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As filed with the Securities and Exchange Commission on May 14, 1998.
REGISTRATION NO. 333-25043
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
(AMENDMENT NO. 1 TO POST-EFFECTIVE AMENDMENT NO. 1)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TEXAS BIOTECHNOLOGY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-3532643
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
7000 FANNIN, SUITE 1920
HOUSTON, TEXAS 77030
(713) 796-8822
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
STEPHEN L. MUELLER With copies to:
VICE PRESIDENT, FINANCE PORTER & HEDGES, L.L.P.
AND ADMINISTRATION 700 LOUISIANA, 35TH FLOOR
SECRETARY AND TREASURER HOUSTON, TEXAS 77002-2764
TEXAS BIOTECHNOLOGY CORPORATION ATTN: ROBERT G. REEDY
7000 FANNIN, SUITE 1920 (713) 226-0674
HOUSTON, TEXAS 77030
(713) 796-8822
(Name and address, including zip code,
and telephone number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the 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 a
dividend or interest reinvestment plan, please 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 of 1933, please check
the following box and list the Securities Act of 1933 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 of 1933, check the following box and list the
Securities Act of 1933 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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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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a)
MAY DETERMINE.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED MAY 14, 1998
PROSPECTUS
TEXAS BIOTECHNOLOGY CORPORATION
150,035 SHARES
COMMON STOCK
This Prospectus relates to 150,035 shares (the "Shares") of Common
Stock, par value $.005 per share (the "Common Stock"), of Texas Biotechnology
Corporation, a Delaware corporation (the "Company"), which Shares will be
offered for resale from time to time by certain stockholders of the Company (the
"Selling Stockholders"). The Shares include: (i) 36,399 shares of Common Stock
underlying warrants issued in connection with the Company's private placement of
Common Stock completed in October, 1991, exercisable at $3.50 per share and
expiring on August 1, 1998 (the "1991 Warrants"); and (ii) 113,636 shares of
Common Stock underlying warrants issued in connection with the Company's private
placement of Common Stock completed in October 1996, exercisable at $4.40 per
share and expiring on October 10, 2001 (the "1996 Warrants"; the 1991 Warrants
and the 1996 Warrants are herein referred to collectively as the "Warrants").
Pursuant to this Prospectus, the Shares may be offered by the Selling
Stockholders, or by certain pledgees, donees, transferees or other successors
in interest, from time to time in transactions on the American Stock Exchange,
Inc. ("AMEX"), in privately negotiated transactions, or by a combination of
such methods of sale, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such 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 or the purchasers of the Shares
for whom such broker-dealers may act as agent or to whom they sell as principal
or both (which compensation to a particular broker-dealer might be in excess of
customary commissions). See "Selling Stockholders" and "Plan of Distribution."
Other methods by which the Shares may be sold include, without
limitation: (i) transactions which involve cross or block trades or any other
transaction permitted by the AMEX, (ii) "at the market" to or through market
makers or into an existing market for the Common Stock, (iii) in other ways not
involving market makers or established trading markets, including direct sales
to purchasers or sales effected through agents, (iv) through transactions in
options or swaps or other derivatives (whether exchange-listed or otherwise),
or (v) any combination of any such methods of sale. The Selling Stockholders
may also enter into option or other transactions with broker-dealers which
require the delivery to such broker dealers of the Common Stock offered hereby,
which Common Stock such broker-dealers may resell pursuant to this Prospectus.
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. However, the Company will
receive an aggregate of $627,394.90 upon exercise of all of the Warrants. The
Company has agreed to bear certain expenses (other than any underwriting
discounts and selling commissions and any fees and disbursements of counsel for
the selling stockholders not specifically provided for by the parties),
estimated to be approximately $12,000, in connection with the registration and
sale of the Shares being offered by the Selling Stockholders. Pursuant to a
Registration Rights Agreement with certain Selling Stockholders, the Company
has agreed to indemnify certain of the Selling Stockholders and each
underwriter against certain liabilities, including certain liabilities under
the Securities Act of 1933, as amended, or will contribute to payments such
Selling Stockholders or underwriters may be required to make in respect of
certain losses, claims, damages or liabilities.
The shares of Common Stock are quoted on the AMEX under the symbol
"TXB." On May 13, 1998, the last reported sale price of the Common Stock was
$5.3125 per share.
SEE "RISK FACTORS" ON PAGES 3-9 FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD
BE CONSIDERED BY PROSPECTIVE INVESTORS.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is May ___, 1998.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (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 can be inspected and copied at the
public reference facilities of the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. and at the Commission's regional
offices at the 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511 and Seven World Trade Center, Suite 1300, New York, New York 10048.
Copies of such material may also be obtained from the Public Reference Section
of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. Such materials also can be inspected at the
offices of the AMEX, 86 Trinity Place, New York, New York 10006, on which the
Common Stock is listed. In addition, the Commission maintains a World Wide Web
site at http://www.sec.gov that contains reports, proxy and information
statements, and other information regarding registrants that file
electronically with the Commission.
The Company has filed with the Commission a Registration Statement on
Form S-3 (including any amendments thereto, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act") with respect to
the shares of Common Stock offered hereby. This Prospectus does not contain
all of the information set forth in the Registration Statement and the exhibits
and schedules thereto. For further information with respect to the Company and
the Common Stock, reference is made to the Registration Statement and the
exhibits and schedules thereto. Statements made in this Prospectus regarding
the contents of any contract or document filed as an exhibit to the
Registration Statement are not necessarily complete and, in each instance,
reference is hereby made to the copy of such contract or document so filed.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Prospectus:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 as amended.
(2) The Company's proxy materials dated May 8, 1998 relating to its 1998
annual shareholders meeting as filed with the Commission on May 7,
1998.
