to each person to
whom a copy of this Prospectus has been delivered, a copy of any or all of the
documents which have been or may be incorporated in this Prospectus by
reference, other than certain exhibits to such documents. Requests for such
copies should be directed to: Investor Relations, MacroChem Corporation, 110
Hartwell Avenue, Lexington, Massachusetts 02173, (617) 862-4003.
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION IN THIS PROSPECTUS, THE FOLLOWING RISK
FACTORS SHOULD BE CONSIDERED CAREFULLY IN EVALUATING THE COMPANY AND ITS
BUSINESS. THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS
AND UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS MAY DIFFER SIGNIFICANTLY FROM
THE RESULTS DISCUSSED IN THE FORWARD-LOOKING STATEMENTS IN THIS PROSPECTUS AND
IN FORWARD-LOOKING STATEMENTS MADE FROM TIME TO TIME BY THE COMPANY ON THE BASIS
OF MANAGEMENT'S THEN-CURRENT EXPECTATIONS. FACTORS THAT MIGHT CAUSE SUCH A
DIFFERENCE INCLUDE, BUT ARE NOT LIMITED TO, THOSE DISCUSSED OR REFERRED TO
BELOW.
An investment in the shares of Common Stock offered hereby is highly
speculative and is suitable only for persons who are capable of bearing the
economic risk of investment, including the total loss thereof. Prior to
purchasing any shares of Common Stock, prospective investors should carefully
consider the following risk factors, as well as other information in this
Prospectus.
HISTORY OF OPERATING LOSSES; NEED FOR CONTINUED WORKING CAPITAL
The Company has been engaged primarily in research and development since
its inception in 1981 and has derived limited revenues from the commercial sale
of its products and licensing of certain technology. The Company has had no
revenues relating to the sale of any products currently under development. The
Company has incurred net losses every year since its inception and the Company
anticipates that losses may continue for the foreseeable future. At June 30,
1997, the Company's accumulated deficit was approximately $19.9 million. The
Company's ability to continue operations after its current capital resources are
exhausted depends on its ability to obtain additional financing and achieve
profitable operations, as to which no assurance can be given.
The Company continues to pursue the commercialization of its SEPA
technology through discussion and presentation of its technology to potential
licensees. No assurance can be given that these discussions will lead to any
licenses. No assurance can be given that any license fees will be received by
the Company. For the foreseeable future, and until marketing approvals are
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obtained, and/or license agreements are entered into, if ever, the Company
anticipates limited licensing revenue and no royalties from sales of products
using SEPA for pharmaceutical purposes.
TECHNOLOGY UNCERTAINTY AND EARLY STAGE PRODUCT DEVELOPMENT
Although several systems have been developed by various pharmaceutical
companies to enhance the transdermal delivery of specific drugs, relatively
limited research has been conducted in the expansion of transdermal delivery
systems to a wider range of pharmaceutical products. Although the Company has
demonstrated in preclinical and clinical studies that its SEPA transdermal
compounds may have applicability with a broad range of drugs, transdermal
delivery systems are currently marketed for only a limited number of products.
In addition, transdermal delivery systems used to date have often demonstrated
adverse side effects for users, such as skin irritation and delivery
difficulties.
The Company's proposed products are in the early development stage, require
significant further research, development, testing and regulatory clearances and
are subject to the risks of failure inherent in the development of products
based on innovative technologies. These risks include the possibilities that any
or all of the proposed products may be found to be ineffective or toxic, or
otherwise may fail to receive necessary regulatory clearances; that the proposed
products, although effective, may be uneconomical to market; or that third
parties may market superior or equivalent products. Due to the extended testing
and regulatory review process required before marketing clearance can be
obtained, the Company does not expect to be able to realize revenues from the
sale of any drugs in the near term.
NEED FOR SIGNIFICANT PRODUCT DEVELOPMENT EFFORTS AND ADDITIONAL FINANCING
Before the Company or any licensees of the Company may market any products
based upon the Company's technology, significant additional development efforts
and substantial preclinical and clinical testing will be necessary. Unless
substantial additional financing is obtained, the Company may not have
sufficient working capital to complete clinical studies on any proposed
products. No assurance can be given that the Company will be able to secure such
financing on favorable terms, if at all.
UNCERTAINTIES RELATED TO CLINICAL TRIALS
Before obtaining regulatory approval for the commercial sale of any of its
pharmaceutical products under development, the Company must demonstrate that the
product is safe and efficacious for use in each proposed situation. The results
of preclinical studies and early clinical trials may not be predictive of
results that will be obtained in large-scale testing, and there can be no
assurance that clinical trials of the Company's products will demonstrate the
safety and efficacy of its products or will result in marketable products. A
number of companies in the pharmaceutical industry have suffered significant
setbacks in advanced clinical trials, even after promising results in earlier
trials. If the Company were unable to demonstrate the safety and efficacy of
certain of its products, the Company may be adversely affected.
