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Registration No. 333-_______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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LIFECELL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 76-0172936
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1 Millenium Way
Branchburg, NJ 08876
(908) 947-1106
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
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Fenel Eloi, Senior Vice President and CFO Copies to:
LifeCell Corporation Alan Wovsaniker, Esq.
1 Millenium Way Lowenstein Sandler PC
Branchburg, NJ 08876 65 Livingston Avenue
(908) 947-1106 Roseland New Jersey 07068
(973) 597-2500
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
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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 Securityholder.
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, 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. |_|
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
- ---------------------------- ----------------------- ------------------------- ------------------------- -------------------
Title of Each Class of Proposed Maximum Amount of
Securities to be Registered Amount to be Proposed Maximum Aggregate Offering Registration Fee
Registered(1) Offering Price Per Price (2)
Share
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<S> <C> <C> <C> <C>
Common Stock ($.001 par
value) 1,125,000 $4.625 $5,203,125.00 $1,373.63
- ---------------------------- ----------------------- ------------------------- ------------------------- -------------------
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(1) Of the shares of Common Stock being offered hereby, 200,000 shares are
issuable upon conversion of the Registrant's Common Stock Purchase Warrant
dated November 17, 1999 (the "Warrant"). Pursuant to Rule 416, there are
also being registered an indeterminate number of shares of the
Registrant's Common Stock which may become issuable pursuant to the
antidilution provisions of such Warrant.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon a price of $4.625 per share, which was
the average of the high and low sale prices of the Common Stock as
reported on the Nasdaq National Market on January 12, 2000.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The information in this preliminary prospectus is not complete and may be
changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This
preliminary prospectus is not an offer to sell and is not soliciting an offer
to buy these securities in any jurisdiction where the offer or sale is not
permitted.
SUBJECT TO COMPLETION DATED JANUARY 14, 2000
PROSPECTUS
LIFECELL CORPORATION
1,125,000 Shares
Common Stock
The selling securityholder listed below is offering and
selling 1,125,000 shares of our common stock under this prospectus.
The selling securityholder may offer his common stock through
public or private transactions, on or off the Nasdaq National Market, at
prevailing market prices, or at privately negotiated prices. We will not receive
any of the proceeds from the sale of the common stock by the selling
securityholder, but will pay all registration expenses.
Our common stock is listed on the Nasdaq National Market under
the symbol "LIFC". On January 12, 2000, the closing price of the common stock on
the Nasdaq National Market was $4.75 per share.
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The shares of common stock offered or sold under this prospectus involve a high
degree of risk. See "Risk Factors" beginning on page 3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
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The date of this prospectus is January __, 2000.
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TABLE OF CONTENTS
PAGE
The Company........................................................... 2
Risk Factors.......................................................... 3
Special Note Regarding Forward-Looking Statements..................... 13
Where You Can Find More Information................................... 14
Use of Proceeds....................................................... 15
Selling Stockholder................................................... 15
Plan of Distribution.................................................. 16
Legal Matters......................................................... 17
Experts............................................................... 18
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THE COMPANY
LifeCell Corporation, a Delaware corporation, is a bioengineering
company engaged in the development and commercialization of tissue regeneration
and cell preservation products. Our patented tissue processing and cell
preservation technologies serve as platforms for a broad range of potential
products addressing significant clinical needs. Our first commercial product is
AlloDerm, a tissue processing technology that provides a graft consisting of an
extracellular tissue matrix that retains the essential biochemical and
structural composition of human dermis. We believe that AlloDerm is the only
commercially available tissue transplant product that provides a complete
template for the regeneration of normal human soft tissue. AlloDerm currently is
being marketed in the United States and internationally for use in
reconstructive plastic, dental and burn surgery applications. We estimate that
AlloDerm has been transplanted in more than 40,000 patients. We are also
developing several additional products, including a micronized form of AlloDerm,
vascular grafts, nerve connective tissue grafts, and ThromboSolTM platelet
storage solutions.
We were incorporated in the State of Delaware in 1992 as the successor
to a Delaware corporation that was incorporated in 1986. Our address is 1
Millennium Way, Branchburg, New Jersey 08876 and our phone number is (908)
947-1106.
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RISK FACTORS
You should consider the following risks carefully before deciding to
purchase shares of our common stock. The risks described below are not the only
ones that we face. Additional risks about which we do not yet know or that we
currently think are immaterial may also impair our business operations. Our
business, operating results or financial condition could be materially adversely
affected by any of the following risks. The trading price of our common stock
could decline due to any of these risks, and you may lose all or a part of your
investment. You should also refer to the other information set forth or referred
to in this prospectus.
In addition to the other information in this prospectus on Form S-3,
the following factors should be considered carefully in evaluating the Company.
Special Note: Certain statements set forth below constitute "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of 1934, as amended. See
"Special Note Regarding Forward-Looking Statements."
We have a history of operating losses and a substantial accumulated
earnings deficit.
Since our inception in 1986, we have generated only limited revenues
from product sales and have incurred substantial losses. Our losses were
approximately $4.1 million, $6.1 million, and $7.3 million for the years ended
December 31, 1996, 1997, and 1998, respectively and we lost $5.7 million for the
nine months ended September 30, 1999. At December 31, 1998 and September 30,
1999, we had an accumulated deficit of approximately $44.5 million and $50.7
million, respectively. We expect to incur additional operating losses as well as
negative cash flow from operations at least through the middle of 2000 as we
continue to use substantial resources to expand our marketing efforts with
respect to AlloDerm and to expand our product development programs. Our ability
to increase revenues and achieve profitability and positive cash flows from
operations will depend on increased market acceptance and sales of AlloDerm and
commercialization of products under development.
We may need additional capital to market AlloDerm and develop new
products.
The development and commercialization of new products will require
additional development, sales and marketing, manufacturing and other
expenditures. We intend to expend substantial funds for:
o product research and development,
o expansion of sales and marketing activities,
o expansion of manufacturing capacity,
o product education efforts, and
o other working capital and general corporate purposes.
We may need additional capital, depending on:
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o the costs and progress of our research and development
efforts;
o the number and types of product development programs
undertaken;
o the costs and timing of expansion of sales and marketing
activities;
o the costs and timing of expansion of manufacturing capacity;
o the amount of revenues from sales of our existing and new
products;
o changes in, termination of, and the success of existing and
new distribution arrangements;
o the cost of maintaining, enforcing and defending patents and
other intellectual property rights;
o competing technological and market developments;
o developments related to regulatory and third-party
reimbursement matters; and
o other factors.
Any additional equity financing may be dilutive to stockholders, and debt
financing, if available, may involve significant restrictive covenants.
Collaborative arrangements, if necessary to raise additional funds, may require
us to relinquish our rights to certain of our technologies, products or
marketing territories. If adequate funds are not available, we expect that we
will be required to delay, scale back or eliminate one or more of our product
development programs.
Government regulation poses significant risks for a bio-engineering
company.
Government regulation, both domestic and foreign, is a significant
factor in the manufacture and marketing of our current and developing products.
