<PAGE>
As filed with the Securities and Exchange Commission on December 26, 2000
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
AVANT IMMUNOTHERAPEUTICS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3191702
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
119 FOURTH AVENUE
NEEDHAM, MASSACHUSETTS 02494
(781) 433-0771
(Address, including zip code, and telephone number,
including area code of Registrant's principal executive offices)
UNA S. RYAN, PH.D., PRESIDENT AND CHIEF EXECUTIVE OFFICER
AVANT IMMUNOTHERAPEUTICS, INC.
119 FOURTH AVENUE
NEEDHAM, MASSACHUSETTS 02494
(781) 433-0771
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------------
Copies to:
STUART M. CABLE, P.C.
ETTORE A. SANTUCCI, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
-----------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE 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, check the following box /X/
If this form is used 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. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Shares Being Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share Price Registration Fee
---------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.001(1) 2,127,113 6.16(2) $13,103,016 $3,276
===========================================================================================================================
</TABLE>
(1) This Registration Statement also relates to rights to purchase shares of
Series C-1 Junior Participating Cumulative Preferred Stock of the Registrant
which are attached to all shares of Common Stock issued, pursuant to the
terms of the Registrant's Shareholder Rights Agreement dated November 10,
1994. Until the occurrence of certain prescribed events, the rights are not
exercisable, are evidenced by the certificates for the Common Stock and will
be transferred with and only with such stock. Because no separate
consideration is paid for the rights, the registration fee therefor is
included in the fee for the Common Stock.
(2) This estimate is made pursuant to Rule 457(c) under the Securities Act of
1933, as amended (the "Securities Act"), solely for the purposes of
determining the registration fee and is based upon the market value of
outstanding shares of common stock, $.001 par value per share, of AVANT
Immunotherapeutics, Inc. on December 21, 2000, utilizing the average of the
high and low sale prices reported on the Nasdaq National Market for that
date.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the Registration Statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION. DATED DECEMBER 26, 2000.
PROSPECTUS
2,127,113 SHARES OF COMMON STOCK
AVANT IMMUNOTHERAPEUTICS, INC.
------------
The selling stockholders identified in this prospectus, and any of
their pledgees, donees, transferees or other successors in interest, may offer
to sell up to an aggregate of 2,127,113 shares of common stock of AVANT
Immunotherapeutics, Inc. We are filing the Registration Statement of which this
prospectus is a part at this time to fulfill a contractual obligation to do so,
which we undertook at the time of the original issuance of these shares. We will
not receive any of the proceeds from the sale of the common stock by the selling
stockholders but, in fulfillment of our contractual obligations, we are bearing
the expenses of registration.
Our common stock is listed on the Nasdaq National Market under the
symbol "AVAN."
SEE "RISK FACTORS" BEGINNING ON PAGE 2 FOR CERTAIN FACTORS YOU SHOULD
CONSIDER BEFORE YOU INVEST IN OUR COMMON STOCK.
--------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. IT IS ILLEGAL FOR ANY PERSON TO TELL
YOU OTHERWISE.
--------------------
The date of this prospectus is December , 2000.
<PAGE>
TABLE OF CONTENTS
ABOUT AVANT..........................................................1
THE OFFERING.........................................................1
RISK FACTORS.........................................................2
WHERE YOU CAN FIND MORE INFORMATION..................................7
INCORPORATION OF DOCUMENTS BY REFERENCE..............................7
FORWARD-LOOKING STATEMENTS...........................................8
USE OF PROCEEDS......................................................8
REGISTRATION RIGHTS OF THE SELLING STOCKHOLDERS......................9
SELLING STOCKHOLDERS................................................10
PLAN OF DISTRIBUTION................................................12
LEGAL MATTERS.......................................................13
EXPERTS ...........................................................13
<PAGE>
ABOUT AVANT
We are a biopharmaceutical Company that uses novel applications of
immunology to prevent and treat diseases that arise internally, including
autoimmune diseases, cardiovascular diseases, cancer and inflammation, and by
external conditions, including infectious diseases and organ transplant
rejection. Our products address large market opportunities for which current
therapies are inadequate or non-existent.
We are developing our products using a broad set of technologies that
work together to regulate the body's complement system, regulate T and B cell
activity, and enable us and others to create and deliver vaccines that prevent
and treat some diseases. We are using these technologies to develop both
vaccines and immunotherapeutics that prevent or treat disease caused by
infectious organisms and drugs and vaccines that modify undesirable activity of
the body's own proteins or cells. All of our products are in various stages of
research and development.
Our common stock has been quoted on the Nasdaq National Market under
the symbol "AVAN" since August 24, 1998. Prior to that, our common stock traded
on the Nasdaq National Market under the symbol "TCS".
Our executive offices are located at 119 Fourth Avenue, Needham,
Massachusetts 02494-2725 and our telephone number is (781) 433-0771. Additional
information regarding our Company, including our audited financial statements
and descriptions of our business, is contained in the documents incorporated by
reference in this prospectus. See "Where You Can Find More Information" on page
7 and "Incorporation of Documents by Reference" on page 7.
THE OFFERING
This prospectus relates to up to 2,127,113 shares of our common stock
that may be offered for sale by the selling stockholders. We originally issued
these shares as follows:
- 1,841,236 of these shares were issued to certain of the selling
stockholders on December 1, 2000 in connection with our
acquisition of Megan Health, Inc. In connection with this
acquisition, we granted these selling stockholders registration
rights under the related merger agreement.
- 285,877 of these shares were issued to Pfizer Inc, a selling
stockholder, on December 1, 2000 in a private placement. In
connection with this private placement, we granted Pfizer
registration rights under the related stock purchase agreement.
We are registering the common stock covered by this prospectus in
order to fulfill our contractual obligations under both the merger agreement and
the stock purchase agreement. Registration of the common stock does not
necessarily mean that all or any portion of the common stock will be offered for
sale by the selling stockholders.
We have agreed to bear the expenses of the registration of the common
stock under federal and state securities laws, but we will not receive any
proceeds from the sale of any common stock offered under this prospectus.
<PAGE>
RISK FACTORS
YOU SHOULD CONSIDER CAREFULLY THESE RISK FACTORS TOGETHER WITH ALL OF
THE INFORMATION INCLUDED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS BEFORE
YOU DECIDE TO PURCHASE SHARES OF OUR COMMON STOCK. THIS SECTION INCLUDES SOME
FORWARD-LOOKING STATEMENTS.
OUR HISTORY OF LOSSES AND UNCERTAINTY OF FUTURE PROFITABILITY MAKE THE COMMON
STOCK A HIGHLY SPECULATIVE INVESTMENT.
