As filed with the Securities and Exchange Commission on December 29, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Advanced Polymer Systems, Inc.
------------------------------
(Exact name of registrant as specified in its charter)
Delaware 94-2875566
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
123 Saginaw Drive, Redwood City, California 94063 (650) 366-2626
----------------------------------------------------------------
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Michael O'Connell
Executive Vice President and
Chief Financial Officer
Advanced Polymer Systems, Inc.
123 Saginaw Drive
Redwood City, California 94063
(650) 366-2626
---------------------------------------
(Name, address, including zip code, and
telephone number, including area code,
of agent for service
Copy to:
Richard A. Peers, Esq.
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, California 94301-1908
(650) 324-7000 (phone)
(650) 324-0638 (fax)
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended, 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 of 1933, as amended,
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 of 1933, as amended, check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
---
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.
---
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
=======================================================================
Proposed Proposed
Title of Maximum Maximum
Shares Amount Offering Aggregate Amount of
to be to be Price per Offering Registration
Registered Registered Share (1) Price Fee
- -----------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common
Stock 200,000 $4.75 $950,000 $264.10
=======================================================================
<FN>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
computing the amount of the registration fee based on the average of the
high and low prices of the company's common stock on the Nasdaq National
Market on December 28, 1998.
</FN>
</TABLE>
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 that specifically states that this
Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Securities and
Exchange Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS (Subject to Completion) Dated December 29, 1998
ADVANCED POLYMER SYSTEMS, INC.
up to 200,000 Shares of Common Stock
Up to 200,000 shares may be offered and sold from time to time by the
security holder of the company identified in this prospectus. See
"Selling Security Holder." The selling security holder was issued up to
200,000 shares under a Settlement Agreement and Release, dated December
22, 1998, between the company and the selling security holder in
connection with the settlement of a lawsuit between them. The selling
security holder will receive all of the proceeds from the sale of the
shares and will pay all underwriting discounts and selling commissions, if
any, applicable to the sale of the shares. We will pay the expenses of
registration of the sale of the shares.
On December 28, 1998, the company had 19,993,311 shares of its common
stock issued and outstanding. Our common stock trades on the Nasdaq
National Market under the symbol "APOS". On December 28, 1998, the last
reported sale price of the common stock on the Nasdaq National Market was
$---- per share.
Beginning on page 4, we have listed several "RISK FACTORS" which you
should consider. You should read the entire prospectus carefully before
you make your investment decision.
The Securities and Exchange Commission and state regulatory authorities
have not approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
The Date of this Prospectus is December --, 1998
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from
that contained in this prospectus. The selling security holder is
offering to sell, and seeking offers to buy, shares of Advanced Polymer
Systems, Inc. common stock only in jurisdictions where offers and sales
are permitted. The information contained in this prospectus is accurate
only as of the date of this prospectus, regardless of the time of delivery
of this prospectus or of any sale of the shares.
In this prospectus, the "company," the "Registrant," "Advanced Polymer
Systems," "we," "us," and "our" refer to Advanced Polymer Systems, Inc.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements, and
other documents with the Securities and Exchange Commission (the "SEC").
You may read and copy any document we file at the SEC's public reference
room at Judiciary Plaza Building, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549. You should call 1-800-SEC-0330 for more
information on the public reference room. The SEC maintains an internet
site at http://www.sec.gov where certain information regarding issuers
(including Advanced Polymer Systems) may be found.
This prospectus is part of a registration statement that we filed with the
SEC (Registration No. ------). The registration statement contains more
information than this prospectus regarding Advanced Polymer Systems and
its common stock, including certain exhibits and schedules. You can get a
copy of the registration statement from the SEC at the address listed
above or from its internet site.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate" into this prospectus information we
file with the SEC in other documents. This means that we can disclose
important information to you by referring to other documents that contain
that information. The information may include documents filed after the
date of this prospectus which update and supersede the information you
read in this prospectus. We incorporate by reference the documents listed
below, except to the extent information in those documents is different
from the information contained in this prospectus, and all future
documents filed with the SEC under Sections 13(a), 13(c), 14, or 15(d) of
the Securities Exchange Act of 1934 until we terminate the offering of
these shares.
