<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 3, 1995
REGISTRATION NO. 33-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
NEORX CORPORATION
(Exact name of registrant as specified in its charter)
WASHINGTON 91-1261311
(State of Incorporation) (I.R.S. Employer Identification Number)
410 WEST HARRISON STREET
SEATTLE, WASHINGTON 98119
(206) 281-7001
(Address and telephone number of registrant's principal executive offices)
JEFFREY J. MILLER, PH.D., J.D.
SENIOR VICE PRESIDENT
BUSINESS DEVELOPMENT AND LEGAL AFFAIRS, AND SECRETARY
410 WEST HARRISON STREET
SEATTLE, WASHINGTON 98119
(206) 281-7001
(Name, address and telephone number of agent for service)
-------------------------
Copies to:
Stephen A. McKeon
Wm. Kenneth McGraw
Perkins Coie
1201 Third Avenue, 40th Floor
Seattle, Washington 98101-3099
(206) 583-8888
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE
TO THE PUBLIC: FROM TIME TO TIME AFTER THIS
REGISTRATION STATEMENT BECOMES EFFECTIVE.
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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. / /
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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
<TABLE>
<CAPTION>
===============================================================================================================================
TITLE OF SHARES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
UNIT(1) PRICE(1)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.02 par 650,000 $6.8125 $4,428,125 $1,527
value per share
===============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457.
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE> 3
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 ACCEPTED 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.
<PAGE> 4
Subject to Completion, dated October 3, 1995
PROSPECTUS
COMMON STOCK
NEORX CORPORATION
NeoRx Corporation (the "Company") may from time to time offer in the
manner described herein up to 650,000 shares of its common stock, $.02 par value
per share (the "Common Stock").
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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 Company may sell the Common Stock in the over-the-counter market in
ordinary brokerage transactions, in privately negotiated sales, or to or through
underwriters or agents. See "Plan of Distribution." If the Company sells the
Common Stock to or through underwriters or agents, or if sales occur at other
than prevailing market prices, additional information with respect to such sales
will be provided in an accompanying Prospectus Supplement.
--------------------------
The date of this Prospectus is __________ , 1995
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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 files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company may be inspected and
copies obtained (at prescribed rates) at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549 and at the Commission's Regional Offices in New York (7
World Trade Center, 13th Floor, New York, New York 10048) and Chicago (Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661). Such
reports, proxy statements and other information may also be inspected at the
offices of the National Association of Securities Dealers, Inc., 1735 K Street,
N.W., Washington, D.C. 20006.
This Prospectus is part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed with the Commission under the Securities Act of 1933. as
amended (the "Securities Act"), with respect to the Common Stock offered hereby.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted in
accordance with the Commission's rules and regulations. For further information
with respect to the Company and the Common Stock offered hereby, reference is
made to the Registration Statement and the exhibits thereto. The statements in
this Prospectus as to the contents of any agreement or other document of which a
copy is filed as an exhibit to either the Registration Statement or other
filings by the Company with the Commission incorporated herein by reference are
qualified in their entirety by reference thereto.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon such person's written or oral request, a
copy of any or all of the documents incorporated by reference herein (other than
exhibits to such documents, unless such exhibits are specifically incorporated
by reference into the information that this Prospectus incorporates). Requests
should be directed to: NeoRx Corporation, 410 West Harrison Street, Seattle,
Washington 98119, Attention: Investor Relations.
The following documents filed with the Commission by the Company are
incorporated by reference into this Prospectus:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994;
(2) The Company's Quarterly Reports on Form 10-Q for the
three-month periods ended March 31, 1995 and June 30, 1995; and
(3) The description of the capital stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission on March
21, 1988.
All documents filed with the Commission by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Common Stock
offered hereby shall be deemed incorporated by reference into this Prospectus
and to be a part hereof from the respective dates of filing such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed modified, superseded or replaced for purposes
of this Prospectus to the extent that a statement contained herein or in any
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies, supersedes or replaces such statement. Any statement
so modified, superseded or replaced shall not be deemed, except as so modified,
superseded or replaced, to constitute a part of this Prospectus.
--------------------------
The Company's principal offices are located at 410 West Harrison
Street, Seattle, Washington 98119, and its telephone number is (206) 281-7001.
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RISK FACTORS
Prospective purchasers should carefully consider the risk factors set
forth below as well as the other information set forth in this Prospectus before
purchasing the Common Stock offered hereby.
EARLY STAGE OF PRODUCT DEVELOPMENT; TECHNOLOGICAL UNCERTAINTY
To date, substantially all of the Company's revenues have consisted of
payments received under agreements with corporate partners and from government
research contracts, none of which provide for material future funding. The
Company has received no revenues to date from product sales and does not expect
regulatory approval for commercial sales of lung cancer imaging products earlier
than late 1995 and does not expect to seek U.S. regulatory approval for sales of
its cancer and anti-restenosis treatment products before 1998. The Company's
current research and development activities are focused primarily on its
proposed therapeutic products, which are in an early stage of development.
