<PAGE> 1
As Filed with the Securities and Exchange Commission on October 30, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
Alteon Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State of Incorporation)
13-3304550
(I.R.S. Employer Identification No.)
170 Williams Drive
Ramsey, New Jersey 07446
(201) 934-5000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Kenneth I. Moch
President and Chief Executive Officer
Alteon Inc.
170 Williams Drive
Ramsey, New Jersey 07647
(201) 934-5000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
------------------------
Copy to:
Marsha E. Novick, Esq.
Smith, Stratton, Wise, Heher & Brennan
600 College Road East
Princeton, New Jersey 08540
(609) 924-6000
------------------------
<PAGE> 2
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 of the Securities
Act of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /x/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Shares to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price per Share Aggregate Offering Registration Fee
(2) Price (2)
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value....... 3,967,724 5.4375 $21,574,499.25 $5,695.67
</TABLE>
(1) Includes 1,133,636 shares issuable upon exercise of warrants.
(2) Estimated solely for the purpose of calculating the registration fee, based
on the average of the high and low prices for the common stock as reported on
the American Stock Exchange on October 24, 2000 in accordance with Rule 457
under the Securities Act of 1933.
------------------------
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
<PAGE> 3
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
------------------------
<PAGE> 4
PROSPECTUS
Alteon Inc.
3,967,724 Shares
Common Stock
(par value $.01 per share)
------------------------
This Prospectus relates to the proposed sale from time to time by
selling stockholders of shares of common stock of Alteon Inc. The shares covered
by this prospectus include shares issuable upon the exercise of warrants owned
by the selling stockholders.
We will not receive any proceeds from sales of the shares by the
selling stockholders but will receive proceeds from the exercise, if any, of the
warrants.
The selling stockholders will sell the shares from time to time
primarily in transactions on the American Stock Exchange or any other market on
which our common stock is traded at the price then prevailing, although sales
may also be made in negotiated transactions or otherwise.
Our common stock is quoted on the American Stock Exchange under the
symbol "ALT." On October 24,2000 the last reported sale price of the common
stock was 5.375 per share.
------------------------
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 4.
------------------------
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.
The date of this prospectus is ______________
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
The Company 3
Forward Looking Statements 4
Risk Factors 4
Use of Proceeds 14
Selling Stockholders 15
Plan of Distribution 16
Legal Matters 16
Experts 16
Where You Can Find More Information 17
Incorporation of Certain Documents by Reference 17
</TABLE>
-2-
<PAGE> 6
THE COMPANY
We are engaged in the discovery and development of new pharmaceutical
products for the treatment of cardiovascular and renal diseases and other
disorders of diabetes and aging. Our proprietary technology focuses on Advanced
Glycosylation End-products, or A.G.E.s, which are abnormal glucose/protein
complexes that form as a result of circulating blood glucose reacting with
proteins.
Our current research and drug development focused on A.G.E. technology
takes three directions: the breaking of A.G.E. cross-links between proteins in
order to prevent or reverse damage, the prevention or inhibition of A.G.E.
formation, and the reduction of the A.G.E. burden through a novel class of
anti-hyperglycemic agents.
ALT-711 is our lead agent in a class of proprietary compounds known as
A.G.E. Crosslink Breakers. ALT-711 offers the possibility of the first
therapeutic approach to break A.G.E. cross-links and the potential to impact or
even reverse tissue damage caused by diabetes and aging. ALT-711 initially is
being developed for cardiovascular indications, but also has potential in a
number of other medical conditions. We have completed a series of Phase I safety
testing of ALT-711 and are currently conducting Phase II trials. We are also
developing additional A.G.E. Crosslink Breaker compounds for a number of other
indications. We are exploring potential corporate partnerships for this program.
While we have sufficient funds for the currently ongoing Phase II trial,
additional funding will be required for additional trials and development of
ALT-711.
Our lead A.G.E.-Formation Inhibitor, pimagedine, has completed a Phase
II trial in dyslipidemia and a Phase II/III pivotal ACTION (A Clinical Trial in
Overt Nephropathy) trial in Type 1 diabetic patients with overt nephropathy. In
the multi-center ACTION trial, pimagedine therapy did not reach statistical
significance in its primary endpoint, the time to doubling of serum creatinine,
but did result in a statistically significant and clinically meaningful
reduction of urinary protein excretion. Pimagedine also reduced, to a
statistically significant extent, cholesterol and triglycerides as well as the
progression of retinopathy. After discussion with the Food and Drug
Administration (FDA) and with scientific and clinical advisors active in
nephrology research and treatment of renal disease, we are actively exploring
potential corporate partnerships for the continued development of pimagedine,
both in the U.S. and abroad.
We are also utilizing our technical expertise in the field of diabetes
to develop compounds focused on glucose regulation and control. These
anti-hyperglycemic compounds, or glucose lowering agents (GLA), are in
pre-clinical studies.
Our principal offices are located at 170 Williams Drive, Ramsey, New
Jersey 07446. Our telephone number is (201) 934-5000.
-3-
<PAGE> 7
FORWARD LOOKING STATEMENTS
This prospectus contains forward-looking statements. In some cases you
can identify these statements by the use of words such as "may," "will,"
"expect," "anticipate," "estimate," "continue" or other similar words. These
statements discuss future expectations and projections of results of operations
or of financial conditions. Actual results may differ materially. When
considering these forward-looking statements, you should keep in mind the risk
factors described below and other cautionary statements made in this prospectus.
These factors may cause actual results to differ from any forward-looking
statements.
We do not promise to update forward-looking information or any other
information to reflect actual results or changes in assumptions or other factors
that could affect those statements.
RISK FACTORS
Investment in our common stock involves substantial risks, including
those described below. You should purchase our common stock only if you can
afford to lose your entire investment. You should carefully consider all of the
information included in this prospectus to evaluate us and our business. You
should make this evaluation before deciding whether to purchase our common
stock. You should understand that additional risks which we cannot predict at
this time may have negative impact on us in the future. You should also
understand that the risks discussed below might affect us more than or in a
different manner than we now predict.
