As filed with the Securities and Exchange Commission on June 23, 1997
Registration 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
Agouron Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
California 33-0061928
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
-----------------------
10350 North Torrey Pines Road, La Jolla, California 92037
(619) 622-8000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Peter Johnson
President and Chief Executive Officer
AGOURON PHARMACEUTICALS, INC.
10350 North Torrey Pines Road, La Jolla, California 92037
(619) 622-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
the Selling Stockholders.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Proposed maximum
offering price
Title of each class of securities to be Amount to be per share(1) Proposed maximum Amount of
registered registered aggregate offering registration fee
price(1)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value.......... 197,056 $85.375 $16,823,656 $5,098.08
================================================================================================================================
<FN>
(1)Calculated in accordance with Rule 457(c) under the Securities Act of 1933.
</FN>
</TABLE>
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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.
================================================================================
<PAGE>
SUBJECT TO COMPLETION, DATED JUNE 23, 1997
[GRAPHIC OMITTED]
PROSPECTUS
197,056 Shares
Common Stock
------------------------
This Prospectus relates to the public offering, which is not being
underwritten, of 197,056 shares (the "Shares") of Common Stock, no par value,
(the "Common Stock") of Agouron Pharmaceuticals, Inc. ("Agouron" or the
"Company"). The Shares may be offered by certain stockholders of the Company
(the "Selling Stockholders") from time to time in transactions on The Nasdaq
Stock Market, in privately negotiated transactions or a combination of such
methods of sale, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Selling Stockholders may affect such
transactions by selling the Shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Stockholders or the purchasers of the Shares for
whom such broker-dealers may act as agent or to whom they sell as principal or
both (which compensation to a particular broker-dealer might be in excess of
customary commissions). See "Selling Stockholders" and "Plan of Distribution."
The Shares were issued to the Selling Stockholders in connection with,
and as partial consideration for, the merger (the "Merger") of Alanex
Corporation, a Delaware corporation ("Alanex"), with Agouron Acquisition
Corporation, a Delaware corporation and a wholly owned subsidiary of Agouron, in
which Alanex was the surviving corporation. The Company is obligated to keep the
registration statement herein effective until the earlier to occur of the resale
of all of the Shares described above pursuant to this Prospectus or May 23,
1998.
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. The Company has agreed to bear
certain expenses (other than fees and expenses, if any, of counsel or other
advisors to the Selling Stockholders) in connection with the registration of the
Shares being offered by the Selling Stockholders. The Company has agreed to
indemnify the Selling Stockholders against certain liabilities, including
certain liabilities under the Securities Act of 1933, as amended (the
"Securities Act"). See "Plan of Distribution."
The Common Stock of the Company is traded on The Nasdaq Stock Market
under the symbol "AGPH." The last reported sales price of the Company's Common
Stock on The Nasdaq Stock Market on June 16, 1997, was $85.50 per share.
------------------------
The shares offered hereby involve a high degree of risk. See "Risk Factors."
------------------------
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 date of this Prospectus is June _____, 1997.
<PAGE>
No person is authorized in connection with any offering made hereby to
give any information or make any representation not contained or incorporated by
reference in this Prospectus, and any information not contained or incorporated
herein 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, by any person in any jurisdiction in which it is unlawful for such
person to make such offer or solicitation. Neither the delivery of this
Prospectus at any time nor any sale made hereunder shall, under any
circumstances, imply that the information herein is correct as of any date
subsequent to the date hereof.
Except for the historical information contained herein, the discussion
in this Prospectus contains forward-looking statements that involve risks and
uncertainties. The Company's actual results could differ materially from those
discussed herein. Factors that could cause or contribute to such differences
include, but are not limited to, those discussed in the section entitled "Risk
Factors," as well as those discussed elsewhere in this Prospectus.
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
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 regional offices: Chicago Regional Office, Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661; and New York Regional Office, Suite
1300, 7 World Trade Center, New York, New York 10048. Copies of such materials
can also 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. The Commission maintains a Website that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission. The Commission's Website is located at
http://www.sec.com. The Common Stock of the Company is quoted on The Nasdaq
Stock Market, and such material may also be inspected at the offices of Nasdaq
Operations, 1735 "K" Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on
Form S-3 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 of the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. 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, which may be inspected without charge at, and copies thereof
may 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.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents previously filed with the Commission, except as
superseded or modified herein, are hereby incorporated by reference into this
Prospectus:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1996.
2. The Company's Quarterly Reports on Form 10-Q for the
quarters ended September 30, 1996, December 31, 1996 and March 31,
1997.
3. The Company's Current Reports on Form 8-K filed May 5,
1997 and June 3, 1997.
4. The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A having an effective
date of June 16, 1987 (file number 0-15609).
5. The Company's registration statement on Form S-3
(Registration No. 333-06493) filed with the Commission on June 21,
1996.
All documents filed 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, 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.
Agouron 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 the Chief Financial Officer at Agouron's
executive offices at 10350 North Torrey Pines Road, La Jolla, California 92037;
(619) 622-8000.
2
<PAGE>
THE COMPANY
Agouron Pharmaceuticals, Inc. ("Agouron" or the "Company") is a pioneer
and leader in technologies for the atom by atom design of novel synthetic drugs
based upon the molecular structures of target proteins which play key roles in
human disease. The Company's first product, VIRACEPT(R) (nelfinavir mesylate),
is an orally administered inhibitor of the enzyme HIV protease. The Company
received clearance to market Viracept in the United States by the Food and Drug
Administration ("FDA") in March 1997 under the provisions of the FDA's
accelerated approval process. The Company is conducting ongoing clinical trials
of Viracept and phase II/III clinical trials of a second drug, THYMITAQ(TM)
(formerly AG337), for treatment of malignant solid tumors. Additionally, the
Company has initiated phase I clinical testing of its anti-cancer compounds
AG3340 and AG2034. In addition, eight preclinical programs are in progress for
discovery or development of other new drugs in the fields of cancer, viral
disease and inflammatory disease.