(3) The Company's quarterly report on Form 10-Q for the quarter ended March
31, 1998.
(4) A description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A effective December 15, 1993
(Commission File No. 1-12574), as amended by the Company's proxy
materials dated April 22, 1994 and April 4, 1996 relating to its 1994
and 1996 annual shareholders' meetings, respectively.
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 before
the termination of the offering covered hereby will 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 subsequently filed document
which also is or is deemed to be incorporated by reference herein, modified or
superseded such statement. Any such 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 and on oral or written
request, to each person to whom this Prospectus is delivered, a copy of any or
all of the documents incorporated by reference in this Prospectus other than
exhibits to such documents, unless such exhibits are specifically incorporated
by reference into the information that this Prospectus incorporates. In
addition, a copy of the Company's most recent annual report to stockholders
will be promptly furnished, without charge and on oral or written request, to
such persons. All such requests should be directed to Texas Biotechnology
Corporation, 7000 Fannin, Suite 1920, Houston, Texas 77030, Attention: Stephen
L. Mueller, vice president, finance and administration, secretary and
treasurer (telephone (713) 796-8822).
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THE COMPANY
Texas Biotechnology Corporation ("TBC" or the "Company") is a
biopharmaceutical company engaged in discovering, developing and
commercializing synthetic small molecule drugs primarily for cardiovascular
indications. TBC's research philosophy is based upon combining its expertise
in vascular biology with its advanced computational chemistry capabilities to
identify and develop small molecule compounds. The Company's research and
development programs are currently focused on inhibitors (also referred to as
antagonists or blockers) of thrombosis, vasospasm/hypertension, vascular
inflammation, vascular proliferative disease, angiogenesis and apoptosis. The
Company has filed a new drug application ("NDA") with the United States
("U.S.") Food and Drug Administration (the "FDA") for its lead product
candidate, NOVASTAN(R) (argatroban) for use as an anticoagulant in patients
with heparin-induced thrombocytopenia ("HIT"). The Company has begun Phase II
clinical trials for TBC 11251 (TBC's lead compound for vasospasm/hypertension)
in congestive heart failure ("CHF") and for TBC 1269 (TBC's lead compound for
vascular inflammation) in allergic asthma. TBC has licensed the U.S. and
Canadian rights to NOVASTAN(R) from Mitsubishi Chemical Corporation
("Mitsubishi"). The Company has entered into a collaboration with SmithKline
Beecham plc ("SmithKline") regarding the commercialization and development of
NOVASTAN(R) and has entered into collaborations with Synthelabo S.A., the
pharmaceutical division of L'Oreal S.A. ("Synthelabo"), and LG Chemical, Ltd.
("LG Chemical") regarding other TBC compounds. The Company's principal
executive offices are located at 7000 Fannin Street, Suite 1920, Houston, Texas
77030, and its telephone number is (713) 796-8822. References to TBC or the
Company include its subsidiary, IPI, unless otherwise indicated.
RISK FACTORS
In evaluating the Company and its business, prospective investors
should carefully consider all of the information set forth in this Prospectus
and the documents incorporated herein by reference and should give particular
attention to the following risk factors.
NO ASSURANCE OF REGULATORY APPROVAL; NEED FOR EXTENSIVE CLINICAL TRIALS
The production and marketing of the Company's products, as well as its
ongoing research and development activities, are subject to regulation by
governmental agencies in the United States ("U.S.") and other countries. Any
drug developed by the Company will be subject to rigorous preclinical and
clinical testing and approval pursuant to regulations administered by the FDA,
comparable agencies in other countries and, to a lesser extent, by state
regulatory authorities. This approval process is likely to take several years
and will involve significant expenditures.
For example, in August 1997, the Company filed with the FDA its NDA
regarding NOVASTAN(R) (a direct thrombin inhibitor that is being developed for
various indications as an anticoagulant alternative to heparin) for use in the
treatment of HIT. The NDA was subsequently granted priority review status. In
October 1997, the FDA accepted the filing, and commenced a further review that
was anticipated to take approximately 6 months regarding final approval of the
NDA. In May, 1998, the Company received a non-approvable letter from the FDA
regarding its NDA for NOVASTAN(R) as a treatment for HIT/HITTS. The Company will
request a meeting with the FDA to confirm the exact requirements for further
consideration of the drug by the FDA. In order to resubmit the NDA, the Company
may incur significant, unanticipated costs, which are presently not known. In
addition, at this time the Company cannot predict when a resubmission of the NDA
might be filed or the timing of the FDA's review and decision regarding the use
and marketing of NOVASTAN(R). Based upon its meetings with the FDA and with
SmithKline Beecham, the Company's partner in the commercialization of
NOVASTAN(R), the Company expects to be able to develop an estimated budget and
time line regarding the NDA resubmission. The failure to receive NDA approval
from the FDA will have material adverse effect on the commercialization of
NOVASTAN(R) for HIT/HITTS, as well as potentially adversely impacting
commercialization of other indications.
The cost to the Company of conducting human clinical trials for any
potential product can vary dramatically based on a number of factors, including
the order and timing of clinical indications pursued and the extent of
development and financial support, if any, from corporate partners. Because of
the intense competition in the cardiovascular market, the Company may have
difficulty obtaining sufficient patient populations or clinician support to
conduct its clinical trials as planned and may have to expend substantial
additional funds to obtain access to such resources, or delay or modify its
plans significantly. There is no assurance that
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the Company will have sufficient resources to complete the required regulatory
review process or that the Company could survive the inability to obtain, or
delays in obtaining, such approvals. There can be no assurance that clinical
testing of the Company's products will provide evidence of safety and efficacy
in humans, that regulatory approvals will be granted for any of the Company's
products or that it will be economically feasible to commercialize any products
for which regulatory approvals are granted. Approvals that may be granted will
be subject to continual review, and later discovery of previously unknown
problems may result in restrictions on a product's future use or withdrawal of
the product from the market. Substantial changes in regulatory and
reimbursement policy may affect the Company's research and development
expenditures and regulatory approval of the Company's product candidates.