<TABLE>
<CAPTION>
SEC Filing
(File No. -------) Period/Filing Date
------------------ ------------------
<S> <C>
Annual Report on Form 10-K Year ended December 31, 1997
Quarterly Reports on Form 10-Q Quarter ended March 31, 1998
Quarter ended June 30, 1998
Quarter ended September 30, 1998
Registration Statement on
Form 8-A describing the
common stock Filed on August 7, 1987
</TABLE>
You may request a copy of these documents, at no cost, by writing to:
Advanced Polymer Systems, Inc.
123 Saginaw Drive
Redwood City, California 94063
Attention: Investor Relations
Telephone: (650) 366-2626
FORWARD-LOOKING INFORMATION
Statements made in this prospectus or in the documents incorporated by
reference herein that are not statements of historical fact are forward-
looking statements within the meaning of Section 27A of the Securities Act
of 1933, as amended (the "Securities Act"), and Section 21E of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). A
number of risks and uncertainties, including those discussed under the
caption "Risk Factors" below and the documents incorporated by reference
herein could affect such forward-looking statements and could cause actual
results to differ materially from the statements made.
RISK FACTORS
You should consider carefully the following risk factors, along with other
information contained or incorporated by reference in this prospectus, in
deciding whether to invest in our securities. These factors, among
others, may cause actual results, events or performances to differ
materially from those expressed in any forward-looking statements we made
in this prospectus.
Risks Relating to History of Losses. Historically we have not been
profitable. We have been profitable in certain recent quarters, and have
had growth in revenues, derived principally from product sales, license
fees and royalties. However, we may not be able to continue to generate
significant future revenues or continue to sell products at a profit.
Risks Relating to Need for Additional Funds. We anticipate that our
existing capital resources will permit us to meet our capital and
operational requirements through at least the end of 1999. However, we
base this expectation on our current operating plan which can change as a
result of many factors. If our costs are higher than expected or revenues
do not meet expectations, we may have to generate additional funds to
sustain and develop our business, including through joint ventures,
licensing and debt and equity financings.
If such additional funding is required, but is unavailable on commercially
reasonable terms, we would have to significantly reduce operating
expenses, by decreasing spending on:
- outside clinical programs;
- variety of other discretionary external expenditures.
These events could have a material adverse effect on the company.
Risks Relating to New Technology. Our Microsponge(R) products are based
on relatively new technologies. Although we have been commercially
successful with numerous ingredients and agents, such as acne creams,
sunscreens and moisturizers, commercialization of products utilizing our
Microsponge delivery systems is still in its early stages. We may not be
able to continue to successfully commercialize our Microsponge products,
which would have an adverse on the Company.
Risks Relating to Marketing. We have been marketing our Microsponge
products independently. In addition, we have entered into several
collaborative agreements with other companies that have greater marketing
expertise and/or financial strength. These collaborative arrangements may
not prove successful in marketing products in the future.
Some of our collaborative partners have limited history in marketing
certain over-the-counter drug and toiletry products, and they may not be
able to continue to successfully market products produced by the Company
or others.
Risks Relating to Dependence on Key Employees. Our developments to date
and in the future depend greatly on the efforts of key management and
technical employees. The loss of any of these key contributors could have
an adverse impact on the progress of our business.
Risks Relating to Government Regulations. Some of our products are
subject to regulation by numerous governmental authorities in the United
States and by comparable agencies in other countries where our products
may be distributed. The regulatory process includes preclinical testing
and clinical trials. The process is necessary to establish product safety
and efficacy, and it can be very time consuming and costly.
Furthermore, even after such time and expenditure, regulatory agency
approvals may not be obtained. Moreover, if regulatory agency approval of
a product is granted, such approval may be
- limited to certain uses of the product;
- temporary, as marketed product and its manufacture are subject to
continued review by regulatory authorities.
Personal care products are not currently subject to active regulation by
the FDA in the same manner as pharmaceutical products. Nonetheless, more
extensive regulation could occur in the future. Such regulation could
impose additional costs or slow the introduction of personal care products
utilizing our delivery systems.
