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As filed with the Securities and Exchange Commission on March 26, 1999
Registration No. 333- 70731
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
Enamelon, Inc.
(Exact Name of Registrant as Specified in its Charter)
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Delaware 15 Kimball Avenue 13-3669775
(State or other jurisdiction of Yonkers, New York 10704 (I.R.S. Employer Identification No.)
incorporation or organization) Telephone: (914) 237-1308
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(Address and telephone number of principal executive offices)
_______________
Dr. Steven R. Fox
Chief Executive Officer
ENAMELON, INC.
15 Kimball Avenue
Yonkers, New York 10704
Telephone: (914) 237-1308
Telecopier: (914) 237-4024
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
______________
A copy of all communications, including communications sent to the agent for
service should be sent to:
Jack Becker, Esq.
Snow Becker Krauss P.C.
605 Third Avenue
New York, N.Y. 10158-0125
Telephone: (212) 687-3860
Telecopier: (212) 949-7052
Approximate Date of Proposed Sale to the Public: As soon as practicable 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 or
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. [ ]
================================================================================
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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Preliminary Prospectus, Subject to Completion, Dated March 26, 1999
1,107,836 Shares
Enamelon, Inc.
Common Stock
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HFTP Investments LLC, Fischer Capital Ltd., and The common stock is a speculative investment and
Wingate Capital Ltd. are offering and selling up to involves a high degree of risk. You should read
1,107,164 shares of the common stock of Enamelon, the description of certain risks under the
Inc. caption "Risk Factors" commencing on page 1
before purchasing the common stock.
The common stock is quoted on The Nasdaq
National Market under the symbol "ENML." On Neither the Securities and Exchange Commission
March 25, 1999, the closing sale price of one share nor any state securities commission has approved
of common stock on the Nasdaq National Market was or disapproved these securities or determined whether
$5.4375. this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
Enamelon, Inc. will not receive any proceeds
from the sale of the common stock.
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_______________
Enamelon, Inc.
15 Kimball Avenue
Yonkers, New York 10704
(914) 237-1308
_______________
The date of this Prospectus is , 1999
Information in this Prospectus is not complete and may be changed. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. The selling securityholders may not sell
these securities until the registration statement filed with the Securities and
Exchange Commission is effective. This Prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy nor shall there be any sale
of these securities in any state where the offer or sale is prohibited.
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TABLE OF CONTENTS
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Page
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Risk Factors.............................................. 1
Forward-Looking Statements................................ 9
Selling Securityholders................................... 9
Plan of Distribution...................................... 11
Information About the Company............................. 12
Legal Matters............................................. 13
Experts................................................... 13
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Risk Factors
Before you buy our common stock, you should be aware of the risks of
investment, including those described below. You should carefully consider
these risk factors together with all of the other information included in this
prospectus, including the information provided in the documents that we
incorporate by reference.
We will need additional financing before we become profitable. Although
we believe that we have sufficient funds to finance our operations through the
middle of 1999, we may need additional financing earlier. This will depend upon
our ability to generate sufficient sales of our products and the timing of
required expenditures. Additional financing to sustain our operations until we
become profitable may not be available on favorable terms or at all. Such
additional financing may result in significant dilution to holders of our common
stock. In addition, if we do not receive additional financing, we will have to
curtail or cease our operations.
Since we have been reporting national sales of Enamelon/(R)/ toothpaste
for only four quarters, investors in our common stock have only a limited
operating history on which to judge our performance. Although we were
incorporated in 1992, we did not begin to sell our toothpaste nationally
until the first quarter of 1998. Therefore, our limited operating history
may make it difficult for investors to judge how we will perform in the future.
We have had operating losses from inception and cannot accurately predict
when we will become profitable. From our inception in 1992 through December 31,
1997, which was before the national distribution of Enamelon/(R)/ toothpaste, we
accumulated net losses of $15,462,685. We also incurred a net loss of
$29,101,840 for the year ended December 31, 1998, on net sales of $14,302,137.