WE MAY NOT BE ABLE TO OBTAIN SUFFICIENT ADDITIONAL FUNDING TO MEET OUR NEEDS OR
TO ALLOW US TO CONTINUE THE RESEARCH, PRODUCT DEVELOPMENT, PRECLINICAL TESTING
AND CLINICAL TRIALS OF OUR PRODUCT CANDIDATES.
We anticipate that our existing available cash and cash equivalents and
short-term investments will be adequate to satisfy our working capital
requirements for our current and planned operations into 2001. We will require
substantial new funding in order to continue the research, product development,
preclinical testing and clinical trials of our product candidates, including
ALT-711 and pimagedine. We will also require additional funding for operating
expenses, the pursuit of regulatory approvals for our product candidates and the
establishment of marketing and sales capabilities. Our future capital
requirements will depend on many factors, including continued scientific
progress in our research and development programs, the size and complexity of
these programs, progress with preclinical testing and clinical trials, the time
and costs involved in obtaining regulatory approvals, the costs involved in
filing, prosecuting and enforcing patent claims, competing technological and
market developments, the establishment of additional collaborative arrangements,
the cost of manufacturing arrangements, commercialization activities, and the
cost of product in-licensing and strategic acquisitions, if any. We cannot be
certain that our cash reserves and other liquid assets will be adequate to
satisfy our
-4-
<PAGE> 8
capital and operating requirements.
We intend to seek funding through arrangements with corporate
collaborators and through public or private sales of our securities, including
equity securities, when and if conditions permit. In addition, we may pursue
opportunities to obtain debt financing, including capital leases, in the future.
We cannot be certain, however, that additional funding will be available on
reasonable terms, if at all. Any additional equity financing would be dilutive
to our stockholders. If adequate funds are not available, we may be required to
curtail significantly or eliminate one or more of our research and development
programs. If we obtain funds through arrangements with collaborative partners or
others, we may be required to relinquish rights to certain of our technologies
or product candidates.
WE MAY NOT SUCCESSFULLY DEVELOP OR DERIVE REVENUES FROM ANY PRODUCTS.
All of our product candidates are in the research or development stage.
We cannot be certain that we will succeed in the development and marketing of
any therapeutic or diagnostic product. To achieve profitable operations, we
must, alone or with others, successfully identify, develop, introduce and market
proprietary products. Such products will require significant additional
investment, development and preclinical and clinical testing prior to potential
regulatory approval and commercialization.
We have not yet requested or received regulatory approval for any
product from the FDA or any other regulatory body. Before obtaining regulatory
approvals for the commercial sale of any of our products under development, we
must demonstrate through preclinical studies and clinical trials that the
product is safe and effective for use in each target indication. The results
from preclinical studies and early clinical trials may not be predictive of
results that will be obtained in large-scale testing, and we cannot be certain
that any clinical trials we undertake will demonstrate sufficient safety and
efficacy to obtain the requisite regulatory approvals or will result in
marketable products.
The development of new pharmaceutical products is highly uncertain and
subject to a number of significant risks. Potential products that appear to be
promising at early stages of development may not reach the market for a number
of reasons. Potential products may be found ineffective or cause harmful side
effects during preclinical testing or clinical trials, fail to receive necessary
regulatory approvals, be difficult to manufacture on a large scale, be
uneconomical, fail to achieve market acceptance or be precluded from
commercialization by proprietary rights of third parties. We cannot be certain
that we will undertake additional clinical trials or that our product
development efforts will be successfully completed, that required regulatory
approvals can be obtained or that any products, if introduced, will be
successfully marketed or achieve customer acceptance. We do not expect any of
our products, including ALT-711 and pimagedine, to be commercially available for
a number of years, if at all.
-5-
<PAGE> 9
WE MAY NEVER GENERATE PROFITS.
All of our revenues to date have been generated from collaborative
research agreements and financing activities, or interest income earned on these
funds. We have not received any revenues from product sales. We cannot be
certain that we will realize product revenues on a timely basis, if at all.
At December 31, 1999, we had an accumulated deficit of $121,496,049. We
anticipate that we will incur substantial, potentially greater losses in the
future. We cannot be certain that our products under development will be
successfully developed or that our products, if successfully developed, will
generate revenues sufficient to enable us to earn a profit. We expect to incur
substantial additional operating expenses over the next several years as our
research, development and clinical trial activities increase. We do not expect
to generate revenues from the sale of products, if any, for a number of years.
Our ability to achieve profitability depends in part on our ability to enter
into agreements for product development, obtain regulatory approval for our
products and develop the capacity, or enter into agreements, for the
manufacture, marketing and sale of any products. We cannot be certain that we
will obtain required regulatory approvals, or successfully develop, manufacture,
commercialize and market product candidates or that we will ever achieve product
revenues or profitability.
WE MAY NOT BE ABLE TO FORM AND MAINTAIN THE COLLABORATIVE RELATIONSHIPS THAT OUR
BUSINESS STRATEGY REQUIRES.
Our strategy for developing and deriving revenues from our products
depends, in large part, upon entering into arrangements with research
collaborators, corporate partners and others.
We have established collaborative arrangements with Gamida, Roche and
IDEXX with respect to the development of drug therapies and diagnostics
utilizing our scientific platforms. To succeed, we will have to develop
additional relationships. We are seeking to establish new collaborative
relationships to provide the funding necessary for continuation of our product
development but we cannot be certain that such effort will be successful. If we
are unable to enter into or manage additional collaborators, our programs may
suffer and we may be unable to develop products.
OUR DEPENDENCE ON COLLABORATIVE RELATIONSHIPS MAY LEAD TO DELAYS IN PRODUCT
DEVELOPMENT AND DISPUTES OVER RIGHTS TO TECHNOLOGY.
We will, in some cases, be dependent upon outside partners to conduct
preclinical testing and clinical trials and to provide adequate funding for our
development programs. Our corporate partners may have all or a significant
portion of the development and regulatory approval responsibilities. Failure of
the corporate partners to develop marketable products or to gain the
-6-
<PAGE> 10
appropriate regulatory approvals on a timely basis, if at all, would have a
material adverse effect on our business, financial condition and results of
operations.
