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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 22, 2000
REGISTRATION STATEMENT NO. 333-35934
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AVANIR PHARMACEUTICALS
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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CALIFORNIA 33-0314804
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION)
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9393 TOWNE CENTRE DRIVE, SUITE 200
SAN DIEGO, CALIFORNIA 92121
(858) 558-0364
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
GERALD J. YAKATAN, PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
AVANIR PHARMACEUTICALS
9393 TOWNE CENTRE DRIVE, SUITE 200
SAN DIEGO, CALIFORNIA 92121
(858) 558-0364
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
AMAR BUDARAPU, ESQ.
TODD TAYLOR, ESQ.
BAKER & MCKENZIE
1301 MCKINNEY STREET, SUITE 3300
HOUSTON, TX 77010
(713) 427-5000
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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.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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This Amendment No. 1 to Form S-3 Registration Statement filed on April 28,
2000, is being filed for the sole purpose of amending an exhibit that previously
was filed with the registration statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT WILL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT WILL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT WILL BECOME
EFFECTIVE ON SUCH DATE AS THE SEC, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
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1.1 Underwriting Agreement(1)
4.1 Class D Warrant Agreement (including form of Class D Warrant
Certificate)(2)
4.2 Warrant Agreement (including form of Class E Warrant
Certificate)(2)
4.3 Form of Unit Purchase Option issued to D.H. Blair & Co.,
Inc. and its designees regarding Series B Preferred Stock
and Class D Warrants(2)
4.4 Registration Rights Agreement(2)
4.5 Certificate of Determination with respect to Series D
Convertible Preferred Stock of the Registrant(3)
4.6 Certificate of Determination with respect to Series C Junior
Participating Preferred Stock of the Registrant(3)
4.7 Rights Agreement, dated as of March 5, 1999, with American
Stock Transfer & Trust Company(3)
4.8 Form of Rights Certificate with respect to the Rights
Agreement, dated as of March 5, 1999(3)
4.9 Form of Series D Convertible Preferred Stock Certificate(3)
4.10 Amended and Restated Class I Stock Purchase Warrant, dated
as of March 4, 1999(3)
4.11 Form of Class J Stock Purchase Warrant(3)
4.12 Class K Stock Purchase Warrant, dated as of April 1, 1999(3)
4.13 Registration Rights Agreement with Promethean Investment
Group, LLC(3)
4.14 Class A Common Stock Investment Agreement with Promethean
Investment Group, LLC(3)
4.15 Amendment to the Class A Common Stock Investment Agreement
with Promethean Investment Group, LLC(3)
4.16 Securities Purchase Agreement for Series D Convertible
Preferred Stock(3)
4.17 Registration Rights Agreement for Series D Convertible
Preferred Stock(3)
4.18 Forms of Class A and Class B Common Stock Certificates(4)
4.19 Convertible Note issued to GFL Advantage Fund Limited(5)
4.20 Registration Rights Agreement with GFL Advantage Fund
Limited(5)
4.21 Convertible Note issued to Capital Ventures International(6)
4.22 Registration Rights Agreement with Capital Ventures
International(6)
4.23 Convertible Note, dated February 26, 1997, issued to RGC
International Investors LLC(7)
4.24 Form of Class G Stock Purchase Warrant(7)
4.25 Registration Rights Agreement, dated February 26, 1997, with
RGC International Investors, LLC(7)
4.26 Class L Stock Purchase Warrant, dated as of June 8, 1999(8)
4.27 Loan Agreement, dated as of November 23, 1999, with AMRO
International, S.A. and Endeavour Capital Fund, S.A.(9)
4.28 Form of 11% Convertible Debenture(9)
4.29 Form of Stock Purchase Warrant(9)
4.30 Registration Rights Agreement, dated as of November 23,
1999, with AMRO International, S.A. and Endeavour Capital
Fund, S.A.(9)
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4.31 Amendment No. 1 to Rights Agreement, dated as of November
30, 1999, with American Stock Transfer & Trust Company(9)
4.32 Common Stock Purchase Agreement, dated as of January 25,
2000, with Bayview LLC, Roseworth Group Ltd. and Endeavour
Capital Fund, S.A.(10)
4.33 Registration Rights Agreement, dated as of January 25, 2000,
with Bayview LLC, Roseworth Group Ltd. and Endeavour Capital
Fund, S.A.(10)
4.34 Form of Stock Purchase Warrant(10)
5.1 Opinion of Baker & McKenzie
23.1* Independent Auditors' Consent
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* Previously filed.
(1) Incorporated by reference to the similarly described exhibits filed in
connection with the Registrant's Registration Statement on Form S-1, File
No. 33-37166, declared effective by the Securities and Exchange Commission
on November 9, 1990.
(2) Incorporated by reference to the similarly described exhibit included with
the Registrant's Registration Statement on Form S-1, File No. 33-49082,
declared effective by the Commission on October 26, 1992.
(3) Incorporated by reference to the similarly described exhibit included with
the Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999, filed May 17, 1999.