We believe that we will continue to incur losses into at least 2000. We do
not believe that we will become profitable until we achieve distribution in 90%
of all United States supermarkets, drug stores, and mass merchandise outlets and
our sales increase to the point where we can take advantage of manufacturing
efficiencies and reduce per unit costs. We cannot predict when this will occur,
if at all.
Our success will depend on the success of our toothpaste products, our
only product line. Until we develop and begin to market additional products, we
expect to derive substantially all of our revenues from sales of
Enamelon/(R)/ all-family toothpaste, Enamelon/(R)/ Calcium Whitening System
toothpaste, and any other toothpaste products that we develop. Since we
do not presently market any other products and future development of other
products is uncertain, our inability to market Enamelon/(R)/ toothpastes
profitably would have a material adverse effect on our business and results
of operations.
Our revenues will depend on consumers' acceptance of our toothpaste
products. We are dependent upon consumers' acceptance of Enamelon/(R)/
toothpastes as an alternative to currently well-known brand name toothpastes.
If our toothpaste products do not achieve a sufficiently high level of
consumer acceptance, we will not achieve profitability. We believe that
consumer acceptance of our toothpaste products will depend on a number of
factors, some of which we cannot control. These factors include:
. whether we can demonstrate and communicate to consumers and dental
professionals the added effectiveness of Enamelon/(R)/ toothpastes;
. the willingness of dental professionals to recommend Enamelon/(R)/
toothpastes;
. the willingness of consumers to pay a premium for Enamelon/(R)/
toothpastes;
. the response of our competitors to the national introduction of
Enamelon/(R)/ toothpastes.
Our limited resources may impair our ability to market our products
successfully. To increase our sales, we will have to make more consumers and
dental professionals aware of our products and what
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distinguishes them from popular, brand-name toothpastes. We believe that
this will require us to make substantial cash payments for media and print
advertising and promotion as well as professional marketing programs. In 1998,
we spent approximately $31 million on marketing and sales. Our current and
future cash resources, however, may be insufficient to enable us to market our
products as planned to increase our sales. Furthermore, our marketing efforts,
even if adequately financed, may not succeed in significantly increasing our
sales or result in profitability.
Our internal sales team is new and has little experience in selling our
products. Through 1998, we used an unaffiliated sales management company to
supervise and train the independent brokers that sell our products to our
customers. In July 1998, we hired a Vice President-Sales and in late 1998
and early 1999, we hired three regional sales managers to replace the sales
management company. Therefore, our new internal sales force has had only
limited experience in selling our products. Their failure to successfully
increase the distribution of our products and effectively train and supervise
the brokers that sell them would have a material adverse effect on our sales and
profitability.
The results of our human clinical studies may not permit us to make
anticipated promotional claims for Enamelon/(R)/ toothpastes. Although federal
Food and Drug Administration regulations limit the labeling claims that we can
make for Enamelon/(R)/ toothpastes, we can make promotional claims, such as
comparative claims, for our products, provided that we have adequate human
clinical studies to support our claims. We are conducting human clinical
studies that we believe will enable us to make additional promotional claims.
If the results of those studies are adverse or inconclusive, however, we will
not be able to make the expected additional promotional claims for Enamelon/(R)/
toothpastes to distinguish them from other fluoride toothpastes. This could
have an adverse effect on our ability to market Enamelon/(R)/ toothpastes both
to consumers and to dental professionals.
We may not be able to develop other products using our proprietary
technologies. We are attempting to develop product lines other than toothpastes
using our proprietary technologies. However, we may not be able to develop such
product lines successfully. If we are unable to develop new product lines, our
growth will be limited to the growth in our toothpaste business, if any.
FDA regulations may limit our ability to sell Enamelon/(R)/ toothpastes.
