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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 22, 1998
REGISTRATION NO. 333-______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-2
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
VIMRX PHARMACEUTICALS INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
Delaware 06-1192468
(State or Other Jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
</TABLE>
2751 CENTERVILLE ROAD, SUITE 210
WILMINGTON, DELAWARE 19808
(302) 998-1734
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
RICHARD L. DUNNING
PRESIDENT AND CHIEF EXECUTIVE OFFICER
2751 CENTERVILLE ROAD, SUITE 210
WILMINGTON, DELAWARE 19808
(302) 998-1734
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
LOWELL S. LIFSCHULTZ, ESQ.
EPSTEIN BECKER & GREEN, P.C.
250 PARK AVENUE
NEW YORK, NEW YORK 10177
(212) 351-4500
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), check the following box. [X]
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this form, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_] ___________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] ___________
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
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,
check the following box. [_]
---------------
CALCULATION OF REGISTRATION FEE
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<CAPTION>
- -------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT BEING OFFERING PRICE AGGREGATE AMOUNT OF
BEING REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001
par value....... 3,000,000 $1.30 $3,900,000 $1,084
=============================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act, based on the average of the high and
low trading prices on December 10, 1998.
---------------
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 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
<PAGE>
Prospectus
VIMRX PHARMACEUTICALS INC.
2751 CENTERVILLE ROAD, SUITE 210
WILMINGTON, DELAWARE 19808
(302) 998-1734
_________ SHARES OF COMMON STOCK
---------------
VIMRX is hereby offering _________ shares of its common stock to
CellPro Incorporated in exchange for certain intellectual property and related
assets of CellPro. The VIMRX shares being so offered, after receipt, may be
reoffered and sold by CellPro in the public market from time to time. See
"Recent Events Nexell Acquisition of CellPro Assets" beginning on page 4 of
this prospectus and "Plan of Distribution" beginning on page 8 of this
prospectus.
---------------
VIMRX common stock is traded on the Nasdaq National Market under the
symbol "VMRX." On December __, 1998, the closing sale price of VIMRX common
stock on the Nasdaq National Market was $ ______ per share.
---------------
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD PURCHASE SHARES ONLY
IF YOU CAN AFFORD A COMPLETE LOSS. 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.
---------------
December __, 1998
<PAGE>
VIMRX PHARMACEUTICALS INC.
------------------------------------------
TABLE OF CONTENTS
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<S> <C>
The Company........................................................ 3
Risk Factors....................................................... 3
Recent Events...................................................... 4
Use of Proceeds.................................................... 8
Plan of Distribution............................................... 8
Available Information.............................................. 9
Information Incorporated by Reference.............................. 9
Limitation of Directors' and Officers' Liability; Indemnification.. 10
Legal Matters...................................................... 11
Experts............................................................ 11
</TABLE>
2
<PAGE>
THE COMPANY
VIMRX is a biotechnology company that focuses on innovative
technologies to improve human health. VIMRX's majority-owned (approximately 80%)
principal subsidiary, Nexell Therapeutics Inc., is developing products utilizing
cell separation technology in cell therapy for cancer and other life-threatening
diseases. Nexell currently sells such products outside the United States, and is
seeking FDA approval to market its products in the United States. VIMRX also has
two compounds in development: VIMRxyn/R/, chemically synthesized hypericin,
which is in clinical trials for brain cancer and as an ointment for skin
diseases, and VM301, a wound healing agent.
RISK FACTORS
AN INVESTMENT IN SHARES OF VIMRX COMMON STOCK INVOLVES A HIGH DEGREE
OF RISK. PROSPECTIVE INVESTORS SHOULD CONSIDER, AMONG OTHER ITEMS, THE
FOLLOWING FACTORS:
HISTORY OF LOSSES. Since commencing its operations in January 1987,
through September 30, 1998, VIMRX incurred a cumulative loss of $128,297,000 in
funding its research and development programs and conducting its operations, and
had no significant operating revenues until 1998. These revenues were
principally derived from European sales of Isolex/R/ devices and related
disposables by Baxter Healthcare Corporation, the distributor for Nexell,
VIMRX's approximately 80%-owned subsidiary. We expect to continue to incur net
losses for the foreseeable future and can give no assurances that we will
successfully complete the transition from a development stage company to a
profitable operating business.
TERMINATION OF PROGRAMS. VIMRX has decided to concentrate its resources
on what it believes to be its most promising program, Nexell's Isolex/R/
technology. This has resulted in the termination of VIMRX's collaboration with
Columbia University, the closing of the operations of Innovir Laboratories, Inc.
and may result in curtailment or termination of one of its two other programs
unless it is able to reduce the related costs. See "Recent Events" beginning on
page 4 of this prospectus.