In most cases, we will not be able to control the amount and timing of
resources which our corporate partners devote to our programs or potential
products. If any of our corporate partners breached or terminated their
agreements with us or otherwise failed to conduct their collaborative activities
in a timely manner, the preclinical or clinical development or commercialization
of product candidates or research programs could be delayed, and we would be
required to devote additional resources to product development and
commercialization or terminate certain development programs.
We cannot be certain that disputes will not arise in the future with
respect to the ownership of rights to any technology we develop with
third-parties. These and other possible disagreements between us and
collaborators could lead to delays in the collaborative research, development or
commercialization of product candidates or could require or result in litigation
or arbitration, which would be time-consuming and expensive and would have a
material adverse effect on our business, financial condition and results of
operations.
Any corporate partners we have may develop, either alone or with
others, products that compete with the development and marketing of our
products. Competing products, either developed by the corporate partners or to
which the corporate partners have rights, may result in their withdrawal of
support with respect to all or a portion of our technology, which would have a
material adverse effect on our business, financial condition and results of
operations.
WE MAY NOT BE ABLE TO PROTECT THE PROPRIETARY RIGHTS THAT ARE CRITICAL TO OUR
SUCCESS.
Our success will depend on our ability to obtain patent protection for
our products, preserve our trade secrets, prevent third parties from infringing
upon our proprietary rights and operate without infringing upon the proprietary
rights of others, both in the United States and abroad.
We cannot be certain that competitors will not develop competitive
products outside the protection that may be afforded by the claims of our
patents. We are aware that other parties have been issued patents and have filed
patent applications in the United States and foreign countries with respect to
other agents which impact A.G.E. or A.G.E. cross-link formation.
The degree of patent protection afforded to pharmaceutical inventions
is uncertain and our potential products are subject to this uncertainty.
Pimagedine is not a novel compound and is not covered by a composition-of-matter
patent. The patents covering pimagedine are use patents containing claims
covering therapeutic indications and the use of specific compounds and classes
of compounds to inhibit A.G.E. formation. Competitors may develop and
commercialize pimagedine or pimagedine-like products for indications outside of
the protection provided by the
-7-
<PAGE> 11
claims of our use patents. Physicians, pharmacies and wholesalers could then
substitute for our pimagedine products. Substitution for our pimagedine products
would have a material adverse effect on our business, financial condition and
results of operations. Use patents may afford a lesser degree of protection in
certain foreign countries due to their patent laws. In addition, although we
have several patent applications pending to protect proprietary technology and
potential products, we cannot be certain that these patents will be issued, that
the claims of any patents which do issue will provide any significant protection
of our technology or products, or that we will enjoy any patent protection
beyond the expiration dates of our currently issued patents.
We also rely upon unpatented trade secrets and improvements, unpatented
know-how and continuing technological innovation to maintain, develop and expand
our competitive position, which we seek to protect, in part, by confidentiality
agreements with our corporate partners, collaborators, employees and
consultants. We also have invention or patent assignment agreements with our
employees and certain, but not all, corporate partners and consultants. We
cannot be certain that relevant inventions will not be developed by a person not
bound by an invention assignment agreement. We cannot be certain that binding
agreements will not be breached, that we would have adequate remedies for such
breach, or that our trade secrets will not otherwise become known to or be
independently discovered by competitors.
WE CANNOT BE CERTAIN THAT REGULATORY APPROVALS WILL BE OBTAINED FOR OUR
PRODUCTS.
Our research, preclinical testing and clinical trials of our product
candidates are, and the manufacturing and marketing of our products will be,
subject to extensive and rigorous regulation by numerous governmental
authorities in the United States and in other countries where we intend to test
and market our product candidates.
Prior to marketing, any product we develop must undergo an extensive
regulatory approval process. This regulatory process, which includes preclinical
testing and clinical trials, and may include post-marketing surveillance, of
each compound to establish its safety and efficacy, can take many years and can
require the expenditure of substantial resources. Data obtained from preclinical
and clinical activities are susceptible to varying interpretations which could
delay, limit or prevent regulatory approval. In addition, we may encounter
delays or rejections based upon changes in FDA policy for drug approval during
the period of product development and FDA regulatory review of each submitted
new drug application (NDA). We may encounter similar delays in foreign
countries. We cannot be certain that regulatory approval will be obtained for
any drugs we develop. Moreover, regulatory approval may entail limitations on
the indicated uses of the drug. Further, even if regulatory approval is
obtained, a marketed drug and its manufacturer are subject to continuing review
and discovery of previously unknown problems with a product or manufacturer
which may have adverse effects on our business, financial condition and results
of operations, including withdrawal of the product from the market. Violations
of regulatory requirements at any stage, including preclinical testing and
-8-
<PAGE> 12
clinical trials, the approval process or post-approval, may result in various
adverse consequences including the FDA's delay in approving, or its refusal to
approve, a product withdrawal of an approved product from the market and the
imposition of criminal penalties against the manufacturer and NDA holder. None
of our products have been approved for commercialization in the United States or
elsewhere. We cannot be certain that we will be able to obtain FDA approval for
any products. Failure to obtain requisite governmental approvals or failure to
obtain approvals of the scope requested will delay or preclude our licensees or
marketing partners from marketing our products or limit the commercial use of
such products and will have a material adverse effect on our business, financial
condition and results of operations.
WE MAY NOT BE ABLE TO COMPETE SUCCESSFULLY WITH BIOTECHNOLOGY COMPANIES AND
ESTABLISHED PHARMACEUTICAL COMPANIES IN THE DEVELOPMENT AND MARKETING OF CURES
AND THERAPIES FOR DIABETES, CARDIOVASCULAR DISEASES AND THE OTHER CONDITIONS FOR
WHICH WE SEEK TO DEVELOP PRODUCTS.
We are engaged in pharmaceutical fields characterized by extensive
research efforts and rapid technological progress. Many established
pharmaceutical and biotechnology companies with resources greater than ours are
attempting to develop products that would be competitive with our products.
Other companies may succeed in developing products that are safer, more
efficacious or less costly than any that we may develop and may also be more
successful than us in production and marketing. Rapid technological development
by others may result in our products becoming obsolete before we recover a
significant portion of the research, development or commercialization expenses
incurred with respect to those products.