Although in preclinical studies the Company's pretargeting technology has shown
promise for the treatment of cancer tumors in animals, the Company initiated a
Phase I dose escalation study in humans in mid-1994. Results obtained in
preclinical studies are not necessarily indicative of results that will be
obtained in human clinical trials. The Company's proposed therapeutic products
for the prevention of restenosis are also in an early stage of development. In
addition, the Company's potential products will require significant additional
research and development and extensive clinical testing prior to commercial use.
There can be no assurance that these potential products will be successfully
developed into drugs that can be administered to humans or that any such drugs
or related therapies will prove to be safe and effective in clinical trials or
cost-effective to manufacture. Further, these potential products may prove to
have undesirable and unintended side effects that may prevent or limit their
commercial use.
HISTORY OF LOSSES; NEED FOR ADDITIONAL FUNDS
The Company has been unprofitable since inception and expects to incur
additional operating losses over the next several years. These operating losses
may fluctuate from period to period. For the period from February 13, 1984 (the
Company's inception) to June 30, 1995, the Company incurred net losses
aggregating $99.5 million. The Company's existing capital resources and interest
income thereon are currently expected to be sufficient to fund the Company's
operations through 1996. The Company's actual expenditures will depend on
numerous factors, including results of research and development activities,
clinical trials, the levels of resources that the Company devotes to
establishing and expanding marketing and manufacturing capabilities, competitive
and technological developments and the timing and cost of relationships with
parties to collaborative agreements. The Company will require substantial
additional funds to complete the development of its therapeutic products.
Adequate funds for these purposes, whether through additional financings,
collaborative arrangements with corporate sponsors or other sources, may not be
available when needed or on terms favorable to the Company. If existing funds
are raised by issuing equity securities, purchasers of the securities issued
hereunder may suffer immediate and substantial dilution.
DEPENDENCE ON SUPPLIERS
The Company depends on the timely delivery from suppliers of certain
materials and services. In connection with its research, preclinical development
and clinical trials, the Company has periodically experienced interruption in
the supply of monoclonal antibodies, including the loss in 1990 of its former
sole supplier of the antibody used in the Company's cancer imaging products.
Interruptions in these and other supplies could occur in the future. The Company
will need to develop sources for commercial quantities of yttrium-90, and the
antibody used in its proposed cancer therapeutic products. The catheter used to
deliver the Company's proposed anti-restenosis products has not yet been
approved for sale by the Food and Drug Administration (the "FDA") and commercial
use of such catheter depends on receiving such approval. In addition, the
Company depends on the supply of such catheter from its manufacturer, and there
can be no assurance that such manufacturer will provide a timely and adequate
supply of such catheters to the Company. Any failure by such manufacturer to
timely and adequately supply such catheters would have a material adverse effect
on the Company's ability to commercialize these products.
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DEPENDENCE ON OTHERS FOR COMMERCIAL MANUFACTURING AND MARKETING
The Company has no manufacturing facilities for commercial production
of its products under development. The Company also has no experience in sales,
marketing or distribution. The Company's strategy for commercialization of its
products requires entering into various arrangements with corporate
collaborators, licensors, licensees and others to manufacture, distribute and
market its products. The Company will depend on the success of these outside
parties in performing their responsibilities. Although the Company believes that
parties to its existing and any future arrangements will have an economic
motivation to successfully perform their contractual responsibilities, the
amount and timing of resources to be devoted to these activities are not within
the Company's control. There can be no assurance that such parties will perform
their obligations as expected, that the Company will derive any revenues from
such arrangements or that the Company's reliance on others for manufacturing
products will not result in unforeseen problems with product supply. The Company
entered into agreements with Boehringer Ingelheim International GmbH
("Boehringer Ingelheim") and DuPont Merck Pharmaceutical Company ("DuPont
Merck") under which Boehringer Ingelheim has worldwide manufacturing rights and
non-North American marketing rights to the Company's VersaLuma (formerly
OncoTrac) lung cancer imaging products and DuPont Merck has exclusive North
American rights to market these products. The Company intends to seek
collaborative partners to assist in developing, manufacturing and marketing the
Company's therapeutic products under development. There can be no assurance that
the Company will be able to negotiate acceptable collaborative arrangements in
the future or that its current or future collaborative arrangements will be
successful.