Agouron has developed Viracept in collaboration with the pharmaceutical
division of Japan Tobacco Inc. ("JT"). In collaboration with JT, Agouron is also
engaged in the discovery of drugs for treatment of infections caused by
hepatitis C and by herpes viruses. Under agreements with JT, Agouron retains
exclusive commercial rights to these anti-viral products in the United States,
Canada and Mexico, generally subject to the payment either of royalties or a
share of profits to JT.
Thymitaq, an inhibitor of the enzyme thymidylate synthase, is presently
the subject of phase II/III clinical studies evaluating the drug as a
chemotherapeutic agent for treatment of malignant solid tumors associated with
cancer of the liver (hepatocellular carcinoma) and cancer of the head/neck.
Previously, six small phase II clinical studies evaluated 5-day courses of
treatment with Thymitaq administered intravenously in patients with malignant
solid tumors associated with cancer of the colon, lung, liver, pancreas,
prostate or head/neck. Tumor reductions of greater than 50% were observed in
patients with head/neck cancer, liver cancer, lung cancer and colon cancer.
Stabilization of disease was observed in a majority of the remaining evaluable
patients in all groups studied. An oral formulation of Thymitaq is also being
developed by the Company. If successful, the phase II/III pivotal clinical
trials could lead to submission of a New Drug Application ("NDA") to FDA for
Thymitaq in calendar 1999. Agouron intends to engage in the sales and marketing
of Thymitaq in North America if and when approved by FDA.
In June 1996, Agouron signed a binding letter of intent with
Hoffmann-LaRoche Inc. and F. Hoffmann-La Roche Ltd, subsidiaries of Roche
Holding Ltd ("Roche"), providing for the collaborative development and
commercialization of Thymitaq and of the Agouron anti-cancer compound designated
AG3340 currently in phase I clinical trials in the United States. Under
provisions of this letter of intent, Agouron has received initial license fees
and is to receive additional development milestone payments from Roche. Roche
agreed to bear 80% of future costs of developing these drugs. Agouron and Roche
will cooperatively market the two compounds for cancer indications and share
profits in North America, while Roche has exclusive marketing rights for cancer
indications to these compounds outside North America, subject to the payment of
royalties to Agouron. Roche also is to provide annual research funding support
and subsequent milestone payments to Agouron for similar commercial rights for
all indications in compounds which are generated in a collaborative research
program focused on cell cycle control.
In May 1997, the Company completed the acquisition, pursuant to an
Agreement and Plan of Reorganization, of Alanex Corporation, a Delaware
corporation ("Alanex"). Alanex, located in San Diego, California, is engaged in
the discovery of drug leads through the high-speed screening of diverse chemical
libraries designed by computational methods and generated by combinatorial
chemistry. Alanex utilizes proprietary software to design either broad or highly
targeted combinatorial libraries of molecules that can readily be synthesized in
large numbers. To date, Alanex has identified preclinical drug development
candidates in four of its programs for the treatment of pain, diabetes, obesity
and anxiety. Alanex has entered into collaboration agreements with Astra Pharma,
Inc., Novo Nordisk A/S, Roche Bioscience, a division of Syntex (U.S.A.) Inc.,
Aurora Biosciences Corporation and ICOS Corporation.
The Company was incorporated in California in 1984. The Company's
executive offices are located at 10350 North Torrey Pines Road, La Jolla,
California 92037 and its telephone number is (619) 622-3000.
RISK FACTORS
An investment in the shares being offered hereby involves a high degree
of risk. Prospective investors should carefully consider the following risk
factors, in addition to the other information contained in this Prospectus,
before purchasing the shares of Common Stock offered hereby. This Prospectus
contains forward-looking statements that involve risks and uncertainties. The
Company's actual results could differ materially from those discussed in these
forward-looking statements. Factors that could cause or contribute to such
differences include, but are not limited to, those discussed in the following
"Risk Factors" section.
Uncertainty of Product Development and Market Acceptance;
Technological Uncertainty
The Company has completed the development and commercialization of only
one product, Viracept, and does not expect to have any additional products
commercially available until fiscal 1999, if at all. While the Company has
received regulatory approval to begin human clinical testing for certain other
of its compounds, these and other compounds currently being developed by the
3
<PAGE>
Company will require further research and development, including extensive
additional preclinical and human clinical testing, prior to submission of any
regulatory application for commercial sale of such compounds. There can be no
assurance that further research and development will be successful or will
result in drugs that will qualify for approval by regulatory authorities for
commercial sale. In addition, clinical testing of a pharmaceutical product is
itself subject to approvals by various governmental regulatory authorities. No
assurance can be given that the Company will be permitted by regulatory
authorities to conduct planned clinical testing of the Company's compounds in
any particular country of the world, including the United States, or that, if
permitted, such additional clinical testing will prove that such drugs are safe
and efficacious to the extent necessary to permit the Company to obtain
marketing approvals for them from regulatory authorities. The Company may
encounter problems or delays relating to research and development, regulatory
approval and manufacturing. The failure to address such problems or delays could
have a material adverse effect on the Company's business and prospects. Even if
FDA and foreign regulatory approvals for the marketing of any additional
products being developed by the Company are obtained, there can be no assurance
that such products will be accepted and successful in the marketplace.
While the Company believes it has demonstrated the utility of certain
of its potential products in preclinical testing and in phase I and phase II
human clinical trials, extensive further clinical testing of these potential
products is required before the Company can seek marketing approval from
regulatory authorities. Furthermore, results obtained in preclinical studies or
in phase I and phase II human clinical trials are not necessarily indicative of
results that will be obtained in subsequent or more extensive preclinical or
clinical testing. Further, technological uncertainty exists regarding the
development of resistance to HIV protease inhibitors by human subjects. There
can be no assurance that disease resistance will not limit the efficacy of
Viracept, an HIV protease inhibitor, currently the Company's only product.