Certain technologies under development by other pharmaceutical
companies could result in a cure for diabetes or the reduction of the incidence
of diabetes and its complications. For example, a number of companies are
investigating islet cell transplantation as a possible cure for Type I diabetes.
Results of a study conducted by the National Institutes of Health, known as the
DCCT, published in 1993, showed that tight glucose control reduced the incidence
of diabetic complications. Several pharmaceutical companies have introduced new
products for glucose control for the management of hyperglycemia in Type II
diabetes. In addition, several large companies have initiated or expanded
research, development and licensing efforts to build a diabetic pharmaceutical
franchise focusing on diabetic nephropathy, neuropathy, retinopathy and related
conditions. An example of this is research seeking anti-angiogenesis drugs for
the potential treatment of diabetic retinopathy. It is possible that one or more
of these initiatives may reduce or eliminate the market for some of our
products.
In addition, a broad range of cardiovascular drugs are under
development by many pharmaceutical and biotechnology companies. It is possible
that one or more of these initiatives may reduce or eliminate the market for
some of our products.
-9-
<PAGE> 13
EFFORTS TO REDUCE HEALTHCARE COSTS MAY AFFECT OUR OPERATIONS.
Our business, financial condition and results of operations may be
materially adversely affected by the continuing efforts of government and
third-party payors to contain or reduce the costs of health care through various
means. For example, in certain foreign markets, pricing and/or profitability of
prescription pharmaceuticals are subject to government control. In the United
States, we expect that there will continue to be federal and state initiatives
to control and/or reduce pharmaceutical expenditures. In addition, increasing
emphasis on managed care in the United States will continue to put pressure on
pharmaceutical pricing. Cost control initiatives could decrease the price that
we receive for any products we may develop and sell in the future and have a
material adverse effect on our business, financial condition and results of
operations. Further, to the extent that cost control initiatives have a material
adverse effect on our corporate partners, our ability to commercialize our
products may be adversely affected.
Our ability to commercialize pharmaceutical products may depend in part
on the extent to which reimbursement for the products will be available from
government health administration authorities, private health insurers and other
third-party payors. Significant uncertainty exists as to the reimbursement
status of newly approved health care products, and third-party payors, including
Medicare, are increasingly challenging the prices charged for medical products
and services. We cannot be certain that any third-party insurance coverage will
be available to patients for any products developed by us. Government and other
third-party payors are increasingly attempting to contain health care costs by
limiting both coverage and the level of reimbursement for new therapeutic
products and by refusing in some cases to provide coverage for uses of approved
products for disease indications for which the FDA has not granted labeling
approval. If adequate coverage and reimbursement levels are not provided by
government and other third-party payors for our products, the market acceptance
of these products would be adversely affected.
WE HAVE NO EXPERIENCE IN MARKETING OR SALES AND MAY HAVE TO RELY ON OTHERS TO
MARKET AND SELL ANY PRODUCTS WE MAY DEVELOP, WHICH MAY IMPAIR OUR ABILITY TO
DELIVER PRODUCTS.
For certain of our products, we have licensed exclusive marketing rights to
our corporate partners or formed collaborative marketing arrangements within
specified territories in return for royalties to be received on sales, a share
of profits or beneficial transfer pricing. These agreements are terminable at
the discretion of our partners upon as little as 90 days' prior written notice.
If the licensee or marketing partner terminates an agreement or fails to market
a product successfully, our business, financial condition and results of
operations may be adversely affected.
We currently have no experience in marketing or selling pharmaceutical
products. In order to achieve commercial success for any approved product, we
must either develop a marketing and sales force or, where appropriate or
permissible, enter into arrangements with
-10-
<PAGE> 14
third parties to market and sell our products. We cannot be certain that we will
develop successfully marketing and sales experience or that we will be able to
enter into marketing and sales agreements with others on acceptable terms, if at
all, or that any such arrangements, if entered into, will not be terminated. If
we develop our own marketing and sales capability, it will compete with other
companies that currently have experienced, well funded and larger marketing and
sales operations. To the extent that we enter into co-promotion or other
sales and marketing arrangements with other companies, revenues will depend on
the efforts of others, and we cannot be certain that their efforts will be
successful.
WE HAVE NO EXPERIENCE IN MANUFACTURING PRODUCTS AND MAY HAVE TO RELY ON OTHERS
TO MANUFACTURE ANY PRODUCTS WE MAY DEVELOP, WHICH MAY IMPAIR OUR ABILITY TO
DEVELOP OR DELIVER PRODUCTS.
We have no experience in manufacturing products for commercial purposes
and do not have manufacturing facilities. Consequently, we are dependent on
contract manufacturers for the production of products for development and
commercial purposes. The manufacture of our products for clinical trials and
commercial purposes is subject to cGMP regulations promulgated by the FDA. In
the event that we are unable to obtain or retain third-party manufacturing for
our products, we will not be able to commercialize such products as planned. We
cannot be certain that we will be able to enter into agreements for the
manufacture of future products with manufacturers whose facilities and
procedures comply with cGMP and other regulatory requirements. Our current
dependence upon others for the manufacture of our products may adversely affect
our profit margin, if any, on the sale of future products and our ability to
develop and deliver such products on a timely and competitive basis.
USE OF ANY PRODUCTS WE DEVELOP MAY RESULT IN LIABILITY CLAIMS.
The use of any of our potential products in clinical trials and the sale of
any approved products, including the testing and commercialization of pimagedine
or ALT-711, may expose us to liability claims resulting from the use of products
or product candidates. These claims might be made directly by consumers,
pharmaceutical companies or others. We maintain product liability insurance
coverage for claims arising from the use of our products in clinical trials.
However, coverage is becoming increasingly expensive, and we cannot be certain
that we will be able to maintain insurance or, if maintained, that insurance can
be acquired at a reasonable cost or in sufficient amounts to protect us against
losses due to liability that could have a material adverse effect on our
business, financial conditions and results of operations. We cannot be certain
that we will be able to obtain commercially reasonable product liability
insurance for any product approved for marketing in the future or that insurance
coverage and our resources would be sufficient to satisfy any liability
resulting from product liability claims. A successful product liability claim or
series of claims brought against us could have a material adverse effect on our
business, financial condition and results of operations.
