As filed with the Securities and Exchange Commission on July 26, 1995
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE LIPOSOME COMPANY, INC.
(Exact name of Registrant as specified in its charter)
Delaware 22-
2370691
(State or other jurisdiction
(I.R.S. Employer
of incorporation or organization)
Identification Number)
One Research Way
Princeton Forrestal Center
Princeton, New Jersey 08540
(609) 452-7060
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Charles A. Baker
Chairman and Chief Executive Officer
The Liposome Company, Inc.
One Research Way
Princeton Forrestal Center
Princeton, New Jersey 08540
(609) 452-7060
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications to:
Mark R. Baker, Esq.
Dewey Ballantine
1301 Avenue of the Americas
New York, New York 10019-6092
(212) 259-8000
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, 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, 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, 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. x
CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED AGGREGATE REGISTRATION FEE
OFFERING PRICE(1)
Common Stock, par value $0.01 per share $16,500,000 $5,690
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to rule 457(o) based on the last sale price of the Common Stock
reported on the Nasdaq Stock Market on July 25, 1995.
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.
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.
1
Subject to Completion
Preliminary Prospectus dated July 26, 1995
THE LIPOSOME COMPANY, INC.
1,500,000 Shares of Common Stock
$.01 par value
The Company's Common Stock is quoted on the Nasdaq National Market under
the symbol LIPO. On July 25, 1995, the last reported sale price for the
Company's Common Stock was $11.00 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECUR
ITIES 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 Liposome Company, Inc. (the "Company") from time to time may offer up
to an aggregate of 1,500,000 shares of its Common Stock par value $.01 per share
(the "Common Stock"). The specific number of shares, public offering price, and
other specific terms of sale of the Common Stock in respect of which this
Prospectus is being delivered are set forth in the accompanying Prospectus
Supplement ("Prospectus Supplement"). The Company may sell the Common Stock
through underwriters, through dealers, directly to one or more institutional
purchasers or through agents. See "Plan of Distribution".
The date of this Prospectus is ___________, 1995
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.
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 can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the Commission's
following Regional Offices: Suite 1400, Northwest Atrium Center, 500 West
Madison Street, Chicago, Illinois 60661; and 13th Floor, Seven World Trade
Center, New York, New York 10048. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549.
Additional information regarding the Company and the shares offered hereby
is contained in the Registration Statement on Form S-3 and the exhibits thereto
filed with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). For further information pertaining to the Company and the
shares, reference is made to the Registration Statement and the exhibits
thereto, which may be inspected without charge at, and copies thereof may be
obtained at prescribed rates from, the office of the Commission at 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549. The Company's Common
Stock is quoted on the Nasdaq National Market, and such reports, proxy
statements and other information can also be inspected at the offices of Nasdaq
Operations, 1735 K Street, N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1994, the Company's quarterly report on Form 10-Q for the quarter ended
March 31, 1995 and the Company's Current Report on Form 8-K dated July 26, 1995
filed by the Company with the Commission are hereby incorporated by reference in
this Prospectus. All documents filed by the Company with the Commission
pursuant to section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Prospectus and prior to the termination of the offering of the shares
offered hereby shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained in any document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as modified
or superseded, to constitute a part of this Prospectus. The Company will
provide without charge to each person, including any beneficial owner, to whom
this Prospectus is delivered, upon written or oral request of such person, a
copy of any and all of the documents that have been or may be incorporated by
reference herein (other than exhibits to such documents which are not
specifically incorporated by reference into such documents). Such requests
should be directed to Carol J. Gillespie, Vice President, General Counsel and
Secretary, at the Company's principal executive offices at One Research Way,
Princeton Forrestal Center, Princeton, New Jersey 08540 (telephone (609) 452-
7060).
THE COMPANY
The Liposome Company, Inc. (the "Company") is a leading biotechnology
company engaged in the discovery, development and recently, the
commercialization of proprietary lipid and liposome-based pharmaceuticals for
the treatment, prevention and diagnosis of inadequately treated, life-
threatening illnesses. The Company is incorporated under the laws of the State
of Delaware. The Company's principal offices and laboratories are located at
One Research Way, Princeton Forrestal Center, Princeton, New Jersey 08540 and
its telephone number is (609) 452-7060.
THE OFFERING
The Company from time to time may offer up to an aggregate of 1,500,000
shares of Common Stock. The specific number of shares, public offering price,
and other specific terms of sale of the Common Stock in respect of which this
Prospectus is being delivered are set forth in the accompanying Prospectus
Supplement. The Company may sell the Common Stock through underwriters, through
dealers, directly to one or more institutional purchasers or through agents.