Within the pharmaceutical industry, treatment of the disease indications being
pursued by the Company, especially HIV infection, AIDS and cancer, has proven
difficult. There can be no assurance that drugs resulting from the approach of
protein structure-based drug design employed by the Company will overcome the
difficulties of drug discovery and development in these or other fields or
result in commercially successful products.
Uncertainty Associated with Preclinical and Clinical Testing
Before seeking regulatory approvals for the commercial sale of any of
its products, Agouron must undertake extensive preclinical and clinical testing
to demonstrate their safety and efficacy in humans. To date, the Company has
conducted preclinical testing and phase I, II or III clinical testing of its
compounds AG3340, AG2034, Viracept and Thymitaq in Europe, Asia and/or the
United States. The results of such testing of these and other products under
development by the Company are not necessarily predictive of results that will
be obtained from subsequent or more extensive preclinical and clinical testing.
Additionally, the Company has made and may in the future make changes to the
formulation of its drugs and/or to the processes for manufacturing its drugs.
Any such changes in formulation or manufacturing processes could result in
delays in conducting further preclinical and clinical testing, in unexpected
adverse results in further preclinical and clinical testing, and/or in
additional development expenses. Furthermore, there can be no assurance that
clinical studies of products under development will demonstrate the safety and
efficacy of such products at all or to the extent necessary to obtain regulatory
approvals of such products. Companies in the industry have suffered significant
setbacks in advanced clinical trials, even after promising results in earlier
trials. The failure to adequately demonstrate the safety and efficacy of a
therapeutic product under development could delay or prevent regulatory approval
of the product and could have a material adverse effect on the Company.
Any drug is likely to produce some toxicities or undesirable side
effects in animals and in humans when administered at sufficiently high doses
and/or for sufficiently long periods of time. In an attempt to evaluate the
potential toxicities or side effects of Viracept, Thymitaq, AG3340 and AG2034,
the Company has conducted toxicology studies of these compounds in animals. On
the basis of results to date from such toxicological studies, the Company has
selected for human clinical testing dose levels of its drugs and periods of
exposure to its drugs which, in the Company's judgment, are unlikely to produce
unacceptable toxicities or side effects in humans. However, there can be no
assurance that unacceptable toxicities or side effects will not occur at any
dose level at any time in the course of toxicological studies, human clinical
trials, or the commercial use of the Company's drugs. The appearance of any such
unacceptable toxicities or side effects in toxicology studies or in human
clinical trials could cause the Company or regulatory authorities to interrupt,
limit, delay or abort the development of any of the Company's drugs and could
ultimately prevent their being approved by FDA or foreign regulatory authorities
for any or all targeted indications. Even after being approved by FDA or foreign
regulatory authorities, products may later exhibit adverse effects that prevent
their widespread use or necessitate their withdrawal from the market. There can
be no assurance that any products under development by the Company will be safe
when administered to patients.
The rate of completion of clinical trials is dependent upon, among
other factors, the rate of enrollment of patients. Patient accrual is a function
of many factors, including the size of the patient population, the proximity of
patients to clinical sites, the eligibility criteria for the study and the
existence of competitive clinical trials. Delays in planned patient enrollment
in the Company's current trials or future clinical trials may result in
increased costs, program delays or both, which could have a material adverse
effect on the Company. There can be no assurance that if clinical trials are
completed the Company will be able to obtain regulatory approval or that any
such approval by FDA or any other regulatory authority will be made in a timely
manner, or at all.
4
<PAGE>
History of Operating Losses
The Company has had net operating losses since its inception and, at
March 31, 1997, had an accumulated deficit of $115,047,000. The Company
anticipates that net operating losses will continue on a quarterly basis into
fiscal 1998 and until such time as product sales generate sufficient revenue to
offset expenses and generate sufficient cash flow to fund continuing operations.
In March 1997, the Company received FDA approval of, and began the commercial
sale of, Viracept, its first proprietary product to reach the market. While the
Company anticipates that commercial sales of Viracept will contribute
significantly toward profitable operating results in the near future, there can
be no assurance that commercial sales of Viracept alone will be able to either
generate or maintain profitable operating results on a consistent basis. In
addition, ongoing operating results will be impacted by the timing and amount of
the Company's research, development and clinical trial programs, the level of
its selling and marketing efforts, the efficiency and cost of its manufacturing
activities, the nature of its business development activities and on the timing
and receipt of fees from existing and future collaborative relationships. There
can be no assurance that the Company will ever achieve significant product sales
or profitable operations.
Additional Financing Requirements and Access to Capital
The Company has expended more than $260,000,000 on research and
development activities and intends in the future to expend substantial
additional funds to continue research and development activities, conduct
preclinical studies and tests, conduct human clinical trials, maintain and
expand its manufacturing and sales and marketing capabilities and otherwise
commercialize any of its approved products. Additional funds may be required to
support the foregoing activities and for working capital and other general
corporate needs.
The Company believes that its current capital resources, existing
contractual commitments and the anticipated contribution from ongoing commercial
sales of Viracept will be sufficient to maintain its current and planned
operations through at least fiscal 1998. No assurance can be given that there
will be no change in the Company's operations that would consume available
resources more rapidly than anticipated. The Company's future capital
requirements will depend on many factors, including the progress of research and
development, the scope and results of preclinical studies and clinical trials,
the cost, timing and outcome of regulatory reviews, the rate of technological
advances, the market acceptance of any approved Company products, administrative
and legal expenses and competitive factors. To the extent the Company's capital
resources are insufficient to meet current or planned operating requirements,
the Company will seek to obtain additional funds through equity or debt
financings, collaborative or other arrangements with corporate partners,
licensees and others, and from other sources, which may have the effect of
diluting the holdings of existing shareholders. No assurance can be given that
additional financing will be available when needed or on terms acceptable to the
Company. If adequate funds are not available, the Company may be required to
delay or eliminate expenditures for certain of its programs or to license third
parties to commercialize products or technologies that the Company would
otherwise seek to develop and commercialize itself, any of which could have a
material adverse effect on the Company.