(4) Incorporated by reference to the similarly described exhibit included with
the Registrant's Registration Statement on Form S-1, File No. 33-32742,
declared effective by the Commission on May 8, 1990.
(5) Incorporated by reference to the similarly described exhibit included with
the Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1995, filed December 15, 1995.
(6) Incorporated by reference to the similarly described exhibit included with
the Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 1996, filed May 15, 1996.
(7) Incorporated by reference to the similarly described exhibit included with
the Registrant's Form 8-K, filed March 10, 1997.
(8) Incorporated by reference to the similarly described exhibit included with
the Registrant's Quarterly Report on Form 10-Q for the quarter ended June
30, 1999, filed August 16, 1999.
(9) Incorporated by reference to the similarly described exhibit included with
the Registrant's Form 8-K, filed December 3, 1999.
(10) Incorporated by reference to the similarly described exhibit included with
the Registrant's Form 8-K, filed February 4, 2000.
II-2
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe 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, there unto duly
authorized, in the City of San Diego, State of California, on May 22, 2000.
AVANIR PHARMACEUTICALS
By: /s/ GERALD J. YAKATAN, PH.D.
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Gerald J. Yakatan, Ph.D.
President and Chief Executive
Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Gerald J. Yakatan, Ph.D. and
Gregory P. Hanson, and each of them acting individually, as his
attorney-in-fact, each with full power of substitution and resubstititution, for
him in any and all capacities, to sign any and all amendments to this
registration statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the SEC, granting unto said
attorneys-in-fact and agents, each acting alone, 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 our signatures as they may
be signed by our said attorneys-in-fact to any and all amendments to this
registration statement.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on May 22, 2000.
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SIGNATURE TITLE
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/s/ GERALD J. YAKATAN, PH.D. President and Chief Executive Officer
- --------------------------------------- (Principal Executive Officer)
Gerald J. Yakatan, Ph.D.
/s/ GREGORY P. HANSON Vice President, Finance and Chief
- --------------------------------------- Financial Officer (Principal Financial
Gregory P. Hanson and
Accounting Officer)
/s/ GEORGE P. RUTLAND Chairman of the Board of Directors
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George P. Rutland
/s/ DENNIS J. CARLO, PH.D. Director
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Dennis J. Carlo, Ph.D.
/s/ MICHAEL W. GEORGE Director
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Michael W. George
/s/ JAMES B. GLAVIN Director
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James B. Glavin
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SIGNATURE TITLE
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/s/ EDWARD L. HENNESSY, JR. Director
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Edward L. Hennessy, Jr.
/s/ KENNETH E. OLSON Director
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Kenneth E. Olson
/s/ JOSEPH E. SMITH Director
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Joseph E. Smith
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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1.1 Underwriting Agreement(1)
4.1 Class D Warrant Agreement (including form of Class D Warrant
Certificate)(2)
4.2 Warrant Agreement (including form of Class E Warrant
Certificate)(2)
4.3 Form of Unit Purchase Option issued to D.H. Blair & Co.,
Inc. and its designees regarding Series B Preferred Stock
and Class D Warrants(2)
4.4 Registration Rights Agreement(2)
4.5 Certificate of Determination with respect to Series D
Convertible Preferred Stock of the Registrant(3)
4.6 Certificate of Determination with respect to Series C Junior
Participating Preferred Stock of the Registrant(3)
4.7 Rights Agreement, dated as of March 5, 1999, with American
Stock Transfer & Trust Company(3)
4.8 Form of Rights Certificate with respect to the Rights
Agreement, dated as of March 5, 1999(3)
4.9 Form of Series D Convertible Preferred Stock Certificate(3)
4.10 Amended and Restated Class I Stock Purchase Warrant, dated
as of March 4, 1999(3)
4.11 Form of Class J Stock Purchase Warrant(3)
4.12 Class K Stock Purchase Warrant, dated as of April 1, 1999(3)
4.13 Registration Rights Agreement with Promethean Investment
Group, LLC(3)
4.14 Class A Common Stock Investment Agreement with Promethean
Investment Group, LLC(3)
4.15 Amendment to the Class A Common Stock Investment Agreement
with Promethean Investment Group, LLC(3)
4.16 Securities Purchase Agreement for Series D Convertible
Preferred Stock(3)
4.17 Registration Rights Agreement for Series D Convertible
Preferred Stock(3)
4.18 Forms of Class A and Class B Common Stock Certificates(4)
4.19 Convertible Note issued to GFL Advantage Fund Limited(5)
4.20 Registration Rights Agreement with GFL Advantage Fund
Limited(5)
4.21 Convertible Note issued to Capital Ventures International(6)
4.22 Registration Rights Agreement with Capital Ventures
International(6)
4.23 Convertible Note, dated February 26, 1997, issued to RGC
International Investors LLC(7)
4.24 Form of Class G Stock Purchase Warrant(7)
4.25 Registration Rights Agreement, dated February 26, 1997, with
RGC International Investors, LLC(7)
4.26 Class L Stock Purchase Warrant, dated as of June 8, 1999(8)
4.27 Loan Agreement, dated as of November 23, 1999, with AMRO
International, S.A. and Endeavour Capital Fund, S.A.(9)
4.28 Form of 11% Convertible Debenture(9)
4.29 Form of Stock Purchase Warrant(9)
4.30 Registration Rights Agreement, dated as of November 23,
1999, with AMRO International, S.A. and Endeavour Capital
Fund, S.A.(9)
4.31 Amendment No. 1 to Rights Agreement, dated November 30,
1999, with American Stock Transfer & Trust Company(9)
4.32 Common Stock Purchase Agreement, dated as of January 25,
2000, with Bayview LLC, Roseworth Group Ltd. and Endeavour
Capital Fund, S.A.(10)
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EXHIBIT
NUMBER DESCRIPTION
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4.33 Registration Rights Agreement, dated as of January 25, 2000,
with Bayview LLC, Roseworth Group Ltd. and Endeavour Capital
Fund, S.A.(10)
4.34 Form of Stock Purchase Warrant(10)
5.1 Opinion of Baker & McKenzie
23.1* Independent Auditors' Consent
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* Previously filed.