GOVERNMENT REGULATION - FDA. The manufacture and marketing of medical
devices and therapeutic products is subject to extensive regulation by the FDA
as well as by state and foreign authorities. Applications for approval of the
two Isolex /R/ devices are currently pending with the FDA. Obtaining FDA
approval is a long-term and costly process, and we can give no assurance that
FDA approval of the Isolex/R/ will be granted. See "Government Regulation"
beginning on page 6 of the 1997 10-K, and "Recent Events - Government
Regulation" beginning on page 7 of this prospectus.
COMPETITION. VIMRX and Nexell face competition from biotechnology
companies, pharmaceutical companies, medical device manufacturers, academic
institutions, government agencies and public and private research organizations,
many of which have extensive resources and experience in research and
development, clinical testing, manufacturing, regulatory affairs, distribution
and marketing and some of which have significant research and development
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<PAGE>
activities in areas upon which the programs of VIMRX and its subsidiaries are
focused. We can give no assurances that competing companies will not develop
more effective and/or less costly treatments or procedures for the applications
being explored by VIMRX and Nexell. See "Recent Events - Competition" beginning
on page 8 of this prospectus.
RISKS ASSOCIATED WITH FORWARD-LOOKING STATEMENTS INCLUDED IN THIS
PROSPECTUS. This prospectus contains certain forward-looking statements
regarding the plans and objectives of management for future operations,
including those relating to the development of the Isolex/R/ products. VIMRX's
plans and objectives are based, among other things, on assumptions regarding
timely FDA approval of the Isolex/R/ products, development of new applications
for the Isolex/R/ products, future economic, competitive and market conditions,
and future business decisions. Although we believe the assumptions underlying
our forward-looking statements are reasonable, any of the assumptions could
prove inaccurate.
RECENT EVENTS
NEXELL
ACQUISITION OF CELLPRO ASSETS - BACKGROUND. CellPro Incorporated
("CellPro"), formerly one of Nexell's principal competitors, developed, and the
FDA approved, CellPro's Ceprate/R/ SC Stem Cell Concentration System (the
"Ceprate/R/ System") for use in autologous (i.e., self-donated) bone marrow and
stem cell transplantation. CellPro was developing additional potential
applications for the Ceprate/R/ System, including use as an adjunct to other
cancer treatments, gene therapy and use in support of treatment of debilitating
autoimmune diseases such as multiple sclerosis, lupus, and rheumatoid arthritis.
CellPro was also exploring other cell therapy applications for the Ceprate/R/
technology, including T-lymphocyte transplantation and ex vivo T-lymphocyte
adoptive immunotherapy for cancer.
CellPro's Ceprate/R/ technology utilizes the CD34+ monoclonal antibody and
purified stem cell technology, which are patented technologies originally
licensed to Baxter Healthcare Corporation ("Baxter") in the therapeutic field,
directly or indirectly, by Becton, Dickenson and Company ("Becton Dickenson")
and Johns Hopkins University ("Johns Hopkins"). Baxter sublicensed these
technologies to Nexell in December, 1997.
In 1994, Becton, Dickenson, Johns Hopkins and Baxter brought a patent
infringement action against CellPro in the U.S. District Court in Wilmington,
Delaware. In the course of the litigation, among other things, CellPro filed a
"citizen's petition" before the FDA seeking to require the FDA to adopt certain
procedures in its review of Nexell's premarket approval application for the
Isolex cell separation systems which could delay or prevent FDA approval of the
application. CellPro also filed a petition before the Department of Health and
Human Services ("HHS") requesting the exercise of so-called "march-in rights," a
form of compulsory licensing, with respect to the patents underlying the CD34+
sublicense.
The court upheld the validity of two patents covering CD34+ monoclonal
antibodies and purified stem cell populations, and ruled that CellPro's
Ceprate/R/ SC System and Ceprate/R/
4
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LC34 Laboratory Cell Separation System infringe those patents. In March 1997, a
jury in that case found CellPro's infringement was willful. In September 1997,
the court ordered CellPro to pay Johns Hopkins, Becton Dickinson and Baxter a
total of approximately $7.2 million in damages and enjoined CellPro's
manufacture and sale of patent-infringing stem cell selection systems both in
the U.S. and overseas. In August, 1998, the U. S. Court of Appeals for the
Federal Circuit upheld both the award of damages and the injunction.
