As Filed with the Securities and Exchange Commission on June 29, 1999
Registration No. 333-80193
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ENTREMED, INC.
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(Exact name of registrant as specified in its charter)
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DELAWARE 58-1959440
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(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
9640 Medical Center Drive
Rockville, Maryland 20850
(301) 217-9858
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(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
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John W. Holaday, Ph.D.
Chairman of the Board, President and Chief Executive Officer
ENTREMED, INC.
9640 Medical Center Drive
Rockville, Maryland 20850
(301) 217-9858
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
ROBERT B. OTT, ESQ.
RICHARD E. BALTZ, ESQ.
Arnold & Porter
555 Twelfth Street, N.W.
Washington, D.C. 20004
(202) 942-5000
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Approximate date of commencement of proposed sale to the public: from
time to time as described in the Prospectus after the effective date of this
Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs and expenses in
connection with the sale and distribution of the securities being registered,
all of which will be paid by the Company.
To be Paid
By The
Company
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SEC Registration Fee $6,604
Accounting fees and expenses 9,200
Printing and Engraving expenses 1,700
Legal fees and expenses 20,000
Miscellaneous expenses 2,500
Total...........................................$40,004
ITEM 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") sets
forth conditions and limitations governing the indemnification of officers and
directors of the Company and certain other persons. Section 145 of the DGCL is
hereby incorporated herein by reference. The Company's Amended and Restated
Certificate of Incorporation (the "Certificate of Incorporation") and Bylaws
provide that the Company shall indemnify any person to the full extent permitted
by the DGCL.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or controlling persons of the Company pursuant to the Company's
Certificate of Incorporation and Bylaws and the DGCL, the Company has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
As authorized by Section 102(b)(7) of the DGCL, the Certificate of
Incorporation also limits, to the fullest extent permitted by Delaware law, a
director's liability for monetary damages for breach of fiduciary duty as a
director. The effect of this provision is to eliminate the rights of the Company
and its stockholders (through stockholders' derivative suits on behalf of the
Company) to recover monetary damages against a director for breach of the
fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior) except in certain limited situations.
This provision does not eliminate a director's duty of care nor does it limit or
eliminate the rights of the Company or any stockholder to seek non-monetary
relief or remedies such as an injunction or rescission in the event of a
director's breach of the duty of care. These provisions will not alter the
liability of directors under federal securities laws.
<PAGE>
The Company has entered into indemnification agreements with each of
its executive officers and directors, the form of which is filed as Exhibit
10.21 to the Company's Registration Statement on Form S-1 (File No. 333-3536)
and is incorporated by reference herein.
The Company has obtained and maintains insurance policies having a face
amount totaling $15,000,000 (subject to certain deductible provisions and
exclusions) covering its officers and directors and indemnifying them against
loss on account of claims made against them, including, but not limited to,
damages, judgments, costs and the costs of defense of such claims, arising from
breach of duty, neglect, error, negligent misrepresentations, omission or act,
or any claim arising solely by reason of status as an officer or director.
ITEM 16. Exhibits.
The exhibits listed on the Index to Exhibits of this Registration
Statement are filed herewith or are incorporated herein by reference to other
filings.
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 (the "Securities Act");
(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 a 20% 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;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
<PAGE>
(2) That, for the purpose of determining any liability under
the Securities Act, 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 a 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, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
D. For the purposes of determining any liability under the Securities
Act, the information omitted from the form of Prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of the Registration
Statement as of the time it was declared effective.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Rockville, State of
Maryland on June 28, 1999.
ENTREMED, INC.
By: /s/ JOHN W. HOLADAY, PH.D.
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John W. Holaday, Ph.D.
Chairman of the Board of Directors,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ JOHN W. HOLADAY, PH.D. Chairman of the Board of Directors, June 28, 1999
- ------------------------------ President and Chief Executive Officer
John W. Holaday, Ph.D. (Principal Executive Officer)
/s/ R. NELSON CAMPBELL Chief Financial Officer (Principal June 28, 1999
- ------------------------------ Financial and Accounting Officer)
R. Nelson Campbell
</TABLE>
<PAGE>
INDEX TO EXHIBITS
* Exhibit 5 Opinion of Arnold & Porter.
* Exhibit 23.1 Consent of Arnold & Porter, included in the
opinion filed as Exhibit 5 hereto.
** Exhibit 23.2 Consent of Ernst & Young LLP.
** Exhibit 24 Powers of Attorney of certain directors of the
Company.
* Filed herewith.
** Previously filed.
EXHIBIT 5
[ARNOLD & PORTER LETTERHEAD]
June 28, 1999
Board of Directors
EntreMed, Inc.
9640 Medical Center Drive
Rockville, Maryland 20850
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to EntreMed, Inc. (the "Company") in the
preparation of a Registration Statement on Form S-3, File No. 333-80193 (the
"Registration Statement") relating to the sale of up to 953,751 shares of the
Company's common stock, $.01 par value per share (the "Common Shares"), by the
Selling Stockholders identified therein upon the exercise of warrants and
certain other rights.
In connection with rendering the opinions set forth in this letter, we
have examined such corporate records of the Company, including resolutions and
minutes of the Board of Directors, as well as made such investigation of matters
of fact and law and examined such other documents as we deem necessary for
rendering the opinions hereinafter expressed.
The opinions set forth herein are subject to the following
qualifications, which are in addition to any other qualifications contained
herein:
A. We have assumed without verification the genuineness of all
signatures on all documents, the authority of the parties (other than the
Company) executing such documents, the authenticity of all documents submitted
to us as originals, and the conformity to original documents of all documents
submitted to us as copies.
B. The opinions set forth herein are based on existing laws,
ordinances, rules, regulations, court and administrative decisions as they
presently have been interpreted and we can give no assurances that our opinions
would not be different after any change in any of the foregoing occurring after
the date hereof.
C. We have assumed without verification that, with respect to the
minutes of any meetings of the Board of Directors or any committees thereof of
the Company that we have examined, due notice of the meetings was given or duly
waived, the minutes accurately and completely reflect all actions taken at the
meetings and a quorum was present and acting throughout the meetings.
<PAGE>
D. We have assumed without verification the accuracy and completeness
of all corporate records made available to us by the Company.
E. We express no opinion as to the effect or application of any laws or
regulations other than the general corporation law of the State of Delaware and
the federal laws of the United States. As to matters governed by the laws
specified in the foregoing sentence, we have relied exclusively on the latest
standard compilations of such statutes and laws as reproduced in commonly
accepted unofficial publications available to us.
Based on the foregoing, upon the assumptions that there will be no
material changes in the documents we have examined and the matters investigated
referred to above, we are of the opinion that the 953,751 Common Shares subject
to the warrants and other rights have been duly authorized by the Company and
that, when issued upon the exercise of such warrants or other rights in
accordance with the terms thereof for legal consideration of not less than $0.01
per share, will be validly issued and will be fully paid and nonassessable.
This letter does not address any matters other than those expressly
addressed herein. This letter speaks only as of the date hereof. We undertake no
responsibility to update or supplement it after such date.
We hereby consent to your filing of this opinion as Exhibit 5 to the
Registration Statement and to reference to our firm in Item 5 thereof. By giving
such consent we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ ARNOLD & PORTER
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