We have had no commercial revenues to date from sales of our products
and cannot predict when we will. We have accumulated net operating losses since
inception of approximately $145 million, as of November 30, 2000. We expect to
spend substantial funds to continue research and product testing of the
following products we have in the pre-clinical and clinical testing stages of
development:
PRODUCT USE STAGE
------- --- -----
TP10 organ transplantation clinical phase I/II
TP10 pediatric cardiac surgery clinical phase I/II
TP10 adult cardiac surgery clinical phase II
TP10 heart attacks clinical phase I
TP20 stroke pre-clinical
CETi-1 atherosclerosis clinical phase I
Rotavirus Vaccine rotavirus infection clinical phase II
Cholera Vaccine cholera infection clinical phase II
Typhoid Vaccine typhoid infection clinical phase I/II
Shigella Vaccine dysentery pre-clinical
Adjumer(R) respiratory synctial virus clinical phase II
Adjumer(R) lyme disease pre-clinical
Adjumer(R) influenza pre-clinical
Therapore(TM) hepatitis pre-clinical
Therapore(TM) HIV pre-clinical
Therapore(TM) cancer pre-clinical
The product development and regulatory approval process can be
generally described as follows. Pre-clinical tests are performed at an early
stage of a product's development and provide information about a product's
safety and effectiveness in laboratory animals. Pre-clinical tests can last
years. If a product passes its pre-clinical tests satisfactorily, we file an
investigational new drug application for the product with the Food and Drug
Administration, and if the FDA gives its approval we begin phase I clinical
tests. Phase I testing generally lasts between six and 12 months. If phase I
test results are satisfactory and the FDA gives its approval, we can begin phase
II clinical tests. Phase II testing generally lasts between six and 18 months.
If phase II test results are satisfactory and the FDA gives its approval, we can
begin phase III pivotal studies. Phase III studies generally last between 12 and
36 months. Once clinical testing is completed and a new drug application is
filed with the FDA, it may take more than a year to receive FDA approval.
In anticipation of FDA approval of these products, we will need to make
substantial investments to establish sales, marketing, quality control, and
regulatory compliance capabilities. These investments will increase if and when
any of these products receive FDA approval. We cannot predict how quickly our
lead products will progress through the regulatory approval process. As a
result, we may continue to lose money for several years. We will disclose the
progress each product is making through clinical testing, and the preparations
we are making for products that are nearing approval for sale in our periodic
reports under the Securities Exchange Act of 1934, as amended.
IF WE CANNOT SELL CAPITAL STOCK TO RAISE NECESSARY FUNDS, IT MAY FORCE US TO
LIMIT OUR RESEARCH, DEVELOPMENT AND TESTING PROGRAMS.
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We will need to raise more capital from investors to advance our lead
products through the clinical testing and to fund our operations until we
receive final FDA approval and our products begin to generate revenues for us.
However, based on our history of losses, we may have difficulty attracting
sufficient investment interest. We may also try to obtain funding through
research grants and agreements with commercial collaborators. This kind of
funding is at the discretion of other organizations and companies who have
limited funds and many companies compete with us for those funds. As a result,
we may not receive any research grants or funds from collaborators. We will
provide specific information about the sources and adequacy of funding for our
active research and development programs in our periodic reports under the
Securities Exchange Act of 1934, as amended.
IF SELLING STOCKHOLDERS CHOOSE TO SELL SHARES IN LARGE VOLUME, THE TRADING PRICE
OF OUR COMMON STOCK COULD SUFFER.
In December 2000, we issued 1,841,236 shares of our common stock at
$9.54 per share in connection with our acquisition of Megan Health, Inc. and
285,877 shares of our common stock at $10.50 per share in a separate private
placement with Pfizer Inc. These transactions were the latest of several
private placements of our common stock. Those shares, which are covered by
this prospectus, plus among others, 4,650,953 shares we sold in a July 2000
private placement at $7.85 per share, 5,459,375 shares we sold in a September
1999 private placement at $1.92 per share, 2,043,494 shares we sold in a
March 1998 private placement at $1.90 per share, 1,433,750 shares we issued
in June 1998 in settlement of a contract dispute with a landlord, and
3,124,008 shares that employees may purchase under stock options at prices
ranging from $0.30 to $14.69 per share, can be resold in the public
securities markets without restriction. These shares in total account for
approximately 3.87% of our total common stock outstanding as of September 30,
2000, and approximately 3.55% of our common stock on a fully diluted basis.
If large numbers of shares are sold over a short period of time, the price of
our stock may decline rapidly or fluctuate widely.
IF OUR PRODUCTS DO NOT PASS REQUIRED TESTS FOR SAFETY AND EFFECTIVENESS, WE WILL
NOT BE ABLE TO DERIVE COMMERCIAL REVENUE FROM THEM.
For AVANT to succeed, we will need to derive commercial revenue from
the products we have under development. The FDA has not approved any of our lead
products for sale to date. Our lead drug, TP10, is undergoing phase II clinical
testing for use in pediatric and adult cardiac surgery. TP10 has also undergone
phase I clinical testing for use in treating heart attacks and phase II clinical
testing for organ transplant. Other products in our vaccine programs are in
various stages of preclinical and clinical testing. Preclinical tests are
performed at an early stage of a product's development and provide information
about a product's safety and effectiveness on laboratory animals. Preclinical
tests can last years. If a product passes its preclinical tests satisfactorily,
we file an investigational new drug application for the product with the FDA,
and if the FDA gives its approval we begin phase I clinical tests. Phase I
testing generally lasts between 6 and 12 months. If phase I test results are
satisfactory and the FDA gives its approval, we can begin phase II clinical
tests. Phase II testing generally lasts between six and 18 months. If phase II
test results are satisfactory and the FDA gives its approval, we can begin phase
III pivotal studies. Phase III studies generally last between 12 and 36 months.
Once clinical testing is completed and a new drug application is filed with the
FDA, it may take more than a year to receive FDA approval. We will disclose the
progress of our ongoing tests and any FDA action on our products in our periodic
reports under the Securities Exchange Act of 1934, as amended.
In all cases we must show that a pharmaceutical product is both safe
and effective before the FDA, or drug approval agencies of other countries where
we intend to sell the product, will approve it for sale. Our research and
testing programs must comply with drug approval requirements both in the United
States and in other countries, since we are developing our lead products with
companies, including Novartis Pharma AG, Smithkline Beecham and Aventis Pasteur,
who intend to commercialize them both in the U.S. and abroad. A product may fail
for safety or effectiveness at any stage of the testing process. The key risk we
face is that none of our products under development will come through the
testing process to final approval for sale, with
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the result that we cannot derive any commercial revenue from them after
investing significant amounts of capital in multiple stages of pre-clinical and
clinical testing.