To ensure that patients using the CellPro technology have uninterrupted
access to stem cell selection technology, at the request of Johns Hopkins,
Becton Dickinson and Baxter, the injunction was stayed in the U.S. until an
alternative system, licensed under the patents, is approved by the FDA.
Accordingly, CellPro has been permitted to continue to supply its stem cell
selection device to U.S. transplant centers pending approval of the Isolex/R/
System (or another stem cell selection device), provided that it pays a court-
ordered royalty to Johns Hopkins and its licensees. The stay of the injunction
applies only to the U.S.; CellPro may no longer manufacture infringing products
in the U.S. and export them for sale in other markets.
- ACQUISITION AGREEMENT. The above events led to discussions between
CellPro and Nexell regarding the acquisition of CellPro's intellectual property
by Nexell. On October 28, 1998, Nexell entered into an agreement (the
"Acquisition Agreement") with CellPro to purchase substantially all the
intellectual property assets of CellPro, together with certain related tangible
and intangible assets (See "Acquisition of CellPro Assets - Acquired
Intellectual Property") in exchange for shares of VIMRX's common stock valued at
$3,000,000. The number of shares to be issued to CellPro will be determined by
dividing $3,000,000 by the average closing price of VIMRX common stock on the
Nasdaq National Market for the fifteen trading days ending on the third business
day prior to the closing date of the Acquisition Agreement. The transaction is
expected to close on or about the effective date of this prospectus.
Pursuant to the Acquisition Agreement, CellPro filed a petition for
reorganization under Chapter 11 of the federal Bankruptcy Code on October 28,
1998. Among other things, the Acquisition Agreement requires CellPro (1) to
withdraw its citizen's petition(s) before the FDA, and otherwise to refrain from
attacking Nexell's premarket approval application for the Isolex cell separation
systems, and (2) to withdraw its petition before the Department of Health and
Human Services requesting the exercise of so-called "march-in rights" with
respect to the patents underlying the CD34+ sublicense.
In a related transaction, Baxter is acquiring the right to distribute the
disposable kits used in connection with CellPro's Ceprate/R/ cell processing
equipment. CellPro agreed to maintain its technical support and continue to
perform its regulatory reporting and compliance responsibilities for a limited
period of time after the closing.
- ACQUIRED ASSETS. The intellectual property and other assets to be
acquired by Nexell will consist of patents (granted and pending), license
agreements, antibodies and related master cell banks and working cell banks for
such antibodies, clinical and research protocols, copyrights, copyright
registration applications, trademarks and trademark applications, software,
supply agreements, marketing materials and books and records. Some of the
monoclonal antibody lines included in the purchased assets may expand the
potential range of diseases for
5
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which therapies utilizing the Isolex/R/ technology may be developed. Similarly,
the data from clinical trials being conducted by CellPro, the rights to which
are being acquired by Nexell, could lead to additional diseases or other medical
indications which could be treated using the Isolex/R/ technology. Additionally,
included in the assets are rights to two diagnostic kits related to the
detection and enumeration of certain types of cancer cells.
PATENTS AND LICENSES.
In August, 1998, the United States Patent and Trademark Office (the "Patent
Office") allowed Nexell's patent application relating to peptide release for
CD34+ antibody, which is a critical component of the Isolex/R/ system. The
patent allowance relates to the method of using a peptide to compete for the
binding site of a cell-capturing antibody, therefore displacing the antibody and
releasing the target cell. These released cells can then be used for
transplantation, cell therapy, or as target cells for gene therapy.
The Patent Office recently allowed (in June and October of 1998) two
patents relating to the infusion of neutrophil (white blood cells responsible
for fighting bacterial infections) precursor cells for the treatment of
neutropenia (a common side effect of high dose chemotherapy characterized by a
deficiency of neutrophils and an increased susceptibility to infection). Human
neutrophil precursor cells are a type of immature blood cell which mature into
neutrophils.
HYPERICIN
Initial results from the brain glioma clinical trial indicate that
VIMRxyn/R/ may have a beneficial effect in some patients in the treatment of
brain gliomas. In October, 1998, VIMRX announced the completion of a Phase I/II
study of VIMRxyn/R/ for the treatment of glioblastoma, a highly malignant form
of brain tumor. The results of the study indicated that VIMRxyn/R/ is safe at
the doses studied, and that an antiglioma effect was observed in several of the
patients in the small study. VIMRX is now developing a protocol for a larger
Phase II, multi-center study to determine more definitively the efficacy of the
compound.