Risks Relating to Competition. Other companies are developing products
based on similar technologies for cosmetic, therapeutic and industrial
applications. Technological developments are expected to occur at a rapid
pace and may prove superior to ours. We are in competition with other
companies that possess:
- greater financial and technical resources,
- greater manufacturing and marketing capabilities,
- more experience in testing and obtaining any necessary regulatory
approval.
Manufacturing Risks. Products utilizing our Microsponge delivery systems
must be manufactured at a competitive cost in far greater quantities that
we can currently produce. We have the following facilities:
- a manufacturing facility in Lafayette, Louisiana;
- a research laboratory and pilot plant facilities in Lafayette,
Louisiana;
Our current manufacturing capacity, depending upon the application, is
currently 1,000,000 to 3,000,000 pounds a year. However, successful
commercialization of certain products may require manufacturing in
quantities exceeding our current capacity.
Risks Relating to Patents and Trade Secrets. Patent protection generally
has been important in the pharmaceutical and cosmetic industry. The
patents owned or controlled by us may not be able to:
- provide commercially significant protection of our technology;
- ensure that the Company will not infringe valid patents of others.
Our patents have not been tested in court, and the validity and scope of
our proprietary rights could be challenged.
We have also received foreign patents. The patent laws of foreign
countries differ from those of the United States, and the degree of
protection afforded by any foreign patents may be different from that
available under U.S. patent laws.
We also rely on trade secrets and proprietary know-how. We try to protect
them by confidentiality agreements with our collaborators, employees and
consultants. However, if those agreements are breached, we may not have
adequate remedies for such breach. Furthermore, our trade secrets and
proprietary know-how may otherwise become known or be discovered by
competitors.
Stock Price Risks. The market price of our Common Stock has been and may
continue to be highly volatile. Future events, many of which will be
beyond the control of the Company, may have a significant impact on the
market price of the Company's Common Stock. The following events could
have a depressive effect on the market price of the Company's Common
Stock:
- quarterly fluctuations in revenues and financial results;
- future sales of Shares by the Selling Stockholder or by other
current stockholders;
- future sales of Shares by option holders and warrant holders who
exercise Company stock options or warrants.
These events could have a material adverse effect on the company.
Risks Relating to Reliance on Collaborative Partners. We have entered
into collaborative agreements with certain major corporations pursuant to
which such companies are entitled to certain product and marketing rights.
We also rely, at least in part, on additional collaborative agreements to
develop and commercialize certain future products. However, we may not be
able to negotiate acceptable collaborative agreements in the future.
Moreover, our existing collaborative agreements or such future
collaborative agreements may not be successful.
Risks Relating to Anti-Takeover Provisions. On August 19, 1996, the Board
of Directors has adopted a Stockholders Rights Plan, which allows
stockholders to purchase Company Stock at discount in the event of tender
offer or when any person acquires 20% or more of the outstanding Common
Stock of the Company, subject to certain exceptions. The existence of
this anti-takeover provision may have the effect of:
- delaying, deferring or preventing a change of control of the Company;
- making the Company less attractive to any potential acquiror;
- causing stockholders to receive less for their shares than would
otherwise be available in the event of a takeover attempt.
Risks Relating to the Year 2000. Year 2000 ("Y2K") exposure is the result
of computer programs using two instead of four digits to represent the
year. These computer programs may erroneously interpret dates beyond the
year 1999, which could cause system failures or other computer errors,
leading to disruptions in operations. We have begun to develop a program
to limit or eliminate Y2K exposures. This program will try to accomplish
the following:
- identify those systems, applications and third-party relationships
from which we have exposure to Y2K disruptions in operations;
- develop and implement action plans to achieve Y2K compliance in
all areas prior to the end of 1999;
- develop contingency plans which would be implemented should Y2K
compliance not be achieved in order to minimize disruptions in
operations;
- test each major area of exposure to ensure compliance.
We have not yet completed this program. We expect to complete it by the
end of 1999, though we may not be successful in doing so.
