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As filed with the Securities and Exchange Commission on April 23, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_______________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________
MATRITECH, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-2985132
(State or other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
330 NEVADA STREET
NEWTON, MA 02460
(617) 928-0820
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
STEPHEN D. CHUBB
President and Chief Executive Officer
MATRITECH, INC.
330 Nevada Street
Newton, MA 02460
(617) 928-0820
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
Copy to:
Rufus C. King, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
_______________
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. [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
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Title of Shares Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share (1) Aggregate Offering Price (1) Registration Fee (2)
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<S> <C> <C> <C> <C>
Common Stock, $.01
par value per share __3,094,965__ $1.234375 $3,820,347.00 $1,062.00
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended.
(2) Pursuant to Rule 457(c) under the Securities Act of 1933, the
registration fee has been calculated based upon the average of the high and low
prices per share of the Common Stock of Matritech, Inc. on the Nasdaq National
Market on April 16, 1999.
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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
The information contained in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion: Dated April 23, 1999
MATRITECH, INC.
3,094,965 SHARES (THE "SHARES")
OF COMMON STOCK
$.01 PAR VALUE PER SHARE
---------------
This prospectus covers the resale of up to 3,094,965 Shares of our common
stock by the Selling Securityholders listed inside. The Selling Securityholders
may offer the Shares from time to time on the Nasdaq National Market in ordinary
brokerage transactions or in other types of transactions described inside under
the heading "Plan of Distribution." The Selling Securityholders and some people
who purchase Shares from them, including broker-dealers acting as principals who
may resell the Shares, may be "underwriters," as that term is defined in the
Securities Act of 1933.
The Selling Securityholders bought the Shares from us in a private
placement which was completed on April 6, 1999. We will not receive any of the
proceeds from the sale of the Shares by the Selling Securityholders. We are
paying the expenses of registering the Shares for offer and sale by the Selling
Securityholders (other than selling commissions and the fees and expenses of
their counsel or other advisors). We have agreed to indemnify the Selling
Securityholders against certain liabilities, including liabilities under the
Securities Act and the Securities Exchange Act of 1934.
Our common stock is quoted on the Nasdaq National Market under the symbol
"NMPS." On April 16, 1999, the last reported sale price for the common stock as
reported by the Nasdaq National Market was $1.234375 per share. Our executive
offices are located at 330 Nevada Street, Newton, Massachusetts 02460, and our
telephone number is (617) 928-0820.
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR INFORMATION THAT SHOULD BE CONSIDERED
BY PROSPECTIVE INVESTORS.
---------------
The Shares have not been approved or disapproved by the Securities and
Exchange Commission or any state securities commission, nor have those
organizations determined that this prospectus is accurate and complete. Any
representation to the contrary is a criminal offense.
You should rely only on the information contained in this prospectus or
information specifically incorporated by reference in this prospectus. We have
not authorized anyone to provide you with information that is different.
Neither the delivery of this prospectus, nor any sale of the Shares, shall
create any implication that the information in this prospectus is correct after
the date hereof.
This prospectus is not an offer to or solicitation of any person in any
jurisdiction in which such offer or solicitation is illegal.
The information contained in this prospectus is subject to completion or
amendment. A registration statement relating to the Shares has been filed with
the Securities and Exchange Commission. The Shares may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective.
---------------
THE DATE OF THIS PROSPECTUS IS , 1999.
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RISK FACTORS
This offering involves a high degree of risk. You should carefully consider
the risks described below and other information in this prospectus before
purchasing our common stock. This prospectus contains forward-looking statements
which involve risks and uncertainties. Our actual results could differ
materially from those anticipated in these forward-looking statements as a
result of certain factors, including the risks faced by us described below and
elsewhere in this prospectus.
The following risk factors should be read in conjunction with the detailed
information in this prospectus (and in the documents incorporated by reference
into this prospectus). The following factors, among others, could cause actual
results to differ materially from those contained in forward looking statements
contained or incorporated by reference in this prospectus and presented by
management from time to time. Such factors, among others, may have a material
adverse effect upon our business, results of operations and financial condition.
WE NEED TO OBTAIN ADDITIONAL CAPITAL
We will need additional funding to continue to market our NMP22(R) Bladder
Cancer Test Kit, to conduct research and development, to conduct clinical trials
and to manufacture and market our products as we currently contemplate. We are
currently seeking to raise additional capital and will consider various
financing alternatives, including equity or debt financings and corporate
partnering arrangements. However, we may not raise needed capital on terms
acceptable to us, if at all. If we do not receive additional financing, we may
be required to curtail further our expenses or take other steps that could
adversely affect our future performance. We believe that the combination of the
proceeds from the private placement completed in April, 1999 and our existing
capital will be sufficient to fund our operations at least through the end of
1999.