VIMRX is also conducting a Phase I/II clinical trial to evaluate the
efficacy and tolerability of VIMRxyn/R/ as a topically applied, photo-activated
therapy for specific skin diseases including psoriasis, cutaneous T-cell
lymphoma and warts. This study is being conducted at two university hospital
medical centers located in Philadelphia, Pennsylvania, and one center in
Cleveland, Ohio.
VM301; AGENT FOR WOUND HEALING
A Phase I clinical trial, designed to evaluate the safety of VM301 when
applied to broken and unbroken skin of human subjects, was conducted at a
university hospital medical center in New York. No clinical volunteers
participating in the study experienced any adverse results.
6
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VGI/VENTIV BIOGROUP
VIMRX and its 90% owned subsidiary, VIMRX Genomics, Inc (d/b/a Ventiv
BioGroup, Inc., "VGI"), had been negotiating a restructuring of their
relationship with Columbia University under the Research Agreement dated March
7, 1998 ("Research Agreement") and several related agreements. The restructuring
negotiations were unsuccessful and on November 11, 1998, VIMRX, Columbia and VGI
terminated their relationship and released all claims arising from that
relationship on the following terms and conditions:
. VIMRX paid Columbia $900,000;
. Columbia transferred its interest in VGI to VIMRX;
. The Research Agreement, the License Agreements relating to Blood Factor IXai
(VM201), the BCL-6 and MUM-1 genes, and the Shareholder's Agreement between
VIMRX and Columbia relating to VGI were terminated, with no further
obligations by the parties thereunder. All intellectual property licensed to
VIMRX or VGI under the agreements reverted to Columbia (or, in the case of
the BCL-6 license, to Columbia and a co-licensor)..)
Additionally, VGI has vacated its premises at Columbia's Audubon Building
in New York City.
INNOVIR
VIMRX has completed its funding commitments to Innovir under its December
31, 1997 agreement, and has determined not to provide any further funding to
Innovir. Innovir's common stock was recently delisted from the Nasdaq Small-Cap
Market and now trades on the OTC Bulletin Board. Innovir closed its Cambridge,
England operations on or about November 30, 1998, and expects to close its
remaining operations, located in Gottingen, Germany and New York, New York, on
December 31, 1998. Innovir's management is seeking strategic alliances and/or
buyers for its various assets.
GOVERNMENT REGULATION
Nexell filed an application for premarket approval ("PMA") of the
Isolex/R/300i with the FDA on February 3, 1998; Baxter, as Nexell's predecessor
in interest, had filed an application for PMA of the Isolex/R/300SA on February
24, 1997. On July 2, 1998, the FDA notified Nexell that certain data and other
information would be required before the PMA for both devices could be approved.
Nexell submitted the requested information in late August, 1998, and is awaiting
further action by the FDA.
7
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COMPETITION
The sale of CellPro's intellectual property to Nexell effectively
eliminates CellPro as a competitor in the cell separation market. Other
competitors or potential competitors remain, including Miltenyi Biotec GmbH,
Novartis/SyStemix, Amgen Corp. and Aastrom Biosciences Inc. in collaboration
with Cobe BCT, Inc. Nexell's competitive position will be determined in part by
which cell selection products are ultimately approved for sale by regulatory
authorities. See "Government Regulation" above and beginning on page 12 of the
1997 10-K.
EMPLOYEES
VIMRX has eleven full-time employees and believes its relations with its
employees are satisfactory.
Nexell has approximately 104 full-time U.S. employees. VIMRX believes that
Nexell's relations with its employees are satisfactory.
As of December 9, 1998, Innovir had seven U.S. employees and one non-U.S.
employee. Innovir expects that all its employees will be terminated by December
31, 1998.
DIRECTORS AND EXECUTIVE OFFICERS OF VIMRX
Dr. Jerome Groopman resigned as a director of VIMRX, effective August 3,
1998. Dr. Richard Kouri resigned as Vice-President, Research, and as President
and Chief Executive Officer of VIMRX Genomics, Inc. effective November 6, 1998.
USE OF PROCEEDS
VIMRX will not receive any proceeds from the reoffer and sale of its shares
by CellPro.
PLAN OF DISTRIBUTION
VIMRX is hereby offering __________ shares of its common stock to
CellPro. Such _________ shares may be reoffered hereby and sold by CellPro from
time to time in transactions in the Nasdaq National Market, in negotiated
transactions, or a combination of such methods of sale, at fixed prices which
may be changed, at market prices prevailing at the time of sale, at prices
related to prevailing market prices or at negotiated prices. CellPro may effect
such transactions by selling the shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from CellPro and/or the purchasers of the shares for whom such
broker-dealers may act as agents or to whom they sell as principals, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions).