DEPENDENCE ON STRATEGIC RELATIONSHIPS
The Company will rely on strategic relationships with corporate
partners to provide the financing, marketing and technical support and, in
certain cases, the technology necessary to develop and commercialize certain of
its product candidates. TBC has entered into an agreement with Mitsubishi to
license Mitsubishi's rights and technology relating to NOVASTAN(R) (the
"Mitsubishi Agreement") in the U.S. and Canada for specified indications.
Either party may terminate the Mitsubishi Agreement on 60 days notice if the
other party defaults in its material obligations under the agreement, declares
bankruptcy or is insolvent, or if a substantial portion of its property is
subject to levy. Unless terminated sooner pursuant to the above described
termination provisions, the Mitsubishi Agreement expires on the later of
termination of patent rights in a particular country or 20 years after the
first commercial sale of products in a particular country. Under the Mitsubishi
Agreement, TBC has access to an improved formulation patent granted in 1993
which expires in 2010 and a use patent which expires in 2009.
In August 1997, the Company and SmithKline entered into a collaboration
regarding the commercialization and development of NOVASTAN(R) (the "SmithKline
Agreement"). Under the SmithKline Agreement the Company granted an exclusive
sublicense to SmithKline relating to the continued development and
commercialization of NOVASTAN(R). The SmithKline Agreement provides for the
payment of royalties and certain milestone payments upon the completion of
various regulatory filings and receipt of regulatory approvals. The SmithKline
Agreement generally terminates on a country by country basis upon the earlier
of the termination of TBC's rights under the Mitsubishi Agreement, the
expiration of applicable patent rights or, in the case of certain royalty
payments, the commencement of substantial third-party competition. SmithKline
also has the right to terminate the agreement on a country by country basis by
giving TBC at least three months written notice based on a reasonable
determination by SmithKline that the commercial profile of the indication in
question would not justify continued development or marketing in that country.
In addition, either party may terminate the SmithKline Agreement on 60 days
notice if the other party defaults in its obligations under the agreement,
declares bankruptcy or is insolvent.
In October 1994, the Company signed a collaborative agreement with
Synthelabo S.A., the pharmaceutical division of Synthelabo to develop and
market compounds for vascular proliferative disease derived from the Company's
research programs. Synthelabo has the right to terminate the agreement any time
on or after October 15, 1997 for any reason and either party has the right to
terminate the contract for breach of any material obligation. If Synthelabo
exercises this termination right, the license granted to Synthelabo will
terminate and TBC will pay Synthelabo a royalty on net sales of any products
sold in a certain territory (Europe, Middle East, Africa and countries of the
former Soviet Union) for a period of time. In addition, Synthelabo may, at its
option, require that the technology be transferred to and the development
program be conducted by a joint venture owned by TBC and Synthelabo should
TBC's "net worth", as defined in the agreement, be less than $5.0 million as of
the end of any calendar quarter during the term of the agreement.
In October 1996, the Company signed a strategic alliance agreement with
LG Chemical to develop and market compounds derived from the Company's
endothelin receptor and selectin antagonist programs for certain disease
indications in certain territories. LG Chemical has committed to pay $10.7
million in research payments and has the right to terminate future research
payments if TBC fails to meet certain milestones to be established by the
parties in accordance with the agreement.
The Company's success will depend on these and any future strategic
alliances. There can be no assurance that the Company will satisfy the
conditions required to obtain additional milestone payments under the existing
agreements or to prevent these agreements from being terminated, some of which
conditions will not be within the control of the Company. There can be no
assurance that the Company will be able to enter into future strategic
alliances on acceptable terms. The termination of any existing strategic
alliances or the inability to establish additional collaborative arrangements
may limit the Company's ability to develop its technology and may have a
material adverse effect on the Company's business or financial condition.
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TECHNOLOGICAL UNCERTAINTY
The Company has not produced or marketed any material products and,
accordingly, has not begun to generate revenues from the commercialization of
its product candidates. To date, the Company's resources have been dedicated to
the research and development of small-molecule drugs for certain vascular and
other indications. The Company has developed lead compounds in its vasospasm/
hypertension, vascular inflammation and vascular proliferative disease programs.
The commercial applications of the Company's product candidates will require
further investment, research, development, preclinical and clinical testing and
regulatory approvals, both foreign and domestic. There can be no assurance that
the Company will be able to develop, produce at reasonable cost, or market
successfully, any of its product candidates. Further, these product candidates
may prove to have undesirable and unintended side effects and, in some cases,
may require complex delivery systems that may prevent or limit their commercial
use. All of the Company's products will require regulatory approval before they
may be commercialized. Products, if any, resulting from the Company's research
and development programs are not expected to be commercially available for a
number of years, and there can be no assurance that any successfully developed
products will generate substantial revenues or that the Company will ever be
profitable.
NEED FOR ADDITIONAL FUNDS; HISTORY OF OPERATING LOSSES
Because the Company has been unprofitable to date and expects to incur
losses for the next several years as the Company invests in product research and
development, preclinical and clinical testing and regulatory compliance, the
Company will require substantial additional funds to complete the research and
development of its product candidates, to establish commercial scale
manufacturing facilities and to market its products. The Company has accumulated
approximately $73.5 million in net losses through March 31, 1998. Estimates of
the Company's future capital requirements will depend on many factors,
including: continued scientific progress in its drug discovery programs; the
magnitude 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; changes in its existing research
relationships; the ability of the Company to maintain and establish additional
collaborative arrangements; and effective commercialization activities and
arrangements. Subject to these factors, the Company anticipates that its
existing capital resources and its other revenue sources, should be sufficient
to fund its cash requirements through the end of 1999. Significant expenditures
may be required if unanticipated clinical trials are required to obtain
regulatory approval for NOVASTAN(R) or the Company's other product candidates.