In the United States, our currently marketed human skin allograft and AlloDerm
products are subject to regulation by the United States Food and Drug
Administration. Non-compliance with the requirements of the FDA can result in:
o fines,
o injunctions,
o civil penalties,
o recall or seizure of products,
o total or partial suspension of production,
o refusal of the government to authorize the marketing of new
products or allow us to enter into supply contracts, and
criminal prosecution.
There is a risk that we may not be able to pass FDA inspections.
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Products such as ours are regulated as transplanted human tissue and
generally may be commercially sold without premarket clearance or approval from
the FDA. However, businesses such as ours engaged in the procurement,
processing, and distribution of human tissue must conduct donor screening and
infectious disease testing and maintain records available for FDA inspection
documenting that the procedures were followed. The FDA has authority to conduct
inspections of tissue establishments and to detain, recall, or destroy tissue
where the procedures were not followed or appropriate documentation of the
procedures is not available.
There is a risk that the FDA could change its regulatory approach to
our product.
At present, the FDA has indicated that AlloDerm is considered
transplanted human tissue when it is used for reconstructive plastic surgery,
periodontal surgery and burn grafts so that no approval from the FDA is required
prior to sale. However, the FDA's regulatory approach to tissue products
continues to evolve. The FDA may in the future choose to regulate our product as
a medical device subject to premarket clearance or approval requirements.
Our position is that the following products should be regulated as transplanted
human tissue and not medical devices.
o AlloDerm for general and orthopedic surgical uses (abdominal
wall closure, prevention of surgical adhesions, and capsular
ligament reinforcement),
o AlloDerm for urological and gynecological surgery (bladder
sling; pelvic floor repair),
o Micronized AlloDerm for urinary incontinence and plastic and
reconstructive procedures, and
o the vascular grafts and nerve connective tissue products
under development.
We have not discussed our position with the FDA and do not know if the FDA would
concur. If these products are regulated as medical devices, we would be
prohibited from marketing them in the United States without either an
appropriate clearance, which usually takes from four to 12 months, but can take
longer or approval, which can last from one to three years, or even longer. We
do not know if regulatory clearance or PMA approval could be obtained in a
timely fashion, or at all.
There is a risk that laws will limit our ability to sell our products
at a profit.
The National Organ Transplant Act prohibits the acquisition, receipt or
transfer of certain human organs, including skin and heart valves and vascular
grafts, for valuable consideration, but permits the payment of reasonable
expenses associated with the removal, transportation, processing, preservation,
quality control and storage of human tissue and skin. We include in our AlloDerm
pricing structure certain of its educational costs. There is a risk that NOTA
will be applied in the future to our product, and if it was, that it would limit
profits, such as by preventing recovery of educational costs.
There is a risk that the government could interrupt our marketing
efforts.
We have begun commercial distribution of AlloDerm for urological and
gynecological surgery. If FDA were to classify AlloDerm for these indications as
a medical device, the FDA could order the cessation of marketing until premarket
clearance or approval is obtained, or order the recall of product already
marketed. The FDA law treated one usage of AlloDerm as a medical device.
In December 1997, the FDA told us that AlloDerm for use in dura mater
replacement procedures would be classified as a medical device requiring prior
clearance or approval. In March 1999, we submitted a premarket notification for
NeoDura. Although we have sought clearance for NeoDura, we do not know if
NeoDura, or any other device we wish to market, will receive clearance in a
timely fashion, or at all. Delays in market introduction resulting from the
clearance process could materially adversely affect our business.
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Our products may be subject to export restrictions.
The export by us of devices that have not yet been cleared or approved
for domestic distribution may be subject to FDA export restrictions. There can
be no assurance that we will receive on a timely basis, if at all, any United
States export approvals necessary for the marketing of our products abroad.
Our proposed blood cell preservation products will require licensing
prior to commercialization.
Our proposed blood cell preservation products will be subject to
regulation as biologics. Such products require FDA premarket licensing prior to
commercialization in the United States. To obtain licensing approval for these
products, we must submit proof of their safety, purity and potency. Testing,
preparation of necessary applications and processing of those applications by
the FDA is expensive and time consuming. We do not know if the FDA will act
favorably or quickly in making such reviews, and significant difficulties or
costs may be encountered by us in our efforts to obtain FDA licenses. The FDA
may also place conditions on clearances that could restrict commercial
applications of such products. Product approvals may be withdrawn if compliance
with regulatory standards is not maintained or if problems occur following
initial marketing. Delays imposed by the FDA licensing process may materially
reduce the period during which we have the exclusive right to commercialize
patented products.
Our products are subject to pervasive and continuing regulation.
Products marketed by us pursuant to FDA or foreign approval will be
subject to pervasive and continuing regulation. In the United States, devices
and biologics must be manufactured in registered establishments and must be
produced in accordance with the QSR or medical devices or "Good Manufacturing
Practices" regulations for biologics. Manufacturing facilities and processes are
subject to periodic FDA inspection. Labeling and promotional activities are also
subject to scrutiny by the FDA and, in certain instances, by the Federal Trade
Commission. The export of devices and biologics is also subject to regulation
and may require FDA approval. From time to time, the FDA may modify such
requirements, imposing additional or different requirements. Failure to comply
with any applicable FDA requirements could result in civil and criminal
enforcement actions and other penalties that would have a material adverse
effect on us. In addition, there can be no assurance that the various states in
which our products are sold will not impose additional regulatory requirements
or marketing impediments.
We are subject to various federal, state and local laws, regulations
and recommendations relating to such matters as safe working condition,
laboratory and manufacturing practices, and the use, handling and disposal of
hazardous or potentially hazardous substances used and produced in connections
with our research and development work. We may incur significant additional
costs to comply with these laws or regulations in the future.
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We are subject to varying and extensive regulation by foreign
governments.
The regulation of AlloDerm outside the United States varies by country.
Certain countries regulate AlloDerm as a pharmaceutical product, requiring
extensive filings and regulatory approvals to market the product. Certain
countries classify AlloDerm as a transplant tissue but may restrict its import
or sale. Other countries have no applicable regulations regarding the import or
sale of products similar to AlloDerm, creating uncertainty regarding the import
or sale of the product.
AlloDerm currently is being marketed in certain foreign countries, and
we are pursuing clearance to market AlloDerm in additional countries. The
uncertainty of regulations in each country may delay or impede the marketing of
AlloDerm or impede the ability of us to negotiate distribution arrangements on
favorable terms. Certain foreign countries have laws similar to the United
States' National Organ Transplant Act. These laws may restrict the amount that
we can charge for AlloDerm and may restrict the importation or distribution of
AlloDerm to licensed not-for-profit organizations.
Our products represent new methods of treatment which may not be
accepted by doctors.
Much of our ability to increase revenues and to achieve profitability
and positive cash flow will depend on expanding the use and market penetration
of our AlloDerm products and the successful introduction of our products in
development. Products based on our technologies represent new methods of
treatment. Physicians will not use our products unless they determine that the
clinical benefits to the patient are greater than those available from competing
products or therapies. Even if the advantage of our products is established as
clinically significant, physicians may not elect to use such products for any
number of reasons. As such, there can be no assurance that any of our AlloDerm
products or products under development will gain any significant degree of
market acceptance among physicians, health care payers and patients. Broad
market acceptance of our products may require the training of numerous
physicians and clinicians, as well as conducting or sponsoring clinical studies
to demonstrate the benefits of such products. The amount of time required to
complete such training and studies could result in a delay or dampening of such
market acceptance. Moreover, health care payers' approval of reimbursement for
our products in development may be an important factor in establishing market
acceptance.