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CellPro and any broker-dealers or agents that participate with CellPro
in the distribution of the VIMRX shares issued to CellPro are "underwriters"
within the meaning of the Securities Act, and any commissions received by them
and any profit on the resale of the VIMRX shares will be deemed to be
underwriting commissions or discounts under the Securities Act.
CellPro has agreed for a period (approximately 180 days) following the
date of this prospectus, not to sell in the public market on any given day more
than the number of shares equal to 25% of the average daily trading volume of
VIMRX's common stock (excluding sales by CellPro and any third party acquiring
shares from CellPro in a private transaction) over the 180-day period preceding
the sale. CellPro further agreed to impose the foregoing restriction on any
purchaser of shares in a private transaction.
Rules 102 and 103 under Regulation M under the Securities Exchange Act
("Regulation M") prohibit participants in a distribution from bidding for, or
purchasing for an account in which the participant has a beneficial interest,
any of the securities that are the subject of the distribution. Rule 104 under
Regulation M governs bids and purchases made to stabilize the price of a
security in connection with a distribution of the security.
VIMRX has advised CellPro that, during such time as CellPro is engaged
in a distribution of the shares, it must comply with the applicable provisions
under Regulation M, and that it must furnish copies of this prospectus to each
broker-dealer through which the shares may be offered. CellPro is required to
inform VIMRX and broker-dealers through whom sales may be made hereunder when
the distribution of the shares is completed.
AVAILABLE INFORMATION
We file reports, proxy statements and other information with the Securities
and Exchange Commission (the "Commission"). You may read and copy any document
we file at the Public Reference Room of the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549 and at the Regional Offices of the
Commission at Seven World Trade Center, Suite 1300, New York, New York 10048
and at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511.
Please call 1-800-SEC-0330 for further information concerning the Public
Reference Room. Our filings also are available to the public from the
Commission's website at www.sec.gov. We distribute to our stockholders annual
reports containing audited financial statements.
INFORMATION INCORPORATED BY REFERENCE
The Commission allows us to "incorporate by reference" the information we
file with it, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is
considered to be part of this prospectus. We incorporate by reference the
documents listed below.
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. VIMRX's Annual Report on Form 10-K for the fiscal year ended December 31,
1997 (as amended on Form 10-K/A filed May 11, 1998), and
. VIMRX's Quarterly Reports on Form 10-Q filed for the fiscal quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998, and
. VIMRX's Current Report on Form 8-K filed on January 2, 1998.
You may request a copy of these filings, at no cost, by writing or
calling us at:
VIMRX PHARMACEUTICALS INC.
2751 CENTERVILLE ROAD, SUITE 210
WILMINGTON, DELAWARE 19808
ATTN: VICE PRESIDENT - CORPORATE COMMUNICATIONS
(302) 998-1734
This prospectus is accompanied by a copy of VIMRX's Annual Report on
Form 10-K for the year ended December 31, 1997, and by a copy of VIMRX's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1998.
This prospectus is part of a registration statement we filed with the
Commission. You should rely only on the information or representations provided
in this prospectus. We have authorized no one to provide you with different
information. No offer of the common stock will be made 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 cover of this
prospectus.
LIMITATION OF DIRECTORS' AND OFFICERS' LIABILITY; INDEMNIFICATION
VIMRX has included in its Certificate of Incorporation and By-laws
provisions to (i) eliminate the personal liability of its directors and officers
for monetary damages resulting from breaches of their fiduciary duty (provided
that such provisions do not eliminate liability for breaches of the duty of
loyalty, acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, violations under Section 174 of the
Delaware General Corporation Law (which governs dividends at a time when VIMRX
cannot afford to pay dividends), or for any transaction from which the director
and/or officer derived an improper personal benefit), and (ii) indemnify its
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law, including circumstances in which indemnification is otherwise
discretionary.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the registrant pursuant to the foregoing provisions, VIMRX has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
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LEGAL MATTERS
Epstein Becker & Green, P.C., New York, NY will pass upon the validity
of the Securities offered hereby for VIMRX. Partners of Epstein Becker & Green,
P.C. own approximately 500,000 shares of VIMRX's common stock.