DEPENDENCE ON THIRD PARTIES FOR COMMERCIALIZATION; NO ASSURANCE OF LICENSE
ARRANGEMENTS
The Company intends to rely on licensees and joint venture arrangements to
commercialize any products that are successfully developed. The resources and
attention devoted by a licensee to a product are not within the Company's
control, and this can result in delays in commercialization efforts. Further, no
assurance can be given that the Company will be able to enter into new
collaborative arrangements or that existing or future collaborative arrangements
will be successful.
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PRIOR DEVELOPMENT EFFORTS
Since the Company's inception in 1981, the Company has engaged in research
and development activities with respect to a variety of technologies and
products, including polymers for medical and industrial use, dental adhesives,
osteoporotic drugs and transdermal drug-delivery products. Although the Company
has generated differing levels of revenue over the last several years, none of
the Company's products or technologies has ever generated sustained revenues and
the Company has never had profitable operations. The Company has expended a
substantial amount of its resources in researching and developing technology
relating to these products as well as in connection with the research and
development of its transdermal delivery systems. No assurance can be given that
the Company's development activities with respect to its transdermal delivery
systems will be successful or that these efforts, as well, will not be
eventually abandoned.
GOVERNMENT REGULATION; REGULATORY APPROVALS UNCERTAIN; DEPENDENCE ON THIRD
PARTIES FOR FDA APPLICATION PROCESS
The Company's proposed products, or products incorporating the Company's
technology, require the approval of the U.S. Food and Drug Administration
("FDA") before they can be marketed in the U.S. In addition, approvals are
required from health authorities in most foreign countries before such products
can be marketed therein. To obtain FDA approval to market and sell the Company's
products, an IND application must be filed and then a New Drug application
("NDA") or an Abbreviated New Drug application ("ANDA") must be filed with the
FDA. After the IND application is filed and approved and before an NDA can be
filed with the FDA, a product must undergo extensive clinical trials.
No assurance can be given that any required FDA or other governmental
approval will be granted or, if granted, will not be withdrawn. Governmental
regulation may prevent or substantially delay the marketing of the Company's
proposed products, cause the Company to undertake costly procedures and furnish
a competitive advantage to the more substantially capitalized companies with
which the Company plans to compete. Substantial delays in obtaining required
approvals from foreign regulatory authorities can also result after the relevant
applications are filed. After such approvals are obtained, further delays may be
encountered before the products become commercially available. Moreover, even if
regulatory approval is granted, such approval may include significant
limitations on indicated uses for which any such products could be mandated.
Further, pharmaceutical products and their manufacturers are subject to
continuous review after approval, and later discovery of previously unknown
problems with a product or the manufacturing process may result in restrictions
on such product or the manufacturer, including withdrawal of the product or
products from the market. In addition, the extent of potentially adverse
government regulations that may arise from future administrative action or
legislation cannot be predicted and could delay or prevent regulatory approval
of the Company's potential products.
In addition to the product-specific regulation specified above, the Company
is also subject to regulation under federal, state and local regulations
regarding work place safety, environmental protection and hazardous and
controlled substance controls, among others. Non-compliance with applicable
regulations and requirements can result in fines and other judicially imposed
sanctions including recalls and criminal prosecutions based on products,
promotional practices, or manufacturing practices that violate statutory
requirements. In addition, administrative remedies can involve voluntary recalls
or cessation of sale of products, administrative detention, public notice,
voluntary changes in labeling, manufacturing or promotional practices, as well
as refusal of the government to approve NDAs.
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LACK OF MARKETING EXPERIENCE; DEPENDENCE ON THIRD PARTIES FOR MARKETING AND
DISTRIBUTION OF PRODUCTS
The Company intends to market and distribute its proposed products through
others pursuant to licensing, joint venture, or similar collaborative
arrangements or distribution agreements. The Company has no sales force or
marketing organization. If the Company directly markets and sells any of such
products, it will, among other things, have to attract and retain qualified or
experienced marketing and sales personnel. No assurance can be given that the
Company will be able to attract and retain qualified or experienced marketing
and sales personnel or that any efforts undertaken by such personnel will be
successful. Any contractual arrangements with others may result in a lack of
control by the Company over any or all of the marketing and sales of such
products.