Based on current estimates, we expect the total cost of our Y2K program
will be less than $650,000 (approximately $510,00 of which has been
incurred to date). The estimate may change materially as we continue to
review and audit the results of the implemented program.
Failure to complete all necessary procedures by the Year 2000 may have a
material adverse impact on the operations of the Company. Failure of
third parties, such as customers and suppliers, to resolve year 2000
problems in their systems would also have a material adverse impact on the
Company.
SELLING SECURITY HOLDER
The following table sets forth the name of the selling security holder,
the maximum number of shares of common stock owned beneficially by the
selling shareholder as of December 28, 1998 and the maximum number of
shares that may be offered pursuant to this prospectus. This information
is based upon information provided by the selling security holder.
<TABLE>
<CAPTION>
Common Stock Common Stock
Beneficially Owned Common Stock Beneficially owned
Prior to Offering(1) to be sold After Offering(1)
-------------------- ------------ -----------------
<S> <C> <C> <C> <C> <C>
Selling Security Holder Number Percent Number Percent
- ----------------------- ------ ------- ------ -------
Biosource Technologies, Inc 200,000 1% 200,000 -- --
TOTALS 200,000 1 200,000 -- --
========= =======
<FN>
(1) Applicable percentage of ownership is based on 19,993,311 shares of common stock outstanding as
of December 28, 1998.
</FN>
</TABLE>
PLAN OF DISTRIBUTION
All or a portion of the shares offered hereby by the selling security
holder may be delivered and/or sold in transactions from time to time on
the over-the-counter market, on the Nasdaq National Market (or any other
exchange on which the shares may be listed), in negotiated transactions,
or a combination of such methods of sale, at market prices prevailing at
the time, at prices related to such prevailing prices or at negotiated
prices and/or may also be used to cover any short positions previously
established. The selling security holder may effect such transactions by
selling to or through one or more broker-dealers, and such broker-dealers
may receive compensation in the form of underwriting discounts,
concessions or commissions from the selling security holder. The selling
security holder and any broker-dealers that participate in the
distribution may under certain circumstances be deemed to be
"underwriters" within the meaning of the Securities Act, and any
commissions received by such broker-dealers and any profits realized on
the resale of shares by them may be deemed to be underwriting discounts
and commissions under the Securities Act. The selling security holder may
agree to indemnify such broker-dealers against certain liabilities,
including liabilities under the Securities Act. Additionally, if the
selling security holder desires to sell 20,000 or more of the shares to
the public, it will so inform the Company and provide the Company up to 5
days to find a block buyer for such shares.
Any broker-dealer participating in such transactions as agent may receive
commissions from the selling security holder (and, if they act as agent
for the purchaser of such shares, from such purchaser). Broker-dealers
may agree with the selling security holder to sell a specified number of
shares at a stipulated price per share, and, to the extent such a broker-
dealer is unable to do so acting as agent for the selling security holder,
to purchase as principal any unsold shares at the price required to
fulfill the broker-dealer commitment to the selling security holders.
Broker-dealers who acquire shares as principal may thereafter resell such
shares from time to time in transactions (which may involve crosses and
block transactions and which may involve sales to and through other
broker-dealers, including transactions of the nature described above) in
the over-the-counter market, in negotiated transactions or otherwise at
market prices prevailing at the time of sale or at negotiated prices, and
in connection with such resales may pay to or receive from the purchasers
of such shares commissions computed as described above.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale of shares may not simultaneously
engage in market making activities with respect to the common stock of the
company for a period of two business days prior to the commencement of
such distribution. In addition and without limiting the foregoing, the
selling security holders will be subject to applicable provisions of the
Exchange Act, and the rules and regulations thereunder, including, without
limitation, Regulation M, which provisions may limit the timing of
purchases and sales of shares of the company's common stock by the selling
security holders.
The selling security holder will pay all commissions, transfer taxes, and
other expenses associated with the sale of securities by them. The shares
offered hereby are being registered pursuant to contractual obligations of
the company, and the company has paid the expenses of the preparation of
this prospectus. We have not made any underwriting arrangements with
respect to the sale of shares offered hereby.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares by the
selling security holders.