COMPETITION
Cancer imaging and therapy and anti-restenosis product development is
highly competitive. There are numerous competitors that are developing products
to detect, stage or treat each of the diseases for which the Company is seeking
to develop products. Some competitors have adopted product development
strategies similar to the Company's approach of targeting cancer cells by
linking radionuclides to monoclonal antibodies. Many emerging companies have
corporate partnership arrangements with large, established companies to support
research, development and commercialization efforts of products that may be
competitive with those being developed by the Company. In addition, a number of
established pharmaceutical and chemical companies are developing proprietary
technologies or have enhanced their capabilities by entering into arrangements
with, or acquiring, companies with proprietary monoclonal antibody-based
technology or other technologies applicable to the imaging or treatment of
cancer and restenosis. Many of the Company's existing or potential competitors
have or have access to substantially greater financial, research and
development, marketing and production resources than those of the Company and
may be better equipped than NeoRx to develop, manufacture and market competing
products. The Company's competitors may develop and introduce products that are
more effective than those of the Company or that would render the Company's
technology and products under development less competitive, uneconomical or
obsolete.
TECHNOLOGICAL UNCERTAINTIES REGARDING HUMAN IMMUNE RESPONSE TO FOREIGN PROTEINS
The Company's Avicidin cancer therapy product currently in Phase I/II
clinical testing uses a monoclonal antibody of murine (mouse) origin coupled to
streptavidin, a protein of bacterial origin. Murine antibodies appear as foreign
proteins to the human immune system, which develops its own antibody in response
to the murine antibody. This so-called "human anti-mouse antibody" response, or
"HAMA," or the "human anti-streptavidin antibody" response, or "HASA," may limit
the number of doses that may be safely or effectively administered to a patient,
thereby limiting a product's efficacy. The Company believes that humanized
antibodies may reduce HAMA and that chemical modification of streptavidin may
reduce HASA. Gene cloning technology permits splicing of human and murine
antibody portions together, thereby yielding humanized molecules. Although the
Company has produced a humanized version of the murine antibody used in
Avicidin, the Company has not utilized such humanized antibody in preclinical or
clinical trials to date, and there can be no assurance that such humanized
antibody would reduce the extent to which HAMA or HASA may limit the
effectiveness of the Company's cancer therapeutic products or that the Company
will successfully be able to commercialize products incorporating the humanized
antibody.
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UNCERTAINTY REGARDING PATENTS AND PROPRIETARY RIGHTS
The patent position of biotechnology firms generally is highly
uncertain and involves complex legal and factual questions, and currently no
consistent policy has emerged regarding the breadth of claims allowed in
biotechnology patents. Products and processes important to NeoRx are subject to
this uncertainty. Accordingly, there can be no assurance that the Company's
patent applications will result in additional patents being issued or that, if
issued, patents will afford protection against competitors with similar
technology, nor can there be any assurance that any patents issued to the
Company will not be infringed by or designed around by others or that others
will not obtain patents that the Company would need to license or design around.
Moreover, the technology applicable to the Company's products is developing
rapidly. Research institutes, universities and biotechnology companies,
including the Company's competitors, have filed applications for, or have been
issued, numerous patents and may obtain additional patents and proprietary
rights relating to products or processes competitive with or relating to those
of the Company. The scope and validity of such patents, the extent to which the
Company may be required to obtain licenses thereunder or under other proprietary
rights and the cost and availability of licenses are unknown. To the extent
licenses are required, there can be no assurance that they will be available on
commercially reasonable terms, if at all. The Company also relies on unpatented
proprietary technology. There can be no assurance that others will not
independently develop substantially equivalent proprietary information and
techniques, that others will not otherwise gain access to the Company's
proprietary technology, or disclose such technology, or that the Company can
meaningfully protect its rights in such unpatented proprietary technology.
DELAYS AND COSTS RESULTING FROM GOVERNMENTAL REGULATION
The manufacture and marketing of the Company's products and its
research and development activities are subject to regulation for safety,
efficacy and quality by numerous governmental authorities in the United States
and other countries. Clinical trials, manufacturing and marketing of products
are subject to the rigorous testing and approval processes of the FDA and
equivalent foreign regulatory authorities. Clinical trials and regulatory
approval can take a number of years to accomplish and require the expenditure of
substantial resources. There can be no assurance that clinical trials will be
started or completed successfully within any specified time period. Delays in
approval can occur for a number of reasons, including the Company's failure to
obtain necessary supplies of monoclonal antibodies or other materials or to
obtain a sufficient number of available patients to support the claims necessary
for regulatory approval. There can be no assurance that requisite FDA approvals
will be obtained on a timely basis, if at all, or that any approvals granted
will cover all the clinical indications for which the Company may seek approval.