PRODUCT TESTING IS CRITICAL TO THE SUCCESS OF OUR PRODUCTS BUT SUBJECT TO DELAY
OR CANCELLATION IF WE HAVE DIFFICULTY ENROLLING PATIENTS.
As our portfolio of potential products moves from pre-clinical testing
to clinical testing, and then through progressively larger and more complex
clinical trials, we will need to enroll an increasing number of patients with
the appropriate characteristics. At times we have experienced difficulty
enrolling patients and we may experience more difficulty as the scale of our
clinical testing program increases. The factors that affect our ability to
enroll patients are largely uncontrollable and include principally the
following:
- the nature of the clinical test
- the size of the patient population
- the distance between patients and clinical test sites
- the eligibility criteria for the trial
As clinical tests currently in progress continue and new tests
begin, we will disclose in our periodic reports under the Securities Exchange
Act of 1934, as amended, our progress in enrolling sufficient patients to
keep our various programs moving forward, including any specific difficulties
we face from time to time and their expected consequences on the affected
program. If we cannot enroll patients as needed, our costs may increase or it
could force us to delay or terminate testing for a product.
WE DEPEND GREATLY ON THE INTELLECTUAL CAPABILITIES AND EXPERIENCE OF OUR KEY
EXECUTIVES AND SCIENTISTS AND THE LOSS OF ANY OF THEM COULD AFFECT OUR ABILITY
TO DEVELOP OUR PRODUCTS.
The loss of Dr. Una S. Ryan, our president and chief executive officer,
or other key members of our staff could harm us. We have an employment agreement
with Dr. Ryan. We do not have any key-person insurance coverage. We also depend
on our scientific collaborators and advisors, all of whom have outside
commitments that may limit their availability to us. In addition, we believe
that our future success will depend in large part upon our ability to attract
and retain highly skilled scientific, managerial and marketing personnel,
particularly as we expand our activities in clinical trials, the regulatory
approval process and sales and manufacturing. We face significant competition
for this type of personnel from other companies, research and academic
institutions, government entities and other organizations. We cannot predict our
success in hiring or retaining the personnel we require for continued growth.
WE RELY ON THIRD PARTIES TO PLAN, CONDUCT, MONITOR AND SUPPLY OUR CLINICAL
TESTS, AND THEIR FAILURE TO PERFORM AS REQUIRED WOULD INTERFERE WITH OUR PRODUCT
DEVELOPMENT.
We rely on third parties, including Duke University Medical Center, The
Cleveland Clinic, PPD International, Pharmaceuticals Research Associates, The
Chicago Center for Clinical Research and SmithKline Beecham to conduct our
clinical tests. If any one of those third parties fails to perform as we expect
or if their work fails to meet regulatory standards, our testing could be
delayed, cancelled or rendered ineffective. We also depend on third party
suppliers and manufacturers, including Walter Reed Army Institute of Research,
Marathon Biopharmaceuticals, Inc., Lonza Biologics plc and Multiple Peptide
Systems, to provide us with suitable quantities of materials necessary for
clinical tests. If these materials are not available in suitable quantities of
appropriate quality, in a timely manner, and at a feasible cost, our clinical
tests will face delays.
WE DEPEND GREATLY ON THIRD PARTY COLLABORATORS TO LICENSE, DEVELOP AND
COMMERCIALIZE SOME OF OUR PRODUCTS, AND THEY MAY NOT MEET OUR EXPECTATIONS.
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We have agreements with other companies, including Novartis Pharma AG,
Aventis Pasteur and SmithKline Beecham, for the licensing, development and
ultimate commercialization of some of our products. Some of those agreements
give substantial responsibility over the products to the collaborator. Some
collaborators may be unable or unwilling to devote sufficient resources to
develop our products as their agreements require. They often face business risks
similar to ours, and this could interfere with their efforts. Also,
collaborators may choose to devote their resources to products that compete with
ours. If a collaborator does not successfully develop any one of our products,
we will need to find another collaborator to do so. Our search for a new
collaborator will depend on our legal right to do so at the time and whether the
product remains commercially viable.
WE MAY FACE DELAYS, DIFFICULTIES OR UNANTICIPATED COSTS IN ESTABLISHING SALES,
DISTRIBUTION AND MANUFACTURING CAPABILITIES FOR OUR COMMERCIALLY READY PRODUCTS.
We have chosen to retain, rather than license, all rights to some of
our lead products, such as TP10 for pediatric and adult cardiac surgery. If we
proceed with this strategy, we will have full responsibility for
commercialization of these products if and when they are approved for sale. We
currently lack the marketing, sales and distribution capabilities that we will
need to carry out this strategy. To market any of our products directly, we must
develop a substantial marketing and sales force with technical expertise and a
supporting distribution capability. We have little expertise in this area, and
we may not succeed. We may find it necessary to enter into strategic
partnerships on uncertain but potentially unfavorable terms to sell, market and
distribute our products when they are approved for sale.
Some of our products are difficult to manufacture, especially in large
quantities, and we have not yet developed commercial scale manufacturing
processes for any of our products. We do not currently plan to develop internal
manufacturing capabilities to produce any of our products if they are approved
for sale. To the extent that we choose to market and distribute products
ourselves, this strategy will make us dependent on other companies to produce
our products in adequate quantities, in compliance with regulatory requirements,
and at a competitive cost. We may not find third parties with facilities and
expertise available to meet those manufacturing needs.
OUR RELIANCE ON THIRD PARTIES REQUIRES US TO SHARE OUR TRADE SECRETS, AND THIS
RELIANCE INCREASES THE POSSIBILITY THAT A COMPETITOR WILL DISCOVER THEM.
Because we rely on third parties to develop our products, we must share
trade secrets with them. We seek to protect our proprietary technology in part
by confidentiality agreements and, if applicable, inventor's rights agreements
with our collaborators, advisors, employees and consultants. Our competitors may
discover our trade secrets either through breach of these agreements or through
independent development. A competitor's discovery of our trade secrets would
impair our competitive position. Moreover, we conduct a significant amount of
research through academic advisors and collaborators who are prohibited from
entering into confidentiality or inventor's rights agreements by their academic
institutions.
WE LICENSE TECHNOLOGY FROM OTHER COMPANIES TO DEVELOP OUR PRODUCTS, AND THOSE
COMPANIES COULD RESTRICT OUR USE OF IT.
