As Filed With the Securities and Exchange Commission on November 5, 1997
Registration No. 333-38773
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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SCICLONE PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
California 94-3116852
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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901 Mariners Island Boulevard
San Mateo, California 94404
(650) 358-3456
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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Donald R. Sellers
President and Chief Executive Officer
SciClone Pharmaceuticals, Inc.
901 Mariners Island Boulevard
San Mateo, California 94404
(650) 358-3456
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
J. HOWARD CLOWES, ESQ. JAMES R. TANENBAUM, ESQ.
DIANNE B. SALESIN, ESQ. Stroock & Stroock & Lavan LLP
JOHN M. FOGG, ESQ. 180 Maiden Lane
Gray Cary Ware & Freidenrich New York, New York 10038
A Professional Corporation
400 Hamilton Avenue
Palo Alto, California 94301
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Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
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: [ ]
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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a),
may determine.
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<PAGE>
EXPLANATORY NOTE
Amendment No. 1 is being filed solely for the purpose of filing an exhibit
to the Registration Statement.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered, other than the
Placement Agent's fee. All amounts shown are estimates except the Securities and
Exchange Commission registration fee, the NASD filing fee and the Nasdaq
National Market listing fee.
Item Amount
- ---- ------
Securities and Exchange Commission registration fee......... $ 2,814
NASD filing fee............................................. 1,429
Nasdaq National Market listing fee.......................... 17,500
Blue sky qualification fees and expenses.................... 3,000
Accounting fees and expenses................................ 20,000
Legal fees and expenses..................................... 160,000
Printing and engraving expenses............................. 10,000
Transfer agent and registrar fees........................... 2,000
Miscellaneous expenses...................................... 8,257
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Total.............................................. $ 225,000
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Item 15. Indemnification of Directors and Officers
The Company's Restated Articles of Incorporation, as amended, provide that
the liability of the directors for monetary damages shall be eliminated to the
fullest extent permissible under California law. Pursuant to California law, the
Company's directors shall not be liable for monetary damages for breach of the
directors' fiduciary duty of care to the Company and its shareholders. However,
this provision in the Restated Articles of Incorporation does not eliminate the
duty of care, and in appropriate circumstances equitable remedies such as
injunctive or other forms of nonmonetary relief will remain available under
California law. In addition, each director will continue to be subject to
liability (i) for acts or omissions that involve intentional misconduct or a
knowing and culpable violation of law, (ii) for acts or omissions that a
director believes to be contrary to the best interests of the Company or its
shareholders or that involve the absence of good faith on the part of the
director, (iii) for any transaction from which a director derived an improper
personal benefit, (iv) for acts or omissions that show a reckless disregard for
the director's duty to the Company or its shareholders in circumstances in which
the director was aware, or should have been aware, in the ordinary course of
performing a director's duties, of a risk of serious injury to the Company or
its shareholders, (v) for acts or omissions that constitute an unexcused pattern
of inattention that amounts to an abdication of the director's duty to the
Company or its shareholders, (vi) for any transaction that constitutes an
illegal distribution or dividend under California law, and (vii) for any
transaction involving an unlawful conflict of interest between the director and
the Company under California law. The provision also does not affect a
director's responsibilities under any other law, such as the federal securities
laws or state or federal environmental laws.
In addition, the Company's Restated Articles of Incorporation, as amended,
provide that the Company is authorized to provide indemnification of agents (as
defined under California law) for breach of duty to the Company and its
shareholders through bylaw provisions, agreements with the agents, vote of
shareholders or disinterested directors or otherwise, in excess of the
indemnification otherwise permitted by California law, subject to the limits on
such excess indemnification set forth in California law.
The Company's Bylaws provide that the Company will indemnify its directors
and officers to the maximum extent and in the manner permitted by California law
and may indemnify its employees and other agents to the maximum extent and in
the manner permitted by California law. Such indemnification is intended to
provide the
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<PAGE>
full flexibility available under California law and may, under certain
circumstances, include indemnification for negligence, gross negligence and
certain types of recklessness. Under California law and the Company's Bylaws,
the Company will be permitted to indemnify its directors, officers, employees
and other agents, within the limits established by law and public policy,
pursuant to an express contract, bylaw provision, shareholder vote or otherwise,
any or all of which could provide indemnification rights broader than those
expressly available under California law. The Company has entered into
agreements with its directors and certain of its officers, including all of its
executive officers, that require the Company to indemnify such persons against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
an officer of the Company or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Company and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
The form of Placement Agent Agreement filed as Exhibit 1.1 hereto sets
forth certain provisions with respect to the indemnification of certain
controlling persons, directors and officers against certain losses and
liabilities, including certain liabilities under the Securities Act.
Item 16. Exhibits
See Exhibit Index.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant, pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned Registrant undertakes that:
(1) For purposes of determining any liability under the Securities act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 4340A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) of (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective; and
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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.
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
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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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 amendment to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Mateo, State of California, on the 5th day
of November, 1997.
SCICLONE PHARMACEUTICALS, INC.
By: /s/ MARK A. CULHANE
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Mark A. Culhane
Chief Financial Officer
(Principal Financial and
Acccounting Officer)
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this amendment
to registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
DONALD R. SELLERS* President, Chief Executive Officer, November 5, 1997
- ------------------------------------ and Director (Principal Executive Officer)
Donald R. Sellers
/s/ MARK A. CULHANE Vice President, Finance and November 5, 1997
- ------------------------------------ Administration, Chief Financial Officer
Mark A. Culhane and Secretary
(Principal Financial and Accounting Officer)
JERE E. GOYAN* Chairman of the Board and Director November 5, 1997
- ------------------------------------
Jere E. Goyan, Ph.D
JOHN D. BAXTER* Director November 5, 1997
- ------------------------------------
John D. Baxter, M.D.
EDWIN C. CADMAN* Director November 5, 1997
- ------------------------------------
Edwin C. Cadman, M.D.
ROLF H. HENEL* Director November 5, 1997
- ------------------------------------
Rolf H. Henel
*By /s/ MARK A. CULHANE November 5, 1997
- ------------------------------------
Mark A. Culhane, Attorney-in-Fact
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit Number
Description of Document
1.1* Form of Placement Agency Agreement between EVEREN Securities,
Inc. and the Company.
4.1 Rights Agreement, dated as of July 25, 1997, between SciClone
and ChaseMellon Shareholder Services, LLC. (incorporated by
reference to the Company's Current Report on Form 8-K filed on
October 14, 1997).
5.1** Opinion of Gray Cary Ware & Freidenrich.
10.1** Purchase and Sale, Pledge and Security Agreement; Release dated
as of July 23, 1997 by Thomas Moore, in favor of SciClone
Pharmaceuticals, Inc.
10.2* Form of Escrow Agreement among the Company, the Placement Agent
and the Escrow Agent (included in Exhibit 1.1)
23.1** Consent of Gray Cary Ware & Freidenrich (included in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP.
24.1** Power of Attorney.
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* To be filed by amendment.
** Previously filed.
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of SciClone
Pharmaceuticals, Inc. for the registration of 1,500,000 shares of its common
stock and to the incorporation by reference therein of our report dated January
23, 1997, with respect to the consolidated financial statements of SciClone
Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year
ended December 31, 1996, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
October 24, 1997
Palo Alto, California