-11-
<PAGE> 15
WE MAY BE UNABLE TO ATTRACT AND RETAIN THE KEY PERSONNEL ON WHOM OUR SUCCESS
DEPENDS.
We are highly dependent on the principal members of our management and
scientific staff. The loss of services of any of these personnel could impede
the achievement of our development objectives. Furthermore, recruiting and
retaining qualified scientific personnel to perform research and development
work in the future will also be critical to our success. We cannot be certain
that we will be able to attract and retain personnel on acceptable terms given
the competition between pharmaceutical and health care companies, universities
and non-profit research institutions for experienced scientists. In addition, we
rely on consultants to assist us in formulating our research and development
strategy. All of our consultants are employed outside Alteon and may have
commitments to or consulting or advisory contracts with other entities that may
limit their availability to us.
OUR OPERATIONS INVOLVE A RISK OF INJURY OR DAMAGE FROM HAZARDOUS MATERIALS.
Our research and development activities involve the controlled use of
hazardous materials, chemicals and various radioactive compounds. Although we
believe that our safety procedures for handling and disposing of hazardous
materials comply with the standards prescribed by state and federal regulations,
the risk of accidental contamination or injury from these materials cannot be
completely eliminated. In the event of an accident, we could be held liable for
any damages or fines that result. Such liability could have a material adverse
effect on our business, financial condition and results of operations.
THE CONVERSION OF OUR SERIES G AND SERIES H PREFERRED STOCK MAY ADVERSELY AFFECT
OUR STOCKHOLDERS.
The exact number of shares of common stock issuable upon conversion of
our Series G and Series H Preferred Stock will vary inversely with the market
price of the common stock. The holders of common stock may be materially diluted
by conversion of the Series G and Series H Preferred Stock depending on the
future market price of the common stock. The conversion price of the Series G
and Series H Preferred Stock depends on the average price of the common stock on
the American Stock Exchange for the twenty (20) business days immediately
preceding the conversion. On October 20, 2000, the conversion price was $4.22.
If this price were used to determine the number of shares of common stock
issuable upon conversion of the Series G and Series H Preferred Stock, we would
issue a total of approximately 8,473,933 shares of common stock if all shares of
the Series G and Series H Preferred Stock were converted on such date. To the
extent the average price of the common stock during the 20 business days
immediately preceding any date on which shares of the Series G and Series H
Preferred Stock are converted is higher or lower than $4.22, we would issue more
or fewer shares of common stock than reflected in this estimate, and this
difference could be material.
The number of shares of common stock to be issued upon conversion of
the Series G and
-12-
<PAGE> 16
Series H Preferred Stock will also depend on the number of shares of Series G
and Series H Preferred Stock issued as dividends on the Series G Preferred
Stock.
FUTURE SALES BY OUR CURRENT STOCKHOLDERS MAY ADVERSELY EFFECT OUR STOCK PRICE.
As of October 20, 2000, 20,817,245 shares of Common Stock, 894 shares
of Series G Preferred Stock and 2,682 shares of Series H Preferred Stock were
issued and outstanding. In addition, options to purchase 4,974,637 shares and
warrants to purchase 626,818 shares were outstanding. The sale of common stock
issued upon the exercise of stock options, the exercise of warrants, and the
conversion of Series G and Series H Preferred Stock, as well as future sales of
common stock by us or by existing stockholders, or the perception that sales
could occur, could adversely affect the market price of the common stock.
THE PRICE OF OUR COMMON STOCK IS VOLATILE.
The market prices for securities of biotechnology and pharmaceutical
companies, including ours, have historically been highly volatile, and the
market has from time to time experienced significant price and volume
fluctuations that are unrelated to the operating performance of particular
companies. Factors such as fluctuations in our operating results, announcement
of technological innovations or new therapeutic products by us or others,
clinical trial results, developments concerning agreements with collaborators,
governmental regulation, developments in patent or other proprietary rights,
public concern as to the safety of drugs developed by us or others, future sales
of substantial amounts of common stock by existing stockholders and general
market conditions can have an adverse effect on the market price of the common
stock. The realization of any of the risks described in these "Risk Factors"
could have a dramatic and adverse impact on the market price of the common
stock.
ANTI-TAKEOVER PROVISIONS COULD MAKE A THIRD-PARTY ACQUISITION OF US, WHICH MAY
BE BENEFICIAL TO OUR STOCKHOLDERS, MORE DIFFICULT.
Our Certificate of Incorporation provides for staggered terms for the
members of the Board of Directors and includes a provision (the "Fair Price
Provision") that requires the approval of the holders of 80% of our voting stock
as a condition to a merger or certain other business transactions with, or
proposed by, a holder of 10% or more of our voting stock, except in cases where
certain directors approve the transaction or certain minimum price criteria and
other procedural requirements are met. We have entered into a Stockholders'
Rights Agreement pursuant to which each holder of a share of common stock is
granted a Right to purchase our Series F Preferred Stock under certain
circumstances if a person or group acquires or commences a tender offer for 20%
of our outstanding common stock. We have also adopted a Change in Control
Severance Benefits Plan which provides for severance benefits to employees upon
certain events of termination of employment after or in connection with a change
in control as defined in the Plan. In addition, the Board of Directors has the
authority, without further action
-13-
<PAGE> 17
by the stockholders, to fix the rights and preferences of, and issue shares of,
Preferred Stock. The staggered board terms, Fair Price Provision, Stockholders'
Rights Agreement, Change in Control Severance Benefits Plan, Preferred Stock
provision and other provisions of our charter and Delaware corporate law may
discourage certain types of transactions involving an actual or potential change
in control of Alteon.
USE OF PROCEEDS
We will receive no proceeds from the sale of the shares by the selling
stockholders but will receive proceeds from the exercise, if any, of the
warrants. We will use such proceeds, if any, for general corporate purposes.