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We will need to develop new products to be successful.
Our growth and profitability will depend, in part, upon our ability to
complete development of and successfully introduce new products. We may be
required to undertake time-consuming and costly development activities and seek
regulatory clearance or approval for new products. Although we have conducted
animal studies on many of our products under development which indicate that the
product may be feasible for a particular application, results obtained from
expanded studies may not be consistent with earlier trial results or be
sufficient for us to obtain any required regulatory approvals or clearances. We
may experience difficulties that could delay or prevent the successful
development, introduction and marketing of new products. Regulatory clearance or
approval of these or any new products may not be granted on a timely basis, if
ever, and the new products may not adequately meet the requirements of the
applicable market or achieve market acceptance. The completion of the
development of any of our products under development remains subject to all the
risks associated with the commercialization of new products based on innovative
technologies, including:
o unanticipated technical or other problems,
o manufacturing difficulties, and
o the possible insufficiency of the funds allocated for the
completion of such development.
The inability to complete successfully the development of a product or
application, or a determination by us, for financial, technical or other
reasons, not to complete development of any product or application, particularly
in instances in which we have made significant capital expenditures, could have
a material adverse effect on our business.
We are dependent on distributor sales.
We have engaged Lifecore Biomedical, Inc. as the exclusive distributor
for AlloDerm for periodontal applications in the United States, and Boston
Scientific Corporation as the exclusive worldwide distributor for our AlloDerm
processed acellular tissue matrix for use in urology and gynecology. Other
distributors also may be granted exclusive distribution rights. To the extent
any exclusive distributor fails adequately to promote, market and sell our
products, we may not be able to secure a replacement distributor until after the
term of the distribution contract is complete or until such contract can
otherwise be terminated.
We are dependent on certain sources of materials.
Our business is dependent on the availability of donated human skin and
other tissues. A finite supply of donated tissue is available. Although we have
established what we believe to be adequate sources of donated human skin to
satisfy the expected demand for AlloDerm during in the foreseeable future, we
have not yet developed a supply of other tissues and there can be no assurance
that the availability of donated human skin and other tissues will be sufficient
to meet our demand for such materials. Any significant interruption in supply of
such tissue would likely have a material adverse effect on our financial
condition and results of operations.
We acquire donated human skin from various non-profit organizations
which procure skin and other donated human tissue. The procurement of skin
generally constitutes a small portion of the operating funds for such non-profit
organizations. The development of products that replace the need for donated
tissue, such as the development of synthetic bone substitutes to replace
allograft bone procured by the organizations, could threaten the existence of
the non-profit organizations and, therefore, adversely affect the supply of
donated human skin to us or increase the required payments from us.
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We have performed limited activities to develop products using porcine
dermis and other animal tissues as a substitute for donated human skin. If
successfully developed, animal tissue could replace the need for human tissue as
a raw material. There can be no assurance that such animal tissue products can
be successfully developed, that such development and required regulatory
approvals could result in timely replacement of human tissue used by us in the
event of a reduced supply of human tissue or that the cost of such animal tissue
would not materially adversely affect the business, financial condition and
results of operations of the Company.
Donors of organs and tissues, including donated human skin, have
various motivations. Although we do not promote the use of AlloDerm for cosmetic
applications, AlloDerm has been used by surgeons in a variety of applications
that may be considered "cosmetic." Knowledge of such use by potential donors
could impact their willingness to donate skin for such uses.
We are dependent on key management and personnel.
We are dependent in large part on the efforts of its executive
officers, including Paul G. Thomas, President and Chief Executive Officer, and
Stephen A. Livesey, M.D., Ph.D., Executive Vice President and Chief Science
Officer and a director. We have obtained "keyman" life insurance on Dr. Livesey
in the amount of $3.0 million. Further our success is also dependent upon our
ability to hire and retain qualified operating, marketing and technical
personnel. The competition for qualified personnel in the biochemical industry
is intense.
The biomedical field which we are in is particularly susceptible to
rapid change.
The biomedical field is undergoing rapid and significant technological
change. Our success depends upon our ability to develop and commercialize
efficient and effective products based on its technology. There are many
companies and academic institutions that are capable of developing products
based on similar technology, and that have developed and are capable of
developing products based on other technologies, which are or may be competitive
with our products. Many of these companies and academic institutions are
well-established, have substantially greater financial and other resources,
research and development capabilities and more experience in conducting clinical
trials, obtaining regulatory approvals, manufacturing and marketing than us.
These companies and academic institutions may succeed in developing competing
products that are more effective than our products, or that receive government
approvals more quickly than our products, which may render our products or
technology uncompetitive, uneconomical or obsolete.
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The ability to obtain third-party reimbursement for the costs of new
medical technologies like ours is limited.
Generally, hospitals, physicians and other health care providers
purchase products, such as the products being sold or developed by us, for use
in providing care to their patients. These parties typically rely on third-party
payers, including Medicare, Medicaid, private health insurance and managed care
plans, to reimburse all or part of the costs of acquiring those products and
costs associated with the medical procedures performed with those products. Cost
control measures adopted by third-party payers in recent years have had and may
continue to have a significant effect on the purchasing practices of many health
care providers, generally causing them to be more selective in the purchase of
medical products. Significant uncertainty exists as to the reimbursement status
of newly approved health care products. We believe that certain third-party
payers provide reimbursement for medical procedures at a specified rate without
additional reimbursement for products, such as those being sold or developed by
us, used in such procedures. Adequate third-party payer reimbursement may not be
available for us to maintain price levels sufficient for realization of an
appropriate return on its investment in developing new products. In addition,
government and other third-party payers continue to refuse, in some cases, to
provide any coverage for uses of approved products for indications for which the
FDA has not granted marketing approval. Many uses of AlloDerm have not been
granted such marketing approval and there can be no assurance that any such uses
will be approved. Further, certain of our products are used in medical
procedures that typically are not covered by third-party payers, such as
cosmetic procedures, or for which patients sometimes do not obtain coverage,
such as dental procedures. These and future changes in third-party payer
reimbursement practices regarding the procedures performed with our products
could adversely affect the market acceptance of our products.
We are dependent on patents and proprietary rights.
Our ability to compete effectively with other companies is materially
dependent upon the proprietary nature of its technologies. We rely primarily on
patents and trade secrets to protect our technologies. We currently license the
exclusive right to nine United States patents and related foreign patents and
non-exclusive rights to 14 patents. In addition, we have been issued three
United States utility patents, one United States design patent and have seven
pending United States patent applications. We may not obtain additional patents
or other protection. The claims allowed under those patents will be sufficient
to protect our technology. Further, any patents or proprietary rights owned by
or licensed to us may be challenged, invalidated, circumvented, or rendered
unenforceable based on, among other things:
o subsequently discovered prior art,
o lack of entitlement to the priority of an earlier, related
application, or
o failure to comply with the written description, best mode,
enablement or other applicable requirements.