In addition, until the Company completes meeting with the FDA and SmithKline,
the Company cannot predict costs necessary to meet requirements for further
consideration by the FDA of a resubmission of the NDA for NOVASTAN(R). As a
result, the Company may need additional funds before any of its product
candidates achieves regulatory approval. Notwithstanding revenues which may be
produced through sales of potential future products if approved, the Company
anticipates that additional funds will need to be secured to continue the
required levels of research and development to reach its long term goals. The
Company intends to seek such additional funding through collaborative
arrangements and/or through public or private financings. There can be no
assurance that additional financing will be available, or, if available, that it
will be available on acceptable terms. If additional funds are raised by
issuing securities, further dilution of the equity ownership of existing
stockholders will result. If adequate funds are not available, the Company may
be required to delay, scale back or eliminate one or more of its drug discovery
or development programs or obtain funds through arrangements with collaborative
partners or others that may require the Company to relinquish rights to certain
of its technologies, product candidates or products that the Company would not
otherwise relinquish.
TECHNOLOGICAL CHANGE AND COMPETITION
The biopharmaceutical industry is undergoing rapid and significant
technological change and is highly competitive. The Company's success will
depend on its ability to develop and apply its technology and on its ability to
establish and maintain a market for its products. Potential competitors in the
U.S. and other countries include major pharmaceutical and chemical companies,
specialized biotechnology firms, universities and other research institutions,
many of which have substantially greater financial, technical, manufacturing and
marketing capabilities than the Company. Competitors may develop products or
other novel technologies that are more effective than any that have been or are
being developed by the Company or may obtain FDA approval for products more
rapidly than the Company. There can be no assurance that technological
development by others will not render the Company uncompetitive or that the
Company will be successful in establishing or maintaining its technological
competitiveness.
DEPENDENCE ON QUALIFIED PERSONNEL
The Company's success is highly dependent on its ability to attract and
retain qualified scientific and management personnel. The loss of the services
of the principal members of the Company's management and scientific staff may
impede the Company's ability to commercialize its products. In order to
commercialize its products, the Company must maintain and expand its personnel,
particularly in the areas of clinical trial management, manufacturing, sales
and marketing. The Company faces intense
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competition for such personnel from other companies, academic institutions,
government entities and other organizations. There can be no assurance that
the Company will be successful in hiring or retaining qualified personnel.
Managing the integration of new personnel and company growth in general could
pose significant risks to the Company's development and progress.
The continued employment of David B. McWilliams, president and chief
executive officer and Richard A. F. Dixon, Ph.D., vice president of research is
key to the Company's success. Each of these employees has an employment
agreement with the Company. Mr. McWilliams' and Dr. Dixon's agreements are
effective through July 15, 1998 and provide for continuing one-year extensions.
The Company relies on consultants and advisors, including its
scientific advisors, to assist the Company in formulating its research and
development strategy. All of the Company's consultants and advisors are
employed by employers other than the Company and may have commitments to or
consulting or advisory contracts with other entities that may affect their
ability to contribute to the Company.
DEPENDENCE ON SUPPLIER
At present, Mitsubishi is the only manufacturer of NOVASTAN(R). In
connection with the SmithKline Agreement, Mitsubishi entered into a Supply
Agreement ("Mitsubishi Supply Agreement") with SmithKline, whereby Mitsubishi
will manufacture and supply NOVASTAN(R) in bulk in order to meet SmithKline's
and TBC's needs under the SmithKline Agreement. Should Mitsubishi fail during
any consecutive nine-month period to supply SmithKline at least 80% of its
requirements, and such requirements cannot be satisfied by existing
inventories, the Mitsubishi Supply Agreement provides for the nonexclusive
transfer of the production technology to SmithKline. However, in the event
Mitsubishi terminates manufacturing NOVASTAN(R) or defaults in its supply
commitment, there can be no assurance that SmithKline will be able to commence
manufacturing of NOVASTAN(R) in a timely manner or that alternate sources of
bulk NOVASTAN(R) will be available at reasonable cost, or at all. If SmithKline
cannot commence manufacturing of NOVASTAN(R) or alternate sources of supply are
unavailable or uneconomic, the Company's results of operations would be
materially and adversely affected.
UNCERTAINTY REGARDING PATENTS AND PROPRIETARY INFORMATION
The Company actively seeks patent protection for its proprietary
technology, both in the U.S. and abroad. The Company's success will depend, in
part, on its ability to obtain patents and to operate without infringing on the
proprietary rights of others. There can be no assurance that patents issued to
or licensed by the Company will not be challenged, invalidated or circumvented,
or that the rights granted thereunder will provide competitive advantages to
the Company. There can be no assurance that the Company's pending patent
applications or patent applications in preparation presently or in the future,
if and when issued, will be valid and enforceable and withstand litigation.
There can be no assurance that others will not independently develop
substantially equivalent or superseding proprietary technology or that an
equivalent product will not be marketed in competition with the Company's
products, thereby substantially reducing the value of the Company's proprietary
rights. There is a substantial backlog of pharmaceutical and biotechnology
patent applications at the U.S. Patent and Trademark Office ("PTO"). Because
patent applications in the U.S. are maintained in secrecy until patents issue,
and because publication of discoveries in the scientific or patent literature
tends to lag behind actual discoveries by several months, there can be no
assurance that the Company will obtain patent protection for its inventions. In
addition, patent protection, even if obtained, is affected by the limited
period of time for which a patent is effective. Furthermore, patent positions
of pharmaceutical and biotechnology companies, as well as those of academic and
research institutions, are highly uncertain and involve complex legal and
factual questions. This is an uncertain and developing area of the law that is
potentially subject to significant change. Therefore, the scope or
enforceability of claims allowed in the patents on which the Company will rely
cannot be predicted with any certainty.