Boehringer Ingelheim filed a Product License Application ("PLA") and an
Establishment License Application with the FDA for approval to manufacture and
market VersaLuma in March 1994. The FDA completed its review of the VersaLuma
PLA, and, in March 1995, Boehringer Ingelheim submitted a response to the FDA's
questions and information requests resulting from this review. The Company's
business would be adversely affected by delays in FDA approval of the
manufacture and marketing of this product by Boehringer Ingelheim or by failure
of the FDA to grant such approval. Delays or failure to obtain regulatory
approval would adversely affect or prevent the marketing of products developed
by the Company and its ability to receive royalty or other product revenues. The
manufacture and marketing of drugs are subject to continuing FDA review and
later discovery of previously unknown problems with a product, manufacturer or
facility may result in restrictions, including withdrawal of the product from
the market. Marketing the Company's products abroad will require similar
regulatory approvals and is subject to similar risks. In addition, the Company
is unable to predict the extent of adverse governmental regulations that might
arise from future U.S. or foreign governmental action.
RISK OF PRODUCT LIABILITY
The testing, manufacturing, marketing and sale of human healthcare
products under development by the Company entail an inherent risk that product
liability claims will be asserted against the Company. Although the Company is
insured against such risks up to a $10 million annual aggregate limit in
connection with human clinical trials and commercial sales of its products under
development, there can be no assurance that the Company's present product
liability insurance is adequate. A successful product liability claim in excess
of the Company's insurance coverage could have a material adverse effect on the
Company and may prevent the Company from obtaining
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adequate product liability insurance in the future on commercially reasonable
terms. In addition, there can be no assurance that product liability coverage
will continue to be available in sufficient amounts or at an acceptable cost.
UNCERTAINTY OF PHARMACEUTICAL PRICING, HEALTHCARE REFORM AND REIMBURSEMENT
The levels of revenues and profitability of pharmaceutical companies
may be affected by the continuing efforts of governmental and third-party payors
to contain or reduce the costs of healthcare through various means. For example,
in certain foreign markets pricing or profitability of prescription
pharmaceuticals is subject to governmental control. In the United States, there
have been, and the Company expects that there will continue to be, a number of
federal and state proposals to implement similar governmental control. It is
uncertain what legislative proposals will be adopted or what actions federal,
state or private payors for healthcare goods and services may take in response
to any healthcare reform proposals or legislation. Even in the absence of
statute, market forces are changing the healthcare sector. The Company cannot
predict the effect healthcare reforms may have on its business, and there can be
no assurance that any such reforms will not have a material effect on the
Company. Further, to the extent that such proposals or reforms have a material
adverse effect on the business, financial condition and profitability of other
pharmaceutical companies that are prospective collaborators for certain of the
Company's potential products, the Company's ability to commercialize its
products under development may be adversely affected. In addition, in both the
United States and elsewhere, sales of prescription pharmaceuticals depend in
part on the availability of reimbursement to the consumer from third-party
payors, such as governmental and private insurance plans. Third-party payors are
increasingly challenging the prices charged for medical products and services.
If the Company succeeds in bringing one or more products to market, there can be
no assurance that these products will be considered cost-effective and that
reimbursement to the consumer will be available or will be sufficient to allow
the Company to sell its products on a competitive basis.
RELIANCE ON KEY PERSONNEL
The Company's success will depend in part on the efforts of certain key
scientists and management personnel. Because of the specialized nature of the
Company's business, the Company's ability to maintain its competitive position
will depend in part on its ability to attract and retain qualified personnel.
Competition for such personnel is intense. There can be no assurance that the
Company will be able to hire sufficient qualified personnel on a timely basis or
retain such personnel. The loss of key management or scientific personnel could
have an adverse effect on the Company's business.
COMPLIANCE WITH ENVIRONMENTAL REGULATIONS; HAZARDOUS MATERIALS
The Company is subject to federal, state and local laws, rules,
regulations and policies governing the use, generation, manufacture, storage,
air emission, effluent discharge, handling and disposal of certain materials and
wastes in connection with its research and development activities and its
manufacturing of clinical trial materials. Although the Company believes that it
has complied with these laws and regulations in all material respects, there can
be no assurance that the Company will not be required to incur significant costs
to comply with environmental and health and safety regulations in the future.
The Company's research and development and clinical manufacturing processes
involve the controlled use of small amounts of hazardous and radioactive
materials. Although the Company believes that its safety procedures for handling
and disposing of such materials comply with the standards prescribed by such
laws and regulations, the risk of accidental contamination or injury from these
materials cannot be completely eliminated. In the event of such an accident, the
Company could be held liable for any resulting damages, and any such liability
could exceed the Company's resources.
POSSIBLE VOLATILITY OF THE PRICE OF THE COMMON STOCK
The market price of the Common Stock may be highly volatile. Factors
such as announcements of technological innovations or new commercial products by
the Company or its competitors, governmental regulation, results and timing of
clinical trials, sales by existing stockholders, regulatory approvals or
developments relating to corporate alliances or patent or proprietary rights may
have a significant impact on the market price of the Common
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Stock. In addition, general market price declines, volatility or share
illiquidity in the future could adversely affect the market price of the Common
Stock.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Common Stock
offered hereby will be added to the Company's working capital and will be
available for research and product development activities, including preclinical
studies and clinical trials, and other general corporate purposes.