The invalidation, circumvention or unenforceability of key patents or
proprietary rights owned by or licensed to the Company could have a material
adverse effect on us.
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Patent protection in the biotechnology field is highly uncertain.
In general, the patent position of biotechnology and medical product
firms is highly uncertain, still evolving and involves complex legal, scientific
and factual questions. We are at risk that:
o other patents may be granted with respect to the patent
applications filed by us.
o any patents issued or licensed to us will provide commercial
benefit to us or will not be infringed, invalidated or
circumvented by others.
The United States Patent and Trademark Office currently has a
significant backlog of patent applications, and the approval or rejection of
patents may take several years. Prior to actual issuance, the contents of United
States patent applications are generally not made public. Once issued, such a
patent would constitute prior art from its filing date, which might predate the
date of a patent application on which we rely. Conceivably, the issuance of such
a patent, or the discovery of "prior art" of which we are currently unaware,
could invalidate a patent of ours or our licensor or prevent commercialization
of a product disclosed therein.
We generally conduct a cursory review of issued patents prior to
engaging in research or development activities. Accordingly, we may be required
to obtain a license from others to commercialize any of its products under
development. There can be no assurance that any such license that may be
required could be obtained on favorable terms or at all.
In addition, if patents that cover our existing activities are issued
to other companies, there can be no assurance that we would be able to obtain
licenses to such patents at a reasonable cost, if at all, or be able to develop
or obtain alternative technology. Any of the foregoing matters could have a
material adverse effect on us. In addition, we may be required to obtain a
license under one or more patents prior to commercializing any heart valve or
vascular product, if developed. Such a license may not be available, or if
available, the terms may not be commercially acceptable to the Company.
There can be no assurance that we will not be required to resort to
litigation to protect our patented technologies or other proprietary rights or
that we will not be the subject of additional patent litigation to defend our
existing or proposed products or processes against claims of patent infringement
or other intellectual property claims. Any of such litigation could result in
substantial costs and diversion of resources.
We also have applied for patent protection in several foreign
countries. Because of the differences in patent laws and laws concerning
proprietary rights, the extent of protection provided by United States patents
or proprietary rights owned by or licensed to us may differ from that of their
foreign counterparts.
We may decide for business reasons to retain certain knowledge that we
consider proprietary as confidential and elect to protect such information as a
trade secret, as business confidential information or as know-how. In that
event, we must rely upon trade secrets, know-how and continuing technological
innovation to maintain our competitive position. There can be no assurance that
others will not independently develop substantially equivalent proprietary
information or otherwise gain access to or disclose such information. The
independent development or disclosure of our trade secrets could have a material
adverse effect on our financial condition and results of operations.
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Our product liability insurance may be inadequate.
Our business exposes us to potential product liability risks which are
inherent in the testing, manufacturing and marketing of medical products.
Although we have product liability insurance coverage with an aggregate limit of
$8.0 million and a per occurrence limit of $6.0 million, such insurance may not
provide adequate coverage against potential liabilities, and may not be
available in the future. Product liability claims may exceed our insurance
coverage. We use donated human skin as the raw material for AlloDerm. The
non-profit organizations that supply such skin are required to follow FDA
regulations and guidelines published by the American Association of Tissue Banks
to screen donors for potential disease transmission. Such procedures include
donor testing for certain viruses, including HIV. Our manufacturing process also
has been demonstrated to inactivate concentrated suspensions of HIV in tissue.
While we believe such procedures are adequate to reduce the threat of disease
transmission, AlloDerm products may become associated with transmission of
disease or a patient otherwise infected with disease may erroneously assert a
claim that the use of AlloDerm resulted in the disease transmission. Any such
transmission or alleged transmission could have a material adverse effect on our
ability to manufacture or market our products.
We are limited on the use of our net operating losses and research and
development tax credits.
As of December 31, 1998, we had accumulated net operating loss
carryforwards for federal income tax purposes of approximately $40.5 million and
research and development tax credits of approximately $395,000 and may continue
to incur NOL carryforwards. United States tax laws provide for an annual
limitation on the use of NOL carryforwards following certain ownership changes
and also limit the time during which NOL and tax credit carryforwards may be
applied against future taxable income and tax liabilities. The sale of our
common stock in a public offering completed in December 1997 resulted in an
ownership change for federal income tax purposes. We estimate that the amount of
our NOL carryforwards and the credits available to offset taxable income as of
December 31, 1998 is approximately $14.0 million on a cumulative basis.
Accordingly, if we generate taxable income in any year in excess of the then
cumulative limitation, we may be required to pay federal income taxes even
though we have unexpired NOL carryforwards.
We are subject to extensive regulation regarding disposal of hazardous
materials.
Our research and development and processing techniques generate waste
that is classified as hazardous by the United States Environmental Protection
Agency and the Texas Natural Resources Commission. We segregate such waste and
dispose of it through a licensed hazardous waste transporter. Although we
believe we are currently in compliance in all material respects with applicable
environmental regulations, our failure to comply fully with any such regulations
could result in the imposition of penalties, fines or sanctions that could have
a material adverse effect on our business.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein
include certain statements that may be deemed to be "forward-looking statements"
within the meaning of Section 27A of the Securities Act and Section 21E of the
Securities Exchange Act. These statements relate to future events or our future
financial performance. In some cases you can identify forward-looking statements
by terminology such as "may," "will," "expect," "believe," "plan," "seek,"
"intend," "anticipate," "estimate," and variations of these words or similar
words. These forward-looking statements are only predictions and are based on
our current beliefs, expectations and assumptions and are subject to a number of
risks and uncertainties, including, but not limited to, the risk factors
described above, general economic and business conditions, changes in law or
regulations and other factors, many of which are beyond our control. You are
cautioned that any such forward-looking statements are not guarantees of future
performance and that actual results and events may vary materially from those
discussed in the forward-looking statements. We discuss certain risks and
uncertainties that might cause such a difference under "Risk Factors" and
elsewhere in this prospectus.
13
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information requirements of the
Securities Exchange Act. We file annual, quarterly, and current reports, proxy
statements, and other documents with the SEC. You may read and copy any document
we file at the SEC's public reference rooms at the following locations:
o Main Public Reference Room
Judiciary Plaza Building
450 Fifth Street, N.W.
Washington, D.C. 20549
o Regional Public Reference Room
75 Park Place, 14th Floor
New York, New York 10007
You may obtain information on the operation of the SEC's public reference rooms
by calling 1-800-SEC-0330. We are required to file these documents with the SEC
electronically. You can access the electronic versions of these filings on the
Internet at the SEC's website, located at http://www.sec.gov.
This prospectus is part of a registration statement that we
filed with the SEC. The registration statement contains more information than
this prospectus regarding LifeCell and its common stock, including certain
exhibits. You can get a copy of the registration statement from the SEC at the
address listed above or from its Internet site.