The Company also relies on trade secrets, know-how and continuing
technological advancement to maintain its competitive position. Although the
Company has entered into confidentiality agreements with its employees and
consultants, which contain assignment of invention provisions, no assurance can
be given that others will not gain access to these trade secrets, that such
agreements will be honored or that the Company will be able to effectively
protect its rights to its unpatented trade secrets. Moreover, no assurance can
be given that others will not independently develop substantially equivalent
proprietary information and techniques or otherwise gain access to the
Company's trade secrets.
In addition to protecting its proprietary technology and trade secrets,
the Company may be required to obtain licenses to patents or other proprietary
rights from third parties. No assurance can be given that any licenses required
under any patents or proprietary rights would be made available on acceptable
terms, if at all. If the Company does not obtain required licenses, it could
encounter delays in product introductions while it attempts to design around
blocking patents, or it could find that the development, manufacture or sale of
products requiring such licenses could be foreclosed.
6
<PAGE> 8
The Company could incur substantial costs in defending any patent
infringement suits or in asserting any patent rights, including those granted
by third parties, in a suit with another party. The PTO could institute
interference proceedings involving the Company in connection with one or more
of the Company's patents or patent applications, and such proceedings could
result in an adverse decision as to priority of invention. TBC has one
interference proceeding pending which involves compounds not currently of
commercial interest to TBC. The PTO or a comparable agency of a foreign
jurisdiction could also institute re-examination or opposition proceedings
against the Company in connection with one or more of the Company's patents or
patent applications and such proceedings could result in an adverse decision as
to the validity or scope of the patents.
POSSIBLE VOLATILITY OF STOCK PRICE; TRADING MARKET FOR COMMON STOCK
The stock market has from time to time experienced significant price
and volume fluctuations that may be unrelated to the operating performance of
particular companies. In particular, the market price of the Company's
securities, like that of the securities of other biopharmaceutical companies,
may be highly volatile. Factors such as announcements by the Company or its
competitors concerning technological innovations, new commercial products or
procedures by the Company or its competitors, proposed governmental regulations
and developments in both the U.S. and foreign countries, disputes relating to
patents or proprietary rights, publicity regarding actual or potential medical
results relating to products under development by the Company or its
competitors, public concern as to the safety of biotechnology products, and
economic and other external factors, as well as period-to-period fluctuations
and financial results, may have a significant effect on the market price of the
Company's securities.
From time to time, there has been limited trading volume with respect
to the Common Stock. In addition, there can be no assurance that there will
continue to be a trading market or that any analysts will continue to provide
research coverage with respect to the Common Stock. Accordingly, with respect
to the Common Stock being offered hereby, no assurances can be made that such
factors will not affect the market for the Common Stock.
NO MANUFACTURING, MARKETING OR SALES ACTIVITIES
The Company has no manufacturing, marketing or product sales
experience. If the Company develops any commercially marketable products, there
can be no assurance that contract manufacturing services will be available in
sufficient capacity to supply the Company's product needs on a timely basis. If
the Company decides to build or acquire commercial scale manufacturing
capabilities, the Company will require additional management and technical
personnel and additional capital. No assurance can be given that the raw
materials necessary for the manufacture of the Company's products will be
available in sufficient quantities or at a reasonable cost. Complications or
delays in obtaining raw materials or in product manufacturing could delay the
submission of products for regulatory approval and the initiation of new
development programs, each of which could materially impair the Company's
competitive position and potential profitability. There can be no assurance
that the Company will be able to enter into any other supply arrangements on
acceptable terms, if at all. If at some point in the future, the Company
decides to perform its own sales and marketing activities, the Company will
require additional management, will need to hire sales and marketing personnel
and will require additional capital. No assurance can be given that qualified
personnel will be available in adequate numbers or at a reasonable cost and
there can be no assurance that the Company's sales staff will achieve success
in its marketing efforts.
PRODUCT LIABILITY EXPOSURE
Product liability risk is inherent in the testing, manufacture,
marketing and sale of the Company's products, and there can be no assurance
that the Company will be able to avoid significant product liability exposure.
Product liability insurance for the pharmaceutical industry, when available, is
expensive. The Company has obtained $2.0 million of product liability insurance
to cover its clinical trial programs. Pursuant to the Mitsubishi Agreement and
the SmithKline Agreement, the Company is obligated to acquire additional
coverage as the Company develops products. Existing coverage will not be
adequate as the Company further develops products and there can be no assurance
that adequate insurance coverage will be available at a reasonable cost in the
future. A future product liability claim may have a material adverse effect on
the business or financial condition of the Company.
UNCERTAINTY OF PHARMACEUTICAL PRICING AND RELATED MATTERS; NEED FOR
REIMBURSEMENT
The future revenues and profitability of, and availability of capital
for biotechnology companies may be affected by the continuing efforts of
governmental and third-party payers to contain or reduce the costs of health
care through various means. For example, in certain foreign markets, the
pricing and profitability of prescription pharmaceuticals is subject to
government control. There have been, and there may continue to be, a number of
federal and state proposals to implement similar government control in the U.S.
It is uncertain what form any health care reform legislation may take or what
actions the federal, state and private payers may take in response to the
suggested reforms. The Company cannot predict when any reforms will be
implemented, if ever, or the
7
<PAGE> 9
effect of any implemented reform on the Company's business. There can be no
assurance that any implemented reform will not have a material adverse effect
on the Company's future results of operations. The Company's long-term ability
to market its products successfully may depend in part on the extent to which
reimbursement for the cost of such products and related treatment will be
available from public and private health insurers and other organizations.