See "Plan of Distribution."
PLAN OF DISTRIBUTION
The Company may sell the Common Stock (i) through underwriters; (ii)
through dealers; (iii) directly to one or more institutional purchasers; or (iv)
through agents. The Prospectus Supplement sets forth the terms of the offering
of the Common Stock offered thereby, including the name or names of any
underwriters, dealers, purchasers or agents, the purchase price of such Common
Stock and the proceeds to the Company from such sale, any underwriting discounts
and other items constituting underwriters' compensation, any initial public
offering price, any discounts or concessions allowed or reallowed or paid to
dealers and any securities exchange on which such Common Stock may be listed.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Common Stock may be sold directly by the Company or through any firm
designated by the Company from time to time. The Prospectus Supplement sets
forth the name of any agent involved in the offer or sale of the Common Stock in
respect of which the Prospectus Supplement is delivered and any commissions
payable by the Company to such agent. Unless otherwise indicated in the
Prospectus Supplement, any such agent is acting on a best efforts basis for the
period of its appointment.
Underwriters, dealers and agents may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933.
Underwriters, dealers and agents may engage in transactions with or perform
services for the Company in the ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with this offering will be passed upon
for the Company by Dewey Ballantine, 1301 Avenue of the Americas, New York, New
York 10019.
EXPERTS
The consolidated balance sheets as of December 31, 1994 and 1993 and the
consolidated statements of operations, stockholders' equity, and cash flows for
each of the three years in the period ended December 31, 1994, incorporated by
reference in this Registration Statement, have been incorporated in reliance on
the report of Coopers & Lybrand L.L.P., independent accountants, given on the
authority of that firm as experts in auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. EXPENSES OF ISSUANCE AND DISTRIBUTION.
SEC registration fee $5,690
Nasdaq National Market Listing Fee 17,500
Accountants' fees and expenses* 2,500
Legal fees and expenses* 5,000
Miscellaneous* 1,310
Total $32,000
_____________
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, among other things,
and subject to certain conditions, authorizes the Company to indemnify its
officers and directors against certain liabilities and expenses incurred by such
persons in connection with claims made by reason of their being such an officer
or director. The By-laws of the Company provide for indemnification of its
officers and directors to the full extent authorized by law.
The Company's Certificate of Incorporation provides that no director of the
Company shall be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty or 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 Delaware General Corporation Law, or (iv) for any transaction from which the
Director derived any improper personal benefit. Any repeal or modification of
the foregoing amendment after its adoption by the stockholders of the Company
will not adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification.
The Board of Directors and the Company's stockholders have approved the use
of an indemnification agreement (the "Indemnification Agreement"). The
Indemnification Agreement requires that the Company indemnify directors and
executive officers who are parties thereto in all cases to the fullest extent
permitted by applicable Delaware law. This contract right to indemnification
gives all directors and executive officers protection against a subsequent
adverse change in the Company's indemnification provisions in its By-laws or a
change of control of the Company.
The Company has obtained an insurance policy insuring its officers and
directors for certain acts in connection with their services as such.
ITEM 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description of Document
4.1 ---- Provisions of the Articles of Incorporation of the
Registrant defining rights of holders of Common Stock of the
Registrant (Exhibit 3(i)-01 to the Company's annual report on
Form 10-K for the year ended December 31, 1994, incorporated
herein by reference thereto).
4.2 ---- Provisions of the By-laws of the Registrant defining
rights of holders of the Common Stock of the Registrant (Exhibit
4.5 to Registration Statement No. 33-23292, incorporated herein
by reference thereto).
5 ---- Opinion of Dewey Ballantine.
23.1 ---- Consent of Dewey Ballantine (included in Exhibit 5).
23.2 ---- Consent of Coopers & Lybrand L.L.P.
24 ---- Power of Attorney (included in the Registration
Statement, page II-3).
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
Registrant described in Item 15 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 the 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 and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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) For purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Township of Plainsboro, State of
New Jersey on the 26th day
of July, 1995.
THE LIPOSOME
COMPANY, INC.
By: /s/
CHARLES A. BAKER
Charles A. Baker
Chairman of the Board of Directors,
President,
Chief Executive Officer and Director
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Charles A. Baker and Carol J. Gillespie, and each
or either of them, as his true and lawful attorneys-in-fact and agents,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities to sign any and all amendments or post-effective
amendments to this Registration Statement and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons on the
26th day of July, 1995 in the capacities indicated.