Dependence on Others
The Company's strategy for development and commercialization of certain
of its products entails entering into various arrangements with corporate
partners, licensees and others, and upon the subsequent success of these
partners, licensees and others in performing preclinical and clinical testing,
obtaining regulatory approvals, manufacturing and marketing. These arrangements
may require the Company to transfer certain material rights to such corporate
partners, licensees and others. In the event the Company determines to license
or sublicense certain of its commercial rights, there can be no assurance such
arrangements will not result in reduced product revenue to the Company. While
the Company believes its partners, licensees and others will have an economic
motivation to succeed in performing their contractual responsibilities, the
amount and timing of resources to be devoted to these activities will be
controlled by others. Consequently, there can be no assurance that any revenues
or profits will be derived from such arrangements, that any of the Company's
current strategic arrangements will be continued or not terminated early or that
the Company will be able to enter into future collaborations.
Under the provisions of certain agreements entered into between the
Company and JT, JT has agreed to collaborate on the development,
commercialization and marketing of certain novel therapeutic drugs including
Viracept, anti-hepatitis C and anti-herpes drugs and to make certain payments
related thereto to the Company. In the event JT fails to make any of the
anticipated payments, or otherwise delays in the making of any of the payments,
such event could have a material adverse effect on the Company.
Additionally, under the provisions of a binding letter of intent with
Roche and agreements entered into thereunder, Roche and Agouron have agreed to
collaborate on the development and commercialization of Thymitaq and the Agouron
anti-cancer compound designated AG3340 and in a research program focused on cell
cycle control. Roche is obligated to make certain payments to the Company under
the provisions of the agreements. In the event Roche terminates its rights under
a development program or fails to make any of the anticipated payments, or
otherwise delays in the making of any of the payments, such event could have a
material adverse effect on the Company.
5
<PAGE>
Manufacturing Capability
The Company does not have the facilities to manufacture its product or
product candidates in commercial quantities under current good manufacturing
practices ("GMP") prescribed by FDA. The Company currently fulfills its
commercial manufacturing requirements through contract manufacturing
relationships. To be successful, the Company's product and any future products
must be manufactured in sufficient commercial quantities under GMP, at
acceptable costs and in a timely manner. As a result, the Company is currently
dependent on a number of contract manufacturers for the commercial manufacture
of Viracept, its only commercial product. No assurance can be given that the
Company will be able to continue to arrange for contract manufacturing or that
adequate supplies of raw materials will be available. In the event the Company
is unable to continue to obtain contract manufacturing on acceptable terms, its
ability to commercialize or timely deliver sufficient quantities of its products
at acceptable cost may be adversely affected.
Unproved Sales and Marketing Capabilities
While the Company has recently developed a sales and marketing force
for the sales and marketing of Viracept in the United States, it has no prior
experience in the sales, marketing and distribution of pharmaceutical products
and may have to rely on collaborators and licensees or on arrangements with
others to provide for future sales, marketing and distribution of any products
approved by FDA or foreign regulatory authorities. There can be no assurance
that the Company will be able to maintain or expand its sales, marketing and
distribution capabilities or make arrangements with its collaborators, licensees
or others to perform such activities or that such efforts will be successful.
Further, there can be no assurance that any products, if approved, will gain
market acceptance. The Company's results of operations and cash flows will be
highly dependent upon the timing and extent of Viracept sales.
Patents and Proprietary Technology
The Company seeks to protect its proprietary technology by obtaining
patents and maintaining the confidentiality of its trade secrets and unpatented
proprietary know-how. The Company has applied for, and will in the future apply
for, United States and foreign patents for certain of its technology and
products. Most of the Company's products are expected to be synthetic chemical
compounds having pharmaceutical utilities. The Company is also expected to
provide technical services relating to the discovery, research and development
of synthetic chemical compounds. No assurance can be given that the Company's
patent applications will issue as patents or that any patents that may be issued
will provide Agouron with adequate protection for the covered products or
technology. Moreover, there can be no assurance that any patents issued to the
Company, or for which the Company has a license, will not be challenged,
invalidated or circumvented or that the rights granted thereunder will provide
competitive advantages to the Company. Litigation, which could result in
substantial cost to the Company, may be necessary to enforce the Company's
patent and license rights or to determine the scope and validity of others'
proprietary rights. If competitors of the Company prepare and file patent
applications in the United States that claim technology also claimed by the
Company, the Company may have to participate in interference proceedings to
determine who is entitled to a patent, which could result in substantial cost to
the Company, even if the outcome is favorable to the Company. The cost of
obtaining and enforcing patent protection and of protecting proprietary
technology may involve a substantial commitment of the Company's resources. Any
such commitment may divert resources from other areas of the Company.
Much of the know-how of importance to the Company is based on the
unpatentable skills, knowledge and experience of its scientific and technical
personnel. To help protect its unpatented rights, the Company requires all
employees, relevant consultants and advisors, and collaborators to enter into
confidentiality agreements with it. There can be no assurance, however, that
these agreements will provide adequate protection for the Company's trade
secrets, know-how or other proprietary information in the event of any
unauthorized use or disclosure. Further, the Company's competitors may
independently develop substantially equivalent technology or otherwise discover
the Company's trade secrets, know-how or other proprietary information.