DIVIDENDS
The Company has never paid dividends on the Common Stock and does not
anticipate paying any cash dividends on the Common Stock for the foreseeable
future. In addition, under the terms of its $2.4375 Convertible Exchangeable
Preferred Stock, Series 1, cash dividends on the Common Stock may not be paid
unless full cumulative dividends on such preferred stock have been paid.
DESCRIPTION OF CAPITAL STOCK
The Company is authorized to issue 60,000,000 shares of Common Stock,
$.02 par value per share, and 3,000,000 shares of Series Preferred Stock, $.02
par value per share.
COMMON STOCK
The holders of Common Stock are entitled to one vote per share for each
share held of record on all matters submitted to a vote of security holders,
except that in elections of directors shareholders are entitled to cumulate
votes by multiplying the number of votes they are entitled to cast by the number
of directors for whom they are entitled to vote and cast the product for a
single candidate or distribute the product among two or more candidates. The
holders of Common Stock are entitled to receive ratably such dividends as are
declared by the Company's Board of Directors out of funds legally available
therefor. In the event of a liquidation, dissolution or winding up of the
Company, holders of Common Stock have the right to a ratable portion of assets
remaining after payment of liabilities and the liquidation preferences of any
outstanding shares of Series Preferred Stock. The holders of Common Stock have
no preemptive rights or rights to convert their Common Stock into any other
securities and are not subject to future calls or assessments by the Company.
All outstanding shares of Common Stock are, and the shares issuable upon
conversion of the Series Preferred Stock, upon conversion of debentures upon
issuance and exchange, and upon exercise of warrants will be, fully paid and
nonassessable. At August 30, 1995, there were approximately 13.5 million shares
of Common Stock outstanding held of record by approximately 1,300 holders.
TRANSFER AGENT
The transfer agent and registrar for the Common Stock is First
Interstate Bank of Washington, N.A.
SERIES PREFERRED STOCK
The Company is authorized to issue 3,000,000 shares of Series Preferred
Stock, par value $.02 per share, of which 208,000 shares of its $2.4375
Convertible Exchangeable Preferred Stock, Series 1 (the "Preferred Stock"), is
outstanding. If declared by the Company's Board of Directors, holders of
Preferred Stock are entitled to receive an annual cash dividend of $2.4375 per
share, payable on June 1 and December 1. Dividends are cumulative. Each share of
Preferred Stock is convertible into approximately 1.14 shares of Common Stock,
subject to adjustment in certain events. The Preferred Stock is redeemable at
the Company's option at certain redemption prices, initially $27.44 per share,
reducing to $25.00 per share by 1999. The holders of Preferred Stock have no
voting rights, except in limited circumstances. The Board of Directors may,
without further action by the Company's shareholders, issue additional Series
Preferred Stock in one or more series and fix all the rights and preferences
thereof, including dividend rights, dividend rates, conversion rights, voting
rights, terms of redemption, redemption price or prices, liquidation preferences
and the number of shares constituting any series or the designations of such
series.
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WARRANTS
The Company at September 8, 1995 had outstanding 1,634,907 Common Stock
purchase warrants which have been registered for resale with the Commission.
Every four such warrants entitle the registered holder thereof to purchase one
share of Common Stock at an exercise price of $5.3125. Such warrants will be
exercisable from October 25, 1995 through April 25, 1998. Additionally, in
conjunction with an agreement with Boehringer Ingelheim International GmbH
("BI"), the Company issued BI warrants to purchase shares of the Company's
Common Stock. At September 8, 1995, 625,000 of such warrants were outstanding.
These warrants are exercisable through September 1997. 375,000 of such warrants
entitle the registered holder thereof to purchase shares of Common Stock at an
exercise price of $21.12 per share. 250,000 of such warrants entitle the
registered holder thereof to purchase shares of Common Stock at an exercise
price of $15.84 per share.
The exercise price and, in some cases, the number of shares of Common
Stock issuable upon exercise of the warrants will be appropriately adjusted in
the event of stock splits, stock combinations, rights offerings or stock or
other dividends involving the Common Stock. Fractional shares will not be issued
upon exercise of the warrants and, in lieu thereof, a cash adjustment based on
the fair market value of the Common Stock as reported on the Nasdaq National
Market (or as reported on a national securities exchange, if applicable) on the
date of exercise will be made. In case of any reclassification or capital
reorganization, or in case of any consolidation or merger of NeoRx with or into
another corporation or any sale, lease or transfer to another corporation of all
or substantially all the assets of NeoRx, the holder of each of the outstanding
warrants will have the right, upon subsequent exercise of a warrant, to purchase
the kind and amount of shares of stock or other securities and property
receivable upon such reclassification, capital reorganization, consolidation,
merger, sale, lease or transfer by a holder of the number of shares of Common
Stock that might have been received upon the exercise of such warrant
immediately prior thereto, and the exercise price will be appropriately
adjusted. The warrants do not confer on the holder any voting or preemptive
rights, or any other rights as a stockholder of NeoRx.