The SEC allows us to "incorporate" into this prospectus
information we file with it in other documents. This means that we can disclose
important information to you by referring to other documents that contain that
information. The information incorporated by reference is considered to be part
of this prospectus, and information we file later with the SEC will
automatically update and supersede this information. For further information
about the Company and our common stock, you should refer to the registration
statement and the following documents which we are incorporating by reference
except to the extent information in those documents is different from the
information contained in this prospectus:
o Our Annual Report on Form 10-K for the year ended December
31, 1998;
o Our Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30, and September 30, 1999;
o Our Current Report on Form 8-K filed with the SEC on
November 30, 1999;
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<PAGE>
o Our definitive Proxy Statement for our 1999 Annual Meeting
of Stockholders;
o The description of our common stock set forth in our
registration statement filed pursuant to Section 12 of the
Securities Exchange Act and any amendment or report filed
for the purpose of updating such description; and
o All documents we file pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act after the date of
this prospectus until we terminate the offering of these
shares.
We will provide without charge to each person, including any
beneficial owner of common stock 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 incorporated by reference in this prospectus (not including
exhibits to such documents unless such exhibits are specifically incorporated by
reference therein). Requests for such copies should be directed to: LifeCell
Corporation, 1 Millenium Way, Branchburg, NJ 08876, Attention: Secretary
(telephone (908) 947-1106).
You should rely only on the information contained or
incorporated by reference in this document. We have not authorized anyone to
provide you with information that is different. The common stock is not being
offered in any state where the offer is not permitted. You should not assume
that the information in this prospectus is accurate as of any date other than
the date on the front of this prospectus.
Unless the context indicates otherwise, references to "we,"
"us," and "our" in this prospectus refer to LIFECELL and its subsidiaries.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the common
stock offered hereby. All net proceeds from the sale of the common stock will be
paid directly to the selling securityholder.
SELLING STOCKHOLDER
This prospectus covers offers from time to time by the Tail Wind Fund
Ltd., a private equity fund, of the common stock owned by it. Prior to the
offering, Tail Wind owned 925,000 shares of common stock and will hold an
additional 200,000 shares of common stock when issued upon the exercise of a
common stock purchase warrant dated November 17, 1999.
On November 17, 1999, LifeCell and Tail Wind entered into a purchase
agreement. We sold to Tail Wind 925,000 shares of the Company's common stock and
a warrant to purchase up to an additional 200,000 shares of our common stock,
subject to certain adjustments. In consideration for the issuance of the stock
and warrant, Tail Wind paid us an aggregate of $3,885,000 in cash. Tail Wind is
entitled to exercise the warrant at a price of $5.46 per share of common stock
for an aggregate of $1,092,000 if all 200,000 shares are exercised. The exercise
price of the warrant is subject to anti-dilution adjustments. The money that the
Company receives from the exercise of the warrant will be used for working
capital. In addition, we agreed to register all 1,125,000 shares of our common
stock held, directly or indirectly, by Tail Wind. The Company agreed to pay all
expenses incurred in connection with this registration.
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<PAGE>
Accordingly, a total of 1,125,000 shares of common stock are being
registered for resale by Tail Wind pursuant to this prospectus. If all shares
registered hereby are offered and sold by Tail Wind, it will own no shares of
common stock after this offering is completed.
PLAN OF DISTRIBUTION
We are registering the shares of common stock on behalf of Tail Wind.
We have been advised that Tail Wind, their pledgees, donees, transferees or
other successors-in-interest, may from time to time, sell all or a portion of
the shares in privately negotiated transactions or otherwise, at fixed prices
that may be changed, at market prices prevailing at the time of sale, at prices
related to such market prices or at negotiated prices. The shares may be sold by
Tail Wind by one or more of the following methods, without limitation: (a) block
trades in which the broker or dealer so engaged will attempt to sell the shares
as agent but may position and resell a portion of the block as principal to
facilitate the transaction, (b) purchases by a broker or dealer as principal and
resale by such broker or dealer for its account pursuant to this prospectus, (c)
an exchange distribution in accordance with the rules of the applicable
exchange, (d) ordinary brokerage transactions and transactions in which broker
solicits purchasers, (e) privately negotiated transactions, (f) short sales, (g)
a combination of any such methods of sale and (h) any other method permitted
pursuant to applicable law. Tail Wind is not restricted as to the price or
prices at which they may sell their shares. Sales of shares by Tail Wind may
depress the market price of our common stock since the number of shares which
may be sold by Tail Wind is relatively large compared to the historical average
weekly trading of our common stock, and therefore, if Tail Wind was to sell, or
attempt to sell, all of such shares at once, we believe such a transaction could
adversely impact the market price for our common stock.
From time to time Tail Wind may engage in short sales, short sales
against the box, puts and calls and other transactions in securities of the
Company or derivatives thereof, and can sell and deliver the shares in
connection therewith or in settlement of securities loans. From time to time
Tail Wind may pledge its shares pursuant to the margin provisions of its
customer agreements with its brokers. Upon a default by Tail Wind, the broker
may offer and sell the pledged shares from time to time.
In effecting sales, brokers and dealers engaged by Tail Wind may
arrange for other brokers or dealers to participate in such sales. Brokers or
dealers may receive commissions or discounts from Tail Wind (or, if any such
broker-dealer acts as agent for the purchaser of such shares, from such
purchaser) in amounts to be negotiated which are not expected to exceed those
customary in the types of transactions involved. Broker-dealers may agree with
Tail Wind to sell a specified number of such shares at a stipulated price per
share, and to the extent such broker-dealer is unable to do so acting as agent
for Tail Wind, to purchase as principal any unsold shares at the price required
to fulfill the broker-dealer commitment to Tail Wind. Broker-dealers who acquire
shares as principal may thereafter resell such shares from time to time in
transactions (which may involve block transactions and sales to and through
other broker-dealers, including transactions of the nature described above) in
the over-the counter market or otherwise at prices and on terms then prevailing
at the time of sale, at prices then related to the then-current market price or
in negotiated transactions and, in connection with such sales, may pay to or
receive from the purchasers of such shares commissions as described above. Tail
Wind may also sell the shares in accordance with Rule 144 under the Securities
Act, rather than pursuant to this Prospectus.
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Tail Wind and any broker-dealers or agents that participate with Tail
Wind in sales of the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
We are required to pay all fees and expenses incident to the
registration of the shares, including fees and disbursements of counsel to Tail
Wind. We have agreed to indemnify Tail Wind against certain losses, claims,
damages and liabilities, including liabilities under the Securities Act. Tail
Wind may agree to indemnify any agent, dealer or broker-dealer that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act. We will not receive any
proceeds from the sale of shares by the Tail Wind.
At the time a particular offer of shares is made, to the extent
required, a supplement to this prospectus will be distributed which will
identify and set forth the aggregate amount of shares being offered and the
terms of the offering.
Tail Wind is 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 the shares by
Tail Wind.
In order to comply with certain states' securities laws, if applicable,
the shares may be sold in such jurisdictions only through registered or licensed
brokers or dealers. In certain states the shares may not be sold unless the
shares have been registered or qualified for sale in such state, or unless an
exemption from registration or qualification is available and is obtained.
LEGAL MATTERS
Certain matters with respect to the validity and legality of
the common stock offered hereby have been passed upon for the Company by
Lowenstein Sandler PC, Roseland, New Jersey.
