<PAGE> 1
As filed with the Securities and Exchange Commission on July 30, 1999
Registration No. 333-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DUSA PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
NEW JERSEY 22-3103129
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
181 UNIVERSITY AVENUE, SUITE 1208
TORONTO, ONTARIO M5H 3M7 CANADA
(416) 363-5059
(Address, including ZIP code, and telephone number,
including area code, of registrant's principal executive offices)
NANETTE W. MANTELL, ESQ.
LANE AND MANTELL
991 ROUTE 22 WEST, PO BOX 8539
SOMERVILLE, NEW JERSEY 08876
(908) 253-9333
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
COPIES TO:
DR. D. GEOFFREY SHULMAN, PRESIDENT
DUSA PHARMACEUTICALS, INC.
181 UNIVERSITY AVENUE, SUITE 1208
TORONTO, ONTARIO M5H 3M7 CANADA
(416) 363-5059
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [X] 333-73039
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Securities to be Offering Price Per Aggregate Offering Registration
to be Registered Registered Share Price Fee
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<S> <C> <C> <C> <C>
Placement agent warrants (2) 1,630 $ 11.34375 (1) $ 18,490.31 $ 5.14
- --------------------------------------------------------------------------------------------------------------------------------
Shares of common stock without par value (3) 1,630 -- $ 0.00 $ 0.00
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TOTAL REGISTRATION FEE..........................................................................................$ 5.14
================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(g)(3) of the Securities Act of 1933, as amended, based
upon the average of the high and low price as reported on The NASDAQ National
Market on July 26, 1999.
(2) Represents additional warrants issued to designees of the placement agent
as additional compensation in connection with a private placement completed
January 15, 1999 under Rule 506 of Regulation D of the Securities Act of 1933,
as amended, to fulfill a condition subsequent under the terms of the warrant
agreements.
(3) Represents additional shares issuable upon exercise of the placement agent
warrants listed in footnote (2).
INCORPORATION OF CERTAIN INFORMATION BY REFERENCED PURSUANT TO
GENERAL INSTRUCTION IV OF FORM S-3
This registration statement is being filed in order to register
additional shares of DUSA common stock pursuant to Rule 462(b) under the
Securities Act of 1933, as amended.
Pursuant to Rule 462(b) and in accordance with the provisions of
General Instructions IV of Form S-3, DUSA hereby incorporates by reference the
contents of DUSA's registration statement on Form S-3 (Registration No.
333-73039) filed with the Securities and Exchange Commission on February 26,
1999, as amended by Amendment No. 1 dated April 19, 1999, Amendment No. 2 dated
May 21, 1999, and Amendment No. 3 dated June 18, 1999, which registration
statement was declared effective on June 18, 1999, including the exhibits
thereto.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. EXHIBITS
(a) All exhibits filed with or incorporated by reference in DUSA's Registration
Statement on Form S-3 (Registration Statement No: 333-73039) are incorporated
by reference into and shall be deemed a part of, this registration statement,
except the following, which are filed herewith:
(5) Opinion re: legality
(5.1) Opinion of Lane and Mantell, a professional
corporation
(23) Consents of experts and counsel
(23.1) Consent of Deloitte & Touche LLP
(23.2) Consent of Lane and Mantell, a professional
corporation (included in Exhibit 5.1)
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe 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 Toronto, Province of Ontario, Canada, on July
29, 1999.
DUSA Pharmaceuticals, Inc.