Enamelon/(R)/ toothpastes are subject to regulation as non-prescription
drugs by the FDA. The FDA has published a final monograph, Anticaries Drug
Products for Over-the-Counter Human Use, which establishes conditions under
which non-prescription drug products that aid in the prevention of dental
caries or cavities are generally recognized as being safe and effective and not
misbranded. We are relying on that Monograph to sell Enamelon/(R)/
toothpastes to the public. The FDA could assert that our toothpastes or their
labeling do not meet the conditions of the Monograph. In that case, we
could take any of the following actions:
.contest the FDA's assertion;
. modify the formulation or labeling of our products;
.submit a New Drug Application with the FDA for our products, which, if
approved, would permit us to sell them without reliance on the Monograph.
Taking any of those actions could be costly and time consuming and would not
assure that we could continue to sell our products in their current formulations
or packaging. Any of those consequences could have a material adverse effect on
our business, operations and financial results.
FDA regulation of drug manufacturing facilities may impair our ability to
manufacture our products. The FDA also regulates domestic manufacturing of oral
care drug products. If a domestic drug
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manufacturing facility fails to comply with the FDA's Good Manufacturing
Practices, then the FDA can bring an action against the facility and, among
other things, close it. We presently use and plan to continue to use third party
contractors to manufacture our products, and we have no control over their
compliance with GMP's. If the FDA were to close a contract manufacturer's
facility, we may not be able to timely contract with another manufacturer. Even
if we were able to find a new contract manufacturer, we may not be able to
negotiate an agreement with the new manufacturer on terms as favorable as those
of the prior manufacturer. The FDA can also take enforcement action and require
us to recall or discontinue the sale of the affected products. Any of those
results could have a material adverse effect on our business, operations and
financial results.
The FDA could bring enforcement actions against us if it determines that
we do not comply with its rules. If we or our contract manufacturers do not
comply with any applicable FDA rule, we could be subject to FDA
enforcement action. FDA enforcement action could result in any of the following
consequences:
. modifying our products or their labeling;
. product recalls;
.interruption or suspension of product manufacturing;
.seizure of affected products;
.injunction against product marketing;
.criminal prosecution;
.decisions to stop selling the products temporarily or permanently.
Such actions could impair our ability to market our products and could have a
material adverse effect on our business and financial results.
Our development of other products may require us to comply with other FDA
requirements. Other products that we develop or new formulations of our
existing toothpaste products may be subject to FDA requirements that are
different from those applicable to our current toothpastes. If we have to file
an NDA to market them, their marketing may be significantly delayed or
prevented.
Third parties could challenge our promotional claims. Our competitors,
the FTC, or other governmental or private agencies could challenge
the accuracy of our promotional claims or the adequacy of the data that we
relied on to substantiate them. If we are unable to successfully defend
a challenged claim in a lawsuit or agency proceeding, a court or agency could
require us to stop making the claim and place limits on future promotional
claims. An adverse finding by the Better Business Bureau's National
Advertising Division in a voluntary advertising dispute proceeding also might
cause us to modify or discontinue challenged claims. Resulting limitations
on promotional claims could impair our ability to market our products and could
have a material adverse effect on our business.
Changes in laws could adversely affect the way that we conduct our
business. A complex and extensive group of laws and regulations governs the
manufacture and sale of OTC drug products such as Enamelon/(R)/ toothpastes.
Those laws and regulations can change in several ways:
. legislatures may change existing laws or enact new laws affecting our
business;
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. agencies that administer those laws may issue new regulations or change
their interpretation of existing laws or regulations;
. courts may render decisions interpreting those laws or regulations or
changing their existing interpretations.
Changes in the laws or regulations affecting our business or their
interpretation could have a material adverse effect on the way that we
manufacture or sell our products or otherwise conduct our business. If Congress
or the FDA, for example, were to change the Food, Drug and Cosmetic Act or the
way in which it is interpreted, we could be required to seek FDA approval before
marketing our toothpastes. This could be costly and time consuming and have a
material adverse effect on our ability to market our products.