17
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EXPERTS
The financial statements and schedules incorporated by
reference in this prospectus and elsewhere in the registration statement, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in auditing and accounting
in giving said report.
18
<PAGE>
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
The following table lists the expenses which will be incurred
by the issuance and distribution of the common stock being registered.
Expense
--------------
Securities and Exchange Commission
Registration Fee $ 1,374
Accounting Fees and Expenses 5,000
Legal Fees and Expenses 6,000
Miscellaneous 1,940
-------
Total $14,314
=======
All of the above amounts, other than the SEC filing fee, are
estimates only. All of the above expenses will be paid by the Company.
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law ("GCL")
provides generally that a person sued as a director, officer, employee or agent
of a corporation may be indemnified by the corporation in nonderivative suits
for expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation. In the case of criminal actions and proceedings, such person must
have had no reasonable cause to believe his or her conduct was unlawful.
Indemnification of expenses is authorized in stockholder derivative suits where
such person acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation and so long as he or she
had not been found liable for negligence or misconduct in the performance of his
or her duty to the corporation. Even in this latter instance, the court may
determine that in view of all the circumstances such person is entitled to
indemnification for such expenses as the court deems proper. A person sued as a
director, officer, employee or agent of a corporation who has been successful in
defense of the action must be indemnified by the corporation against expenses.
Article Seventh (B) of the Company's Restated Certificate of
Incorporation, as amended provides that:
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<PAGE>
The Corporation shall indemnify any director or officer to the
full extent permitted by Delaware law.
Article Seventh (A) of the Company's Restated Certificate of
Incorporation, as amended provides that:
A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation Law hereafter is amended
to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation, in
addition to the limitation on personal liability provided herein, shall
be limited to the fullest extent permitted by the amended Delaware
General Corporation Law. Any repeal or modification of this paragraph
by the stockholders of the Corporation shall be prospective only, and
shall not adversely affect any limitation on the personal liability of
a director of the Corporation existing at the time of such repeal or
modification.
Article X of the Company's Amended and Restated By-Laws provides that:
Third Party Actions. The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement or conviction, or upon a plea
of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
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Actions by or in the Right of the Corporation. The corporation
shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Mandatory Indemnification. To the extent that a director,
officer, employee or agent of the corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding
referred to in Sections 10.01 and 10.02, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Determination of Conduct. The determination that a
director, officer, employee or agent has met the applicable standard of
conduct set forth in Sections 10.01 and 10.02 (unless indemnification is
ordered by a court) shall be made (a) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties
to such action, suit or proceeding, or (b) if such quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (c) by
the stockholders.
Payment of Expenses in Advance. Expenses incurred in
defending a civil or criminal action, suit or proceeding shall be paid
by the corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this Article X.
Indemnity Not Exclusive. The indemnification and advancement
of expenses provided by or granted pursuant to, the other sections of
this Article X shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be
entitled under the Restated Certificate of Incorporation, any other
by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
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<PAGE>
Item 16. Exhibits
The following exhibits are filed as part of this Registration
Statement:
4.1* Restated Certificate of Incorporation of the Company, as amended.
4.2** By-laws of the Company, as amended and restated.
4.3*** Form of Certificate evidencing ownership of the Company's Common Stock.
4.4 Common Stock Purchase Warrant dated November 17, 1999.
5.1 Opinion of Lowenstein Sandler PC.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Lowenstein Sandler PC is included in Exhibit 5.1.
24.1 Power of Attorney.
* Incorporated by reference to Exhibit 3.1 to the Company's Quarterly Report
on Form 10-Q for the period ended June 30, 1998.
** Incorporated by reference to Exhibit 3.2 to the Company's Quarterly Report
on Form 10-Q for the period ended June 30, 1996.
*** Incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1 (File No. 33-44969).
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
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<PAGE>
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective 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.
(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.
The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company'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 offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
LifeCell Corporation certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Township of Branchburg, State of New Jersey, on January
14, 2000.
LIFECELL CORPORATION.
By: /s/ Fenel M. Eloi
-------------------------------
Fenel M. Eloi,
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated below on January 14, 2000.
Signature Capacity
--------- --------
/s/ Fenel M. Eloi . Senior Vice President and Chief Financial Officer
- -------------------
Fenel M. Eloi
* President and Chief Executive Officer and Director
- -----------------------
Paul G. Thomas
* Executive Vice President and Director
- -----------------------
Stephen A. Livesey
* Director
- ------------------------
Michael E. Cahr
Director
- ------------------------
James G. Foster
*
_______________________ Director
David A. Thompson
* Director
- -----------------------
Peter J. Constantino
Director
- -----------------------
K. Flynn McDonald
*By: /s/ Fenel M. Eloi,
-----------------------------------------
Senior Vice President and
Chief Financial Officer, Attorney-in-Fact
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EXHIBITS INDEX
The following exhibits are filed as part of this Registration
Statement:
4.1* Restated Certificate of Incorporation of the Company, as amended.
4.2** By-laws of the Company, as amended and restated.
4.3*** Form of Certificate evidencing ownership of the Company's Common Stock.
4.4 Common Stock Purchase Warrant dated November 17, 1999.
5.1 Opinion of Lowenstein Sandler PC.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Lowenstein Sandler PC is included in Exhibit 5.1.
24.1 Power of Attorney.
* Incorporated by reference to Exhibit 3.1 to the Company's Quarterly Report
on Form 10-Q for the period ended June 30, 1998.
** Incorporated by reference to Exhibit 3.2 to the Company's Quarterly Report
on Form 10-Q for the period ended June 30, 1996.
*** Incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1 (File No. 33-44969).
<PAGE>
Exhibit 4.4
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
OR EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.
VOID AFTER 5:00 P.M. EASTERN TIME ON NOVEMBER 17, 2003 ("EXPIRATION DATE").
LIFECELL CORPORATION
WARRANT TO PURCHASE SHARES OF
COMMON STOCK, PAR VALUE $.001 PER SHARE ("Common Stock")
For VALUE RECEIVED, The Tail Wind Fund, Ltd. ("Warrantholder"), is
entitled to purchase, subject to the provisions of this Warrant, from LifeCell
Corporation, a Delaware corporation ("Company"), at any time not later than 5:00
P.M., Eastern time, on the Expiration Date, at an exercise price per share equal
to $5.46 (the exercise price in effect being herein called the "Warrant Price"),
Two Hundred Thousand (200,000) shares ("Warrant Shares") of Common Stock. The
number of Warrant Shares purchasable upon exercise of this Warrant and the
Warrant Price shall be subject to adjustment from time to time as described
herein.
Section 1. Registration. The Company shall maintain books for the
transfer and registration of the Warrant. Upon the initial issuance of the
Warrant, the Company shall issue and register the Warrant in the name of the
Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be
transferred only pursuant to a registration statement filed under the Securities
Act of 1933, as amended ("Securities Act") or an exemption from such
registration; provided, however, this Warrant may only be transferred to an
affiliate of the Warrantholder. Subject to such restrictions, the Company shall
transfer this Warrant from time to time upon the books to be maintained by the
Company for that purpose, upon surrender thereof for transfer properly endorsed
or accompanied by appropriate instructions for transfer and such other documents
as may be reasonably required by the Company to establish that such transfer is
being made in accordance with the terms hereof, and a new Warrant shall be
issued to the transferee and the surrendered Warrant shall be canceled by the
Company.