ANTITAKEOVER PROVISIONS
Certain provisions of the Company's Restated Articles of Incorporation
and Bylaws, as well as the Washington Business Corporation Act, could discourage
a third party from attempting to acquire, or make it more difficult for a third
party to acquire, control of the Company without approval of the Company's Board
of Directors. Such provisions could also limit the price that certain investors
might be willing to pay in the future for shares of Common Stock. Certain of
such provisions allow the Board of Directors to authorize the issuance of
preferred stock with rights superior to those of the Common Stock. The rights of
the holders of Common Stock will be subject to, and may be adversely affected
by, the rights of holders of any Series Preferred Stock issued in the future.
The issuance of additional Series Preferred Stock, while providing desirable
flexibility in connection with possible acquisitions and other corporate
purposes, could make it more difficult for a party to acquire, or discourage a
party from acquiring, a majority of the Company's outstanding voting stock. The
Company is also subject to the provisions of Chapter 23B.19 of the Washington
Business Corporation Act, which generally prohibits any "significant business
transactions" within five years of the date a person acquires 10% or more of the
outstanding voting shares of a Washington corporation unless the transaction or
the acquisition is approved prior to the acquisition date by a majority of a
corporation's then board of directors. In addition, the Company is subject to
the "fair price" provisions of Chapter 23B.17 of the Washington Business
Corporation Act, which generally prohibits "interested shareholder transactions"
(such as a merger, sale of assets or liquidation) with a person who beneficially
owns 20% or more of a corporation's outstanding voting securities, unless
approved by a majority vote of disinterested directors or a two-thirds vote of
disinterested shareholders.
-8-
<PAGE> 12
PLAN OF DISTRIBUTION
The Company may sell Common Stock from time to time in transactions in
the over-the-counter market through Nasdaq, in privately negotiated
transactions, or through a combination of such methods, at market prices
prevailing at the time of sale, at prices relating to such prevailing market
prices or at negotiated prices. The Company may also sell the Common Stock to
one or more underwriters for public offering and sale by them or may sell Common
Stock to investors or other persons directly or through agents. Any such
underwriter or agent involved in the offer and sale of the Common Stock, and any
sales at other than prevailing market prices, will be described in an applicable
Prospectus Supplement.
Underwriters may offer and sell the Common Stock at a fixed price or
prices, which may be changed, or at prices relating to prevailing market prices
or at negotiated prices. The Company may, from time to time, authorize
underwriters acting as the Company's agents to offer and sell the Common Stock
upon the terms and conditions as shall be set forth in any Prospectus
Supplement. In connection with the sale of Common Stock, underwriters may be
deemed to have received compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of Common Stock for whom they may act as agent. Underwriters may sell
Common Stock to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions (which may be changed from time to time) from the purchasers for
whom they may act as agent. The Company may sell the Common Stock in the
over-the-counter market in ordinary brokerage transactions and may pay customary
brokerage commissions on such sales.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Common Stock, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in an applicable Prospectus Supplement. Underwriters, dealers
and agents participating in the distribution of the Common Stock may be deemed
to be underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Common Stock may be deemed to be
underwriting discounts and commissions under the Securities Act. Underwriters,
dealers and agents may be entitled, under agreements with the Company, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act, and to reimbursement by the
Company for certain expenses.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, the Company in the ordinary course of business.
LEGAL OPINIONS
The validity of the Common Stock offered hereby has been passed upon
for the Company by Perkins Coie, Seattle, Washington.
EXPERTS
The financial statements of the Company incorporated by reference in
this Prospectus and in the Registration Statement have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto, and are incorporated herein in reliance upon the authority of
said firm as experts in accounting and auditing in giving said reports.
-9-
<PAGE> 13
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING HEREIN CONTAINED AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL,
OR A SOLICITATION OF AN OFFER TO BUY, THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE AN OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
--------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
Available Information....................... 2
Incorporation of Certain Documents
by Reference............................. 2
Risk Factors................................ 3
Use of Proceeds............................. 7
Dividends................................... 7
Description of Capital Stock................ 7
Plan of Distribution........................ 9
Legal Opinions.............................. 9
Experts..................................... 9
</TABLE>
NEORX CORPORATION
COMMON STOCK
P R O S P E C T U S
__________, 1995
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses of the registrant
in connection with the issuance and distribution of the securities being
registered, other than the underwriting discount and commissions (all amounts
are estimated except the Securities and Exchange Commission registration fee).