/s/ CHARLES A. BAKER Chairman of the Board of Directors,
President, Chief
Charles A. Baker Executive Officer and Director
(Principal Executive Officer)
/s/ EDWARD G. SILVERMAN
Executive Vice President and Chief
Operating Officer
Edward G. Silverman
/s/ BROOKS BOVEROUX Vice President, Finance, Chief
Financial Officer and Treasurer
Brooks Boveroux (Principal Financial Officer)
/s/ DENNIS RODRIGUES Controller (Principal Accounting
Officer)
Dennis Rodrigues
/s/ JAMES G. ANDRESS Director
James G. Andress
/s/ MORTON COLLINS, Ph.D. Director
Morton Collins, Ph.D.
/s/ STUART F. FEINER Director
Stuart F. Feiner
/s/ ROBERT F. HENDRICKSON Director
Robert F. Hendrickson
Director
Bengt Samuelsson, M.D.
/s/ JOSEPH T. STEWART, JR. Director
Joseph T. Stewart, Jr.
/s/ GERALD WEISSMANN, M.D. Director
Gerald Weissmann, M.D.
/s/ HORST WITZEL, DR. - ING. Director
Horst Witzel, Dr. - Ing.
EXHIBIT INDEX
Exhibit No. Description of Document
4.1 ---- Provisions of the Articles of Incorporation of the
Registrant defining rights of holders of Common Stock of the
Registrant (Exhibit 3(i)-01 to the Company's annual report on
Form 10-K for the year ended December 31, 1994, incorporated
herein by reference thereto).
4.2 ---- Provisions of the By-laws of the Registrant defining
rights of holders of the Common Stock of the Registrant (Exhibit
4.5 to Registration Statement No. 33-23292, incorporated herein
by reference thereto).
5 ---- Opinion of Dewey Ballantine.
23.1 ---- Consent of Dewey Ballantine (included in Exhibit 5).
23.2 ---- Consent of Coopers & Lybrand L.L.P.
24 ---- Power of Attorney (included in the Registration
Statement, page II-3).
DEWEY BALLANTINE
1301 AVENUE OF THE AMERICAS
NEW YORK 10019-6092
TELEPHONE 212 259-8000 FACSIMILE 212 259-6333
July 26, 1995
FILED VIA EDGAR
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: The Liposome Company, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
On behalf of The Liposome Company, Inc. (the "Company") and pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and Rule 101(a) of
Regulation S-T under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), we transmit herewith for filing a Registration Statement on
Form S-3 relating to the public offering of up to 1,500,000 shares of the
Company's Common Stock.
The filing fee in the amount of $5,690 as calculated under Rule 457 of the
Securities Act, was submitted by wire transfer to the Commission's account at
Mellon Bank.
Please contact the undersigned at (212) 259-6658 if you have any questions
or comments with respect to the foregoing.
Very truly yours,
/s/ Alexandra R. O'Mara
Alexandra R. O'Mara
cc: Nasdaq National Market
1301 AVENUE OF THE AMERICAS
NEW YORK 10019-6092
TELEPHONE 212 259-8000 FACSIMILE 212 259-6333
EXHIBIT 5
OPINION OF DEWEY BALLANTINE
July 26, 1995
The Liposome Company, Inc.
One Research Way
Princeton Forrestal Center
Princeton, New Jersey 08450
Ladies and Gentlemen:
We have acted as counsel to The Liposome Company, Inc., a Delaware
corporation (the "Company"), in connection with the filing by the Company of a
Registration Statement on Form S-3 on the date hereof (the "Registration
Statement") relating to the public offering of up to 1,500,000 shares (the
"Stock") of the Company's Common Stock, $.01 par value per share.
Based on the foregoing, it is our opinion that:
1. The issuance of the Stock has been lawfully and duly authorized;
and
2. When the Stock has been issued, delivered and sold upon the terms
stated in the Registration Statement, the Stock will be legally issued, fully
paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the references to this firm on the cover of the
Registration Statement and under the heading "Legal Matters" in the Prospectus
included in such Registration Statement.
Very truly yours,
/s/ Dewey Ballantine
EXHIBIT 23.2
CONSENT OF COOPERS & LYBRAND L.L.P.
We consent to the incorporation by reference in this registration statement
on Form S-3 of our report dated February 2, 1995 on our audits of the financial
statements of The Liposome Company, Inc. We also consent to the reference to
our firm under the captions "Experts".
Princeton, New Jersery
July 26, 1995