Foreign regulation could impair our ability to market our products outside
the United States. The production and marketing of oral care products are
also subject to governmental regulation in other countries. Our products as
formulated and labeled for the United States market may not comply with foreign
regulations. In that case, we would have to reformulate or relabel the products
to comply with foreign regulations. It is possible that reformulation would be
prohibitively expensive or that we could not reformulate the products to comply
with the foreign regulations, which would have a material adverse effect on our
ability to market our products abroad.
If we cannot protect our patent rights, third parties could prevent us
from using our technology or use it to compete against us. In formulating our
toothpastes and other proposed products, we have used our own patented and
proprietary technology as well as patented technology licensed from the American
Dental Association Health Foundation. We rely on these patents to protect us
against competitors using the same technology to make and sell competing
products. However, any of the following circumstances could have a
material adverse effect on our ability to compete in the oral care industry or
on our business, operations and financial results.
. Competitors could develop or market competing products using our
technologies in violation of our rights. In that case, we would be
required to threaten or commence an infringement action against the
competitor to protect our rights. Infringement actions can be costly and
consume management resources, particularly if the competitor has
substantially greater resources than we have. The outcome of an
infringement action is also uncertain.
. The United States or foreign jurisdictions may not grant patents on our
pending applications. Competitors could then legally use our unpatented
technology to manufacture and sell competing products.
. A third party might be able to show prior rights to our proprietary
technologies or otherwise successfully challenge our patents. In either
case, our patents would be invalid, and competitors could use the
technology disclosed in our patents to manufacture and sell competing
products.
. Competitors may be able to develop similar or equally effective products
or methods that do not infringe our patented technologies.
. Third parties could assert patent infringement claims against us. If an
infringement claim were successful, a court or other judicial body could
require us to pay substantial damages or stop us from using that
technology unless and until we obtain a license from the third party. We
might not be able to procure such a license on acceptable terms, if at
all. If we were unable to license the necessary technology, we would
have to redesign our products or stop selling
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them.
Others may file patent applications covering the same technology as our
applications. The United States Patent and Trademark Office maintains patent
applications in secrecy until a patent is issued. Foreign jurisdictions also
maintain patent applications in secrecy for a limited period after filing.
Publication of discoveries in the scientific or patent literature tends to lag
behind actual discoveries and the filing of related patent applications.
Therefore, current or potential competitors or other third parties may have
filed or may file, without our knowledge, patent applications covering the same
claims as our patent applications. Patents issued to those third parties on
their applications could preclude the issuance of patents to us on our
applications.
We may not be able to protect our trade secrets from disclosure or
discovery. Confidentiality agreements that we require each of our employees,
consultants, advisors and subcontractors to sign may not deter them from
using or disclosing our unpatented know-how and other trade secrets.
Furthermore, our competitors may independently develop substantially equivalent
proprietary information and techniques or otherwise gain access to our
proprietary technologies. In either of those cases, we may not be able to
protect our rights in our unpatented proprietary technology, and third parties
could use it to make and sell products that compete with our products.
There is intense competition in the OTC oral care industry. The
business of manufacturing and selling toothpaste and other oral care products is
very competitive. Our toothpaste products compete or will compete with
brand name toothpastes such as Crest/(R)/, Colgate/(R)/, Aquafresh/(R)/,
Mentadent/(R)/, Arm & Hammer Dental Care/(R)/, Sensodyne/(R)/, and
Rembrandt/(R)/. The manufacturers of these products include companies with
substantially greater financial, technological, marketing, research and
development, and personnel resources than ours. Our competitors may also
develop new products that have therapeutic and/or cost advantages over
Enamelon/(R)/ toothpastes and our other proposed products. These new
products could render our products non-competitive or obsolete.
SmithKline Beecham Co. also has a limited right to make and sell
products using the ADAHF patents. The ADAHF has granted both SmithKline and us
a non-exclusive license to use its patented remineralizing technology to
make and sell oral sprays, mouth rinses and professional gels outside of the
United States. SmithKline has substantially greater financial and
marketing resources than ours. If SmithKline develops products using the
ADAHF's patented technology, we do not believe that we will be able to compete
with SmithKline in marketing those products in foreign markets, unless we enter
into a strategic alliance with a company with resources comparable to
SmithKline's.