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.......................... $ 1,527
Nasdaq issuance fee.......................................................... 13,000
Blue Sky fees and expenses................................................... 5,000
Legal fees and expenses...................................................... 10,000
Accountants' fees and expenses............................................... 1,000
Miscellaneous expenses....................................................... 1,473
--------
Total............................................................... $32,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Washington Business Corporation Act, Sections 23B.08.510 and
23B.08.570, gives the registrant the power to indemnify directors, officers,
employees and agents of the registrant and those serving at the registrant's
request in similar positions in any other corporation, partnership, joint
venture, trust or other enterprise, in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1993,
as amended (the "Securities Act"). The registrant's Restated Articles of
Incorporation and Bylaws provide for indemnification of its directors, officers,
employees and other agents to the maximum extent permitted by the Washington
Business Corporation Act. In addition, the registrant has obtained directors'
and officers' liability insurance.
Reference is also made to the Underwriting Agreement (Exhibit 1.1),
which provides for indemnification by the underwriter and the Company and its
directors and officers.
ITEM 16. EXHIBITS
Number Description
------ -----------
3.1 Restated Articles of Incorporation of the registrant*
3.2 Amendment to the Restated Articles of Incorporation filed with the
Washington Secretary of State on March 15, 1990***
II-1
<PAGE> 15
3.3 Articles of Amendment, dated November 6, 1991, to Restated Articles
of Incorporation****
3.4 Bylaws, as amended, of the registrant***
4.1 Form of Indenture, dated as of June 1, 1989, between NeoRx
Corporation and First Interstate Bank of Washington, N.A., as
trustee**
4.2 Statement of Rights and Preferences relating to Convertible
Exchangeable Preferred Stock, Series 1, par value $.02 per share***
5.1 Opinion of Perkins Coie as to the legality of the securities being
registered
10.1A 1984 Stock Option Plan, as amended***
10.1B 1994 Stock Option Plan+
10.2 Option and Development Agreement, dated September 5, 1985, between
NeoRx Corporation and Merck-Frosst Canada Inc.*
10.3 Amendment, dated May 4, 1989, to Option and Development Agreement
between NeoRx Corporation and Merck-Frosst Canada Inc.**
10.4 Lease Agreement for 410 West Harrison facility, dated May 16, 1986,
between NeoRx Corporation and Stephen C. Gaither*
10.5 Exercise of option to renew lease agreement for 410 West Harrison
facility for five years, beginning June 1, 1991****
10.6 Distribution and Sales Representative Agreement, dated June 13,
1988, between NeoRx Corporation and Mallinckrodt Medical, Inc.*
10.7 Form of Executive Officers Employment Agreement***
10.8 1991 Stock Option Plan for Non-Employee Directors*****
10.9 1991 Restricted Stock Option Plan*****
10.10 Stock and Warrant Purchase Agreement, dated as of September 11,
1992, between NeoRx Corporation and Boehringer Ingelheim
International GmbH*****
10.11 Amendment to Stock and Warrant Purchase Agreement, dated as of
September 17, 1992, between NeoRx Corporation and Boehringer
Ingelheim International GmbH******
10.12 Second Amendment to Stock and Warrant Purchase Agreement, dated as
of September 29, 1993, between NeoRx Corporation and Boehringer
Ingelheim International GmbH******
10.13 Development and License Agreement, dated as of September 11, 1992,
between NeoRx Corporation and Boehringer Ingelheim International
GmbH*****
II-2
<PAGE> 16
10.14 Technology License Agreement, dated as of September 11, 1992,
between NeoRx Corporation and Boehringer Ingelheim International
GmbH*****
10.15 License Agreement, dated as of September 18, 1992, between NeoRx
Corporation and Sterling Winthrop Inc.*****
10.16 Collaboration and License Option Agreement, dated August 10, 1992,
between NeoRx Corporation and Organon International B.V.*****
10.17 Contract for Support of Research Project, effective as of July 1,
1992, between NeoRx Corporation and the Curators of the University
of Missouri*****
10.18 Amendment No. 1 to Contract for Support of Research Project,
effective as of July 1, 1993, between NeoRx Corporation and the
Curators of the University of Missouri******
10.19 Agreement dated as of March 14, 1987*****
10.20 License Option Agreement dated June 1, 1991, between NeoRx
Corporation and the UAB Research Foundation******
10.21 Research Agreement (With Option to License), dated February 8, 1993,
between NeoRx Corporation and Southern Research Institute******
10.22 Consulting Agreement, effective March 15, 1993, between NeoRx
Corporation and Oxford MolecuHlar Inc.******
10.23 Agreement, dated as of August 1, 1993, by and between NeoRx
Corporation and Avalon Medical Partners******
10.24 Registration Rights Agreement, dated September 1993, by and between
NeoRx Corporation and Avalon Medical Partners******
23.1 Consent of Arthur Andersen LLP (included on page II-7)
23.2 Consent of Perkins Coie (included in the opinion filed as Exhibit
5.1)
24.1 Power of Attorney (see signature page)
- ----------------
* Filed as an exhibit to the Company's Registration Statement on Form S-1
(Registration No. 33-20694) effective August 11, 1988 and incorporated
herein by reference.