DEPENDENCE ON THIRD PARTIES FOR MANUFACTURING
The Company currently does not have facilities capable of manufacturing any
proposed products in commercial quantities. Accordingly, the Company expects
that it will be dependent to a significant extent on licensees, corporate
partners or contract manufacturers for such manufacturing and for compliance
with regulatory requirements for good manufacturing practices. The Company's
dependence on third parties for manufacturing may adversely affect the Company's
ability to develop and deliver products on a timely and competitive basis. If
the Company decides to establish a commercial manufacturing facility, it will
require substantial additional funds, will be required to hire and retain
significant additional personnel and will be required to comply with extensive
governmental regulations. No assurance can be given that the Company will be
able to obtain additional capital to conduct such activities directly.
RELIANCE ON KEY EMPLOYEES; LIMITED PERSONNEL; ABILITY TO ATTRACT AND RETAIN
QUALIFIED SCIENTISTS
The success of the Company is dependent on the efforts and abilities of Dr.
Carlos M. Samour, its Chairman of the Board of Directors and Scientific
Director, Alvin J. Karloff, its Chief Executive Officer and President and Dr.
Stephen J. Riggi, its Vice President of Operations. Dr. Samour, Mr. Karloff and
Dr. Riggi are employed by the Company under employment agreements that are of
indefinite length and include non-disclosure and non-competition provisions. The
loss of Dr. Samour, Mr. Karloff or Dr. Riggi could have a material adverse
effect on the Company's business.
The Company's business also depends on access to scientific talent,
competition for which is intense and can be expected to increase. There is no
assurance that the Company will be able to retain its existing personnel or to
attract additional qualified employees.
COMPETITION
The Company competes with numerous firms, many of which are large,
multi-national organizations with worldwide distribution. Most of these firms
have substantially greater capital resources, research and development and
technical staffs, facilities and experience in obtaining regulatory approvals,
as well as in manufacturing, marketing and distribution of products, than the
Company. The Company also competes with numerous smaller companies that may have
greater financial and other resources than the Company and increased flexibility
in developing potential products on an accelerated basis. Also, recent trends in
this area are toward further market consolidation of large drug companies into a
smaller number of very large entities, further concentrating financial,
technical and market strength and increasing competitive pressure in the
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industry. Academic institutions, hospitals, governmental agencies and other
public and private research organizations are also conducting research and
seeking patent protection and may develop competing products or technologies of
their own through joint ventures or other arrangements.
The Company's proposed products and technology compete with other
drug-delivery forms such as oral administration, injection and continuous
infusion. The Company expects that competition in the field of drug-delivery
will increase substantially in the future. New drugs, new therapeutic approaches
or future developments in alternative drug-delivery technologies, such as
time-release capsules, liposomes and implants, may provide therapeutic or cost
advantages for competitive products. Changes in transdermal drug-delivery
technology will require substantial investments by companies to maintain their
competitive position and may provide opportunities for new competitors to enter
the industry. No assurance can be given that the Company's competitors will not
succeed in developing technologies and products that are more effective or less
costly to use than any that are currently being developed by the Company or that
developments by others will not render the Company's potential products or
technologies non-competitive or obsolete.
PATENTS AND PROPRIETARY INFORMATION
The Company believes that patent protection of its technologies, processes
and products is important to its future operations. The success of the Company's
proposed products may depend, in part, upon the Company's ability to obtain
patent protection. No assurance can be given that litigation will not be
commenced to challenge the Company's existing patents or any patents applied for
in the future, or that the Company would be successful in defending any such
challenge. In addition, no assurance can be given that the scope and validity of
the Company's patents will prevent third parties from developing similar or
competing products. The expenses involved in litigation regarding patent
protection can be significant and cannot be estimated by the Company. Also, the
cost of enforcing the Company's patent rights in lawsuits, if necessary, may be
significant and could interfere with the Company's operations.
Although the Company intends to file additional patent applications as
management believes appropriate with respect to any new products or
technological developments, no assurance can be given that any additional
patents will be issued or, if issued, will be of commercial benefit to the
Company. In addition, to anticipate the breadth or degree of protection that any
such patents may afford is impossible.
The Company's employees and others who perform research for the Company
have signed non-disclosure and confidentiality agreements with the Company. To
the extent that the Company relies on unpatented proprietary technology, no
assurance can be given that others will not independently develop or obtain
substantially equivalent or superior technology or otherwise gain access to the
Company's trade secrets, that any obligation of confidentiality will be honored
or that the Company will be able to effectively protect its rights to
proprietary technology. Further, no assurance can be given that any products
developed by the Company will not infringe patents held by third parties or
that, in such case, licenses from such third parties would be available on
commercially acceptable terms, if at all.
PRODUCT LIABILITY; NO GENERAL INSURANCE
The design, development, manufacture and sale of the Company's products
involve an inherent risk of liability claims and associated adverse publicity.