Third-party payers are increasingly challenging the prices of medical products
and services. The reimbursement status of newly-approved health care products
is highly uncertain, and there can be no assurance that third-party coverage
will be available or that available third-party coverage will enable the
Company to maintain price levels sufficient to realize an appropriate return on
its investment in product development.
SHARES ELIGIBLE FOR FUTURE SALE; REGISTRATION RIGHTS
As of March 31, 1998, substantially all of the Company's shares of
Common Stock were eligible for immediate sale in the public market. Moreover,
the resale of approximately 3.8 million shares are covered by currently
effective Form S-3 registration statements. As part of the Company's initial
public offering of securities in 1993 (the "Initial Public Offering"), warrants
covering approximately 4.1 million shares (with an exercise price of $8.44 per
share) were issued and remain outstanding and the shares issuable upon exercise
are registered for sale. In addition, as part of the Initial Public Offering,
the underwriters were issued 355,000 options to purchase units (each unit
consisting of one share of Common Stock and one warrant to purchase Common
Stock) at an exercise price of $11.14 per share (the warrants are also
exercisable at $11.14 per share). The sale of the Common Stock underlying the
units are also registered. The resale of 36,399 shares issuable on exercise of
the 1991 Warrants and 113,636 shares issuable on exercise of the 1996 Warrants
are registered hereby. Furthermore, the resale of an aggregate of
approximately 130,000 shares issuable upon exercise of other warrants (with
exercise prices from $3.50 to $4.58 per share) are registered on currently
effective Form S-3 registration statements. Other warrants exercisable for
approximately 500,000 shares (with an exercise price of $3.66) are not
currently registered for resale, but have piggyback registration rights.
SmithKline also has piggyback registration rights on 176,992 shares issued
pursuant to the SmithKline Agreement. Approximately 2.9 million shares of
Common Stock are issuable upon exercise of outstanding employee stock options
and will become eligible for sale in the public markets at prescribed times in
the future. The Company's issuances of such 3.4 million shares are registered
on Form S-8 registration statements. As of March 31, 1998, such options were
exercisable to purchase approximately 2.1 million shares of Common Stock. TBC
has issued to Genentech, Inc. ("Genentech"), a former licensor of NOVASTAN(R),
an additional 214,286 shares of Common Stock, and has agreed to issue an
additional 71,429 shares of Common Stock within ten days after the FDA's first
approval of an NDA for NOVASTAN(R). The Company has also granted Genentech a
warrant to purchase an additional 142,858 shares of Common Stock at an exercise
price of $14.00 per share, subject to adjustment. The Company has granted
Genentech registration rights for all 714,287 shares issued or issuable to
Genentech. In total, as of March 31, 1998 the Company has reserved
approximately 8.7 million shares of Common Stock for issuance pursuant to
outstanding options, warrants, other contingent agreements. Approximately 8.1
million of these shares of reserved Common Stock are registered for sale or
resale on currently effective registration statements, and substantially all of
the remaining shares of reserved Common Stock are entitled to registration
rights under the Securities Act. The issuance of a significant number of shares
of Common Stock upon the exercise of stock options and warrants, or the sales
of a substantial number of shares of Common Stock pursuant to Rule 144 or
otherwise, could adversely affect the market price of the Common Stock.
ANTI-TAKEOVER PROVISIONS
The Company's Certificate of Incorporation and the Delaware General
Corporation Law (the "DGCL") contain certain provisions that may delay or
prevent an attempt by a third-party to acquire control of the Company. In
addition, the severance provisions of employment agreements with certain
members of management could impede an attempted change of control of the
Company.
LEGAL PROCEEDINGS
The Company and certain of its officers and directors are parties to
certain litigation arising out of the Company's IPO. Given the early stage of
this case, the Company is unable to evaluate its potential outcome at this
time. The Company disputes these claims and intends to contest them vigorously.
There can be no assurance, however, that the final disposition of this case
will be favorable to the Company.
DISCLOSURE REGARDING FORWARD LOOKING STATEMENTS
All statements other than statements of historical fact included in and
incorporated by reference into this Prospectus are "forward looking
statements." Such forward looking statements include, without limitation,
statements under "Risk Factors , Need for Additional Funds; History of
Operating Losses" regarding TBC's estimate of sufficiency of existing capital
resources and ability to raise additional capital to fund cash requirements for
future operations, and "Risk Factors -- No Assurance of Regulatory Approval;
Need for Extensive Clinical Trials" regarding the uncertainties involved in the
drug development process and the timing
8
<PAGE> 10
of regulatory approvals required to market these drugs. Although TBC believes
that the expectations reflected in such forward looking statements are
reasonable, it can give no assurance that such expectations reflected in such
forward looking statements will prove to have been correct. The ability to
achieve TBC's expectations is contingent upon a number of factors which
include, without limitation, (i) ongoing cost of research and development
activities, (ii) cost of clinical development of product candidates, (iii)
attainment of research and clinical goals of product candidates, (iv) timely
approval of TBC's product candidates by appropriate governmental and regulatory
agencies, (v) effect of any current or future competitive products, (vi)
ability to manufacture and market products commercially, (vii) retention of key
personnel and (viii) capital market conditions.
9
<PAGE> 11
SELLING STOCKHOLDERS
The following table sets forth certain information concerning each Selling
Stockholder. Assuming that the Selling Stockholders offer all of their Shares,
the Selling Stockholders will not have any beneficial ownership after closing.
The Shares are being registered to permit public secondary trading of the
Shares, and the Selling Stockholders may offer the Shares for resale from time
to time. See "Plan of Distribution."