** Filed as an exhibit to the Company's Registration Statement on Form S-1
(Registration No. 33-28545) effective May 31, 1989 and incorporated herein
by reference.
*** Filed as an exhibit to the Company's Registration Statement on Form S-1
(Registration No. 33-33153) effective March 27, 1990 and incorporated
herein by reference.
**** Filed as an exhibit to the Company's Form 10-K for the fiscal year ended
September 30, 1991 and incorporated herein by reference.
***** Filed as an exhibit to the Company's Form 10-K for the fiscal year ended
September 30, 1992 and incorporated herein by reference.
II-3
<PAGE> 17
****** Filed as an exhibit to the Company's Registration Statement on Form S-2
(Registration No. 33-71164) effective December 13, 1993 and incorporated
herein by reference.
+ Filed as an exhibit to the Company's Form 10-K for the fiscal year ended
December 31, 1994 and incorporated herein by reference.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(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. Notwithstanding the
foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low
or high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(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.
(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 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.
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 Securities
Exchange Act of 1934, as amended (the "Exchange Act") (and, where applicable,
each filing of any 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 in the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
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 Securities 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
II-4
<PAGE> 18
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 of whether such indemnification by it
is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
II-5
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, State of Washington, on September 29, 1995.
NEORX CORPORATION
By /s/ Paul G. Abrams
--------------------------------------------
Paul G. Abrams
President, Chief Executive Officer and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Robert M. Littauer and Jeffrey J. Miller, or either of them, his
attorneys-in-fact, with the power of substitution, for him in any and all
capacities, to sign any amendments to this registration statement, and to file
the same, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact, or their substitute or substitutes, may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on the 29th day
of September, 1995 in the capacities indicated.
SIGNATURE TITLE
--------- -----
/s/ Paul G. Abrams President, Chief Executive Officer and Director
- -------------------------
Paul G. Abrams
/s/ Robert M. Littauer Senior Vice President, Chief Financial Officer
- ------------------------- and Treasurer
Robert M. Littauer
/s/ Fred B. Craves Chairman of the Board
- -------------------------
Fred B. Craves
/s/ James G. Andress Director
- -------------------------
James G. Andress
/s/ Jack L. Bowman Director
- -------------------------
Jack L. Bowman
/s/ Lawrence H.N. Kinet Director
- -------------------------
Lawrence H.N. Kinet
/s/ Carl-Heinz Pommer Director
- -------------------------
Carl-Heinz Pommer
II-6
<PAGE> 20
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 22, 1995 incorporated by reference in NeoRx Corporation's Form 10-K for
the year ended December 31, 1994 and to all references to our Firm included in
this registration statement.
Arthur Andersen LLP
Seattle, Washington
October 2, 1995
II-7
<PAGE> 21
EXHIBIT INDEX
Ex. 5.1 Opinion of Perkins Coie as to the legality of the securities
being registered
<PAGE> 1
PERKINS COIE
A LAW PARTNERHIP INCLUDING PROFESSIONAL CORPORATIONS
1201 THIRD AVENUE, 40TH FLOOR o SEATTLE, WASHINGTON 98101-3099
TELEPHONE: (206) 583-8888 o FACSIMILE: (206) 583-8500
October 2, 1995
NeoRx Corporation
410 West Harrison Street
Seattle, Washington 98119
RE: REGISTRATION OF 650,000 SHARES OF COMMON STOCK OF NEORX
CORPORATION
Ladies and Gentlemen:
This opinion is furnished in connection with the registration under
the Securities Act of 1933, as amended (the "Act"), of 650,000 shares of common
stock, par value $.02 per share (the "Shares"), of NeoRx Corporation (the
"Company").
We have examined the Registration Statement on Form S-3 of the Company
with respect to the Shares (the "Registration Statement") and such corporate
records, certificates and other documents as we have deemed necessary or
appropriate for the purpose of this opinion.
Based on the foregoing, with respect to the Shares, we advise you that
in our opinion, when the following events have occurred:
(a) The Registration Statement has become effective under the Act; and
(b) The Shares have been issued and sold as contemplated in the
Registration Statement and in accordance with corporate and
governmental authorization;
the Shares will be duly authorized, validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Opinions" in the related Prospectus for the Shares. In giving such consent, we
do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
Very truly yours,
PERKINS COIE