The Company currently has liability insurance to cover claims that may result
from clinical trials, but does not maintain product liability insurance and may
need to acquire such insurance coverage prior to the commercial introduction of
its products. No assurance can be given that the coverage limits of the
Company's insurance policies will be adequate. Such insurance is expensive,
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difficult to obtain and may not be available in the future on acceptable terms
or at all. A successful claim brought against the Company if it is uninsured, or
which is in excess of the Company's insurance coverage, if any, could have a
material adverse effect upon the Company and its financial condition.
UNCERTAINTY OF PHARMACEUTICAL PRICING AND RELATED MATTERS
The future revenues and profitability of, and availability of capital for
bio-medical and pharmaceutical companies may be affected by the continuing
efforts of governmental and third-party payors to contain or reduce the costs of
health care through various means. For example, in certain foreign markets,
pricing or profitability of prescription pharmaceuticals is subject to
government control and to reform in the health care system. In the United
States, there have been, and the Company expects there will continue to be, a
number of federal and state proposals to implement similar government control.
While the Company cannot predict whether any such legislative or regulatory
proposals will be adopted, the announcement or adoption of such proposals could
have a material adverse effect on the Company's prospects. If the Company or one
of its partners succeeded in bringing one or more of its products, based upon
the Company's technology, to market, there can be no assurance that these
products will be cost effective and that reimbursement to the consumer will be
available or will be sufficient to allow the Company or its partners to sell
such products on a profitable basis.
NO DIVIDENDS
The Company has paid no dividends on its Common Stock to date and currently
intends to retain its earnings, if any, to finance its business.
POSSIBLE ISSUANCE OF PREFERRED STOCK
The Company is authorized to issue up to 6,000,000 shares of Preferred
Stock, $.01 par value (the "Preferred Stock"). The Preferred Stock may be issued
in one or more series, the terms of which may be determined at the time of
issuance by the Board of Directors of the Company, without further action by
stockholders. The terms of any series of Preferred Stock, which may include
special voting rights (including the right to vote as a series on particular
matters), preferences as to dividends and liquidation, conversion and redemption
rights and sinking fund provisions, could adversely affect the rights of the
holders of the Common Stock. The issuance of such Preferred Stock could make the
possible takeover of the Company or the removal of management of the Company
more difficult, discourage hostile bids for control of the Company in which
stockholders may receive premiums for their Shares, or otherwise dilute the
rights of holders of Common Stock.
SHARES ELIGIBLE FOR FUTURE SALE
Substantially all of the Company's 16,150,375 shares of Common Stock
outstanding as of June 30, 1997 are freely tradeable pursuant to Rule 144 or
otherwise. In addition, 9,687,025 shares of Common Stock issuable upon the
exercise of the Company's options and warrants outstanding as of June 30, 1997
will be freely tradeable upon exercise. An additional 1,771,455 shares of Common
Stock are reserved for grants of options and other awards to employees,
officers, directors and consultants under the Company's 1994 Equity Incentive
Plan.
The existence of outstanding options and warrants for the Company's Common
Stock may affect the price at which the Common Stock may be sold. In addition,
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the exercise of any such options or warrants may dilute the net tangible book
value of the Common Stock, and the holders of such options and warrants may
exercise them at a time when the Company would otherwise be able to obtain
additional equity capital on terms more favorable to the Company.
DELAWARE ANTI-TAKEOVER LAW
The Company, a Delaware corporation, is subject to the General Corporation
Law of the State of Delaware, including Section 203, an anti-takeover law
enacted in 1988. In general, the law restricts the ability of a public 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. As a result, potential
acquirers of the Company may be discouraged from attempting to effect an
acquisition transaction with the Company, thereby possibly depriving holders of
shares of the Common Stock of certain opportunities to sell or otherwise dispose
of such shares at above-market prices pursuant to such transactions.
THE COMPANY
The Company was organized and commenced operations as a Massachusetts
corporation in 1981 and was reincorporated as a Delaware corporation on May 26,
1992. Since the Company's inception, it has engaged in research and development
with respect to technologies and products including polymers for medical and
industrial use, dental adhesives and transdermal drug delivery products. Since
1988, the Company has devoted a substantial amount of its resources to the
development and licensing of the Company's technology for the enhancement of
transdermal drug delivery, SEPA(R). The Company's principal executive offices
are located at 110 Hartwell Avenue, Lexington, MA 02173 and its telephone number
is (617) 862-4003.
USE OF PROCEEDS
The Company will not receive any of the proceeds of the Common Stock
offered hereby by the Selling Stockholders.