-14-
<PAGE> 18
SELLING STOCKHOLDERS
The following table sets forth information with respect to the selling
stockholders, including (i) the number of shares of common stock beneficially
owned by each selling stockholder as of the date of this prospectus, (ii) the
maximum number of shares of such common stock to be offered hereby, (iii) the
number of shares to be owned after completion of this offering (assuming all
shares offered hereby are sold), and (iv) the percentage of our common stock to
be owned by the selling stockholders after completion of this offering (assuming
all shares offered hereby are sold). The information in the table is based upon
information provided to us by the selling stockholders.
<TABLE>
<CAPTION>
Name of Selling Stockholder Number of Maximum Number of Percentage of
Shares Number of Shares Outstanding
Beneficially Shares Being Beneficially Common Stock
Owned Prior to Offered (1) Owned After Beneficially
Offering (1) (3) Offering (2) Owned After
(3) Offering
<S> <C> <C> <C> <C>
EGM Medical Technology Fund, L.P. (4) 250,544 250,544 0 ---
EGM Medical Technology Offshore Fund (5) 153,580 153,580 0 ---
Herriot Tabuteau (6) 160,290 127,290 33,000 *
Narragansett I, LP (7) 461,496 461,496 0 ---
Narragansett Offshore, Ltd. (8) 664,116 664,116 0 ---
S.A.C. Capital Associates, LLC (9) 2,034,584 2,004,584 30,000 *
SDS Merchant Fund, LP (10) 306,114 306,114 0 ---
</TABLE>
* Less than one percent
(1) Beneficial ownership is determined in accordance with Rule 13d-3 under
the Exchange Act.
(2) Assumes all shares are sold to parties which are not affiliates of the
selling stockholders.
(3) Includes shares and warrants which the selling stockholders have agreed
to purchase from us after the effective date of the registration
statement of which this prospectus is a part.
(4) Includes 71,584 shares issuable upon the exercise of warrants.
(5) Includes 43,880 shares issuable upon the exercise of warrants.
(6) Includes 36,368 shares issuable upon the exercise of warrants.
(7) Includes 131,856 shares issuable upon the exercise of warrants.
(8) Includes 189,748 shares issuable upon the exercise of warrants.
(9) Includes 572,738 shares issuable upon the exercise of warrants.
(10) Includes 87,462 shares issuable upon the exercise of warrants
-15-
<PAGE> 19
PLAN OF DISTRIBUTION
The selling stockholders or their pledgees, donees, transferees, or
other successors in interest may sell the shares offered hereby from time to
time in one or more transactions (which may include block transactions) on the
American Stock Exchange or such other market on which our common stock may, from
time to time, be traded, in privately negotiated transactions, or otherwise at
market prices prevailing at the time of sale, at prices related to prevailing
market prices or at negotiated prices. The selling stockholders may effect such
transactions by selling the shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the selling stockholders 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. In addition, any shares that qualify for sale pursuant to
Rule 144 under the Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus.
The selling stockholders and any broker-dealers or agents that
participate with the selling stockholders in the distribution of the shares may
be deemed to be "underwriters" within the meaning of the Securities Act, and any
commissions received by them 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 agreed to indemnify and hold the selling stockholders harmless
against certain liabilities, including certain liabilities under the Securities
Act, that could arise in connection with the sale by the selling stockholders of
the shares. We have agreed to bear certain expenses (other than selling
commissions) in connection with the registration and sale of the shares being
offered by the selling stockholders.
LEGAL MATTERS
The validity of the issuance of the common stock being offered hereby
has been passed upon by Smith, Stratton, Wise, Heher & Brennan, Princeton, New
Jersey. A member of Smith, Stratton, Wise, Heher & Brennan holds an option to
purchase 16,800 shares of common stock.
EXPERTS
The financial statements incorporated by reference in this registration
statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports.
-16-
<PAGE> 20
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is a part of a registration statement on Form S-3 which
we filed with the Securities and Exchange Commission under the Securities Act.
It omits some of the information set forth in the registration statement. You
can find additional information about Alteon in the registration statement.
Copies of the registration statement are on file at the offices of the SEC. You
may obtain them by paying the prescribed fee or you may examine them without
charge at the SEC's public reference facilities described below.
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and as required by the
Exchange Act, we file reports, proxy statements and other information with the
SEC. You may inspect these reports, proxy statements and other information
without charge and copy them at the public reference facilities maintained by
the SEC at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, 7
World Trade Center, New York, New York 10048 and 500 West Madison Street,
Chicago, Illinois 60661. You may obtain copies of these materials from the SEC's
Public Reference at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. You may obtain information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330. Such material is also
available through the SEC's Web Site (http://www.sec.gov) and our Web Site
(http://www.alteonpharma.com).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which we have filed with the SEC are
incorporated herein by reference:
(a) Our Annual Report on Form 10-K for the fiscal year ended
December 31, 1999.
(b) Our Quarterly Report on Form 10-Q for the quarters ended March
31, 2000 and June 30, 2000.
(c) Our Current Reports on Form 8-K filed January 7, 2000, March
17, 2000, April 12, 2000 and October 5, 2000 and October 20,
2000.
(d) Our proxy statement for our Annual Meeting of Stockholders
held on June 12, 2000.
(e) The description of our common stock, $.01 par value, which is
contained in our Registration Statement on Form 8-A filed
November 1, 1991, including any amendments or reports filed
for the purpose of updating such description.
-17-
<PAGE> 21
(f) The description of our Rights to Purchase Series F Preferred
Stock which is contained in our Registration Statement on Form
8-A, filed August 4, 1995, including any amendments or reports
filed for the purpose of updating such description.
All documents, which we file under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this prospectus and prior to termination
of the offering shall be deemed to be incorporated by reference herein and to
be a part of this prospectus from the date of the filing of such documents. Any
statement contained herein or in a document incorporated by reference or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that the statement is
modified or superseded by any other subsequently filed document which is
incorporated or is deemed to be incorporated by reference herein. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
This prospectus incorporates documents by reference which are not
presented herein or delivered herewith. We will provide without charge to each
person, including any beneficial owner, to whom this prospectus is delivered, on
the written or oral request of such person, a copy of any or all of the
documents referred to above which have been or may be incorporated into this
prospectus and deemed to be a part of this prospectus, other than exhibits to
the documents unless such exhibits are specifically incorporated by reference in
the documents. These documents are available upon request from Elizabeth A.