OUR STOCK PRICE MAY BE VOLATILE
The market price of our common stock has been, and may continue to be,
highly volatile. The stock market has from time to time experienced extreme
price and volume fluctuations, particularly in the biotechnology sector, which
have often been unrelated to the operating performance of particular companies.
In addition, factors such as announcements of technological innovations or new
products by us or our competitors or third parties, as well as market conditions
in our industry, may significantly impact the market price of our common stock.
OUR COMMON STOCK MAY BE DELISTED FROM THE NASDAQ NATIONAL MARKET
Our common stock is currently listed on the Nasdaq National Market ("NNM").
For continued listing of our common stock on the NNM, we must, among other
things, maintain at least $4 million in net tangible assets and a minimum bid
price for our common stock of $1.00. If our net tangible assets fall below $4
million, or if our common stock trades at a price of less than $1.00 for 30
consecutive business days or more, our securities may be delisted from NNM, and
trading, if any, of our securities would then be conducted in a non-Nasdaq over-
the-counter market. If our securities are delisted, you could find it more
difficult to dispose of, or to obtain accurate quotations as to the market value
of, our securities. In addition, if our securities are delisted, they may be
subject to a rule that imposes additional sales practice requirements on broker-
dealers who sell our securities to persons other than established customers and
accredited investors. For transactions covered by this rule, the broker-dealer
must make a special suitability determination for the purchaser and must have
received the purchaser's written
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consent to the transaction prior to sale. Consequently, delisting, if it
occurred, may affect the ability of broker-dealers to sell our securities and
your ability to sell your securities.
WE HAVE A HISTORY OF OPERATING LOSSES AND WE ANTICIPATE FUTURE LOSSES
We have incurred operating losses since we began operations in 1987. Such
losses have resulted principally from costs incurred in research and development
and from selling, general and administrative costs associated with our
development. These costs have exceeded our revenues, which to date have been
generated primarily from initial sales of our NMP22 Bladder Cancer Test Kit, our
development agreements, government grants and interest income. We expect to
incur continuing operating losses in the near term. Our ability to be profitable
depends in part on our ability to market our existing products, obtain required
regulatory approvals and develop new products. We may not be able to market
successfully our existing products, obtain required regulatory approvals or
develop, commercialize, produce and market our future products or achieve or
maintain profitability.
OUR NEAR-TERM SUCCESS DEPENDS ON NMP22
We expect to generate substantially all of our near-term product sales from
the sale of our NMP22 Bladder Cancer Test Kits, which was approved for sale in
the United States by the FDA in 1996 and approved for sale in Japan in 1998. We
would experience a material adverse effect on our business, financial condition
and results of operations if the NMP22 Bladder Cancer Test Kit does not achieve
wide market acceptance. The remainder of our products still require FDA approval
or are in development. We may not obtain such regulatory approvals, and we may
not complete product development.
WE DEPEND ON DISTRIBUTORS
We have limited internal marketing and sales resources and personnel. We
derive a significant portion of our sales revenue from distribution agreements
with two distributors. Konica Corporation has an exclusive right to sell our
NMP22 Bladder Cancer Test Kit in Japan. Fisher Diagnostics has a co-exclusive
right with us to sell our NMP22 Bladder Cancer Test Kit to hospitals and
commercial laboratories in the United States. Because we do not deal directly
with customers when selling through distributors, we depend on the ability of
Konica and Fisher to market actively, to forecast demand accurately and to
maintain appropriate levels of inventory. We have minimal control over our
distributors, and these distributors are under no obligation to purchase a
minimum quantity of our products. The failure or delay by a distributor in
selling our products, or any material breach of their agreements with us, could
materially adversely affect our business, financial condition and results of
operations. We may be unable to enter into additional distribution relationships
on favorable terms, if at all.
OUR OPERATING RESULTS MAY FLUCTUATE
Our future operating results may vary significantly from quarter to quarter
or from year to year for several reasons, including:
. the timing and size of orders from customers and distributors;
. regulatory approvals and the introduction of new products by us; and
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. market acceptance of our products.
Our current planned expense levels are based in part upon expectations
about future revenue. Consequently, profits may vary significantly from quarter
to quarter or year to year based on the timing of revenue. Revenue or profits in
any period will not necessarily indicate results in subsequent periods.
WE FACE INTENSE COMPETITION AND OUR TECHNOLOGY MAY BECOME OBSOLETE
Although we are not aware of any other company using NMP technology to
develop diagnostic or therapeutic products, competition in the development and
marketing of cancer diagnostics and therapeutics, using a variety of
technologies, is intense. Many pharmaceutical companies, biotechnology
companies, public and private universities and research organizations actively
engage in the research and development of clinical cancer diagnostic products.