(1) Incorporated by reference to the similarly described exhibits filed in
connection with the Registrant's Registration Statement on Form S-1, File
No. 33-37166, declared effective by the Securities and Exchange Commission
on November 9, 1990.
(2) Incorporated by reference to the similarly described exhibit included with
the Registrant's Registration Statement on Form S-1, File No. 33-49082,
declared effective by the Commission on October 26, 1992.
(3) Incorporated by reference to the similarly described exhibit included with
the Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999, filed May 17, 1999.
(4) Incorporated by reference to the similarly described exhibit included with
the Registrant's Registration Statement on Form S-1, File No. 33-32742,
declared effective by the Commission on May 8, 1990.
(5) Incorporated by reference to the similarly described exhibit included with
the Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1995, filed December 15, 1995.
(6) Incorporated by reference to the similarly described exhibit included with
the Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 1996, filed May 15, 1996.
(7) Incorporated by reference to the similarly described exhibit included with
the Registrant's Form 8-K, filed March 10, 1997.
(8) Incorporated by reference to the similarly described exhibit included with
the Registrant's Quarterly Report on Form 10-Q for the quarter ended June
30, 1999, filed August 16, 1999.
(9) Incorporated by reference to the similarly described exhibit included with
the Registrant's Form 8-K, filed December 3, 1999.
(10) Incorporated by reference to the similarly described exhibit included with
the Registrant's Form 8-K, filed February 4, 2000.
II-6
<PAGE> 1
EXHIBIT 5.1
Opinion of Baker & McKenzie
May 18, 2000
AVANIR Pharmaceuticals
9393 Towne Centre Drive, Suite 200
San Diego, California 92121
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as counsel to AVANIR Pharmaceuticals, a California
corporation (the "Company"), in connection with the filing of the Company's
Registration Statement on Form S-3, including exhibits thereto (the
"Registration Statement"), filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), covering 1,138,724 shares of the Company's Class A Common Stock, no par
value per share (the "Class A Common Stock"), which may be distributed, sold or
otherwise transferred from time to time by and for the account of the holders
thereof. Up to 1,088,724 shares of such Class A Common Stock (the "Conversion
Shares") will be issued pursuant to the conversion of the Company's Series D
Convertible Preferred Stock, no par value per share (the "Preferred Stock"), and
up to 50,000 shares of such Class A Common Stock (the "Warrant Shares") was
issued or will be issued pursuant to the exercise of the Company's Class J Stock
Purchase Warrants (the "Warrants").
We have examined and considered the original or copies, certified or
otherwise identified to our satisfaction, of such corporate records of the
Company, certificates of officers of the Company and of public officials, and
such other documents relating to the Company and the issuance and sale of the
Class A Common Stock as we have deemed appropriate for purposes of rendering
this opinion.
In all examinations of documents, instruments and other papers, we have
assumed the genuineness of all signatures on original and certified documents
and the conformity to original and certified documents of all copies submitted
to us as conformed, photostat or other copies. As to matters of fact that have
not been independently established, we have relied upon representations of
officers of the Company.
Based upon the foregoing examination, and the information thus supplied,
it is our opinion that:
(1) The Conversion Shares, when issued pursuant to the terms of the
Preferred Stock, will be duly authorized, validly issued, fully
paid and non-assessable.
(2) The Warrant Shares, when issued pursuant to the terms of the
Warrants, will be duly authorized, validly issued, fully paid and
non-assessable.
We express no opinion as to the applicability of, compliance with, or
effect of federal law or the law of any jurisdiction other than the General
Corporation Law of the State of California.
We hereby consent to the inclusion of this opinion as herein set forth
as an exhibit to the Registration Statement, to the reference to our name under
the caption "Legal Matters" in the prospectus forming a part of the
<PAGE> 2
Registration Statement, and to the filing of this opinion as herein set
forth with any other appropriate government agency. This consent shall not be
construed as an admission that we come within the category of persons whose
consent is required to be filed under the provisions of the Securities Act or
the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
BAKER & McKENZIE