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF PERCENTAGE
SHARES SHARES OF
OWNED AND TO BE NUMBER OF OWNED AFTER SHARES OWNED
OWNED PRIOR TO SHARES OFFERING AFTER
SELLING STOCKHOLDERS OFFERING (1) BEING OFFERED (2) OFFERING
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
William E. Aaron........................ 143 (3) 143 (3) -0- *
Judson Cooper........................... 24,231 (3) 24,231 (3) -0- *
GKN Securities Corporation.............. 4,543 (3) 4,543 (3) -0- *
Robert Gladstone........................ 2,272 (3) 2,272 (3) -0- *
Roger Gladstone......................... 2,272 (3) 2,272 (3) -0- *
Mitani & Co., LLC....................... 56,818 (4) 56,818 (4) -0- *
David Nussbaum.......................... 2,272 (3) 2,272 (3) -0- *
Charles Potter.......................... 4,813 (3)(5) 523 (3) 4,290 (6) *
Raymond James & Associates, Inc......... 56,818 (4) 56,818 (4) -0- *
Michael R. Stein....................... 143 (3) 143 (3) -0- *
-------- -------- --------
Total......................... 154,325 150,035 4,290 *
</TABLE>
---------------
*Less than 1.0%
None of the Selling Stockholders has, or within the past three years has had,
any position, office, or other material relationship with the Company or any of
its predecessors and affiliates.
(1) The Selling Stockholders have sole voting and sole investment power
with respect to all shares owned.
(2) Assumes the sale of all shares offered hereby to persons who are not
affiliates of the Selling Stockholders.
(3) Shares of Common Stock underlying 1991 Warrants.
(4) Shares of Common Stock underlying 1996 Warrants.
(5) Includes 4,290 shares of registered Common Stock and 523 shares of
Common Stock underlying certain of the 1991 Warrants as described in
footnote (3).
(6) Assumes no sales are effected by the Selling Stockholder during the
offering period other than pursuant to this prospectus.
10
<PAGE> 12
PLAN OF DISTRIBUTION
Pursuant to this Prospectus, the Selling Stockholders, or by certain
pledgees, donees, transferees or other successors in interest, may sell Shares
from time to time in transactions on AMEX, in privately-negotiated transactions
or by a combination of such methods of sale, at fixed prices which may be
changed, at market prices prevailing at the time of sale, at prices related to
such 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 or the
purchasers of the Shares for whom such broker-dealers may act as agent or to
whom they sell as principal, or both (which compensation to a particular
broker-dealer might be in excess of customary commissions).
Other methods by which the Shares may be sold include, without
limitation: (i) transactions which involve cross or block trades or any other
transaction permitted by the AMEX, (ii) "at the market" to or through market
makers or into an existing market for the Common Stock, (iii) in other ways not
involving market makers or established trading markets, including direct sales
to purchasers or sales effected through agents, (iv) through transactions in
options or swaps or other derivatives (whether exchange-listed or otherwise),
or (v) any combination of any such methods of sale. The Selling Stockholders
may also enter into option or other transactions with broker-dealers which
require the delivery to such broker dealers of the Common Stock offered hereby,
which Common Stock such broker-dealers may resell pursuant to this Prospectus.
The Selling Stockholders and any broker-dealers who act in connection with
the sale of Shares hereunder may be deemed to be "underwriters" as that term is
defined in the Securities Act, and any commissions received by them and profit
on any resale of the Shares as principal might be deemed to be underwriting
discounts and commissions under the Securities Act.
Pursuant to a Registration Rights Agreement with certain Selling
Stockholders, the Company has agreed to indemnify certain of the Selling
Stockholders and each underwriter against certain liabilities, including
certain liabilities under the Securities Act as amended, or will contribute to
payments such Selling Stockholders or underwriters may be required to make in
respect of certain losses, claims, damages or liabilities.
LEGAL MATTERS
The legality of the securities offered hereby will be passed on for the
Company by Porter & Hedges, L.L.P., Houston, Texas.
EXPERTS
The consolidated financial statements of the Company as of December 31,
1997 and 1996 and for each of the years in the three-year period ended December
31, 1997 have been incorporated by reference herein and in the Registration
Statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
The statements in this Prospectus under the caption "Risk Factors,
Uncertainty Regarding Patents and Proprietary Information" and other
references herein to intellectual property matters have been reviewed and
approved by Rockey, Milnamow and Katz, Ltd., Chicago, Illinois, patent counsel
for the Company, as experts on such matters, and are included herein in
reliance upon that review and approval.
11
<PAGE> 13
================================================================================
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES IN WHICH IT RELATES. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY
CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents
by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . 11
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
---------------
================================================================================
================================================================================
TEXAS BIOTECHNOLOGY CORPORATION
150,035 Shares
of
Common Stock
-------------------
P R O S P E C T U S
-------------------
May ___, 1998
================================================================================
12
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by the Company in connection with the
offering of the shares of Common Stock to be registered and offered hereby are
as follows (the Commission registration fees and AMEX listing fees of $22,619
in the aggregate were previously paid):
<TABLE>
<S> <C>
Legal fees and expenses . . . . . . . . . . . . . . . . . 5,000
Accounting fees and expenses . . . . . . . . . . . . . . 4,000
Transfer Agent fees . . . . . . . . . . . . . . . . . . . 500
Printing . . . . . . . . . . . . . . . . . . . . . . . . 1,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 1,500
--------
Total . . . . . . . . . . . . . . . . . . . . . $ 12,000
========
</TABLE>
All such expenses are estimates except for the Commission registration
fee and AMEX listing fee, which were previously paid.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits 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, 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.