Many of these organizations have greater financial, manufacturing, marketing and
human resources than we do.
We expect that certain of our assays will compete with existing FDA-
approved assays, including BTA, which has been approved for monitoring bladder
cancer, CEA, which is used primarily for monitoring colorectal and breast
cancers, PSA, which is used primarily for monitoring and screening prostate
cancer, and TRUQUANT BR RIA, which is used for monitoring breast cancer. We are
also aware of a number of companies exploring the application of oncogene
technology to cancer diagnostics. Our diagnostic products will also compete with
more invasive or expensive procedures such as surgery, bone scans, magnetic
resonance imaging and other in vivo imaging techniques. In addition, other
companies may introduce competing diagnostic products based on other
technologies that may adversely affect our competitive position. As a result,
our products may become obsolete or non-competitive.
WE MAY FACE RISKS ASSOCIATED WITH DEVELOPMENT AND TESTING OF FUTURE PRODUCTS
Other than the NMP22 Bladder Cancer Test Kit, all of our products are under
development and are not expected to be commercially available in the United
States for some time. The majority of our products under development will
require significant additional research and development, laboratory testing,
clinical testing and regulatory approval prior to commercialization. The
development of our products involves the use of advanced technical methods that
require both a high degree of skill and judgment in their application. We may
encounter unexpected technical difficulties in the course of the development
process that we may be able to overcome only if we expend additional funds and
time, if at all. We may not successfully complete our product development
efforts, and we may not obtain the required regulatory approvals. In addition,
any future products, if and when introduced, may not be successfully
commercialized, produced and marketed or achieve customer acceptance.
GOVERNMENT REGULATION COULD ADVERSELY AFFECT OUR BUSINESS
The FDA and, in some instances, foreign governments, extensively regulate
the medical devices that we market and manufacture. The FDA regulates the
clinical testing, manufacture, labeling, distribution and promotion of medical
devices in the United States. If we fail to comply with the FDA's requirements,
including Good Manufacturing Practices, we may face a number of consequences,
including:
. fines;
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. injunctions;
. civil penalties;
. recall or seizure of products;
. total or partial suspension of production;
. failure of the government to grant premarket clearance or premarket
approval for devices;
. withdrawal of marketing approvals; and
. criminal prosecution.
The FDA also has the authority to request repair, replacement or refund of
the cost of any device that we manufacture or distribute.
Any products that we manufacture or distribute pursuant to FDA clearances
or approvals are subject to pervasive and continuing regulation by the FDA,
including:
. device users are required to comply with recordkeeping requirements
and to report adverse experiences with the use of the device;
. device manufacturers are required to register their establishments and
list their devices with the FDA and are subject to periodic
inspections by the FDA and certain state agencies; and
. devices are required to be manufactured in accordance with Good
Manufacturing Practices regulations which impose certain procedural
and documentation requirements on us with respect to manufacturing and
quality assurance activities.
Labeling and promotional activities are subject to scrutiny in the United
States by the FDA and, in certain instances, by the Federal Trade Commission.
For example, the NMP22 Bladder Cancer Test Kit has received FDA approval and may
be promoted by us only as a prognostic indicator. The FDA actively enforces
regulations prohibiting the promotion of devices for unapproved uses and the
promotion of devices for which premarket clearance or approval has not been
obtained. Consequently, we cannot currently promote the NMP22 Bladder Cancer
Test Kit for cancer screening or for any other unapproved use. If we fail to
comply with these requirements, we may face regulatory enforcement action by the
FDA that would adversely affect our ability to conduct testing necessary to
obtain market clearance for these products and, consequently, could have a
material adverse effect on our business, financial condition and results of
operations.
We are also subject to a variety of state laws and regulations in those
states or localities where our products are or will be marketed. Any applicable
state or local regulations may hinder our ability to market our products in
those states or localities. Manufacturers are also subject to numerous federal,
state and local laws relating to such matters as safe working conditions,
manufacturing practices, environmental protection, fire hazard control, and
disposal of hazardous or potentially hazardous substances. We may be required to
incur significant costs to comply with such laws and regulations now or in the
future, and such laws or regulations may have a material adverse effect upon our
ability to do business.
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WE DEPEND ON PROPRIETARY TECHNOLOGY
We rely on a combination of patent, trade secret and trademark laws,
nondisclosure and other contractual provisions and technical measures to protect
the proprietary rights in our current and planned products. These protections
may be inadequate, and our competitors may independently develop technologies
that are substantially equivalent or superior to our technology. Patent law
relating to the scope of claims in the biotechnology field is still evolving
and, therefore, the degree of future protection for our proprietary rights is
uncertain. In addition, the laws of certain countries in which our products are
or may be licensed or sold do not protect our products and intellectual property
rights to the same extent as the laws of the United States. We believe that the
use of the patents for NMP technology licensed to us and the use of our
trademarks and other proprietary rights do not infringe upon the proprietary
rights of third parties. However, we may not prevail in any challenge of third-
party intellectual property rights, and third parties may successfully assert
infringement claims against us in the future. In addition, we may be unable to
acquire licenses to any such proprietary rights of third parties on reasonable
terms.