EXPERTS
The consolidated financial statements of VIMRX as of December 31,
1997, and for the year then ended set forth in the Annual Report on Form 10-K
attached to this prospectus and Registration Statement have been audited by KPMG
Peat Marwick LLP, independent auditors, as set forth in their report thereon
dated March 23, 1998, and are included in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of VIMRX as of December 31,
1996, and for each of the years in the two-year period then ended set forth in
the Annual Report on Form 10-K incorporated by reference in and attached to this
prospectus and Registration Statement have been audited by Richard A. Eisner &
Company, LLP, independent auditors, as set forth in their report thereon dated
March 14, 1997, and are incorporated and attached in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by VIMRX in connection with this
offering are as follows:
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<CAPTION>
<S> <C>
Registration Fees: $1,082
Legal Fees: 25,000
Accounting Fees : 10,000
Transfer Agent Fees: 1,000
Printing Expenses: 500
Miscellaneous: 2,500
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Total: $40,082
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Section 102 of the Delaware General Corporation Law (the
"DGCL"), the Registrant's Certificate of Incorporation contains the following
provision regarding limitation of liability of directors and officers:
A director of this corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for the breach of any
fiduciary duty as a director, except in the case of (a) any breach of the
director's duty of loyalty to the corporation or its stockholders, (b) acts or
omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (c) under section 174 of the General Corporation Law
of the State of Delaware or (d) for any transaction from which the director
derives an improper personal benefit. Any repeal or modification of this
Article by the stockholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing at the time of
such repeal or modification with respect to acts or omissions occurring prior
to such repeal or modification.
The Registrant is empowered by Section 145 of the DGCL, subject to the
procedures and limitation stated therein, to indemnify any person against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with any
threatened, pending or completed action, suit or proceeding in which such person
is made a party by reason of his being or having been a director, officer,
employer or agent of the Registrant. The statute provides that indemnification
pursuant to its provisions is not exclusive of other rights of indemnification
to which a person may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors, or otherwise. The Registrant's
Certificate of Incorporation and the Registrant's By-laws both provide for
indemnification of its officers and directors to the full extent permitted by
the DGCL.
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<PAGE>
ITEM 16. EXHIBITS
Exhibit
Number Description
------ -----------
5. Opinion of Epstein Becker & Green, P.C. re legality of shares
10.3 Copy of the registrant's Amended and Restated 1990 Incentive and
Non-Incentive Stock Option Plan, as amended through February 27,
1997. (3)
10.9 Copy of Employment letter agreement dated June 21, 1994 between the
registrant and Alfonso J. Tobia.* (4)
10.11 Copy of VIMRX's 1995 Outside Directors Stock Option Plan.* (5)
10.12 Copy of letter agreement dated August 7, 1995 between the
registrant and Lindsay A. Rosenwald, M.D. (5)
10.13 Copy of Stock Option Agreement dated August 7, 1995 between the
registrant and Lindsay A. Rosenwald, M.D. (5)
10.14 Copy of Consulting and Stock Option Agreement dated November 17,
1995 between the registrant and Eric A. Rose, M.D. (5)
10.15 Copy of Stock Option Agreement dated November 17, 1995 between the
registrant and Donald G. Drapkin. (5)
10.16 Copy of the registrant's 1996 Non-Employee Director Restricted
Stock Award Plan.* (5)
10.18 Copy of Research Agreement dated as of March 7, 1997 among the
registrant, The Trustees of Columbia University in the City of New
York and VIMRX Genomics, Inc. (6)
10.19 Copy of the registrant's 1997 Incentive and Non-Incentive Stock
Option Plan, together with forms of stock option agreements.*(3)
10.20 Copy of Employment Agreement dated October 30, 1996 between the
registrant and Richard L. Dunning. (3)
10.21 Copy of Employment Agreement dated August 26, 1996 between the
registrant and David A. Jackson, Ph.D. (3)
II-2
<PAGE>
10.22 Copy of Factor IX Research Agreement dated March 28, 1997 between
the registrant and the Trustees of Columbia University in the City
of New York. (7)
10.23 Copy of Employment Agreement dated May 5, 1997 between the
registrant and Richard E. Kouri, Ph.D. (7)
10.24 Copy of Employment Agreement dated May 19, 1997 between registrant
and L. William McIntosh, as amended (8)
10.25 Hardware and Disposables Manufacturing Agreement between Nexell
Baxter, dated as of December 17, 1997. (9)
10.26 Antibody Manufacturing and Storage Agreement between Nexell and
Baxter, dated as of December 17, 1997. (10)
10.27 Hardware and Disposables Supply Agreement between Nexell and
Baxter, dated as of December 17, 1997. (11)
10.28 Marketing, Sale and Distribution Agreement between Nexell and
Baxter, dated as of December 17, 1997. (12)
10.29 Non-Competition and Confidentiality Agreement between the
registrant and Baxter, dated as of December 17, 1997. (13)
10.30 Sublicense (Chiron) between Nexell and Baxter, dated as of December
17, 1997. (14)
10.31 Sublicense (Dorken) between Nexell and Baxter, dated as of December
17, 1997. (15)
10.32 Sublicense (First Becton-Dickinson) between Nexell and Baxter,
dated as of December 17, 1997. (16)
10.33 Sublicense (Second Becton-Dickinson) between Nexell and Baxter,
dated as of December 17, 1997. (17)
10.34 Warrant, dated December 31, 1997, issued by Innovir to the
registrant (18)
10.35 Agreement, dated December 31, 1997, between the registrant and
Innovir relating to future equity purchases. (18)
10.36 Employment Agreement, effective as of October 1, 1997, by and
between Innovir, Thomas R. Sharpe and the registrant. (19)
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<PAGE>
10.37 Termination Agreement dated November 11, 1998 between the
registrant, VGI and Columbia. (20)
16 Letter of Richard A. Eisner & Co., LLP (21)
23(a). Consent of KPMG Peat Marwick LLP
23(b). Consent of Richard A. Eisner & Company, LLP.