In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees,
actually and reasonably incurred in connection with the defense or settlement
of such action, and the corporation may not indemnify for amounts paid in
satisfaction of a judgment or in settlement of the claim. In any such action,
no indemnification may be paid in respect of any claim, issue or matter as to
which such person shall have been adjudged liable to the corporation except as
otherwise approved by the Delaware Court of Chancery or the court in which the
claim was brought. In any other type of proceeding, the indemnification may
extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as well as to
expenses (including attorneys' fees).
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner be reasonably believed
to be in, or not opposed to, the best interests of the corporation and, in the
case of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. There are additional limitations applicable
to criminal actions and to actions brought by or in the name of the
corporation. The determination as to whether a person seeking indemnification
has met the required standard of conduct is to be made (i) by a majority vote
of a quorum of disinterested members of the board of directors, (ii) by
independent legal counsel in a written opinion, if such a quorum does not exist
or if the disinterested directors so direct, or (iii) by the stockholders.
As permitted by the Delaware General Corporation Law ("DGCL"), the
Company's Bylaws provide that it will indemnify the directors, officers,
employees and agents of the Company against certain liabilities that they may
incur in their capacities as directors, officers, employees and agents.
Furthermore, the Company's Certificate of Incorporation, as amended,
indemnifies the directors, officers, employees, and agents of the Company to
the maximum extent permitted by the DGCL. The Company has also entered into
agreements with its officers and directors providing for indemnity to the
maximum extent permitted under the DGCL. The Company has director and officer
liability insurance policies that provide coverage of up to $10.0 million
except that no current coverage is provided for any liabilities arising from
the existing lawsuits. The existing lawsuits are covered under prior policies.
II-1
<PAGE> 15
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration Statement:
EXHIBIT
NUMBER IDENTIFICATION OF EXHIBIT
* 5.1 Opinion of Porter & Hedges, L.L.P.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Rockey, Milnamow and Katz, Ltd.
* 23.3 Consent of Porter & Hedges, L.L.P. (included in its Opinion filed
as Exhibit 5.1 hereto).
* Previously filed with the Registration Statement
ITEM 17. UNDERTAKINGS.
(1) 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 15(d) of the Exchange
Act that is incorporated by reference in this 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.
(2) The undersigned Registrant hereby undertakes 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, (ii) to reflect in the prospectus any facts or
events arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in this Registration Statement, or
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change in such 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% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(3) The undersigned Registrant hereby undertakes that for the purpose of
determining any liability under the Securities Act of 1933, each 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.
(4) The undersigned Registrant hereby undertakes 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.
II-2
<PAGE> 16
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 NO. 1 TO POST-EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT
TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN
THE CITY OF HOUSTON, STATE OF TEXAS, ON MAY 14, 1998.
TEXAS BIOTECHNOLOGY CORPORATION
By: /S/STEPHEN L. MUELLER
-----------------------------------------------
STEPHEN L. MUELLER
VICE PRESIDENT, FINANCE AND ADMINISTRATION
SECRETARY AND TREASURER
(PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
AMENDMENT NO. 1 TO POST-EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT
HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON MAY 14,
1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
*
- --------------------------------------------------
JOHN M. PIETRUSKI Director, Chairman of the Board of Directors
*
- --------------------------------------------------
DAVID B. MCWILLIAMS Director, President and Chief Executive Officer
(Principal Executive Officer)
*
- --------------------------------------------------
RICHARD A. F. DIXON, PH.D. Director, Vice President of Research
*
- -------------------------------------------------- Vice President, Finance and Administration, Secretary and
STEPHEN L. MUELLER Treasurer and (Principal Financial and
Accounting Officer)
*
- --------------------------------------------------
RON J. ANDERSEN, M.D. Director
</TABLE>
II-3
<PAGE> 17
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
*
- --------------------------------------------------
FRANK C. CARLUCCI Director
*
- --------------------------------------------------
RITA R. COLWELL, PH.D., D.SC. Director
*
- --------------------------------------------------
ROBERT J. CRUIKSHANK Director
*
- --------------------------------------------------
JAMES A. THOMSON, PH.D. Director
*
- --------------------------------------------------
JAMES T. WILLERSON, M.D. Director and Chairman of the
Scientific Advisory Board
*
*By: /s/ STEPHEN L. MUELLER
-----------------------------------------------
Individually and as attorney in fact
</TABLE>
II-4
<PAGE> 18
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER IDENTIFICATION OF EXHIBIT
------ -------------------------
<S> <C>
* 5.1 Opinion of Porter & Hedges, L.L.P.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Rockey, Milnamow and Katz, Ltd.
* 23.3 Consent of Porter & Hedges, L.L.P. (included in its
Opinion filed as Exhibit 5.1 hereto).
</TABLE>
* Previously filed with the Registration Statement
II-5
<PAGE> 1
EXHIBIT 23-1
CONSENT OF INDEPENDENT AUDITORS'
The Board of Directors
Texas Biotechnology Corporation
We hereby consent to the use of our report incorporated herein by reference
dated February 13, 1998, related to the consolidated financial statements of
Texas Biotechnology Corporation and subsidiary as of December 31, 1997 and
1996, for each of the years in the three-year period ended December 31, 1997
and the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
-----------------------------------
KPMG PEAT MARWICK LLP
Houston, Texas
May 14, 1998
<PAGE> 1
EXHIBIT 23-2
CONSENT OF ROCKEY, MILNAMOW & KATZ, LTD.
As patent counsel for Texas Biotechnology Corporation, we hereby consent
to the reference to our firm under the heading "Experts" in the prospectus,
which is a part of this Registration Statement of Texas Biotechnology
Corporation on Form S-3
/s/ MARTIN L. KATZ
------------------------------
ROCKEY, MILNAMOW & KATZ, LTD.
Chicago, Illinois
May 14, 1998