O'Dell, Vice President, Finance and Administration, Alteon Inc., 170 Williams
Drive, Ramsey, New Jersey 07446, (201) 934-5000.
-18-
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an itemized estimate (other than the SEC
registration fee which is the actual, not estimated, fee) of fees and expenses
payable by the registrant in connection with the offering described in this
registration statement.
<TABLE>
<S> <C>
SEC registration fee ........................ $5,695.
Printing, shipping & engraving expenses ..... 1,000.
Legal fees and expenses ..................... 7,500.
Accounting fees ............................. 1,500.
Miscellaneous expenses ...................... 2,000.
Total ....................................... $17,695.
</TABLE>
All expenses of registration incurred in connection herewith are being
borne by Alteon but all selling and other expenses incurred by the selling
stockholders will be borne by the selling stockholders.
Item 15. Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the General Corporation Law of
Delaware empowers a corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
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.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action 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,
-19-
<PAGE> 23
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 to 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 of 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.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) 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; that the indemnification provided by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the scope of indemnification extends to directors, officers, employees,
or agents of a constituent corporation absorbed in a consolidation or merger and
persons serving in that capacity at the request of the constituent corporation
for another. Section 145 also empowers the corporation to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or incurred by him in any such capacity or
arising out of his status as such whether or not the corporation would have the
power to indemnify him against such liabilities under Section 145.
Article IX of the registrant's By-laws specifies that the registrant
shall indemnify its directors and officers to the full extent permitted by the
General Corporation Law of Delaware. This provision of the By-laws is deemed to
be a contract between the registrant and each director and officer who serves in
such capacity at any time while such provision and the relevant provisions of
the General Corporation Law of Delaware are in effect, and any repeal or
modification thereof shall not offset any rights or obligations then existing
with respect to any state of facts then or theretofore existing or in any
action, suit or proceeding theretofore or thereafter brought or threatened in
whole or in part upon any such state of facts.
Section 102(b)(7) of the Delaware General Corporation Law enables a
corporation in its certificate of incorporation to limit the personal liability
of members of its board of directors for violation of a director's fiduciary
duty of care. This Section does not, however, limit the liability of a director
for breaching his duty of loyalty, failing to act in good faith, engaging in
intentional misconduct or knowingly violating a law, or from any transaction in
which the director derived an improper personal benefit. This Section also will
have no effect on claims arising under the federal securities laws. The
registrant's certificate of incorporation limits the liability of its directors
as authorized by Section 102(b)(7).
-20-
<PAGE> 24
The registrant currently carries liability insurance for the benefit of
its directors and officers which provides coverage for losses of directors and
officers for liabilities arising out of claims against such persons acting as
directors or officers of the registrant (or any subsidiary thereof) due to any
breach of duty, neglect, error, misstatement, misleading statement, omission or
act done by such directors and officers, except as prohibited by law. The
liability limit, however, shall be reduced by amounts incurred for legal
defense, which amounts are to be applied against the retention amount. The
insurance policy also provides for the advancement of reasonable fees, costs and
expenses including attorneys' fees under certain circumstances, incurred by
directors and officers in investigating, adjusting, defending and appealing any
claim, subject to repayment by such director or officer if it is ultimately
determined that such insureds are not entitled under the terms of the policy to
payment of such loss.
The insurance policy will not provide coverage to the directors and
officers to the extent that the Company has indemnified the directors or
officers. The policy provides for the reimbursement of the Company to the extent
the Company has indemnified the directors and officers pursuant to law, contract
or the Certificate of Incorporation or By-laws of the Company. Moreover, the
registrant would not be required to indemnify a director or officer for any
claim based upon: (i) the director or officer gaining, in fact, a personal
profit or advantage to which he or she was not legally entitled, (ii) the
director or officer committing, in fact, any criminal or deliberately fraudulent
act, (iii) the payment to any director or officer of any remuneration without
the previous approval of the stockholders of the Company, which payment without
such previous approval shall be held to have been illegal, (iv) any claim for
accounting of profits made in connection with a violation of 16(b) of the
Exchange Act or a similar state law, (v) any attempt, whether successful or
unsuccessful, by any person to acquire securities of the Company against the
opposition of the Board of Directors of the Company, or any action, whether
successful or unsuccessful, by the Company or the Board of Directors to resist
such attempts; provided however that the exclusion shall not apply if the
Company has obtained a written opinion from legal counsel that such resistive
action is a lawful exercise of the Board of Directors' business judgment and an
opinion from an investment banking firm that the price of such acquisition of
securities is inadequate, (vi) environmental claims and violations, (vii)
violation of the Employee Retirement Income Security Act of 1974, as amended,
and (viii) claims made against the directors or officers under federal or state
law based upon the filing of a registration statement with the Securities and
Exchange Commission or based upon any underwriting agreement for the offer of
any security.
At present, there is no pending litigation or proceeding involving a
director or officer of the registrant as to which indemnification is being
sought nor is the registrant aware of any threatened litigation that may result
in claims for indemnification by any director or officer.
-21-
<PAGE> 25
Item 16. Exhibits.
Exhibit
Number Description
4.1 - Restated Certificate of Incorporation. (Incorporated by reference to
Exhibit 3.1 to the Company's Report on Form 10-Q filed on November 10,
1999).
4.2 - Certificate of the Voting Powers, Designations, Preference and Relative
Participating, Optional and Other Special Qualifications, Limitations
or Restrictions of Series F Preferred Stock of the Company.
(Incorporated by reference to Exhibit 4.2 to the Company's Current
Report on Form 8-K filed on August 4, 1995).
4.3 - Certificate of Retirement of Alteon Inc. (Incorporated by reference to
Exhibit 3.1 to the Company's Report on Form 10-Q filed on November 10,
1999).
4.4 - Certificate of Designations of Series G Preferred Stock of Alteon Inc.
(Incorporated by reference to Exhibit 3.4 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1997).