HEALTHCARE REFORM MEASURES AND THIRD-PARTY REIMBURSEMENT POLICIES COULD LIMIT
THE MARKET FOR OUR PRODUCTS
Our ability to commercialize successfully our planned products will depend
in part on the extent to which reimbursement for the cost of such products will
be available from government health administration authorities, private health
insurers and other third-party payors. In the case of private insurers, the
reimbursement of any medical device, either approved for investigational use
only or for research use, is at the sole discretion of the patient's individual
carrier. Even if a procedure has been previously approved for reimbursement, the
insurance carrier may decide not to continue to reimburse the procedure.
Healthcare reform is an area of continuing national attention and a priority of
many governmental officials. Certain reform proposals, if adopted, could impose
limitations on the prices we will be able to charge in the United States for our
products or the amount of reimbursement available for our products from
governmental agencies or third-party payors. While we cannot predict whether any
such legislative or regulatory proposals will be adopted or the effect such
proposals may have on our business, the announcement or adoption of such
proposals could have a material adverse effect on our business, financial
condition or results of operations.
WE HAVE LIMITED MARKETING AND SALES CAPABILITY
We have limited internal marketing and sales resources and personnel. In
order to market successfully our current and future products in the United
States and other territories in which we do not, or do not intend to, use third-
party distributors, we will need to develop a larger marketing and sales force
with appropriate technical expertise and distribution capability. We may be
unable to establish such marketing and sales capabilities, and we may be
unsuccessful in gaining market acceptance for any of our products.
WE HAVE LIMITED MANUFACTURING EXPERIENCE
We have been manufacturing and assembling our test kits for limited
commercial sales since 1995 but have not yet manufactured the large product
volumes necessary for us to achieve profitability. We may encounter difficulties
in scaling up production of new products, if necessary, including problems
involving:
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. production yields;
. quality control and assurance;
. component supply; and
. shortages of qualified personnel.
These problems could have a material adverse effect on our business,
financial condition and results of operations. We may not be able to achieve
reliable, high-volume manufacturing at a commercially reasonable cost. In
addition, numerous governmental authorities extensively regulate our
manufacturing operations.
WE RELY ON SOLE OR LIMITED SOURCES OF SUPPLY
We currently rely on sole suppliers for certain key components for our test
kits. If the components from such suppliers should become unavailable for any
reason, we would seek alternative sources of supply. In order to maintain the
FDA validation of our manufacturing process, we would have to show that these
alternative sources of supply are equivalent to our current sources. Although we
attempt to maintain an adequate level of inventory to provide for these and
other contingencies, if our manufacturing processes are disrupted as a result of
a shortage of key components or a revalidation of new components, we may be
unable to meet our commitments to customers. Our failure to meet our commitments
could have a material adverse effect on our business, financial condition and
results of operations.
WE DEPEND ON KEY PERSONNEL
Our success depends, in large part, upon our ability to attract and retain
highly qualified scientific and management personnel. We have no employment
contracts with any of our key personnel. The loss of key personnel or the
failure to recruit necessary additional personnel might impede the achievement
of developmental objectives. We face competition for such personnel from other
companies, research and academic institutions, government entities and other
organizations. We may not be successful in hiring or retaining qualified
scientific or management personnel on acceptable terms, given the competition
among numerous pharmaceutical and biotechnology companies, government entities
and research and academic institutions for such personnel.
WE MAY FACE PRODUCT-RELATED LIABILITIES
The testing, marketing and sale of human healthcare products entail an
inherent exposure to product liability, and third parties may successfully
assert product liability claims against us. Although we currently have insurance
covering our products, we may not be able to maintain this insurance at
acceptable costs in the future, if at all. In addition, our insurance may not be
sufficient to cover large claims. Significant product liability claims could
adversely affect our business.
OUR ACTIVITIES INVOLVE THE USE OF HAZARDOUS MATERIALS
Our research and development activities involve the controlled use of
hazardous materials, including radioactive compounds. Although we believe that
our safety procedures for handling and disposing of such materials comply with
the standards prescribed by federal, state and local laws and
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regulations, the risk of accidental contamination or injury from these materials
cannot be completely eliminated. In the event of such an accident, we could be
held liable for damages that result, and any such liability could have an
adverse effect on our business, financial condition and results of operations.