The commercial success of the Company will also depend in part on not
infringing patent or proprietary rights of others and not breaching any licenses
granted to the Company. There can be no assurance that the Company's activities
have not infringed or will not infringe the patents or proprietary rights of
others. Furthermore, there can be no assurance that the Company will be able to
obtain a license to any technology that it may require to conduct its business
or that, if obtainable, such technology can be licensed at a reasonable cost.
Failure by the Company to obtain a license to any technology that it may require
to commercialize any of its products may have a material adverse effect on the
Company.
Alanex Technology and Integration of Operations
Alanex's approach to the discovery of drug leads through the high-speed
screening of diverse chemical libraries designed by computational methods and
generated by combinatorial chemistry is new and unproven. Alanex's integrated
approach to drug discovery has never resulted in the discovery of any compound
that has been commercialized. There can be no assurance that its product
development efforts will result in the successful development of lead compounds
in the future, that such compounds can be commercialized, or that they will be
safe and efficacious.
6
<PAGE>
Alanex's strategy for the development and commercialization of its drug
technology involves the formation of collaborations, principally with
pharmaceutical and biotechnology companies. To date, revenue received by Alanex
has been principally from its collaborations and technology alliances. There can
be no assurance that the Company will be able to negotiate additional
collaboration agreements in the future on acceptable terms, if at all, or that
such current or future collaborations will be successful. To the extent that
Alanex is unable to establish such agreements, the Company will be required to
expend its capital to fund the research and development of Alanex's drug
discovery process.
If the Company is to realize the anticipated benefits of the Merger,
the operations of Alanex and the Company must be integrated and combined
efficiently. The process of integrating management and administrative resources,
facilities, management information systems and other aspects of operations,
while managing a larger entity, will present a significant challenge to the
management of the combined Company. There can be no assurance that the
integration process will be successful or that the anticipated benefits of the
business combination will be fully realized. The dedication of management
resources to such integration may detract attention from the day-to-day business
of the combined Company. The difficulties of integration may be increased by the
problems of combining different corporate cultures. There can be no assurance
that there will not be unforeseen sustained costs associated with the
integration process or that there will not be other material adverse effects of
these integration efforts.
Technological Change and Intense Competition
The pharmaceutical and biotechnology industries are subject to intense
competition and rapid technological change. The Company believes that
industry-wide interest in the application of protein structure-based drug design
and related technology will continue and may accelerate as the technology
becomes more widely understood. Competitors of the Company in the United States
and abroad are numerous and include, among others, pharmaceutical, biotechnology
and chemical companies, universities and other research organizations. For
example, HIV protease inhibitors developed by Abbott Laboratories, Inc., Merck &
Co., Inc. and Roche are currently being marketed. There can be no assurance that
these and other competitors will not have products or succeed in developing
technologies and products that are more effective than any which have been or
are being developed by the Company or which would render the Company's
technology and products obsolete and noncompetitive.
Many of the Company's competitors have substantially greater financial
and technical resources and production and marketing capabilities and experience
than the Company. In addition, many of the Company's competitors have
significantly greater experience than the Company in conducting preclinical
testing and human clinical trials of new pharmaceutical products and in
obtaining FDA and other regulatory approvals of products. Accordingly, certain
of the Company's competitors may succeed in obtaining regulatory approval for
products more rapidly or effectively than the Company. Further, in conducting
commercial sales of its products, the Company will also be competing with
respect to manufacturing efficiency and sales and marketing capabilities, areas
in which it currently has little experience.
Government Regulation
Preclinical studies, clinical trials and the production and marketing
of the Company's products and its ongoing research and development activities
and commercial activities are subject to regulation by numerous governmental
authorities in the United States and other countries. Rigorous preclinical and
clinical testing and obtaining regulatory approvals can take many years and
require the expenditure of substantial resources. Failures or delays by the
Company or its collaborators or licensees in obtaining regulatory approvals
would adversely affect the marketing of products developed by the Company and
the Company's ability to receive product revenues or royalties. Further, there
can be no assurance that the Company or its collaborators or licensees will be
able to obtain necessary regulatory approvals. There can be no assurance that
clinical data will be accepted by regulatory agencies or that any approvals will
be granted on a timely basis, if at all. Any significant delays or requests to
provide additional data in the approval process could have a material adverse
effect on the Company.
Regulatory approval of a drug may involve limitations and restrictions
on the drug's use. In addition, any marketed drug and its manufacturer are
subject to continual governmental review and any subsequent discovery of
previously unrecognized problems could result in restrictions on the product or
manufacturer, including, without limitation, withdrawal of the product from the
market. Failure of the Company to comply with applicable regulatory requirements
can, among other things, result in fines, suspension of regulatory approvals,
product recalls, seizure of products, operating restrictions or criminal
prosecution.
Additionally, the Company is or may become subject to various federal,
state and local laws, regulations and recommendations relating to safe working
conditions, laboratory and manufacturing practices, the experimental use of
animals and the use and disposal of hazardous or potentially hazardous
substances, including radioactive compounds and infectious disease agents, used
in connection with Agouron's research and development work. The Company is
unable to predict the extent of restrictions that might arise from any
governmental or administrative action.
7
<PAGE>
Uncertainty of Third-Party Reimbursement and Product Pricing
The Company's ability to commercialize products successfully will
depend in part on the availability of reimbursement of the costs of such
products and related treatments at acceptable levels from government
authorities, private health insurers and other organizations, such as health
maintenance organizations ("HMOs"). There can be no assurance that reimbursement
in the United States or foreign countries will be available for the Company's
products or, if available, will not be decreased in the future, or that
reimbursement amounts will not reduce the demand for, or the price of, the
Company's products, thereby adversely affecting the Company's business.