4.5 - Certificate of Amendment of Certificate of Designations of Series G
Preferred Stock of Alteon Inc. (Incorporated by reference to Exhibit
3.4 of the Company's Report on Form 10-Q filed on August 14, 1998).
4.6 - Certificate of Designations of Series H Preferred Stock of Alteon Inc.
(Incorporated by reference to Exhibit 3.5 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1997).
4.7 - Amended Certificate of Designations of Series H Preferred Stock of
Alteon Inc. (Incorporated by reference to Exhibit 3.6 to the Company's
Report on Form 10-Q filed on August 14, 1998).
4.8 - By-laws, as amended. (Incorporated by reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K filed on April 22, 1996).
4.9 - Stockholders' Rights Agreement dated as of July 27, 1995, between
Alteon Inc. and Registrar and Transfer Company, as Rights Agent.
(Incorporated by reference to Exhibit 4.1 to the Company's Current
Report on Form 8-K filed on August 4, 1995).
4.10 - Amendment to Stockholders' Rights Agreement between Alteon Inc. and
Registrar and Transfer Company, as Rights Agent. (Incorporated by
reference to Exhibit 4.4 to the Company's Current Report on Form 8-K
filed on May 9, 1997).
-22-
<PAGE> 26
4.11 - Amendment to Stockholders' Rights Agreement between Alteon Inc. and
Registrar and Transfer Company, as Rights Agent. (Incorporated by
reference to Exhibit 4.1 to the Company's Current Report on Form 8-K
filed on December 10, 1997).
5.1 - Opinion of Smith, Stratton, Wise, Heher & Brennan.
23.1 - Consent of Arthur Andersen LLP, independent public accountants.
23.2 - Consent of Smith, Stratton, Wise, Heher & Brennan. (Contained in
Exhibit 5.1).
24.1 - Power of Attorney. (See "Power of Attorney" below).
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.
(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 percent 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;
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is
-23-
<PAGE> 27
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That for the purpose of determining any liability under the
Securities Act, 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 registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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 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.
-24-
<PAGE> 28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Ramsey, State of New Jersey, on October 30, 2000.
ALTEON INC.
By: /s/ Kenneth I. Moch
-------------------------------------
Kenneth I. Moch
President and Chief Executive Officer
-25-
<PAGE> 29
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kenneth I. Moch and Elizabeth A. O'Dell,
and each or any one of them, 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 and 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, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and conforming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Kenneth I. Moch President, October 30, 2000
--------------------
Kenneth I. Moch Chief Executive Officer
and Director
(principal executive officer)
/s/ Elizabeth A. O'Dell Vice President, Finance October 30, 2000
-----------------------
Elizabeth A. O'Dell and Administration,
Treasurer and Secretary
(principal financial and
accounting officer)
</TABLE>
-26-
<PAGE> 30
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Mark Novitch, M.D. Director, Chairman October 30, 2000
----------------------
Mark Novitch, M.D.
/s/ Edwin D. Bransome, Jr., M.D. Director October 30, 2000
--------------------------------
Edwin D. Bransome, Jr., M.D.
/s/ Marilyn Breslow Director October 30, 2000
-------------------
Marilyn Breslow
/s/ Alan J. Dalby Director October 30, 2000
-----------------
Alan J. Dalby
/s/ David McCurdy Director October 30, 2000
-----------------
David McCurdy
/s/ George M. Naimark, Ph.D. Director October 30, 2000
----------------------------
George M. Naimark, Ph.D
</TABLE>
-27-
<PAGE> 31
EXHIBIT INDEX
Exhibit
Number Description
4.1 - Restated Certificate of Incorporation. (Incorporated by reference to
Exhibit 3.1 to the Company's Report on Form 10-Q filed on November 10,
1999).
4.2 - Certificate of the Voting Powers, Designations, Preference and Relative
Participating, Optional and Other Special Qualifications, Limitations
or Restrictions of Series F Preferred Stock of the Company.
(Incorporated by reference to Exhibit 4.2 to the Company's Current
Report on Form 8-K filed on August 4, 1995).
4.3 - Certificate of Retirement of Alteon Inc. (Incorporated by reference to
Exhibit 3.1 to the Company's Report on Form 10-Q filed on November 10,
1999).
4.4 - Certificate of Designations of Series G Preferred Stock of Alteon Inc.
(Incorporated by reference to Exhibit 3.4 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1997).
4.5 - Certificate of Amendment of Certificate of Designations of Series G
Preferred Stock of Alteon Inc. (Incorporated by reference to Exhibit
3.4 of the Company's Report on Form 10-Q filed on August 14, 1998).
4.6 - Certificate of Designations of Series H Preferred Stock of Alteon Inc.
(Incorporated by reference to Exhibit 3.5 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1997).
4.7 - Amended Certificate of Designations of Series H Preferred Stock of
Alteon Inc. (Incorporated by reference to Exhibit 3.6 to the Company's
Report on Form 10-Q filed on August 14, 1998).
4.8 - By-laws, as amended. (Incorporated by reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K filed on April 22, 1996).
4.9 - Stockholders' Rights Agreement dated as of July 27, 1995, between
Alteon Inc. and Registrar and Transfer Company, as Rights Agent.
(Incorporated by reference to Exhibit 4.1 to the Company's Current
Report on Form 8-K filed on August 4, 1995).
4.10 - Amendment to Stockholders' Rights Agreement between Alteon Inc. and
Registrar and Transfer Company, as Rights Agent. (Incorporated by
reference to Exhibit 4.4 to the Company's Current Report on Form 8-K
filed on May 9, 1997).
-28-
<PAGE> 32
4.11 - Amendment to Stockholders' Rights Agreement between Alteon Inc. and
Registrar and Transfer Company, as Rights Agent. (Incorporated by
reference to Exhibit 4.1 to the Company's Current Report on Form 8-K
filed on December 10, 1997).
5.1 - Opinion of Smith, Stratton, Wise, Heher & Brennan.
23.1 - Consent of Arthur Andersen LLP, independent public accountants.
23.2 - Consent of Smith, Stratton, Wise, Heher & Brennan. (Contained in
Exhibit 5.1).
24.1 - Power of Attorney. (See "Power of Attorney" below).
-29-