<PAGE>
Section 3. Exercise of Warrant. Subject to the provisions hereof, the
Warrantholder may exercise this Warrant in whole or in part at any time upon
surrender of the Warrant, together with delivery of the duly executed Warrant
exercise form attached hereto (the "Exercise Agreement") and payment by cash,
certified check or wire transfer of funds for the Warrant Price (subject to the
provisions relating to cashless exercises described below) for that number of
Warrant Shares then being purchased, to the Company during normal business hours
on any business day at the Company's principal executive offices (or such other
office or agency of the Company as it may designate by notice to the holder
hereof). The Warrant Shares so purchased shall be deemed to be issued to the
holder hereof or such holder's designee, as the record owner of such shares, as
of the close of business on the date on which this Warrant shall have been
surrendered (or evidence of loss, theft or destruction thereof and security or
indemnity satisfactory to the Company), the Warrant Price shall have been paid
and the completed Exercise Agreement shall have been delivered. Certificates for
the Warrant Shares so purchased, representing the aggregate number of shares
specified in the Exercise Agreement, shall be delivered to the holder hereof
within a reasonable time, not exceeding seven (7) business days, after this
Warrant shall have been so exercised. The certificates so delivered shall be in
such denominations as may be requested by the holder hereof and shall be
registered in the name of such holder or such other name as shall be designated
by such holder. If this Warrant shall have been exercised only in part, then,
unless this Warrant has expired, the Company shall, at its expense, at the time
of delivery of such certificates, deliver to the holder a new Warrant
representing the number of shares with respect to which this Warrant shall not
then have been exercised.
In the event the closing bid price of the Common Stock is less
than $2.00 for twenty consecutive trading days, this Warrant shall immediately
terminate and in its place the holder shall have a stock appreciation right,
subject to the terms and conditions of this Warrant, entitling the holder upon
exercise to acquire, without further cash payment, that number of shares of
Common Stock determined by multiplying the number of Warrant Shares to which it
would otherwise have been entitled by a fraction, the numerator of which shall
be the difference between the closing bid price of the Common Stock on the date
of exercise and the Warrant Price, and the denominator of which shall be such
closing bid price of the Common Stock.
Each exercise (whether of the Warrant or, if applicable, the
stock appreciation right) hereof shall constitute the representation and
warranty of the Warrantholder to the Company that the representations and
warranties contained in Article 5 of the Purchase Agreement (as defined below)
are true and correct in all material respects with respect to the Warrantholder
as of the time of such exercise.
Section 4. Compliance with the Securities Act of 1933. Neither this
Warrant nor the Common Stock issued upon exercise hereof nor any other security
issued or issuable upon exercise of this Warrant may be offered, sold or
transferred except as provided in this agreement and in conformity with the
Securities Act, and then only against receipt of an agreement of such person to
whom such offer of sale is made to comply with the provisions of this Section 4
with respect to any resale or other disposition of such security. The Company
may cause the legend set forth on the first page of this Warrant to be set forth
on each Warrant or similar legend on any security issued or issuable upon
exercise of this Warrant, unless counsel for the Company is of the opinion as to
any such security that such legend is unnecessary.
<PAGE>
Section 5. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Warrant Shares issuable upon the
exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for Warrant Shares in a
name other than that of the registered holder of this Warrant in respect of
which such shares are issued, and in such case, the Company shall not be
required to issue or deliver any certificate for Warrant Shares or any Warrant
until the person requesting the same has paid to the Company the amount of such
tax or has established to the Company's satisfaction that such tax has been
paid. The holder shall be responsible for income taxes due under federal, state
or other law, if any such tax is due.
Section 6. Mutilated or Missing Warrants. In case this Warrant shall be
mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
Section 7. Reservation of Common Stock. The Company hereby represents
and warrants that there have been reserved, and the Company shall at all
applicable times keep reserved until issued (if necessary) as contemplated by
this Section 7, out of the authorized and unissued Common Stock, sufficient
shares to provide for the exercise of the rights of purchase represented by the
Warrant. The Company agrees that all Warrant Shares issued upon exercise of the
Warrant shall be, at the time of delivery of the certificates for such Warrant
Shares, duly authorized, validly issued, fully paid and non-assessable shares of
Common Stock of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of this
Section 8, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall at any time or from time to time
while the Warrant is outstanding, pay a dividend or make a distribution on its
Common Stock in shares of Common Stock, subdivide its outstanding shares of
Common Stock into a greater number of shares or combine its outstanding shares
into a smaller number of shares or issue by reclassification of its outstanding
shares of Common Stock any shares of its capital stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then the number of Warrant Shares
purchasable upon exercise of the Warrant and the Warrant Price in effect
immediately prior to the date upon which such change shall become effective,
shall be adjusted by the Company so that the Warrantholder thereafter exercising
the Warrant shall be entitled to receive the number of shares of Common Stock or
other capital stock which the Warrantholder would have received if the Warrant
had been exercised immediately prior to such event upon payment of a Warrant
Price that has been adjusted to reflect a fair allocation of the economics of
such event to the Warrantholder. Such adjustments shall be made successively
whenever any event listed above shall occur. No adjustment shall be made with
respect to any dividends paid on the Series B Preferred Stock.
<PAGE>
(b) If any capital reorganization, reclassification of the
capital stock of the Company, consolidation or merger of the Company with
another corporation in which the Company is not the survivor, or sale, transfer
or other disposition of all or substantially all of the Company's assets to
another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger, sale, transfer or other
disposition, lawful and adequate provision shall be made whereby each
Warrantholder shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions herein specified and in lieu of the
Warrant Shares immediately theretofore issuable upon exercise of the Warrant,
such shares of stock, securities or assets as would have been issuable or
payable with respect to or in exchange for a number of Warrant Shares equal to
the number of Warrant Shares immediately theretofore issuable upon exercise of
the Warrant, had such reorganization, reclassification, consolidation, merger,
sale, transfer or other disposition not taken place, and in any such case
appropriate provision shall be made with respect to the rights and interests of
each Warrantholder to the end that the provisions hereof (including, without
limitations, provision for adjustment of the Warrant Price) shall thereafter be
applicable, as nearly equivalent as may be practicable in relation to any shares
of stock, securities or properties thereafter deliverable upon the exercise
thereof. The Company shall not effect any such consolidation, merger, sale,
transfer or other disposition unless prior to or simultaneously with the
consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger, or the corporation purchasing or
otherwise acquiring such assets or other appropriate corporation or entity shall
assume the obligation to deliver to the holder of the Warrant such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to purchase and the other obligations under this
Warrant. The provisions of this paragraph (b) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers, sales,
transfers or other dispositions.