Companies that license to us technologies we use in our research and
development programs may require us to achieve milestones or devote minimum
amounts of resources to develop products using those technologies. They may also
require us to make significant royalty and milestone payments, including a
percentage of any sublicensing income, as well as payments to reimburse them for
patent costs. The number and variety of our research and development programs
require us to establish priorities and to allocate available resources among
competing programs. From time to time we may choose to slow down or cease our
efforts on particular products. If in doing so we fail to perform our
obligations under a license fully, the licensor can terminate the licenses or
permit our competitors to use the technology. Moreover, we may lose our right to
market and sell any products based on the licensed technology.
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<PAGE>
WE HAVE MANY COMPETITORS IN OUR FIELD AND THEY MAY DEVELOP TECHNOLOGIES THAT
MAKE OURS OBSOLETE.
Biotechnology, pharmaceuticals and therapeutics are rapidly evolving
fields in which scientific and technological developments are expected to
continue at a rapid pace. We have many competitors in the U.S. and abroad,
including Alexion Pharmaceuticals, Bayer, Merck, Pfizer, Immune Response and
Wyeth-Lederle. Our success depends upon our ability to develop and maintain a
competitive position in the product categories and technologies on which we
focus. Many of our competitors have greater capabilities, experience and
financial resources than we do. Competition is intense and is expected to
increase as new products enter the market and new technologies become available.
Our competitors may:
- develop technologies and products that are more effective than
ours, making ours obsolete or otherwise noncompetitive
- obtain regulatory approval for products more rapidly or
effectively than us
- obtain patent protection or other intellectual property rights
that would block our ability to develop competitive products
WE RELY ON PATENTS, PATENT APPLICATIONS AND OTHER INTELLECTUAL PROPERTY
PROTECTIONS TO PROTECT OUR TECHNOLOGY AND TRADE SECRETS; THEY ARE EXPENSIVE AND
MAY NOT PROVIDE SUFFICIENT PROTECTION.
Our success depends in part on our ability to obtain and maintain
patent protection for technologies that we use. Biotechnology patents involve
complex legal, scientific and factual questions and are highly uncertain. To
date, there is no consistent policy regarding the breadth of claims allowed in
biotechnology patents, particularly in regard to patents for technologies for
human uses like those we use in our business. We cannot predict whether the
patents we seek will issue. If they do issue, a competitor may challenge them
and limit their scope. Moreover, our patents may not afford effective protection
against competitors with similar technology. A successful challenge to any one
of our patents could result in a third party's ability to use the technology
covered by the patent. We also face the risk that others will infringe, avoid or
circumvent our patents. Technology that we license from others is subject to
similar risks, and this could harm our ability to use that technology. If we, or
a company that licenses technology to us, were not the first creator of an
invention that we use, our use of the underlying product or technology could
face restrictions, including elimination.
If we must defend against suits brought against us or prosecute suits
against others involving intellectual property rights, we will incur substantial
costs. In addition to any potential liability for significant monetary damages,
a decision against us may require us to obtain licenses to patents or other
intellectual property rights of others on potentially unfavorable terms. If
those licenses from third parties are necessary but we cannot acquire them, we
would attempt to design around the relevant technology. This would cause higher
development costs and delays, and may ultimately prove impracticable.
OUR BUSINESS REQUIRES US TO USE HAZARDOUS MATERIALS, AND THIS INCREASES OUR
EXPOSURE TO DANGEROUS AND COSTLY ACCIDENTS.
Our research and development activities involve the use of hazardous
chemicals, biological materials and radioactive compounds. Although we believe
that our safety procedures for handling and disposing hazardous materials comply
with the standards prescribed by applicable laws and regulations, we cannot
completely eliminate the risk of accidental contamination or injury from these
materials. In the event of an accident, an injured party will likely sue us for
any resulting damages with potentially significant liability. The ongoing cost
of complying with environmental laws and regulations is significant and may
increase in the future. In addition, in connection with our merger with Virus
Research Institute, Inc. in 1998, we assumed the real property lease at Virus
Research Institute, Inc.'s former site. We understand that this property has a
low level of oil-based and other hazardous material contamination. We believe
that the risks posed by this
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contamination are low, but we cannot predict whether additional hazardous
contamination exists at this site, or that changes in applicable law will not
require us to clean up the current contamination of the property.
WHERE YOU CAN FIND MORE INFORMATION
We must comply with the informational requirements of the Securities
Exchange Act of 1934, as amended, and we are required to file reports and
proxy statements and other information with the Securities and Exchange
Commission. You may read and copy these reports, proxy statements and
information at the public reference facilities maintained by the Securities
and Exchange Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549, and at the Securities and Exchange Commission's
Regional Offices at 7 World Trade Center, 13th Floor, New York, New York
10048, and Citicorp Center, 500 W. Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. You may also obtain copies at the prescribed rates from
the Public Reference Section of the Securities and Exchange Commission at its
principal office in Washington, D.C. You may call the Securities and Exchange
Commission at 1-800-SEC-0330 for further information about the public
reference rooms. The Securities and Exchange Commission maintains a web site
that contains reports, proxy and information statements and other information
regarding registrants, including AVANT, that file electronically with the
Securities and Exchange Commission. You may access the Securities and
Exchange Commission's web site at http://www.sec.gov.
INCORPORATION OF DOCUMENTS BY REFERENCE
The Securities and Exchange Commission allows us to incorporate by
reference in this prospectus the information that we file with them.
Incorporation by reference means that we can disclose important information
to you by referring you to other documents that are legally considered to be
part of this prospectus, and later information that we file with the
Securities and Exchange Commission will automatically update and supersede
the information in this prospectus, any supplement and the documents listed
below. We incorporate by reference the specific documents listed below and
any future filings made with the Securities and Exchange Commission under
Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as
amended, until all of the shares are sold:
- our Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 (as amended on Form 10-K/A filed on July 25,
2000)
- our Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2000, June 30, 2000 and September 30, 2000
- our Current Report on Form 8-K filed on July 19, 2000
- our Current Report on Form 8-K filed on December 12, 2000
- the definitive Proxy Statement for our annual meeting of
stockholders filed on March 28, 2000
- the description of our common stock contained in our
Registration Statement on Form 8-A, filed on September 22,
1986, including all amendments and reports updating that
description
- the description of the rights to purchase shares of our Series
C-1 Junior Participating Cumulative Preferred Stock contained
in our Registration Statement on Form 8-A, filed on November
14, 1994, including all amendments and reports updating that
description
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We will furnish without charge to each person, including any beneficial
owner, to whom this prospectus is delivered, upon written or oral request, a
copy of any documents incorporated by reference other than exhibits to those
documents. Requests should be addressed to: 119 Fourth Avenue, Needham,
Massachusetts 02494, Attention: Corporate Secretary (telephone number (781)
433-0771).