23(c). Consent of Epstein Becker & Green, P.C. (included in Exhibit 5).
24. Power(s) of attorney (included in signature page to this
registration Statement).
Notes (1) and (2) are intentionally omitted.
(3) Filed as the same numbered Exhibit to the registrant's Annual Report on Form
10-K for the year ended December 31, 1996 (Commission File No. 0-19153) and
incorporated herein by reference thereto.
(4) Filed as the same numbered Exhibit to the registrant's Annual Report on Form
10-K for the year ended December 31, 1994 (Commission File No. 0-19153) and
incorporated herein by reference thereto
(5) Filed as the same numbered Exhibit to the registrant's Annual Report on Form
10-K for the year ended December 31, 1995 (Commission File No. 0-19153) and
incorporated herein by reference thereto.
(6) Filed as the same numbered Exhibit to the registrant's Current Report on
Form 8-K (Commission File No. 0-19153) filed March 21, 1997 and incorporated
herein by reference thereto.
(7) Filed as the same numbered Exhibit to the registrant's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1997 (Commission File No. 0-
19153) and incorporated herein by reference thereto.
(8) Filed as the same numbered Exhibit to the registrant's Quarterly Report on
Form 10-Q (Commission File No. 0-19153) filed November 14, 1997 and
incorporated herein by reference thereto.
(9) Filed as Exhibit number 10.1 to the registrant's Current Report on Form 8-K
(Commission File No. 0-19153) filed January 2, 1998 and incorporated herein
by reference thereto.
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<PAGE>
(10) Filed as Exhibit number 10.2 to the registrant's Current Report on Form 8-K
(Commission File No. 0-19153) filed January 2, 1998 and incorporated herein
by reference thereto.
(11) Filed as Exhibit number 10.3 to the registrant's Current Report on Form 8-K
(Commission File No. 0-19153) filed January 2, 1998 and incorporated herein
by reference thereto.
(12) Filed as Exhibit number 10.4 to the registrant's Current Report on Form 8-K
(Commission File No. 0-19153) filed January 2, 1998 and incorporated herein
by reference thereto.
(13) Filed as Exhibit number 10.5 to the registrant's Current Report on Form 8-K
(Commission File No. 0-19153) filed January 2, 1998 and incorporated herein
by reference thereto.
(14) Filed as Exhibit number 10.6 to the registrant's Current Report on Form 8-K
(Commission File No. 0-19153) filed January 2, 1998 and incorporated herein
by reference thereto.
(15) Filed as Exhibit number 10.7 to the registrant's Current Report on Form 8-K
(Commission File No. 0-19153) filed January 2, 1998 and incorporated herein
by reference thereto.
(16) Filed as Exhibit number 10.8 to the registrant's Current Report on Form 8-K
(Commission File No. 0-19153) filed January 2, 1998 and incorporated herein
by reference thereto.
(17) Filed as Exhibit number 10.9 to the registrant's Current Report on Form 8-K
(Commission File No. 0-19153) filed January 2, 1998 and incorporated herein
by reference thereto.
(18) Filed as the same numbered Exhibit to the registrant's Annual Report on
Form 10-K for the year ended December 31, 1997 (Commission File Number
0-19153) filed March 31, 1998 and incorporated herein by reference thereto.