(c) In case the Company shall fix a payment date for the
making of a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends or distributions referred to in Section
8(a)), or subscription rights or warrants, the Warrant Price to be in effect
after such payment date shall be determined by multiplying the Warrant Price in
effect immediately prior to such payment date by a fraction, the numerator of
which shall be the total number of shares of Common Stock outstanding multiplied
by the Market Price per share of Common Stock (as defined below), less the fair
market value (as determined by the Company's Board of Directors in good faith)
of said assets or evidences of indebtedness so distributed, or of such
subscription rights or warrants, and the denominator of which shall be the total
number of shares of Common Stock outstanding multiplied by such Market Price per
share of Common Stock. "Market Price" shall mean the average of the closing bid
price of the Common Stock over the ten trading days immediately preceding the
applicable date. Such adjustments shall be made successively whenever such a
payment date is fixed.
<PAGE>
(d) If pursuant to the Purchase Agreement by and between the
Company and the Investors named therein dated November 17, 1999 (the "Purchase
Agreement") there is an adjustment under Section 7.1 thereof, then the Warrant
Price shall be adjusted to a price equal to the Market Price (as defined above)
of the Common Stock on the date of such adjustment, if such adjustment to the
Warrant Price would result in a lower Warrant Price. Such adjustments shall be
made successively whenever required.
(e) An adjustment shall become effective immediately after the
payment date in the case of each dividend or distribution and immediately after
the effective date of each other event which requires an adjustment.
(f) In the event that, as a result of an adjustment made
pursuant to Section 8(a), the holder of this Warrant shall become entitled to
receive any shares of capital stock of the Company other than shares of Common
Stock, the number of such other shares so receivable upon exercise of this
Warrant shall be subject thereafter to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with respect
to the Warrant Shares contained in this Warrant.
Section 9. Fractional Interest. The Company shall not be required to
issue fractions of Warrant Shares upon the exercise of the Warrant. If any
fraction of a Warrant Share would, except for the provisions of this Section, be
issuable upon the exercise of the Warrant (or specified portions thereof), the
fractional share shall be disregarded and the number of shares to be issued upon
exercise shall be the number of whole shares only.
Section 10. Benefits. Nothing in this Warrant shall be construed to
give any person, firm or corporation (other than the Company and the
Warrantholder) any legal or equitable right, remedy or claim, it being agreed
that this Warrant shall be for the sole and exclusive benefit of the Company and
the Warrantholder.
Section 11. Notices to Warrantholder. Upon the happening of any event
requiring an adjustment of the Warrant Price, the Company shall promptly give
written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. In the event of a dispute with respect to any such
calculation, the certificate of the Company's independent certified public
accountants shall be conclusive evidence of the correctness of any computation
made, absent manifest error. Failure to give such notice to the Warrantholder or
any defect therein shall not affect the legality or validity of the subject
adjustment.
<PAGE>
Section 12. Identity of Transfer Agent. The Transfer Agent for the
Common Stock is Harris Trust & Savings Bank. Upon the appointment of any
subsequent transfer agent for the Common Stock or other shares of the Company's
capital stock issuable upon the exercise of the rights of purchase represented
by the Warrant, the Company will mail to the Warrantholder a statement setting
forth the name and address of such transfer agent.
Section 13. Notices. Any notice pursuant hereto to be given or made by
the Warrantholder to or on the Company shall be sufficiently given or made if
sent by certified mail, return receipt requested, postage prepaid, addressed as
follows:
LifeCell Corporation
One Millennium Way
Branchburg, NJ 08876
Attn: Fenel M. Eloi
Chief Financial Officer
Fax: 908-947-1081
or such other address as the Company may specify in writing by notice to the
Warrantholder complying as to delivery with the terms of this Section 13.
Any notice pursuant hereto to be given or made by the Company to or on
the Warrantholder shall be sufficiently given or made if personally delivered or
if sent by an internationally recognized courier services by overnight or
two-day service, to the address set forth on the books of the Company or, as to
each of the Company and the Warrantholder, at such other address as shall be
designated by such party by written notice to the other party complying as to
delivery with the terms of this Section 13. All such notices, requests, demands,
directions and other communications shall, when sent by courier be effective two
(2) days after delivery to such courier as provided and addressed as aforesaid.
Section 14. Registration Rights. The initial holder of this Warrant is
entitled to the benefit of certain registration rights in respect of the Warrant
Shares as provided in the Registration Rights Agreement dated as of as of
November 17, 1999.
Section 15. Successors. All the covenants and provisions hereof by or
for the benefit of the Warrantholder shall bind and inure to the benefit of its
respective successors and assigns hereunder.
Section 16. Governing Law. This Warrant shall be deemed to be a
contract made under the laws of the State of New York, without giving effect to
its conflict of law principles, and for all purposes shall be construed in
accordance with the laws of said State.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be
duly executed, as of the day and year first above written.
LIFECELL CORPORATION
By: /s/ Fenel M. Eloi
---------------------------
Name: Fenel M. Eloi
Title: Sr. V.P., C.F.O.
<PAGE>
[LOWENSTEIN SANDLER PC LETTERHEAD]
Exhibit 5.1
January 14, 2000
LifeCell Corporation
1 Millenium Way
Branchburg, NJ 08876
Dear Sirs:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), of 1,125,000 shares of common stock (the "Shares") of
LifeCell Corporation, a Delaware corporation (the "Company"), we have examined
such corporate records, certificates and other documents and such questions of
law as we have considered necessary or appropriate for the purposes of this
opinion.
Upon the basis of such examination, we advise you that, in our opinion,
(i) the Shares outstanding on the date hereof have been duly authorized, validly
issued and are fully paid and non-assessable, and (ii) the Shares to be issued
after the date hereof upon the exercise or conversion of outstanding securities
of the Company have been duly authorized and, when issued in accordance with the
terms and conditions of such outstanding securities (including the due payment
of any exercise price therefor specified in such securities), will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us under the heading "Legal
Matters" in the Prospectus. In giving such consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Act.
Very truly yours,
/s/ LOWENSTEIN SANDLER PC
<PAGE>
Exhibit 23.1
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
LifeCell Corporation.:
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 12, 1999
included in LifeCell Corporation's Form 10-K for the year ended December 31,
1998 and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen
ARTHUR ANDERSEN LLP
Houston, Texas
January 13, 2000
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below under the heading "Signature" constitutes and appoints Fenel M.
Eloi, his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to sign any or all amendments (including post-effective
amendments) to this registration statement and any related registration
statement filed under Rule 462(b), and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-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 for all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agents or his 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 on Form S-3 has been signed by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Paul G. Thomas President and Chief Executive Officer January 13, 2000
- ------------------ and Director
Paul G. Thomas
/s/ Stephen A. Livesey Executive Vice President and Director January 13, 2000
- ----------------------
Stephen A. Livesey
/s/ Michael E. Cahr Director January 13, 2000
- -------------------
Michael E. Cahr
Director January 13, 2000
- -------------------
James G. Foster
/s/ David A. Thompson Director January 13, 2000
- ---------------------
David A. Thompson
/s/ Peter J. Constantino Director January 13, 2000
- ------------------------
Peter J. Constantino
Director January 13, 2000
- ---------------------
K. Flynn McDonald
</TABLE>