THE COMPANY
Matritech, Inc. ("Matritech" or the "Company") develops, manufactures and
markets innovative cancer diagnostic products based on its proprietary nuclear
matrix protein ("NMP") technology. The nuclear matrix, a three-dimensional
protein framework within the nucleus of cells, plays a fundamental role in
determining cell type by physically organizing the contents of the nucleus,
including DNA. The Company has demonstrated that there are differences in the
types and amounts of NMPs found in cancerous and normal tissue and believes the
detection of such differences in NMPs provides important diagnostic information
about cellular abnormalities, including cancer. Using its proprietary NMP
technology and expertise, the Company has developed non-invasive or minimally
invasive cancer diagnostic tests for bladder and colon cancer and is developing
additional tests for cervical, breast and prostate cancer.
USE OF PROCEEDS
The Company will receive no part of the proceeds from the sale of any of
the Shares by any of the Selling Securityholders.
SELLING SECURITYHOLDERS
The following table sets forth certain information as of April 12, 1999
with respect to the Shares held by each Selling Securityholder. The Shares may
be offered from time to time by any of the Selling Securityholders, their
transferees or their distributees. See "Plan of Distribution."
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Number of Number of Number of Shares
Shares Beneficially Owned Shares Beneficially Owned
Prior to Offering Offered After Offering/(2/)
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Name/(1/) Number Percent/(3)/ Number Percent/(3)/
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Grethe R. Bruckner 40,000 * 20,000 20,000 *
A.B. Siemer 749,384 3.5% 749,384 0 *
Zero Stage Capital VI 2,325,581 10.7% 2,325,581 0 *
Limited Partnership
TOTAL 3,114,965 3,094,965
_________________________________________________________________________________________________________________
</TABLE>
* Less than 1%
(1) The persons and entities named in the table have sole voting and investment
power with respect to all shares shown as beneficially owned by them except
as noted in the footnotes below based upon information provided to the
Company by the Selling Securityholders.
(2) Assumes that the Selling Securityholders will sell all of the Shares
registered hereunder. The Selling Securityholders may sell all or any part
of their Shares registered pursuant to this Prospectus.
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(3) The number of shares of Common Stock deemed outstanding includes 21,724,217
shares of Common Stock outstanding as of April 12, 1999. None of the Selling
Securityholders owns any options, warrants or other convertible securities
which are exercisable or convertible within 60 days of April 12, 1999.
Stephen D. Chubb, Chairman and Chief Executive Officer of the Company,
is a limited partner of Zero Stage Capital VI Limited Partnership. To the best
of the Company's knowledge, none of the other Selling Securityholders had any
material relationship with the Company or any of its affiliates within the
three-year period ending on the date of this prospectus.
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PLAN OF DISTRIBUTION
The Shares offered hereby may be sold from time to time by or for the
account of any of the Selling Securityholders or by their pledgees, donees,
distributees or transferees or other successors in interest. The Company will
not receive any of the proceeds from this offering. The distribution of the
Shares by the Selling Securityholders is not subject to any underwriting
agreement. The Shares may be sold hereunder directly to purchasers by the
Selling Securityholders in negotiated transactions; by or through brokers or
dealers in ordinary brokerage transactions or transactions in which the broker
solicits purchasers; block trades in which the broker or dealer will attempt to
sell the Shares as agent but may position and resell a portion of the block as
principal; transactions in which a broker or dealer purchases as principal for
resale for its own account; or through underwriters or agents. The Shares may be
sold at a fixed offering price, which may be changed, at the prevailing market
price at the time of sale, at prices related to such prevailing market price or
at negotiated prices. Any brokers, dealers, underwriters or agents may arrange
for others to participate in any such transaction and may receive compensation
in the form of discounts, commissions or concessions from the Selling
Securityholders and/or the purchasers of the Shares. Each Selling Securityholder
will be responsible for payment of any and all commissions to brokers. The
Company has agreed to indemnify certain of the Selling Securityholders against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended (the "Securities Act").and Securities Exchange Act of 1934, as amended
(the "Exchange Act").
The Selling Securityholder may also loan or pledge the shares registered
hereunder to a broker-dealer and the broker-dealer may sell the shares so loaned
or upon a default the broker-dealer may effect sales of the pledged shares
pursuant to this prospectus.
Pursuant to certain Subscription Agreements executed in connection with the
Private Placement, the Company has agreed, at its expense, to file the
registration statement to which this Prospectus is a part and to take certain
other actions to permit the Selling Securityholders to sell the Shares under the
Securities Act and applicable state securities laws.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdiction only through registered
or licensed brokers or dealers. In addition, in certain states the Shares may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
If and when any Shares covered by this Prospectus qualify for sale pursuant
to Rule 144 under the Securities Act, they may be sold under Rule 144 rather
than pursuant to this Prospectus.