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone to provide you with
different information. You should not assume that the information in this
prospectus or the documents incorporated by reference is accurate as of any date
other than the date on the front of this prospectus or those documents.
FORWARD-LOOKING STATEMENTS
Some statements incorporated by reference or made under the caption
"Risk Factors" and elsewhere in this prospectus are "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933,
as amended, and Section 21E of the Securities Exchange Act of 1934, as
amended. When we use the words "anticipate," "assume," "believe," "estimate,"
"expect," "intend" and other similar expressions, they generally identify
forward-looking statements. Forward-looking statements include, for example,
statements relating to development activities, business strategy and
prospects, future capital expenditures, sources and availability of capital,
governmental regulations and their effect on us and competition.
You should exercise caution in interpreting and relying on
forward-looking statements since they involve known and unknown risks,
uncertainties and other factors which are, in some cases, beyond our control and
could materially affect our actual results, performance or achievements. Some of
the factors that could cause our actual results, performance or achievements to
differ materially from those expressed or implied by forward-looking statements
include, but are not limited to, the matters discussed under the caption "Risk
Factors."
We caution you that, while forward looking statements reflect our good
faith beliefs, they are not guarantees of future performance. In addition, we
disclaim any obligation to publicly update or revise any forward-looking
statement, whether as a result of new information, future events or otherwise.
USE OF PROCEEDS
AVANT will not receive any proceeds from the sale of the shares by the
selling stockholders.
8
<PAGE>
REGISTRATION RIGHTS OF THE SELLING STOCKHOLDERS
The following is a summary of the material terms and provisions of the
merger agreement and the stock purchase agreement relating to the registration
of the common stock covered by this prospectus. It may not contain all the
information that is important to you. You can access complete information by
referring to the merger agreement or the stock purchase agreement, as
applicable.
Under the terms of the registration rights provisions of the merger
agreement, we must file by December 31, 2000 a Registration Statement covering
the sale by the selling stockholders of the common stock that they received on
December 1, 2000 in connection with our acquisition of Megan Health, Inc. We
must use all commercially reasonable efforts to cause the Registration Statement
to be declared effective by the Securities and Exchange Commission at the
earliest practicable date, but not later than the later of (i) March 31, 2000,
or (ii) the tenth business day after the filing of our annual report on Form
10-K for the fiscal year ended December 31, 2000. We have no obligation to keep
the Registration Statement effective from and after such time as all the common
stock issued to the selling stockholders in connection with our acquisition of
Megan Health could be sold under Rule 144 of the Securities Act of 1933, as
amended.
Under the terms of the registration rights provisions of the stock
purchase agreement, we must file a Registration Statement covering the sale by
Pfizer Inc of the common stock that it purchased on December 1, 2000 as soon as
reasonably practicable after the closing. We must use commercially reasonable
efforts to cause the Registration Statement to be declared effective by the
Securities and Exchange Commission and to keep the Registration Statement
continuously effective until the earlier of (i) the date on which Pfizer has
disposed of all of its shares of common stock and (ii) the date on which Pfizer
may sell all of its shares of common stock under Rule 144 of the Securities Act
of 1933, as amended.
Any common stock sold by the selling stockholders pursuant to this
prospectus will no longer be entitled to the benefits of the registration rights
provisions of the merger agreement or the stock purchase agreement.
The registration rights provisions of the merger agreement and the
stock purchase agreement require that we bear all expenses of registering the
common stock with the exception of any fees or expenses of counsel for the
selling stockholders and all underwriting discounts, selling commissions and
transfer taxes applicable to the sale of common stock under the Registration
Statement. We also agreed to indemnify the selling stockholders and any person
who controls the selling stockholders against all losses, claims, damages or
liabilities arising under the securities laws in connection with an untrue
statement or omission in the Registration Statement or this prospectus, subject
to limitations specified in the merger agreement and the stock purchase
agreement. In addition, the selling stockholders agreed to indemnify us and any
person who controls our company, subject to limitations specified in the merger
agreement and the stock purchase agreement, against all losses, claims, damages
or liabilities arising under the securities laws if they result from an untrue
statement or omission contained in any written information furnished to us by
the selling stockholders expressly for use in the Registration Statement or this
prospectus or any amendments to the Registration Statement or any prospectus
supplements.
9
<PAGE>
SELLING STOCKHOLDERS
The following table provides the name and number of shares of common
stock owned by each selling stockholder as of December 1, 2000, the number of
shares of common stock covered by this prospectus and the total number of shares
of common stock which the selling stockholders will beneficially own upon
completion of this offering. The shares offered by this prospectus may be
offered from time to time by the selling stockholders named below, or by any of
their pledgees, donees, transferees or other successors in interest. The selling
stockholders will receive all of the proceeds from the sale of shares of common
stock pursuant to this prospectus.
Because the selling stockholders may sell all, some or none of the
shares, we have assumed that the selling stockholders will sell all of the
shares in determining the number and percentage of shares of common stock that
each selling stockholder will own upon completion of the offering to which this
prospectus relates. The amounts set forth below are based upon information
provided by the selling stockholders and are accurate to the best of our
knowledge. It is possible, however, that the selling stockholders may acquire or
dispose of additional shares of common stock from time to time after the date of
this prospectus.
<TABLE>
<CAPTION>
SHARES OF COMMON SHARES OF COMMON STOCK
STOCK BENEFICIALLY SHARES OF OWNED AFTER THE OFFERING
OWNED AS OF COMMON STOCK ------------------------
SELLING STOCKHOLDER DECEMBER 1, 2000 OFFERED HEREBY NUMBER(1) PERCENT
------------------- ------------------ -------------- -------- -------
<S> <C> <C> <C> <C>
A/W Company.............................................. 266,985 266,985 0 0
Aflafi Capital Company................................... 336,315 336,315 0 0
Altec Industries, Inc.................................... 214 214 0 0
AmSouth Bancorporation................................... 372 372 0 0
Mr. Neal Andrews......................................... 593 593 0 0
Mr. J. Claude Bennett.................................... 377 377 0 0
Mr. Keehn Berry, Jr. .................................... 483 483 0 0
Bienville Ventures I..................................... 542 542 0 0
Bienville Ventures II.................................... 25,576 25,576 0 0
Harold E. Bissell........................................ 7,407 7,407 0 0
Ronald S. Brakke......................................... 208 208 0 0
Barlett G. Bretz......................................... 6,548 6,548 0 0
Brice Investment Company, Inc............................ 513 513 0 0
Mr. Percy W. Brower, Jr.,
Trustee under The Percy W. Brower Jr.