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SELLING STOCKHOLDERS
The following table sets forth certain information regarding ownership of
the Company's Common Stock as of August 18, 1997 by the Selling Stockholders,
including the number and percentage of shares of the Common Stock that each
Selling Stockholder would own beneficially if all of the shares offered hereby
by such Selling Stockholder were sold. However, because the Selling Stockholders
may sell all or part of the Common Stock offered hereby by each of them and
because their offering is not being underwritten on a firm commitment basis, no
estimate can be given as to the actual amount or percentage of the Common Stock
that will be held by Selling Stockholders upon termination of this offering.
Number Number Number and Percentage
of Shares of Shares of Shares Beneficially
Selling Beneficially Offered Owned if all the Shares
Stockholder Owned Hereby Offered Hereby are Sold
- ----------- ------------ --------- -----------------------
NUMBER: PERCENTAGE:
-------- ----------
Emin Company, L.L.C.(1) 1,010,102 1,000,000 10,102 *
45 Park Place South
Suite 103
Morristown, New Jersey 07960
Janssen-Meyers
Associates, L.P.(2) 66,558 66,558 0 *
17 State Street
New York, NY 10004
Peter Janssen(3) 1,746,396 69,729 1,676,667 10.3%
1780 Route 106
Muttontown, NY 11791
Bruce Meyers(3) 1,220,395 69,729 1,150,666 7.1%
315 E. 86th Street
New York, NY 10028
Jacqueline M. Goode(4) 6,342 6,342 0 *
444 Storm Street
Oceanside, NY 11572
Lehman Brothers Inc.(5) 16,000 16,000 0 *
3 World Financial Center
New York, NY 10285
J. Peter Lynch(6) 47,500 25,000 22,500 *
407 Pound Ridge Road
South Salem, NY 10590
- ----------------------------------
* Less than 1%.
10
<PAGE>
(1) Emin Company, L.L.C. ("Emin") currently has two members, David H.
Russell and Peter G. Martin. The shares of Common Stock offered hereby by Emin
were issued by the Company to Mr. Russell in a private placement in 1995. Mr.
Russell contributed the shares to the capital of Emin in July 1996. In
connection with his purchase in the private placement, Mr. Russell had the right
to designate one person to be nominated by the Company to serve on its Board of
Directors. Mr. Russell designated Mr. Martin, who was elected to the Company's
Board of Directors in 1995 and re-elected in 1996 and 1997.
(2) The shares of Common Stock offered hereby by Janssen-Meyers Associates, L.P.
("Janssen-Meyers") are issuable upon exercise of a warrant (the "Janssen-Meyers
Warrant") issued by the Company to Janssen-Meyers in June 1996 for the purchase
of 145,800 shares of Common Stock at a price of $6.075 per share. The market
price of the Common Stock on the grant date of the Janssen-Meyers Warrant was
$5.125 per share which resulted in compensation expense of approximately
$433,100 being recorded by the Company. The Janssen-Meyers Warrant, which
expires on June 17, 1999, was issued in connection with services performed for
the Company by Janssen-Meyers. In January 1997, a portion of the Janssen-Meyers
Warrant was transferred as follows: Peter Janssen, warrants to purchase 36,450
shares; Bruce Meyers, warrants to purchase 36,450 shares; and Jacqueline M.
Goode, warrants to purchase 6,342 shares. Pursuant to a consulting agreement
dated July 27, 1995, which expired on March 27, 1996, the Company engaged
Janssen-Meyers to perform consulting services relating to corporate finance and
other financial service matters, for which Janssen-Meyers was compensated $5,000
per month plus pre-approved expenses. In addition, the Company paid
Janssen-Meyers a monthly fee of $5,000 for consulting services from December
1996 through April 1997.
(3) Peter Janssen and Bruce Meyers each own 50% of Janssen-Meyers. The shares of
Common Stock offered hereby by Mr. Janssen and Mr. Meyers include 36,450 shares
and 36,450 shares, respectively, issuable upon exercise of the portion of the
Janssen-Meyers Warrant transferred to them and 33,279 shares and 33,279 shares,
respectively, issuable upon exercise of the portion of the Janssen-Meyers
Warrant not transferred by Janssen-Meyers as described in footnote (2) above. In
addition to these shares, the amount listed under "Number of Shares Beneficially
Owned" for Mr. Janssen includes 90,000 shares of outstanding Common Stock and
1,586,667 shares of Common Stock issuable upon exercise of 52,500 Class A
warrants, 55,500 Class AA warants and 29 7/12 Unit Purchase Options (each Unit
consisting of 30,000 shares of Common Stock, 10,000 Class A warrants and 10,000
Class AA warrants) owned by Mr. Janssen. The amount listed for Mr. Meyers
includes 9,000 shares of outstanding Common Stock and 1,141,666 shares of Common
Stock issuable upon exercise of 95,833 Class A warrants, 95,833 Class AA
warrants and 19 Unit Purchase Options owned by Mr. Meyers.