Third-party payors are increasingly challenging the prices charged for
medical products and services. Also, the trend toward managed health care in the
United States and the concurrent growth of organizations, such as HMOs, which
can control or significantly influence the purchase of health care services and
products, as well as legislative proposals to reform health care or reduce
government insurance programs, may result in lower prices for pharmaceutical
products. The cost containment measures that health care providers are
instituting and the effect of any health care reform could materially adversely
affect the Company's ability to sell its products if successfully developed and
approved. Moreover, the Company is unable to predict what additional legislation
or regulation, if any, relating to the health care industry or third-party
coverage and reimbursement may be enacted in the future or what effect such
legislation or regulation would have on the Company's business.
Product Liability; Limited Insurance Coverage
The testing, marketing and sale of human health care products entail an
inherent risk of allegations of product liability and there can be no assurance
that product liability claims will not be asserted against the Company, its
collaborators or its licensees. The Company currently has limited amounts of
product liability insurance for clinical trials and commercial sales. There can
be no assurance that the Company will be able to maintain product liability
insurance on acceptable terms or that such insurance will provide adequate
coverage against any potential claims. Furthermore, there can be no assurance
that any collaborators and licensees of Agouron will agree to indemnify the
Company, be sufficiently insured or have a sufficient net worth to protect the
Company from any product liability claims.
Use of Hazardous Materials
The Company's research and development activities involve the
controlled use of hazardous materials, chemicals, viruses and various
radioactive compounds. Although the Company believes that its safety procedures
for handling and disposing of such materials comply with the standards
prescribed by state and federal 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 damages
that result and any liability could have a material adverse effect on the
Company.
Attraction and Retention of Personnel
The future success of the Company will depend in large part on its
ability to continue to attract and retain highly qualified scientific, technical
and managerial personnel. Competition for such personnel is intense and there
can be no assurance that Agouron will be able to attract and retain the
personnel necessary for the development of its business. In addition, much of
the know-how developed by the Company resides in its scientific and technical
personnel and such know-how is not readily transferable to other scientific and
technical personnel. Further, the Company's anticipated growth and expansion
into areas and activities requiring additional expertise, such as manufacturing
and marketing, will require the addition of new technical and management
personnel and the development of additional expertise by existing personnel. The
loss of or failure to recruit scientific, technical and managerial personnel
could have a material adverse effect on the Company.
Volatility of Stock Price
The market price of the Common Stock has in recent years fluctuated
significantly and it is likely that the price of the Common Stock will fluctuate
in the future. Announcements by the Company or others regarding existing and
future collaborations, results of clinical trials, scientific discoveries,
technological innovations, introductions of commercial products, availability
and sales of products, patents or proprietary rights or regulatory actions may
have a significant adverse effect on the market price of the Common Stock.
Fluctuations in financial performance from period to period also may have a
significant impact on the market price of the Common Stock.
8
<PAGE>
SELLING STOCKHOLDERS
The Selling Stockholders represented in their purchase agreements that
they were acquiring the Shares for investment and with no present intention of
distributing the Shares. In recognition of the fact that the Selling
Stockholders, even though purchasing the Shares without a view to distribute,
may wish to be legally permitted to sell the Shares when each deems appropriate,
the Company has filed with the Commission a Registration Statement on Form S-3,
which this Prospectus forms a part, with respect to, among other things, the
resale of the Shares from time to time at prevailing prices in the
over-the-counter market or in privately-negotiated transactions and has agreed
to prepare and file such amendments and supplements to the Registration
Statement as may be necessary to keep the Registration Statement effective until
the earlier to occur of the resale of all of the Shares described above pursuant
to this Prospectus or May 23, 1998.
The following table sets forth the name of the Selling Stockholders,
the number of Shares beneficially owned by each Selling Stockholder as of May
23, 1997, and the number of Shares which may be offered pursuant to this
Prospectus. This information is based upon information provided to the Company
by the Selling Stockholders. Because the Selling Stockholders may offer all,
some or none of their shares of Common Stock, no definitive estimate as to the
number of shares thereof that will be held by the Selling Stockholders after
such offering can be provided.
<TABLE>
<CAPTION>
Name of Selling Shares Beneficially Owned Prior Number of Shares Being Shares Beneficially Owned
Stockholders(1) to Offering Offered After Offering(1)(3)
- ---------------------------- ------------------------------- ---------------------- -----------------------------
Number Percent(2) Number Number Percent(2)
------ --------- ------ ------ ----------
<S> <C> <C> <C> <C> <C>
Debar ERA, Inc. 309,770 2.1% 77,443 232,327 1.6%
Jon & Caroline Jessen Family 145,774 1.0% 36,444 109,330 *
1990 Trust
Marvin Brown(4) 98,888 * 24,722 74,166 *
Alexander Polinsky 98,888 * 24,722 74,166 *
Howard Gwynn 5,933 * 2,908 3,025 *
Arnold Hagler 20,719 * 10,153 10,566 *
Christopher Wright 11,770 * 5,768 6,002 *
Laura Delmas 2,825 * 1,385 1,440 *
Martin Strnat 565 * 277 288 *
Heling Liu 436 * 214 222 *
Rathna Basava 391 * 192 199 *
Galina Krokhina 2,260 * 1,108 1,152 *
Atsuo Kuki 1,412 * 692 720 *
Dorothy Haskell 485 * 238 247 *
Amy Wells 125 * 62 63 *
Martha Obermeier 941 * 462 479 *
Talia Hagler 941 * 462 479 *
R. Tamar Hagler 941 * 462 479 *
Eitan Hagler 941 * 462 479 *
Yoav Hagler 941 * 462 479 *
Susan Hagler 941 * 462 479 *
Lauri Sampson 815 * 400 415 *
Howard Sampson 376 * 185 191 *
Robert Feinstein 9,417 * 4,615 4,802 *
Michelle Youngers 1,506 * 738 768 *
Dale Dhanoa 4,117 * 2,018 2,099 *
=========== =========== =========== =========== =========
Total 722,118 5.0% 197,056 525,062 3.6%
*--Less than 1%
- ---------------------------
<FN>
(1)Unless otherwise indicated, the persons named in the table have sole voting
and investment power with respect to all shares beneficially owned by them,
subject to community property laws where applicable.