Revocable Trust dated 9/20/96.......................... 186 186 0 0
Buffalo Rock Company..................................... 186 186 0 0
Mr. Thomas N. Carruthers, Jr............................. 441 441 0 0
Gus G. Casten M.D........................................ 20,357 20,357 0 0
CID Equity Capital V, L.P................................ 197,523 197,523 0 0
CID Equity Partners...................................... 98,762 98,762 0 0
Brian L. Clevinger, Ph.D................................. 1,973 1,973 0 0
Richard W. Compans....................................... 3,366 3,366 0 0
Richard and Iva Conerly,
Joint Tenants with Rights of Survivorship.............. 12,916 12,916 0 0
Roy Curtiss III.......................................... 314 314 0 0
Josephine E. Curtiss,
Trustee of the Roy Curtiss III Irrevocable
Trust No. 2 dated June 12, 1998........................ 22,900 22,900 0 0
Josephine E. Curtiss..................................... 347 347 0 0
R. Hal Dean
as Trustee of the R. Hal Dean Revocable
Trust UAD August 26, 1987.............................. 11,606 11,606 0 0
Dunn Investment Company.................................. 24,769 24,769 0 0
Hope R. Edison........................................... 5,804 5,804 0 0
Julian I. Edison......................................... 17,410 17,410 0 0
Mr. William F. Edmonds................................... 190 190 0 0
Mr. John D. Elmore....................................... 761 761 0 0
Mrs. Marilyn W. Elmore................................... 761 761 0 0
Mr. Marvin R. Engel,
As Trustee of Trust B
U/W/O William P. Engel................................. 325 325 0 0
Mr. William E. Engel..................................... 124 124 0 0
Mr. Wayne H. Gillis...................................... 92 92 0 0
Amos N. Goldhaber and Marilyn K. Goldhaber............... 9,876 9,876 0 0
Richard Grayson.......................................... 1,731 1,731 0 0
Revocable Living Trust of Richard C. Grayson
Dated November 15, 1990, Richard C. Grayson,
Trustee................................................ 9,876 9,876 0 0
Tony Good................................................ 347 347 0 0
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
SHARES OF COMMON SHARES OF COMMON STOCK
STOCK BENEFICIALLY SHARES OF OWNED AFTER THE OFFERING
OWNED AS OF COMMON STOCK ------------------------
SELLING STOCKHOLDER DECEMBER 1, 2000 OFFERED HEREBY NUMBER(1) PERCENT
------------------- ------------------ -------------- -------- -------
<S> <C> <C> <C> <C>
Mr. G.R. Harsh III....................................... 810 810 0 0
Mr. Cooper G. Hazelrig................................... 214 214 0 0
Sanjay K. Jain........................................... 14,519 14,519 0 0
Jemison Investment Co., Inc. ............................ 49,272 49,272 0 0
Mr. Crawford T. Johnson III. ............................ 253 253 0 0
Johnston Properties, Inc................................. 214 214 0 0
Robert E. Lawson and Elizabeth A. Pearson,
Joint Tenants with a Right of Survivorship............. 1,975 1,975 0 0
Everett R. Lerwick, M.D.................................. 12,345 12,345 0 0
Longview Farm Trust...................................... 4,534 4,534 0 0
Caldwell Marks........................................... 4,186 4,186 0 0
Michael C. Matsos........................................ 13,695 13,695 0 0
McWane, Inc.............................................. 943 943 0 0
Dr. Jiri Mestecky........................................ 314 314 0 0
William E. Nasser,
as Trustee U/I William E. Nasser
dated March 17, 1995................................... 9,876 9,876 0 0
John F. Norwood.......................................... 11,606 11,606 0 0
Dr. Daniel S. Prince..................................... 368 368 0 0
Research Corporation Technologies, Inc................... 1,034 1,034 0 0
Richgood Corporation..................................... 5,238 5,238 0 0
Mr. Burnell R. Roberts................................... 651 651 0 0
Arthur F. Sackler........................................ 14,519 14,519 0 0
Dennis P. Schafer........................................ 4,936 4,936 0 0
Murray W. and Margaret S. Smith.......................... 8,722 8,722 0 0
Joseph C. South, III and Murray S. South,
Joint Tenants with Right of Survivorship............... 8,866 8,866 0 0
Virginia B. Spencer...................................... 5,926 5,926 0 0
William M. Spencer, III.................................. 28,867 28,867 0 0
Mr. Andrew B. Stanley.................................... 126 126 0 0
Ms. Susan W. Stanley..................................... 126 126 0 0
Mr. Thomas B. Stanley, III............................... 126 126 0 0
Ruth B. Stanley,
Trustee Under Intervivos Trust Agreement
with Thomas B. Stanley, Jr., 4-28-82................... 10,003 10,003 0 0
John Steuart............................................. 695 695 0 0
Ms. Kate Stockham........................................ 156 156 0 0
Ms. Carolyn Stockham Thomas.............................. 167 167 0 0
Lee J. Styslinger, Jr.................................... 11,542 11,542 0 0
M. Bruce Sullivan........................................ 7,948 7,948 0 0
Suttle Brothers Investments.............................. 2,193 2,193 0 0
Pharmacia & Upjohn....................................... 217,554 217,554 0 0
VACS, Ltd................................................ 17,410 17,410 0 0
Mr. R. Lee Walthall...................................... 377 377 0 0
Mr. Stewart H. Welch, Jr................................. 747 747 0 0
John R. Welser........................................... 982 982 0 0
Alice M. Williams........................................ 2,155 2,155 0 0
Mr. Robert H. Yoe, III................................... 106 106 0 0
Mr. Robert H. Yoe, Jr.................................... 322 322 0 0
Mr. Frank M. Young, III and AmSouth Bancorporation,
as trustees under Indenture dated 12/15/76 for the
benefit of Mary Cobb Young............................. 122 122 0 0
Mr. Frank M. Young, III and AmSouth Bancorporation,
as trustees under Indenture dated 12/15/76 for the
benefit of Frank M. Young, IV.......................... 122 122 0 0
Zinsmeyer Trusts Partnership............................. 13,046 13,046 0 0
U.S. Bank Trust.......................................... 262,250 262,250 0 0
Pfizer Inc............................................... 285,877 285,877 0 0
------------------ -------------- -------- -------
TOTAL.................................................... 2,127,113 2,127,113 0 0
------------------ -------------- -------- -------
------------------ -------------- -------- -------
</TABLE>
---------------
(1) Assumes that all shares hereby offered by the selling stockholders are sold.