Any Selling Securityholder and any broker-dealer, agent or underwriter that
participates with the Selling Securityholder in the distribution of the Shares
may be deemed to be "underwriters" within the meaning of the Securities Act, in
which event any commissions received by such broker-dealers, agents or
underwriters 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.
The Selling Securityholders are not restricted as to the price or prices at
which they may sell Shares. Sales of such Shares at less than the market price
may depress the market price of the Company's securities. Moreover, the Selling
Securityholders are not restricted as to the number of Shares which may be sold
at any one time, and it is possible that a significant number of Shares could be
sold at the same time which may also have a depressive effect on the market
price of the Company's securities.
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Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the Shares offered hereby may not simultaneously
engage in market making activities with respect to the Shares for a period of
time prior to the commencement of such distribution. In addition, and without
limiting the foregoing, each Selling Securityholder will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including, without limitation, Rule 10b-5 and Regulation M, which
provisions may limit the timing of purchases and sales of the Shares by the
Selling Securityholder.
There is no assurance that any Selling Securityholder will sell any or all
of the Shares described herein and may transfer, devise or gift such securities
by other means not described herein.
Expenses of preparing and filing the registration statement and all post-
effective amendments will be borne by the Company.
The Company is permitted to suspend the use of this Prospectus in
connection with sales of the Shares by holders during periods of time under
certain circumstances relating to pending corporate developments and public
filings with the Commission and similar events.
The Common Stock is quoted on the Nasdaq National Market under the symbol
"NMPS."
LEGAL MATTERS
Certain legal matters with respect to the Shares offered hereby will be
passed upon for the Company by Testa, Hurwitz & Thibeault, LLP, Boston,
Massachusetts.
EXPERTS
The financial statements of Matritech, Inc., as of December 31, 1997 and
1998 and the three years in the period ending December 31, 1998, incorporated by
reference in this Prospectus and elsewhere 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 expected in giving said reports.
WHERE YOU CAN FIND MORE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act, and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information filed by the Company with the
Commission pursuant to the informational requirements of the Exchange Act may be
inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following regional offices of the Commission: Seven World
Trade Center, 13th Floor, New York, New York 10048 and Citicorp Center, 500 West
Madison Avenue, Suite 1400, Chicago, Illinois 60611-2511. Copies of such
material can also be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The Common Stock of the Company is traded on the Nasdaq National Market,
and such reports, proxy statements and other information may also be inspected
at the offices of The Nasdaq Stock Market, Inc., Reports Section, 1735 K Street,
N.W., Washington, D.C. 20006.
-12-
<PAGE>
The Commission also maintains a Web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission. The address of such site is http:
//www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-3 (including all amendments thereto, the "Registration Statement") under the
Securities Act with respect to the Shares offered hereby. This Prospectus does
not contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For further information regarding the Company and the Shares
offered hereby, reference is hereby made to the Registration Statement and to
the exhibits and schedules filed therewith. Statements contained in this
Prospectus regarding the contents of any agreement or other document filed as an
exhibit to the Registration Statement are not necessarily complete, and in each
instance reference is made to the copy of such agreement filed as an exhibit to
the Registration Statement, each such statement being qualified in all respects
by such reference. The Registration Statement, including the exhibits and
schedules thereto, may be inspected at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549
and copies of all or any part thereof may be obtained from such office upon
payment of the prescribed fees.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission (File No.
001-12128) are incorporated by reference herein, except as superseded or
modified herein:
1. The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1998, filed pursuant to the Exchange Act, which contains audited
financial statements for the fiscal year ended December 31, 1998.
2. The Company's Current Report on From 8-K dated April 7, 1999.
3. The description of the Company's Common Stock, $.01 par value per share,
contained in the section entitled "Description of Registrant's Securities to
be Registered" contained in the Company's Registration Statement on Form 8-A
filed with the Commission on March 10, 1992, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering made hereby shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing
such documents. Any statement contained herein or in a document incorporated 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 a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus. The
Company will provide without charge to each person to whom this Prospectus is
delivered, upon the written or oral request of any such person, a copy of any
document incorporated herein by reference (other than exhibits unless such
exhibits are specifically incorporated by reference into such documents).
Requests for such copies should be directed to Matritech, Inc., Attention:
ROBERT W. MORGAN, 330 NEVADA STREET, NEWTON, MASSACHUSETTS 02460, TELEPHONE
(617) 928-0820.
-13-
<PAGE>
================================================================================
You should rely only on the information contained in this prospectus or
information specifically incorporated by reference in this prospectus. We have
not authorized anyone to provide you with information that is different. Neither
the delivery of this prospectus, nor any sale made hereunder, shall create any
implication that the information in this prospectus is correct after the date
hereof. This prospectus is not an offer to or solicitation of any person in any
jurisdiction in which such offer or solicitation is illegal.