(4) Jacqueline M. Goode was the Chief Operating Officer of Janssen-Meyers from
December 1993 through March 1997. The shares of Common Stock offered hereby by
Ms. Goode are issuable upon exercise of the warrant issued to her referenced in
footnote (2) above.
(5) Pursuant to an agreement dated June 5, 1997, the Company engaged Lehman
Brothers Inc. ("Lehman") to perform consulting services relating to corporate
finance and strategic development matters, for which Lehman received the 16,000
shares of Common Stock offered hereby. In addition, the Company has agreed to
reimburse Lehman up to $25,000 for reasonable expenses incurred in connection
with Lehman's services under the agreement and may retain Lehman to perform
investment banking services for additional compensation. The agreement expires
on June 5, 1998.
(6) The shares of Common Stock offered hereby by J. Peter Lynch were granted to
him by the Company in August 1997 as compensation for consulting services.
11
<PAGE>
PLAN OF DISTRIBUTION
The Company will not receive any of the proceeds from the sale by the
Selling Stockholders of the Common Stock offered hereby. Any or all of the
shares of Common Stock may be sold from time to time (i) to or through
underwriters or dealers, (ii) directly to one or more other purchasers, (iii)
through agents on a best-efforts basis, or (iv) through a combination of any
such methods of sale.
The shares of the Common Stock offered hereby (the "Shares") may be sold
from time to time by the Selling Stockholders, or by pledgees, donees,
transferees or other successors in interest. Such sales may be made in one or
more transactions in the over-the-counter market, or otherwise at prices and at
terms then prevailing or at prices related to the then current market price, or
in negotiated transactions. The Shares may be sold by one or more of the
following: (a) a block trade in which the broker or dealer so engaged will
attempt to sell the Shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (b) purchases by a broker or
dealer as principal and resale by such broker or dealer for its account pursuant
to this Prospectus; and (c) ordinary brokerage transactions and transactions in
which the broker solicits purchasers. In effecting sales, brokers or dealers
engaged by the Selling Stockholders may arrange for other brokers or dealers to
participate. Brokers or dealers will receive commissions or discounts from
Selling Stockholders in amounts to be negotiated prior to the sale. In addition,
any securities covered by this Prospectus which qualify for sale pursuant to
Rule 144 may be sold under Rule 144 rather than pursuant to this Prospectus.
The Selling Stockholders and any such underwriters, dealers or agents that
participate in the distribution of the Common Stock may be deemed to be
underwriters within the meaning of the Securities Act, and any profit on the
sale of the Common Stock by them and any discounts, commissions or concessions
received by them from the Selling Stockholders may be deemed to be underwriting
discounts and commissions under the Securities Act. The Common Stock 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. Such prices will be determined by the Selling Stockholders or
by an agreement between the Selling Stockholders and underwriters or dealers.
Brokers or dealers acting in connection with the sale of Common Stock
contemplated by this Prospectus may receive fees or commissions in connection
therewith.
At the time a particular offer of Common Stock is made, to the extent
required, a supplement to this Prospectus will be distributed which will
identify and set forth the aggregate number of shares of Common Stock being
offered and the terms of the offering, including the name or names of any
underwriters, dealers or agents, the purchase price paid by any underwriter for
Common Stock purchased from the Selling Stockholders, any discounts, commissions
and other items constituting compensation from the Selling Stockholders and/or
the Company and any discounts, commissions or concessions allowed or reallowed
or paid to dealers, including the proposed selling price to the public. Such
supplement to this Prospectus and, if necessary, a post-effective amendment to
the Registration Statement of which this Prospectus is a part, will be filed
with the Commission to reflect the disclosure of additional information with
respect to the distribution of the Common Stock.
12
<PAGE>
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of the Common Stock may be prohibited from
simultaneously engaging in market making activities with respect to the Common
Stock for a restricted period that commences one or five business days
(depending upon the worldwide average daily trading volume of the Common Stock
and the public float value of the Company) before the day of pricing of the
Common Stock and continues until the distribution is over. In addition and
without limiting the foregoing, the Selling Stockholders and any person
participating in the distribution of the Common Stock will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including without limitation Rules 102 and 104 of Regulation M,
which provisions may limit the timing of bids for and purchases of the Common
Stock by the Selling Stockholders or any such other person.
In order to comply with certain states' securities laws, if applicable, the
Common Stock must be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states the Common Stock may not be sold
unless its has been registered or qualified for sale in such state, or unless an
exemption from registration or qualification is available.
LEGAL MATTERS
The validity of the shares of Common Stock being offered hereby will be
passed upon for the Company by Ropes & Gray, Boston, Massachusetts.