11
<PAGE>
PLAN OF DISTRIBUTION
We are registering 2,127,113 shares of common stock for resale by the
selling stockholders, to satisfy our commitment to do so under contracts with
them, but the registration of these shares does not necessarily mean that the
selling stockholders will sell any or all of the shares registered. The selling
stockholders, or their pledgees, donees, transferees or other successors in
interest may sell the shares from time to time at fixed prices that may be
changed, at market prices prevailing at the time of sale, at prices related to
prevailing market prices or at prices otherwise negotiated. The selling
stockholders may sell shares by one or more of the following methods:
- block transactions in which a broker-dealer will attempt to
sell all or a portion of such shares as agent but may position
and resell all or a portion of the block as principal to
facilitate the transaction
- purchases by any such broker-dealer as principal and resale by
such broker-dealer for its own account pursuant to any
supplement to this prospectus
- sales on a stock exchange or automated interdealer quotation
system on which our shares are listed on in the
over-the-counter market
- ordinary brokerage transactions and transactions in which any
such broker-dealer solicits purchasers
- privately negotiated transactions
- short sales
- one or more underwritten offerings on a firm commitment or
best efforts basis
- through the writing of options on the shares, whether or not
the options are listed on an options exchange
- through the distribution of the shares by any selling
stockholder to its partners, members or stockholders
The selling stockholders may also transfer the shares by gift. We do
not know of any specific arrangements by the selling stockholders for the sale
of any of the shares at the present time.
The selling stockholders may engage brokers and dealers, and any
brokers or dealers may arrange for other brokers or dealers to participate in
effecting sales of the shares. These brokers, dealers or underwriters may act as
principals, or as an agent of a selling stockholder. Broker-dealers may agree
with a selling stockholder to sell a specified number of the shares at a
stipulated price per security. If the broker-dealer is unable to sell shares
acting as agent for a selling stockholder, it may purchase as principal any
unsold shares at the stipulated price. Broker-dealers who acquire shares as
principals may thereafter resell the shares from time to time in transactions in
any stock exchange or automated interdealer quotation system on which the shares
are then listed, at prices and on terms then prevailing at the time of sale, at
prices related to the then-current market price or in negotiated transactions.
Broker-dealers may also use block transactions and sales to and through
broker-dealers as described above.
From time to time, the selling stockholders may pledge, hypothecate or
grant a security interest in some or all of the shares owned by them. The
pledgees, secured parties or persons to whom the shares have been hypothecated
will, upon foreclosure in the event of default, be deemed to be selling
stockholders. The number of a selling stockholder's shares offered under this
prospectus will decrease as and when it takes such actions. The plan of
distribution for that selling stockholder's shares will otherwise remain
unchanged. In addition, a selling stockholder may, from time to time, sell the
shares short, and, in those instances, this prospectus may be delivered in
connection with the short sales and the shares offered under this prospectus may
be used to cover short sales.
12
<PAGE>
To the extent required under the Securities Act of 1933, as amended,
the aggregate amount of selling stockholders' shares being offered and the terms
of the offering, the names of any agents, brokers, dealers or underwriters and
any applicable commission with respect to a particular offer will be disclosed
in a prospectus supplement. Any underwriters, dealers, brokers or agents
participating in the distribution of the shares may receive compensation in the
form of underwriting discounts, concessions, commissions or fees from a selling
stockholder and/or purchasers of shares for whom they may act (which
compensation as to a particular broker-dealer might be in excess of customary
commissions).
The selling stockholders and any underwriters, brokers, dealers or
agents that participate in the distribution of the shares may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended, and
any discounts, concessions, commissions or fees received by them and any profit
on the resale of the shares sold by them may be deemed to be underwriting
discounts and commissions.
A selling stockholder may enter into hedging transactions with
broker-dealers and the broker-dealers may engage in short sales of the shares in
the course of hedging the positions they assume with that selling stockholder,
which may include distributions of the shares by those broker-dealers. A selling
stockholder may enter into option or other transactions with broker-dealers that
involve the delivery of shares to the broker-dealers, who may then recall or
otherwise transfer those shares. A selling stockholder may also loan or pledge
shares to a broker-dealer and the broker-dealer may sell those shares.
The selling stockholders and other persons participating in the sale
or distribution of the shares will be subject to applicable provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Securities and Exchange Commission, including Regulation M. This
regulation may limit the timing of purchases and sales of any of the shares
by the selling stockholders and any other person. The anti-manipulation rules
under the Securities Exchange Act of 1934, as amended, may apply to sales of
securities in the market and to the activities of the selling stockholders
and their affiliates. Furthermore, Regulation M may restrict the ability of
any person engaged in the distribution of the shares to engage in
market-making activities with respect to the particular shares being
distributed for a period of up to five business days before the distribution.
These restrictions may affect the marketability of the shares and the ability
of any person or entity to engage in market-making activities with respect to
the shares.
We have agreed to indemnify the selling stockholders against
liabilities, including liabilities under the Securities Act of 1933, as amended,
arising from disclosures we make or fail to make. The selling stockholders have
agreed to indemnify us against liabilities, under the Securities Act of 1933, as
amended, arising from information supplied to us by them. We will pay all
expenses relating to the offering and sale of shares by the selling
stockholders, with the exception of any fees or expenses of counsel,
underwriting discounts, selling commissions or transfer taxes incurred by the
selling stockholders.
LEGAL MATTERS
The validity of the common stock being offered by the selling
shareholders will be passed upon for us by Goodwin, Procter & Hoar LLP, Boston,
Massachusetts.
EXPERTS
The consolidated financial statements incorporated in this prospectus
by reference to the Annual Report on Form 10-K/A for the year ended December 31,
1999 have been so incorporated in reliance upon the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
13
<PAGE>
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS,
INCORPORATED HEREIN BY REFERENCE OR CONTAINED IN A PROSPECTUS SUPPLEMENT;
NEITHER WE NOR THE SELLING STOCKHOLDERS HAVE AUTHORIZED ANYONE ELSE TO
PROVIDE YOU WITH DIFFERENT OR ADDITIONAL INFORMATION. THE SELLING
STOCKHOLDERS ARE NOT MAKING AN OFFER OF THESE SECURITIES IN ANY STATE WHERE
THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THE
PROSPECTUS, OR INCORPORATED HEREIN BY REFERENCE, OR IN ANY PROSPECTUS
SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF
THOSE DOCUMENTS.
2,127,113 SHARES
AVANT
IMMUNOTHERAPEUTICS,
INC.
COMMON STOCK
----------------
PROSPECTUS
---------------
DECEMBER , 2000
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION(1).