3.094,965 SHARES
OF
COMMON STOCK
OF
MATRITECH, INC.
<TABLE>
<CAPTION>
----------------- ----------
TABLE OF CONTENTS PROSPECTUS
----------------- ----------
Page
<S> <C>
Risk Factors...................................... 3
The Company....................................... 9
Use of Proceeds................................... 9
Selling Securityholders........................... 9
Plan of Distribution.............................. 11
Legal Matters..................................... 12
Experts........................................... 12
Where You Can Find More Information............... 12
Documents Incorporated by Reference............... 13
</TABLE>
, 1999
-----------
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses incurred by the Company in connection with the issuance and
distribution of the securities being registered are estimated as follows:
<TABLE>
<CAPTION>
Amount
------
<S> <C>
Securities and Exchange Commission registration fee.. $ 1,062.00
Nasdaq Additional Listing fee........................ $17,500.00
Legal fees and expenses.............................. $28,000.00
Accounting fees and expenses......................... $ 2,500.00
Miscellaneous........................................ $ 3,000.00
__________
Total $52,062.00
</TABLE>
None of the above expenses will be paid by the Selling Securityholders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the provisions of Section 145 of the Delaware General
Corporation Law ("DGCL") the Company has the power to indemnify certain persons,
including its officers and directors, under stated circumstances and subject to
certain limitations, for liabilities incurred in connection with services
performed in good faith for the Company or for other organizations at the
request of the Company.
Article Seventh of the Company's Amended and Restated Certificate of
Incorporation provides that no director of the Company shall be liable for
monetary damages for breach of fiduciary duty, except to the extent that the
DGCL prohibits the elimination of liability of directors for breach of fiduciary
duty.
Article Twelfth of the Company's Amended and Restated Certificate of
Incorporation provides that a director or officer of the Company (a) shall be
indemnified by the Company against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement incurred in connection with any
litigation or other legal proceeding (other than an action by or in the right of
the Company) brought against him by virtue of his position as a director or
officer of the Company if he acted in good faith and in a manner he reasonably
II-1
<PAGE>
believed to be in, or not opposed to, the best interests of the Company, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful and (b) shall be indemnified by the Company
against all expenses (including attorneys' fees) and amounts paid in settlement
incurred in connection with any action by or in the right of the Company brought
against him by virtue of his position as a director or officer of the Company 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 Company, except that no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the Company, unless a court determines that despite
such adjudication but in view of all of the circumstances, he is entitled to
indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has
been successful, on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, he is required to be indemnified by
the Company against all expenses (including attorneys' fees) incurred in
connection therewith. Expenses shall be advanced to a director or officer at his
request, provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such
expenses.
Article Twelfth of the Company's Amended and Restated Certificate of
Incorporation further provides that the indemnification provided therein is not
exclusive and provides that in the event that the DGCL is amended to expand or
limit the indemnification permitted to directors or officers, the Company must
indemnify those persons to the fullest extent permitted by such law, as so
amended.
In addition to the indemnification provided by Section 145 of the DGCL, the
Company has entered into an Indemnity Agreement with each of its directors
pursuant to which the Company agrees to indemnify that director for (1) all
expenses, liabilities, judgments, fines and amounts paid in settlement actually
and reasonably incurred in connection with any legal action, suit or proceeding
against the director by reason of the fact that he was an agent of the Company
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 Company, and with respect to any criminal
proceedings had no reasonable cause to believe his conduct was unlawful, and (2)
all expenses incurred in connection with the investigation, defense, settlement
or appeal of any legal action or proceeding brought against the director by or
in the right of the Company by reason of any action taken or not taken by him in
his capacity as a director of the Company 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 Company. The Company is not obligated under the terms of the Indemnity
Agreements to indemnify its directors (a) for expenses or liabilities paid
directly to the directors by directors' and officers' insurance, (b) on account
of any claims against the directors for an accounting of profits made from the
purchase or sale by directors of securities of the Company pursuant to Section
16(b) of the Exchange Act, as amended, (c) if indemnification would not be
lawful.
ITEM 16. EXHIBITS.
Exhibit No. Description of Exhibit
4.1 Specimen Common Stock Certificate (filed as Exhibit 4.2 to
the Company's Registration Statement No. 33-46158 on Form S-
1 and incorporated herein by reference).
4.4 Form of Subscription Agreement between the Company and the
several purchasers (filed as Exhibit 10.17 to the Company's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 and incorporated herein by reference).