(2)Applicable percentage of ownership is based on approximately 14,500,000
shares of Common Stock outstanding on May 29, 1997, adjusted as required by
rules promulgated by the Commission.
(3)Assumes the sale of all shares offered hereby.
(4)Dr. Brown is the president of Alanex Corporation and a vice president of the
Company.
</FN>
</TABLE>
9
<PAGE>
PLAN OF DISTRIBUTION
The Company has been advised that the Selling Stockholders or pledgees,
donees, transferees of or other successors in interest to the Selling
Stockholders may sell Shares from time to time in transactions on The Nasdaq
Stock Market, in privately negotiated transactions or a combination of such
methods of sale, at fixed prices which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Selling Stockholders may effect such
transactions by selling the Shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Stockholders or the purchasers of the Shares for
whom such broker-dealers may act as agent or to whom they sell as principal, or
both (which compensation to a particular broker-dealer might be in excess of
customary commissions.)
At any time a particular offer of Shares is made, to the extent
required, a supplemental Prospectus will be distributed which will set forth the
number of shares offered and the terms of the offering including the name or
names of any underwriters, dealers or agents, the purchase price paid by any
underwriter for the Shares purchased from the Selling Stockholders, any
discounts, commission, and other items constituting compensation from the
Selling Stockholders and any discounts, concessions or commissions allowed or
reallowed or paid to dealers.
The Selling Stockholders and any broker-dealers who act in connection
with the sale of Shares hereunder may be deemed to be "underwriters" as that
term is defined in the Securities Act, and any commissions received by them and
profit on any resale of the Shares as principal might be deemed to be
underwriting discounts and commissions under the Securities Act.
Any or all of the sales or other transactions involving the Shares
described above, whether effected by the Selling Stockholders, any broker-dealer
or others, may be made pursuant to this Prospectus. In addition, any Shares that
qualify for sale pursuant to Rule 144 under the Act may be sold under Rule 144
rather than pursuant to this Prospectus.
In order to comply with the securities laws of certain states, if
applicable, the Shares may be sold in such jurisdictions only through registered
or licensed brokers or dealers. In addition, in certain states the Shares may
not be sold unless they have been registered or qualified for sale or an
exemption from registration or qualification requirements is available and is
complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the Shares may not simultaneously engage
in market making activities with respect to Agouron Common Stock for a period of
two business days prior to the commencement of such distribution. In addition
and without limiting the foregoing, the Selling Stockholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, which provisions may limit the timing of purchases and sales of
shares of the Shares by the Selling Stockholders.
All costs associated with registering the Shares being offered
hereunder with the Securities and Exchange Commission will be paid by the
Company.
The Company and the Selling Stockholders may agree to indemnify certain
persons including broker-dealers or others, against certain liabilities in
connection with any offering of the Shares, including liabilities under the
securities Act.
LEGAL MATTERS
The validity of the issuance of the Shares will be passed upon for the
Company by Gary E. Friedman, Esq., Vice President, General Counsel of the
Company. Additionally, Mr. Friedman is a Director and Secretary of the Company.
Mr. Friedman beneficially holds Common Stock of the Company and holds stock
options under the Company's stock option plans. He may receive additional
options under such plans in the future.
EXPERTS
The financial statements as of June 30, 1996 and 1995 and for each of
the three years in the period ended June 30, 1996 incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the year ended
June 30, 1996 have been so included and incorporated in reliance on the report
of Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
10
<PAGE>
================================================================================
No person has been authorized to give any information or to make any
representations in connection with this offering other than those contained in
this Prospectus and, if given or made, such other information and
representations must not be relied upon as having been authorized by the Company
or the Underwriters. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any time subsequent to its date.
This Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any securities other than the registered securities to which it
relates. This Prospectus does not constitute an offer to sell or a solicitation
of an offer to buy such securities in any circumstances in which such offer or
solicitation is unlawful.
TABLE OF CONTENTS
Page
----
Available Information....................... 2
Incorporation of Certain Information
By Reference............................. 2
The Company................................. 3
Risk Factors................................ 3
Selling Stockholders........................ 9
Plan of Distribution........................ 10
Legal Matters............................... 10
Experts..................................... 10
197,056 Shares
[GRAPHIC OMITTED]
Common Stock
PROSPECTUS
June _____, 1997
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses, other than underwriting
discounts and commissions, payable by the Company in connection with the sale of
the Common Stock being registered. All amounts shown are estimates, except the
registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission Registration Fee...................... $ 5,098.08
Accounting Fees and Expenses............................................. 2,000.00
Miscellaneous............................................................ 5,000.00
-----------
$ 12,098.08
===========
</TABLE>
Item 15. Indemnification of Directors and Officers
Section 317 of the California General Corporation Law generally
provides indemnification to officers and directors of the Company against
expenses, judgments, fines and amounts paid in settlement under certain
conditions and subject to certain limitations.
Article VII of the articles of incorporation of the Company provides
that liability of the directors of the Company for monetary damages shall be
eliminated to the fullest extent permissible under California law. Further,
Article VIII of the articles of incorporation authorizes the Company to provide
indemnification of agents (as defined in Section 317) for breach of duty to the
Company and its shareholders through bylaw provisions or through agreements with
such agents, or both, in excess of the indemnification otherwise permitted by
Section 317, subject to the limits on such excess indemnification set forth in
Section 317.
Section 3.15 of the bylaws of the Company authorizes the Company to
indemnify any person who was or is a party, or is threatened to be made a party,
to any proceeding (other than actions by or in the right of the Company to
procure a judgment in its favor) by reason of the fact that such person is or
was an agent of the Company, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with such
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in the best interests of the Company. Section 3.15
also authorizes the Company to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action by
or in the right of the Company to procure a judgment in its favor by reason of
the fact that such person is or was an agent of the Company against expenses
actually and reasonably incurred by such person in connection with the defense
or settlement of such action if such person acted in good faith.