--------------------------
(Registrant)
By: s/D. Geoffrey Shulman
---------------------------
D. Geoffrey Shulman,
President and
Chief Executive Officer
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature
appears below constitutes and appoints D. Geoffrey Shulman as his/her true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him/her and in his/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 attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection with the above premises, as
fully to all intents and purposes as he/she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<S> <C> <C>
s/D. Geoffrey Shulman Director, Chairman of the Board, July 29, 1999
- ----------------------------------- President, Chief Executive Officer --------------------
D. Geoffrey Shulman, MD, FRCPC and Chief Financial Officer Date
(Principal Executive, Financial,
and Accounting Officer)
s/Ronald L. Carroll Executive Vice President, Chief July 29, 1999
- ----------------------------------- Operating Officer --------------------
Ronald L. Carroll Date
s/Stuart L. Marcus Senior Vice President, July 29, 1999
- ----------------------------------- Scientific Affairs --------------------
Stuart L. Marcus, MD, PhD Date
s/Scott L. Lundahl Vice President, Technology July 29, 1999
- ----------------------------------- --------------------
Scott L. Lundahl Date
s/Nanette W. Mantell Secretary July 29, 1999
- ----------------------------------- --------------------
Nanette W. Mantell, Esq. Date
s/John H. Abeles Director July 29, 1999
- ----------------------------------- --------------------
John H. Abeles, MD Date
s/James P. Doherty Director July 29, 1999
- ----------------------------------- --------------------
James P. Doherty, BSc Date
s/Jay M. Haft Director July 29, 1999
- ----------------------------------- --------------------
Jay M. Haft, Esq. Date
s/Richard C. Lufkin Director July 29, 1999
- ----------------------------------- --------------------
Richard C. Lufkin Date
</TABLE>
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INDEX TO EXHIBITS
(5) Opinion re: legality
(5.1) Opinion of Lane and Mantell, a professional corporation
(23) Consents of experts and counsel
(23.1) Consent of Deloitte & Touche LLP
(23.2) Consent of Lane and Mantell, a professional
corporation (included in Exhibit 5.1)
<PAGE> 1
LANE AND MANTELL Exhibits 5.1
a professional corporation and 23.2
ATTORNEYS AT LAW
991 Route 22 West, Post Office Box 8539, Suite 102
Somerville, New Jersey 08876
Nanette Weitman Mantell Telephone (908) 253-9333
Steven R. Lane Facsimile (908) 253-9339
-------
Rosemary Farr Howard Freeman
Of Counsel
July 29, 1999
DUSA Pharmaceuticals, Inc.
181 University Avenue, Suite 1208
Toronto, Ontario M5H 3M7
CANADA
Re: DUSA Pharmaceuticals, Inc. (the "Company")
Registration Statement - Form S-3
Gentlemen:
We have examined the Company's registration statement on Form S-3
pursuant to Rule 462(b) of Securities Act of 1933, as amended (the "Act") (the
"462(b) Registration Statement") which is being filed with the Securities and
Exchange Commission (the "SEC") in connection with the registration of up to
1,630 shares of the Company's common stock, without par value (the "Common
Stock").
We have also examined copies of (i) the Registration Statement on Form
S-3 (Registration No. 333-73039) as filed with the SEC on February 26, 1999,
under the Act; (ii) Amendment No. 1, filed on April 19, 1999, Amendment No. 2,
filed on May 21, 1999, and Amendment No. 3, filed on June 18, 1999 (the
Registration Statement as so amended collectively known as the "Registration
Statement"); (iii) the Certificate of Incorporation of the Company, and all
amendments to the Certificate of Incorporation filed by the Company in the
Office of the Secretary of State of the State of New Jersey; (iv) the By-laws
of the Company; (v) the form of warrant agreement between the Company and the
selling shareholders with respect to Common Stock being offered pursuant to the
Registration Statement; and (vi) such records of corporate proceedings and
other documents as we have deemed necessary in order to enable us to express
the opinion set forth below. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals and the conformity with the original of all documents submitted
to us as copies thereof. Where factual matters relevant to such opinion were
not independently established,
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DUSA Pharmaceuticals, Inc.
July 29, 1999
Page 2
we have relied upon certificates of officers and responsible employees and
agents of the Company. Our opinion set forth below is limited to the Business
Corporation Law of the State of New Jersey.
Based on the foregoing examination, it is our opinion that the 1,630
shares of Common Stock underlying the placement agent warrants, if duly
converted in accordance with the terms and conditions of such warrants against
payment to the Company, will be validly issued and outstanding, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
462(b) Registration Statement. We also consent to the reference to our firm's
name under the heading "Legal Matters" in the Registration Statement, which is
incorporated by reference into the 462(b) Registration Statement.
Very truly yours,
LANE AND MANTELL
a professional corporation
/s/Nanette W. Mantell
By: Nanette W. Mantell
NWM/
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Exhibit 23.1
DELOITTE & TOUCHE LLP
BCE PLACE
181 BAY STREET
SUITE 1400
TORONTO, ONTARIO M5J2V1
CANADA
July 29, 1999
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Dusa Pharmaceuticals, Inc. on Form S-3 of our report dated February 4, 1999
(which expresses an unqualified opinion and includes an emphasis paragraph
indicating that the Company is in the development stage), appearing in the
Annual Report on Form 10-K of Dusa Pharmaceuticals, Inc. for the year ended
December 31, 1998 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Chartered Accountants
Toronto, Ontario