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.*
23.1 Consent of Arthur Andersen LLP.*
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (contained in
Exhibit 5.1).*
II-2
<PAGE>
24.1 Power of Attorney (included on page II-5 of the Registration
Statement).*
______________________________
* Filed herewith.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
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 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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
(c) 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
II-3
<PAGE>
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Newton, Commonwealth of Massachusetts, on
April 9, 1999.
MATRITECH, INC.
By: /s/ Stephen D. Chubb
----------------------
Stephen D. Chubb
Director, Chairman and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Matritech, Inc., hereby
severally constitute and appoint Stephen D. Chubb and David L. Corbet, and each
of them singly, our true and lawful attorneys, with full power to them and each
of them singly, to sign for us in our names in the capacities indicated below,
all pre-effective and post-effective amendments to this registration statement,
and generally to do all things in our names and on our behalf in such capacities
to enable Matritech, Inc. to comply with the provisions of the Securities Act of
1933, and all requirements of the Securities and Exchange Commission.
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>
<CAPTION>
SIGNATURE TITLE Date
------------------------- ------------------------ -------------------
<S> <C> <C>
/s/ Stephen D. Chubb Director, Chairman and Chief Executive April 9, 1999
- ----------------------------------- Officer (Principal Executive Officer)
STEPHEN D. CHUBB
/S/ DAVID L. CORBET Director, President and Chief Operating April 9, 1999
- -------------------------- Officer
DAVID L. CORBET
/S/ ROBERT W. MORGAN Vice President, Chief Financial Officer,
- -------------------------- Treasurer and Secretary (Principal
ROBERT W. MORGAN Financial and Accounting Officer) April 9, 1999
/S/ J. ROBERT BUCHANAN Director April 9, 1999
- --------------------------
J. ROBERT BUCHANAN
/S/ DAVID RUBINFIEN Director April 14, 1999
- --------------------------
DAVID RUBINFIEN
/S/ RICHARD A. SANDBERG Director April 9, 1999
- --------------------------
RICHARD A. SANDBERG
/S/ T. STEPHEN THOMPSON Director April 13, 1999
- --------------------------
T. STEPHEN THOMPSON
/S/ C. WILLIAM ZADEL Director April 9, 1999
- --------------------------
C. WILLIAM ZADEL
</TABLE>
II-5
<PAGE>
EXHIBIT LIST
Exhibit No. Description of Exhibit
4.1 Specimen Common Stock Certificate (filed as Exhibit 4.2 to the
Company's Registration Statement No. 33-46158 on Form S-1 and
incorporated herein by reference).
4.4 Form of Subscription Agreement between the Company and the several
purchasers (filed as Exhibit 10.17 to the Company's Annual Report
Form 10-K for the fiscal year ended December 31, 1998 and
incorporated herein by reference).
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.*
23.1 Consent of Arthur Andersen LLP.*
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (contained in Exhibit
5.1)*
24.1 Power of Attorney (included on page II-5 of the Registration
Statement)*
_______________________________
* Filed herewith.
<PAGE>
Exhibit 5.1
TESTA, HURWITZ & THIBEAULT, LLP
ATTORNEYS AT LAW
HIGH STREET TOWER, 125 HIGH STREET
OFFICE (617) 248-7000 BOSTON, MASSACHUSETTS 02110 FAX (617) 248-7100
April 23, 1999
Matritech, Inc.
330 Nevada Street
Newton, MA 02460
RE: Registration Statement on Form S-3
Relating to 3,094,965 Shares of Common Stock
Ladies and Gentlemen:
We are counsel to Matritech, Inc., a Delaware corporation (the "Company"),
and have represented the Company in connection with the preparation and filing
of the Company's Form S-3 Registration Statement (the "Registration Statement"),
covering the sale to the public by certain stockholders of the Company (the
"Selling Securityholders") of up to 3,094,965 shares of the Company's Common
Stock, $.01 par value per share (the "Shares"). Terms not otherwise defined
herein shall have the meaning assigned to them in the Registration Statement.
We have reviewed the corporate proceedings taken by the Board of Directors
of the Company with respect to the authorization and issuance of the Shares. We
have also examined and relied upon originals or copies, certified or otherwise
authenticated to our satisfaction, of all corporate records, documents,
agreements or other instruments of the Company and have made all investigations
of law and have discussed with the Company's officers all questions of fact that
we have deemed necessary or appropriate.
We are only members of the bar of the Commonwealth of Massachusetts and are
not expert in, and express no opinion regarding, the laws of any jurisdiction
other than the Commonwealth of Massachusetts, the General Corporation Law of the
State of Delaware and the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares are validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm in the Prospectus
contained in the Registration Statement under the caption "Legal Matters."
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated February 8, 1999
included in Matritech, Inc.'s Form 10-K for the year ended December 31, 1998 and
to all references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
April 21, 1999