(19) Filed as the same numbered Exhibit to the registrant's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1998 (Commission File Number
0-19153) filed August 14, 1998 and incorporated herein by reference thereto.
(20) Filed as the same numbered Exhibit to the registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1998 (Commission File Number
0-19153) filed November 13, 1998 and incorporated herein by reference.
(21) Filed as the same numbered Exhibit to the registrant's Current Report on
Form 8-K (Commission File No. 0-19153) filed May 21, 1997 and incorporated
herein by reference.
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<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statements.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Act"), 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 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 Act and will be governed by the final adjudication of
such issue.
II-6
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of Richard L. Dunning, Donald G.
Drapkin, Francis M. O'Connell, Laurence D. Fink, Linda G. Robinson, Lindsay A.
Rosenwald, Eric A. Rose, Michael Weiner and Victor W. Schmitt constitutes and
appoints Richard L. Dunning and Francis M. O'Connell, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
to act, without the other, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any or all amendments (including post-
effective amendments) to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as full to all
intents and purposes as he might or could be in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, their
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Wilmington, State of
Delaware, on December 18, 1998.
VIMRX PHARMACEUTICALS INC.
By: /s/ Richard L. Dunning
------------------------------
Richard L. Dunning
President and Chief Executive 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
on December 14, 1998.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Richard L. Dunning President and Chief Executive December 14, 1998
- ----------------------- Officer
Richard L. Dunning (Principal Executive Officer)
/s/ Donald G. Drapkin
- ----------------------- Chairman of the Board and Director December 14, 1998
Donald G. Drapkin
/s/ Francis M. O'Connell Vice President, Finance and December 14, 1998
- ------------------------- Controller (Principal Financial and
Francis M. O'Connell Accounting Officer)
/s/ Laurence D. Fink Director December 14, 1998
- ---------------------
Laurence D. Fink
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Linda G. Robinson Director December 14, 1998
- ----------------------
Linda G. Robinson
Director
- --------------------------
Lindsay A. Rosenwald, M.D.
/s/ Eric A. Rose, M.D. Director December 14, 1998
- -----------------------
Eric A. Rose, M.D.
/s/ Michael Weiner, M.D. Director December 14, 1998
- -------------------------
Michael Weiner, M.D.
/s/ Victor W. Schmitt Director December 14, 1998
- ----------------------
Victor W. Schmitt
</TABLE>
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<PAGE>
EXHIBIT 5
[EPSTEIN BECKER & GREEN, P.C. LETTERHEAD]
December 18, 1998
VIMRX Pharmaceuticals Inc.
2751 Centerville Road
Suite 210
Wilmington, Delaware 19808
Re: Registration Statement on Form S-2
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to VIMRx Pharmaceuticals Inc. (the "Company")
in connection with its filing of a Registration Statement on Form S-2 (the
"Registration Statement") covering 3,000,000 shares (the "Shares") of the
Company's authorized and unissued shares of Common Stock, $.001 par value.
As such counsel, we have examined originals, or copies certified to
our satisfaction, of the corporate records of the Company, agreements and other
instruments, certificates of public officials, certificates of officers of the
Company and such other documents as we deemed necessary as a basis for the
opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals and the
conformity to original documents of documents submitted to us as certified or
photostatic copies.
On the basis of the foregoing, we are of the opinion that the Shares
have been duly authorized and, when issued, delivered and paid for in accordance
with the Asset Purchase Agreement dated October 28,. 1998 by and between CellPro
Incorporated and Nexell Therapeutics Inc., will be validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
aforesaid Registration Statement.
Very truly yours,
EPSTEIN BECKER & GREEN, P.C.
By: /s/ Lowell S. Lifschultz
------------------------
Lowell S. Lifschultz
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
VIMRX Pharmaceuticals Inc.
We consent to the use of our report dated March 23, 1998, incorporated herein by
reference, and attached hereto, and to the reference to our firm under the
heading "Experts" in the prospectus.
KPMG PEAT MARWICK LLP
Wilmington, Delaware
December 15,1998
<PAGE>
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in and to the attachment to the
Registration Statement on Form S-2 of our report dated March 14, 1997, on our
audit of the consolidated financial statements of VIMRx Pharmaceuticals Inc. and
subsidiaries (the "Company") as of December 31, 1996 and for each of the years
in the two-year period then ended included in the Company's 1997 Annual Report
on Form 10-K (as amended). We also consent to the reference to our firm under
the caption "Experts" in the Prospectus.
RICHARD A. EISNER & COMPANY, LLP
New York, New York
December 15, 1998