EXPERTS
The financial statements incorporated in this Prospectus by reference from
the Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1996 have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
13
<PAGE>
============================================= =================================
NO DEALER, SALES PERSON OR OTHER 1,186,800 Shares of Common Stock
INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS MACROCHEM CORPORATION
OFFERING OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY, THE SELLING STOCKHOLDERS
SET FORTH UNDER "SELLING STOCKHOLDERS" OR
ANY UNDERWRITER. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF ANY OFFER TO BUY ANY OF THE
SECURITIES IN ANY JURISDICTION WHERE, OR TO
ANY PERSON TO WHOM, IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. THE
DELIVERY OF THIS PROSPECTUS AT ANY TIME
DOES NOT IMPLY THAT INFORMATION HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO ITS
DATE.
August __, 1997
-----------
TABLE OF CONTENTS
Page
Available Information . . . . . . . . . 2
Incorporation of Certain Documents
by Reference. . . . . . . . . . . . . 2
Risk Factors. . . . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . 9
Use of Proceeds . . . . . . . . . . . . 9
Selling Stockholders. . . . . . . . . . 10
Plan of Distribution. . . . . . . . . . 12
Legal Matters . . . . . . . . . . . . . 13
Experts . . . . . . . . . . . . . . . . 13
============================================= =================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemization of the expenses incurred or expected to be
incurred by the Company in connection with the offering described in this
Registration Statement. No portion of such expenses are expected to be borne by
Selling Stockholders. (Items marked with an asterisk (*) represent estimated
expenses):
Registration Fee......................................$ 1,866
Printing Cost*........................................$ 500
Legal Fees*...........................................$20,000
Accounting Fees*......................................$ 7,000
Miscellaneous*........................................$ 1,000
TOTAL*...........................................$30,366
=======
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Delaware General Corporation Law, Section 102(b)(7), enables a corporation
in its original certificate of incorporation or an amendment thereto validly
approved by stockholders to eliminate or limit personal liability of members of
its Board of Directors for violations of a director's fiduciary duty of care.
However, the elimination or limitation shall not apply where there has been a
breach of duty of loyalty, failure to act in good faith, engaging in intentional
misconduct or knowingly violating a law, paying a dividend or approving a stock
repurchase that is deemed illegal or obtaining an improper personal benefit. The
Company's Certificate of Incorporation includes the following language:
"To the maximum extent permitted by Section 102(b)(7) of the General
Corporation Law of Delaware, a director of this Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit."
Delaware General Corporation Law, Section 145, permits a corporation
organized under Delaware law to indemnify directors and officers with respect to
any matter in which the director or officer acted in good faith and in a manner
he reasonably believed to be not opposed to the best interests of the Company,
and, with respect to any criminal action, had reasonable cause to believe his
conduct was lawful. The Bylaws of the Company include the following provisions:
II-1
<PAGE>
"Reference is made to Section 145 and any other relevant provisions of the
General Corporation Law of the State of Delaware. Particular reference is made
to the class of persons, hereinafter called "Indemnitees", who may be
indemnified by a Delaware corporation pursuant to the provisions of such Section
145, namely, any person, or the heirs, executors, or administrators of such
person, who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the fact that such
person is or was a director, officer, employee, or agent of such corporation or
is or was serving at the request of such corporation as a director, officer,
employee, or agent of such corporation or is or was serving at the request of
such corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise. The
Corporation shall, and is hereby obligated to, indemnify the Indemnitees, and
each of them, in each and every situation where the Corporation is obligated to
make such indemnification pursuant to the aforesaid statutory provisions. The
Corporation shall indemnify the Indemnitees, and each of them, in each and every
situation where, under the aforesaid statutory provisions, the Corporation is
not obligated, but is nevertheless permitted or empowered, to make such
indemnification, it being understood that, before making such indemnification
with respect to any situation covered under this sentence, (i) the Corporation
shall promptly make or cause to be made, by any of the methods referred to in
Subsection (d) of such Section 145, a determination as to whether such
Indemnitee 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, in the case of
any criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful, and (ii) that no such indemnification shall be made unless
it is determined that such Indemnitee 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, in the case of any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful."
ITEM 16. EXHIBITS
The following exhibits are filed herewith:
Exhibit
NO. TITLE
- ------- -----
5.1 Opinion of Ropes & Gray
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Ropes & Gray (included in the opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (to be included as part of signature page
filed herewith)
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
II-2
<PAGE>
(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(a)(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 (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
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 (the "Act"), each such post-effective amendment shall be deemed to
be a new registration statement of 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 Act 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 Act 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 Act and will be governed by the final adjudication of
such issue;
(5) that, for purposes of determining any liability under the Act, 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
II-3
<PAGE>
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; and
(6) to deliver or cause to be delivered with the Prospectus, to each person
to whom the Prospectus is sent or given, the latest annual report, to security
holders that is incorporated by reference in the Prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set forth in the
Prospectus, to deliver, or cause to be delivered to each person to whom the
Prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the Prospectus to provide such interim financial
information.