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for us by
Heller Ehrman White & McAuliffe, Palo Alto, California, counsel to the
company. Julian N. Stern, the Secretary of the company, is the owner of
179,000 shares of common stock and is the sole stockholder and employee of
a professional corporation that is a partner of Heller Ehrman White &
McAuliffe.
EXPERTS
The financial statements of Advanced Polymer Systems, Inc. which appear in
its Annual Report (Form 10-K) for the year ended December 31, 1997 have
been audited by KPMG Peat Marwick LLP, independent auditors, as set forth
in their report thereon and included therein and incorporated herein by
reference. Such financial statements are incorporated herein by reference
in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution.
The following table sets forth various expenses in connection with the
sale and distribution of the securities being registered. All of the
amounts shown are estimates except for the Securities and Exchange
Commission Registration Fee.
Securities and Exchange Commission Registration Fee $ 264.10
Accounting Fees 5,000.00
Legal Fees and Disbursements 10,000.00
Miscellaneous 735.90
Total $16,000.00
==========
Item 15. Indemnification Of Officers And Directors.
The registrant has the power to indemnify its officers and directors
against liability for certain acts pursuant to Section 145 of the General
Corporation Law of the State of Delaware. Section B of Article VI of the
registrant's Certificate of Incorporation provides:
"(1) Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a director
or officer, of the Corporation or is or was serving at the request of the
Corporation, as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the
basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while
serving as a director, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by
the General Corporation Law of the State of Delaware, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of his
or her heirs, executors and administrators; provided, however, that, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof) was authorized by the board of
directors of the Corporation. The right to indemnification conferred in
this Section B shall be a contract right and shall include the right to be
paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that,
if the General Corporation Law of the State of Delaware requires, the
payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to
be indemnified under this Section or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
(2) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section B shall not be exclusive of
any other rights which any person may have or hereafter acquire under any
statute, provisions of this Certificate of Incorporation, Bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
(3) Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such expense, liability or loss, whether or
not the Corporation would have the power to indemnify such person against
such expense, liability or loss under Delaware General Corporation Law."
Registrant maintains directors' and officers' liability insurance in the
amount of $5,000,000 which covers civil liabilities. Such insurance helps
the Registrant to attract qualified officers and directors, by providing a
means for the Company to pay the costs and expenses involved in the event
civil litigation is brought against of one of the Registrant's officers or
directors.
Item 16. Exhibits.
EXHIBIT DESCRIPTION
5 -- Opinion of Heller, Ehrman, White & McAuliffe
23.1 -- Consent of Heller, Ehrman, White & McAuliffe (filed as
part of Exhibit 5)
23.2 -- Consent of KPMG Peat Marwick LLP
24 -- Power of Attorney (See Page II-4)
Item 17. Undertakings.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (i) and (ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offering therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described
under Item 15 above, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted against the Registrant by such director, officer
or controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(4) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in Redwood City, State of California, on the
29th day of December, 1998.
ADVANCED POLYMER SYSTEMS, INC.
By: /S/ Michael O'Connell
-------------------------
Michael O'Connell
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John J. Meakem, Jr., Michael P.J.
O'Connell, or either of them, with the power of substitution, her or his
attorney in fact, to sign any amendments to this Registration Statement
(including post-effective amendments), and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities
and Exchange Commission, hereby ratifying and confirming all that each of
said attorney-in-fact, or his substitute or substitutes, may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------------------------------------------------
<S> <C> <C>
/S/ John J. Meakem, Jr. Chairman, President, December 29, 1998
- ------------------------- Chief Executive -----------------
John J. Meakem, Jr. Officer
/S/ Michael O'Connell Executive Vice December 29, 1998
- ------------------------- President, Chief -----------------
Michael O'Connell Administrative Officer
and Chief Financial
Officer
/S/ Carl Ehmann Director December 29, 1998
- ------------------------- -----------------
Carl Ehmann
/S/ Jorge Heller Director December 29, 1998
- ------------------------- -----------------
Jorge Heller
/S/ Peter Riepenhausen Director December 29, 1998
- ------------------------- -----------------
Peter Riepenhausen
/S/ Toby Rosenblatt Director December 29, 1998
- ------------------------- -----------------
Toby Rosenblatt
/S/ Gregory H. Turnbull Director December 29, 1998
- ------------------------- -----------------
Gregory H. Turnbull
/S/ C. Anthony Wainwright Director December 29, 1998
- ------------------------- -----------------
C. Anthony Wainwright
/S/ Dennis Winger Director December 29, 1998
- ------------------------- -----------------
Dennis Winger
</TABLE>
<PAGE>
ADVANCED POLYMER SYSTEMS, INC.