Any indemnification under Section 3.15 is to be made by the Company
only if authorized in the specific case upon determination that indemnification
of the agent is proper in the circumstances because the agent has met the
applicable standard of conduct required by Paragraphs 3.15.2 or 3.15.3 of the
bylaws.
Pursuant to authorization provided under the articles of incorporation
and the bylaws, the Company has entered into indemnification agreements with
each of its present directors. The Company has also entered into similar
agreements with certain of the Company's officers who are not directors.
Generally, the indemnification agreements attempt to provide the maximum
protection permitted by California law as it may be amended from time to time.
Moreover, the indemnification agreements provide for certain additional
indemnification. Under such additional indemnification provisions, however, an
individual will not receive indemnification for judgments, settlements or
expenses if he or she is found liable to the Company (except to the extent the
court determines he or she is fairly and reasonably entitled to indemnity for
expenses) for settlements not approved by the Company or for settlements and
expenses if the settlement is not approved by the court. The indemnification
agreements provide for the Company to advance to the individual any and all
reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding. In order to
receive an advance of expenses, the individual must submit to the Company copies
of invoices presented to him or her for such expenses. Also, the individual must
repay such advances upon a final judicial decision that he or she is not
entitled to indemnification.
Section 3.15 of the bylaws also provides that, in the event of a
determination by the Board of Directors of the Company to purchase insurance for
certain of its agents, the Company shall purchase and maintain insurance on
behalf of any such agent against liability asserted against or incurred by the
agent in such capacity or arising out of the agent's status, whether or not the
Company would have the power to indemnify the agent against such liability under
the provisions of Section 3.15.
The Company has in effect directors and officers liability insurance
policies which insure directors and officers of the Company. The policies expire
on October 13, 1997. Although the Company intends to renew the policies on or
before their expiration date, there can be no assurance that the policies will
be renewed on terms acceptable to the Company. Under the policies, the directors
and officers of the Company are insured against loss arising from claims made
against them due to wrongful acts while
II-1
<PAGE>
acting in their individual and collective capacities as directors and
officers, subject to certain exclusions. In addition, the policies insure
the Company against losses for which its directors and officers are entitled
to indemnification, subject to a retention of $250,000 payable by the Company.
The policies are "claims made" policies and provide coverage only for losses
arising out of claims first made against the Company and reported to the insurer
during the policy period.
Item 16. Exhibits
EXHIBIT
NUMBER
5.1 Opinion of Gary E. Friedman, Esq.
23.1 Consent of Independent Accountants.
23.2 Consent of Gary E. Friedman, Esq.
(contained in Exhibit 5.1).
24.1 Power of Attorney (contained on signature page
of the Registration Statement).
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
registrant, pursuant to the foregoing provisions, 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 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 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.
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 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, 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 amendment to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, State of California, on the 23rd day
of June, 1997.
AGOURON PHARMACEUTICALS, INC.
By:/s/ Gary E. Friedman, Esq.
--------------------------
Gary E. Friedman, Esq.
Vice President, General Counsel, and Secretary
II-2
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter Johnson, Steven S. Cowell and Gary E.
Friedman, or any of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any or
all amendments to this registration statement, including post-effective
amendments, 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 and to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Peter Johnson President, Chief Executive June 23, 1997
- ------------------------------------------ Officer and Director
Peter Johnson
/s/ Steven S. Cowell Vice President, Finance and June 23, 1997
- ------------------------------------------ Chief Financial Officer
Steven S. Cowell
/s/ Gary E. Friedman Vice President, General Counsel, June 23, 1997
- ------------------------------------------ Secretary and Director
Gary E. Friedman
/s/ John N. Abelson Director June 23, 1997
- ------------------------------------------
John N. Abelson
/s/ Patricia M. Cloherty Director June 23, 1997
- ------------------------------------------
Patricia M. Cloherty
/s/ A.E. Cohen Director June 23, 1997
- ------------------------------------------
A.E. Cohen
/s/ Michael E. Herman Director June 23, 1997
- ------------------------------------------
Michael E. Herman
/s/ Irving S. Johnson Director June 23, 1997
- ------------------------------------------
Irving S. Johnson
/s/ Antonie T. Knoppers Director June 23, 1997
- ------------------------------------------
Antonie T. Knoppers
/s/ Melvin I. Simon Director June 23, 1997
- ------------------------------------------
Melvin I. Simon
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
5.1 Opinion of Gary E. Friedman, Esq.
23.1 Consent of Independent Accountants.
23.2 Consent of Gary E. Friedman, Esq.
(contained in Exhibit 5.1).
24.1 Power of Attorney (contained on signature page of
the Registration Statement).
II-4
EXHIBIT 5.1
(AGOURON LETTERHEAD)
June 23, 1997
AGOURON PHARMACEUTICALS, INC.
10350 North Torrey Pines Road
La Jolla, California 92037
Gentlemen:
In connection with your registration on Form S-3 (the "Registration Statement")
under the Securities Act of 1933, as amended, of 197,056 shares of Common Stock
of Agouron Pharmaceuticals, Inc. (the "Company"), I advise you that, in my
opinion, when such shares have been issued and sold in the manner referred to in
the Registration Statement, such shares will be duly authorized, validly issued,
fully paid and non-assessable shares of the Company's Common Stock.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
/s/ Gary E. Friedman
Gary E. Friedman, Esq.
Vice President and General Counsel
GEF:hhf
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
August 7, 1996 appearing on page F-1 of Agouron Pharmaceuticals, Inc.'s Annual
Report on Form 10-K for the year ended June 30, 1996. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
San Diego, California
June 23, 1997