The following are the estimated expenses of the distribution of the
shares registered hereunder on Form S-3:
Registration Fee--Securities and Exchange Commission.........$ 3,276
Accountants Fees and Expenses................................$ 5,000
Blue Sky Fees and Expenses...................................$ 1,000
Legal Fees and Expenses......................................$25,000
Printing Expenses............................................$ 1,000
Transfer Agent Expenses......................................$ 3,500
Total........................................................$38,776
------------------
(1) The amounts set forth above, except for the SEC Registration Fee, are
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. In accordance with the
Delaware General Corporation Law (the "DGCL"), Article Sixth of the
Registrant's Third Restated Certificate of Incorporation, as amended,
provides that no director of the Registrant shall be personally liable to the
Registrant or its stockholders for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the Company 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 DGCL or (iv) for any transaction from which the
director derived an improper personal benefit.
The DGCL permits, but does not require, a corporation to indemnify
its directors, officers, employees or agents and expressly provides that the
indemnification provided for under the DGCL shall not be deemed exclusive of
any indemnification right under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The DGCL permits indemnification
against expenses and certain other liabilities arising out of legal actions
brought or threatened against such persons for their conduct on behalf of the
corporation, provided that each such person acted in good faith and in a
manner that he or she reasonably believed was in or not opposed to the
corporation's best interests and in the case of a criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The DGCL does
not allow indemnification of directors in the case of an action by or in the
right of the corporation (including stockholder derivative suits) unless the
directors successfully defend the action or indemnification is ordered by the
court. The Amended and Restated Bylaws of the Company (the "Bylaws") provide
for indemnification to the directors, officers, employees and agents of the
Company consistent with that authorized by the Company. Insofar as
indemnification for liabilities arising under the Securities Act of 1933, as
amended, may be permitted to directors and officers of the Company pursuant
to the foregoing provision or otherwise, the Company has been advised that,
in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities
Exchange Act of 1934, as amended, and is therefore, unenforceable.
The Company currently carries a directors' and officers' liability
insurance policy which provides for payment of expenses of the Company's
directors and officers in connection with threatened, pending or completed
actions, suits or proceedings against them in their capacities as directors and
officers, in accordance with the Bylaws and the DGCL.
II-1
<PAGE>
ITEM 16. EXHIBITS.
EXHIBIT
NO. DESCRIPTION
4.1 Third Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-4 (Reg. No. 333-59215)).
4.2 Certificate of Amendment of Third Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-4 (Reg. No. 333-59215)).
4.3 Certificate of Designation for series C-1 Junior Participating
Cumulative Preferred Stock (incorporated herein by reference to Exhibit
3.1 of the Company's Registration Statement on Form S-4 (Reg. No.
333-59215)).
4.4 Second Certificate of Amendment of Third Restated Certificate of
Incorporation of the Company (incorporated herein by reference to
Exhibit 3.2 of the Company's Registration Statement on Form S-4 (Reg.
No. 333-59215)).
4.5 Amended and Restated By-Laws of the Company as of November 10, 1994
(incorporated herein by reference to Exhibit 3.3 of the Company's
Registration Statement on Form S-4 (Reg. No. 333-59215)).
5.1 Opinion of Goodwin, Procter & Hoar LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page hereto).
99.1 Agreement and Plan of Merger, dated as of November 20, 2000, between
the Company, AVANT Acquisition Corp. and Megan Health, Inc.
(incorporated herein by reference to Exhibit 2.1 of the Company's
Current Report of Form 8-K, dated December 12, 2000 (File No.
000-15006)).
99.2 Stock Purchase Agreement dated as of December 1, 2000 by and between
the Company and Pfizer Inc.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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
II-2
<PAGE>
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
this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Needham, Commonwealth of Massachusetts, on December
26, 2000.
AVANT IMMUNOTHERAPEUTICS, INC.
By: /s/ UNA S. RYAN, PH.D.
-----------------------
Una S. Ryan, Ph.D.
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated, each of whom also constitutes and appoints Una S. Ryan and
Avery W. Catlin, and each of them singly, his true and lawful attorney-in-fact
and agent, for him, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same and all exhibits
thereto and any other documents in connection therewith with the Securities and
Exchange Commission, granting unto each attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that each attorney-in-fact and
agent or his substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ UNA S. RYAN, PH.D. President, Chief Executive Officer and December 26, 2000
-------------------------- Director (Principal Executive Officer)
Una S. Ryan, Ph.D.
/s/ J. BARRIE WARD, PH.D. Chairman December 26, 2000
---------------------------
J. Barrie Ward, Ph.D.
/s/ AVERY W. CATLIN Senior Vice President, December 26, 2000
--------------------------- Chief Financial Officer and Treasurer
Avery W. Catlin (Principal Financial Officer and
Principal Accounting Officer)
/s/ HARRY H. PENNER, JR. Director December 26, 2000
---------------------------
Harry H. Penner, Jr.
/s/ PETER A. SEARS, ESQ. Director December 26, 2000
---------------------------
Peter A. Sears, Esq.
/s/ THOMAS R. OSTERMUELLER Director December 26, 2000
---------------------------
Thomas R. Ostermueller
/s/ JOHN L. LITTLECHILD Director December 26, 2000
---------------------------
John L. Littlechild
/s/ FREDERICK W. KYLE Director December 26, 2000
---------------------------
Frederick W. Kyle
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
------- -----------
4.1 Third Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-4 (Reg. No. 333-59215)).
4.2 Certificate of Amendment of Third Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-4 (Reg. No. 333-59215)).
4.3 Certificate of Designation for series C-1 Junior Participating
Cumulative Preferred Stock (incorporated herein by reference to Exhibit
3.1 of the Company's Registration Statement on Form S-4 (Reg. No.
333-59215)).
4.4 Second Certificate of Amendment of Third Restated Certificate of
Incorporation of the Company (incorporated herein by reference to
Exhibit 3.2 of the Company's Registration Statement on Form S-4 (Reg.
No. 333-59215)).
4.5 Amended and Restated By-Laws of the Company as of November 10, 1994
(incorporated herein by reference to Exhibit 3.3 of the Company's
Registration Statement on Form S-4 (Reg. No. 333-59215)).
5.1 Opinion of Goodwin, Procter & Hoar LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page hereto).
99.1 Agreement and Plan of Merger, dated as of November 20, 2000, between
the Company, AVANT Acquisition Corp. and Megan Health, Inc.
(incorporated herein by reference to Exhibit 2.1 of the Company's
Current Report of Form 8-K, dated December 12, 2000 (File No.
000-15006)).
99.2 Stock Purchase Agreement dated as of December 1, 2000 by and between
the Company and Pfizer Inc.
II-5