II-4
<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 on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Lexington, Massachusetts, on the 15th day of
August, 1997.
MACROCHEM CORPORATION
/S/ ALVIN J. KARLOFF
--------------------
By: Alvin J. Karloff,
Chief Executive Officer,
President and Director
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of MacroChem Corporation, hereby
severally constitute and appoint Alvin J. Karloff and Stephen J. Riggi and each
of them singly, as true and lawful attorneys, with full power to them and each
of them singly, to sign for us in our names in the capacities indicated below,
all additional amendments to this registration statement, and generally to do
all things in our names and on our behalf in such capacities to enable MacroChem
Corporation to comply with the provisions of the Securities Act of 1993, as
amended, and all requirements of the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 has been signed by the following persons in
the capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
- --------- -------- ----
/S/ CARLOS M. SAMOUR Chairman of the August 15, 1997
- -------------------- Board and Directors
Carlos M. Samour
/S/ ALVIN J. KARLOFF Chief Executive August 15, 1997
- -------------------- Officer, President
Alvin J. Karloff and Director(principal executive,
financial, and accounting officer)
/S/ WILLARD M. BRIGHT Director August 15, 1997
- ---------------------
Willard M. Bright
/S/ MICHAEL A. DAVIS Director August 15, 1997
- --------------------
Michael A. Davis
<PAGE>
/S/ PETER G. MARTIN Director August 15, 1997
- -------------------
Peter G. Martin
/S/ STEPHEN J. RIGGI Vice President, August 15, 1997
- -------------------- Operations and Director
Stephen J. Riggi
<PAGE>
EXHIBIT INDEX
DESCRIPTION
Opinion of Ropes & Gray
Consent of Deloitte & Touche LLP
EXHIBIT 5.1
ROPES & GRAY
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2624
(617) 951-7000
TELECOPIER (617) 951-7050
August 27, 1997
MacroChem Corporation
110 Hartwell Avenue
Lexington, Massachusetts 02173
Ladies and Gentlemen:
This opinion is rendered to you in connection with the Registration
Statement on Form S-3 of MacroChem Corporation (the "Company") to be filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Registration Statement"), covering the offering and possible
future sale by certain holders of (i) 1,000,000 currently issued and outstanding
shares (the "Issued Shares") of Common Stock, par value $.01 per share, of the
Company (the "Common Stock"), (ii) 41,000 shares of Common Stock (the "Unissued
Shares") to be issued by the Company to certain selling stockholders referenced
in the Registration Statement pursuant to agreements with such selling
stockholders (the "Selling Stockholders' Agreements") and (iii) 145,800 shares
(the "Warrant Shares") of Common Stock issuable upon the exercise of warrants
(the "Warrants").
We have acted as counsel to the Company in connection with the preparation
and filing of the Registration Statement. For purposes of this opinion, we have
examined and relied upon the information set forth in the Registration Statement
and such other documents, records, certificates and other instruments as we have
deemed necessary. We have assumed the genuineness and authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us as copies.
We express no opinion as to the laws of any jurisdiction other than the
Delaware General Corporation Law.
<PAGE>
MacroChem Corporation August 27, 1997
Based on and subject to the foregoing, we are of the opinion that (i) the
Issued Shares have been duly authorized and validly issued and are fully paid
and nonassessable, (ii) the Unissued Shares have been duly authorized and, upon
issuance by the Corporation in accordance with the Selling Stockholders'
Agreements, will be valildy issued, fully paid and nonassessable and (iii) the
Warrant Shares issuable upon exercise of the Warrants have been duly authorized
and reserved for issuance upon exercise of the Warrants, and when issued upon
such exercise in accordance with the terms of the Warrants, will be validly
issued, fully paid and nonassessable.
We understand that this opinion is to be used in connection with the
Company's Registration Statement relating to the Common Stock to be filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended. We consent to the filing of this opinion with and as a part of said
Registration Statement and the use of our name therein.
Very truly yours,
/S/ ROPES & GRAY
----------------
EXHIBIT 23.1
------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of MacroChem Corporation on Form S-3 of our report dated March 6, 1997,
appearing in the Annual Report on Form 10-K of MacroChem Corporation for the
year ended December 31, 1996 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/S/ DELOITTE & TOUCHE LLP
- -------------------------
DELOITTE & TOUCHE LLP
Boston, Massachusetts
August 27, 1997