EXHIBIT INDEX
-------------
EXHIBIT DESCRIPTION
- ------- -----------
5 -- Opinion of Heller, Ehrman, White & McAuliffe
23.1 -- Consent of Heller, Ehrman, White & McAuliffe
(filed as part of Exhibit 5)
23.2 -- Consent of KPMG Peat Marwick LLP
24 -- Power of Attorney (See Page II-4)
December 29, 1998
10008-0006
Advanced Polymer Systems, Inc.
123 Saginaw Drive
Redwood City, California 94063
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Advanced Polymer Systems, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement
on Form S-3 (the "Registration Statement") which the Company proposes to
file with the Securities and Exchange Commission on December 29, 1998 for
the purpose of registering under the Securities Act of 1933, as amended,
200,000 shares of its Common Stock, par value $.01 (the "Shares").
We have assumed the authenticity of all records, documents and instruments
submitted to us as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all
records, documents and instruments submitted to us as copies.
In rendering our opinion, we have examined the following records,
documents and instruments:
(a) The Certificate of Incorporation of the Company, certified by the
Delaware Secretary of State as of November 18, 1998, and certified to us
by an officer of the Company as being complete and in full force as of the
date of this opinion;
(b) The Bylaws of the Company certified to us by an officer of the
Company as being complete and in full force and effect as of the date of
this opinion;
(c) A Certificate of an officer of the Company (i) attaching records
certified to us as constituting all records of proceedings and actions of
the Board of Directors, including any committee thereof, and stockholders
of the Company relating to the Shares, and the Registration Statement, and
(ii) certifying as to certain factual matters;
(d) The Registration Statement;
(e) The Settlement Agreement and Release between Biosource Technologies,
Inc. ("Biosource") and the Company, dated December 22, 1998; and
(f) A letter from First National Bank of Boston, the Company's transfer
agent, dated December 23, 1998, as to the number of shares of the
Company's Common Stock that were outstanding on December 23, 1998.
This opinion is limited to the federal law of the United States of America
and the General Corporation Law of the State of Delaware, and we disclaim
any opinion as to the laws of any other jurisdiction. We further disclaim
any opinion as to any other statute, rule, regulation, ordinance, order or
other promulgation of any other jurisdiction or any regional or local
governmental body or as to any related judicial or administrative opinion.
Based upon the foregoing and our examination of such questions of law as
we have deemed necessary or appropriate for the purpose of this opinion,
and assuming that (i) the Registration Statement becomes and remains
effective during the period when the Shares are offered and issued, (ii)
the full consideration stated in the Settlement and Release Agreement is
paid for each Share and that such consideration in respect of each Share
includes payment of cash or other lawful consideration at least equal to
the par value thereof, (iii) appropriate certificates evidencing the
Shares are executed and delivered by the Company, and (iv) all applicable
securities laws are complied with, it is our opinion that when issued by
the Company, in the manner provided in the Settlement and Release
Agreement and the Registration Statement, the Shares will be legally
issued, fully paid and nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit. This opinion may not be relied
upon by you for any other purpose, or relied upon by any other person,
firm, corporation or other entity for any purpose, without our prior
written consent. We disclaim any obligation to advise you of any change
of law that occurs, or any facts of which we may become aware, after the
date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/S/ Heller Ehrman White & McAuliffe
EXHIBIT 23.2
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
Advanced Polymer Systems, Inc.:
We consent to the use of our report incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the
prospectus.
KPMG Peat Marwick LLP
San Francisco, California
December 28, 1998
