As filed with the Securities and Exchange Commission on September 14, 1999
Registration No. 333-86193
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
AMENDMENT NO. 1
TO
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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CELLEGY PHARMACEUTICALS, INC.
(Exact name of the Registrant as specified in its charter)
California 82-0429727
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
349 OYSTER POINT BOULEVARD, SUITE 200
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 616-2200
(Address and telephone number of the Registrant's principal executive offices)
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K. MICHAEL FORREST
CHIEF EXECUTIVE OFFICER
CELLEGY PHARMACEUTICALS, INC.
349 OYSTER POINT BOULEVARD, SUITE 200
SOUTH SAN FRANCISCO, CA 94080
(650) 616-2200
(Name, address and telephone number of the Registrant's agent for service)
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Copies to:
C. KEVIN KELSO
FENWICK & WEST LLP
TWO PALO ALTO SQUARE, SUITE 800
PALO ALTO, CALIFORNIA 94306
(650) 494-0600
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Approximate date of commencement of proposed sale to the public:
From time to time 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, 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. |_|
<TABLE>
Calculation Of Registration Fee
<CAPTION>
- -------------------------------------------------- ---------------- ----------------------- ------------------- --------------------
Proposed Maximum Proposed Maximum
Title of Each Class of shares of common Amounts to be Offering Price per Aggregate Offering Amount of
stock to be Registered Registered(1) Share(1) Price(1) Registration Fee
- -------------------------------------------------- ---------------- ----------------------- ------------------- --------------------
<S> <C> <C> <C> <C>
common stock, no par value 1,561,000 $7.03125 $10,975,781.25 $3,051.27
- -------------------------------------------------- ---------------- ----------------------- ------------------- --------------------
common stock issuable upon exercise of warrants 14,000 $7.03125 $98,437.50 $27.37
- -------------------------------------------------- ---------------- ----------------------- ------------------- --------------------
<FN>
(1) Estimated solely for the purpose of calculating the amount of registration fee pursuant to Rule 457(c) under the Securities Act
of 1933, as amended, based on the average of the high and low prices of the common stock on the Nasdaq Stock Market on August
24, 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 files a further amendment which specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to Section 8(a), may determine.
</FN>
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit Title
- ------- -------------
4.1 Common Stock Purchase Agreement dated as of July 30, 1999.*
4.2 Common Stock Purchase Warrant dated January 18, 1999*
4.3 Common Stock Purchase Warrant dated January 19, 1999*
5.1 Opinion of Counsel regarding the legality of common stock
23.1 Independent Auditors' Consent*
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)*
* Previously filed.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies
that it has reasonable grounds to believe that it meets all for 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 South San Francisco, State of California, on the 13th day of September, 1999.
CELLEGY PHARMACEUTICALS, INC.
By: /s/ K. Michael Forrest
-----------------------------------
K. Michael Forrest, CEO
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature appears below
constitutes and appoints K. Michael Forrest and A Richard Juelis, and each of
them, his attorneys-in-fact, and agents, each with the power of substitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to sign any registration statement for the same offering covered
by this Registration Statement that is to be effective upon filing pursuant to
Rule 462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, and to file the same, with all exhibits thereto and all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
Pursuant to the requirements of the Securities Act, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ K. Michael Forrest
- --------------------------------
K. Michael Forrest Chief Executive Officer September 13, 1999
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/ A. Richard Juelis
- -------------------------------- Vice President, Finance,
A. Richard Juelis Chief Financial Officer,
and Secretary September 13, 1999
DIRECTORS:
/s/ Carl R. Thornfeldt, M.D.
- --------------------------------
Carl R. Thornfeldt, M.D. Chairman of the Board of Directors September 13, 1999
/s/ Jack L. Bowman
- --------------------------------
Jack L. Bowman Director September 13, 1999
- --------------------------------
Tobi B. Klar, M.D. Director , 1999
<PAGE>
/s/ Alan A. Steigrod
- --------------------------------
Alan A. Steigrod Director September 13, 1999
/s/ Larry J. Wells
- --------------------------------
Larry J. Wells Director September 13, 1999
/s/ Ronald J. Saldarini, Ph.D.
- --------------------------------
Ronald J. Saldarini, Ph.D. Director September 13, 1999
</TABLE>
16
EXHIBIT 5.1
September 13, 1999
Cellegy Pharmaceuticals, Inc.
349 Oyster Point Boulevard, Suite 200
South San Francisco, CA 94080
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form
S-3 (the "Registration Statement") (File Number 333-86193) filed by you with the
Securities and Exchange Commission (the "Commission") on August 30, 1999, in
connection with the registration under the Securities Act of 1933, as amended,
for resale of an aggregate of 1,575,000 shares of your Common Stock (the
"Stock"), all of which will be sold by the selling shareholders named in the
Prospectus included within the Registration Statement (the "Selling
Shareholders"), including 1,561,000 shares that are presently issued and
outstanding (the "Outstanding Shares") and 14,000 shares (the "Warrant Shares")
that are issuable upon the exercise of certain warrants (the "Warrants") held by
certain Selling Shareholders. The Outstanding Shares and the Warrant Shares will
be collectively refered to herein as the "Shares".
In rendering this opinion, we have examined the following:
(1) the Registration Statement (including the Prospectus included
therein), together with the Exhibits filed as a part thereof;
(2) your registration statement on Form 8A filed with the
Commission in connection with the Company's intial public
offering in August 1995;
(3) the Common Stock Purchase Agreement, dated July 30, 1999, by
and among the Company and certain investors listed on Exhibit
A attached thereto;
(4) the Common Stock Purchase Warrant, dated January 18, 1999
between the Company and Michael P. Crowley, Ph.D.;
(5) the Common Stock Purchase Warrant, dated January 19, 1999
between the Company and Richard Bank, M.D.;
(6) the minutes of meetings and actions by written consent of the
Board of Directors that are contained in your minute books and
that are in our possession that relate to the issuance of the
Outstanding Shares, the Warrants and the Warrant Shares;
(7) a Management Certificate addressed to us and dated of even
date herewith executed by the Company containing certain
factual and other representations including, without
limitation, information concerning the number of outstanding
shares of Common Stock and shares of common stock issuable
upon exercise of outstanding options, warrants and similar
rights;
(8) Written verification from your Transfer Agent, Chase Mellon
Shareholder Service LLP, dated as of September 7, 1999, of the
number of your issued and outstanding shares of Capital Stock.
<PAGE>
Cellegy Pharmaceuticals, Inc.
August 30, 1999
Page 2
We have confirmed your eligibility to use Form S-3 and by telephone
call to the offices of the Commission, we have also confirmed the continued
effectiveness of the Company' registration under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the timely filing by you of all
reports required to be filed by you pursuant to Rules 13, 14 and 15 promulgated
under the Exchange Act.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal capacity of all natural persons
executing the same, the lack of any undisclosed termination, modification,
waiver or amendment to any document reviewed by us and the due authorization,
execution and delivery of all documents where due authorization, execution and
delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from public
officials and records referred to above. We have made no independent
investigation or other attempt to verify the accuracy of any of such information
or to determine the existence or non-existence of any other factual matters;
however, we are not aware of any facts that would cause us to believe that the
opinion expressed herein is not accurate.
We are admitted to practice law in the State of California, and we
express no opinion herein with respect to the application or effect of the laws
of any jurisdiction other than the existing laws of the United States of America
and the State of California.
In connection with our opinion expressed below, we have assumed that,
at or prior to the time of the delivery of any shares of Stock, the Registration
Statement will have been declared effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock.
Based upon the foregoing, it is our opinion that the Outstanding Shares
to be sold by the Selling Stockholders pursuant to the Registration Statement
are, and the Warrant Shares when and if issued upon exercise of the Warrants and
fully paid for as provided in the Warrants will be (assuming no change in such
documents or applicable law), validly issued and nonassessable and, to our
knowledge, fully paid.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
<PAGE>
Cellegy Pharmaceuticals, Inc.
August 30, 1999
Page 3
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for the your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ Kevin Kelso
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