Our product formulations might change, which could require us to spend
additional resources. We expect the formulations of our toothpastes and other
products to evolve over time due to our continuing research and product testing.
As a result of this evolution, our products, and the manner in which we
manufacture them, may change. Therefore, our existing proprietary technologies
may become obsolete. In that event, we may have to spend substantial
cash and personnel resources to develop and test these new formulations and
to secure patent rights covering the new technologies. Notwithstanding such
substantial expenditures, we may not be able to effectively market those
products.
We depend entirely on third parties to manufacture our products. We are
using only one contract manufacturer to manufacture our toothpastes. Other
contract manufacturers are the sole sources for our dual-chamber toothpaste
tubes and some of the raw materials that we use to make our toothpastes. If any
current manufacturer were to become unavailable, we may not be able to find a
satisfactory replacement manufacturer or the terms of our agreement with a
replacement manufacturer may not be as favorable to us as our current
manufacturer's terms. Changing contract manufacturers could, among other
things, increase our costs or result in delays in shipping our products or
shortages in stores. Those consequences and others could have a material
adverse effect on our ability to market our products effectively and on our
results of operations.
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Our success is dependent on our key personnel, who we may not be able to
retain. We believe that our success will depend on continued employment of our
senior management team. If one or more members of our senior management team
were unable or unwilling to continue in their present positions, our business,
financial condition and operating results could be materially adversely
affected. Some of our senior management do not have employment agreements and
others have agreements that expire within a year. In addition, we carry key man
life insurance on only our Chief Executive Officer.
Our management's interests in voting their shares may conflict with our
interests and those of our other stockholders. As a result of their stock
ownership, our management will be able to affect significantly corporate actions
such as mergers and takeover attempts in a manner that could conflict with the
interests of our public stockholders. As of March 18, 1999, management owned
2,755,523 shares of our common stock and has currently exercisable options to
purchase 1,424,533 shares of common stock. Based on their ownership of common
stock and options, management currently owns beneficially 35.7 % of our common
stock and will own beneficially 32.61% of our common stock if the selling
securityholders sell all shares offered by this prospectus.
Product liability claims against us could exceed the amount of our
insurance. The manufacture and sale of consumer products exposes the
manufacturer to the risk of significant damages from product liability claims.
We maintain insurance against product liability claims in the amount of
$1 million and excess general liability and product liability insurance of $15
million. Those coverage limits, however, may not be adequate, or we may not be
able to procure such insurance at acceptable costs in the future. A
successful claim in excess of our insurance coverage could have a material
adverse effect on our business, financial condition and results of operations.
Our common stock price has been and may continue to be highly volatile.
Since our initial public offering in October 1996, our common stock has traded
at prices ranging between $3.25 and $27.50. Investors may not be able to sell
our common stock following periods of volatility because of the market's adverse
reaction to such volatility. Factors that we believe have caused or may cause
this volatility include, among other things:
. actual or anticipated variations in quarterly operating results;
. our announcements of the issuance of patents or other technological
innovations;
. our announcements of new products;
. our competitors' announcements of new products;
. changes in financial estimates by securities analysts;
. the employment or termination of key personnel;
. sales of our common stock or other securities.
Many of these factors are beyond our control. These factors may materially
adversely affect the market price of our common stock , regardless of our
operating performance.
Shares eligible for future sale by our current stockholders may
adversely affect the market price of our common stock. If our stockholders sell
substantial amounts of our common stock, including shares issued on the
exercise of outstanding options and warrants or on the conversion of our
series B convertible preferred stock, in the public market, then the market
price of our common stock could fall.
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Public perception that those sales will occur could also adversely affect the
price of our common stock. A decline in the price of our common stock could also
impair our ability to raise capital through the sale of equity securities. We
had 10,285,253 shares of common stock outstanding as of March 18, 1999. Of those
shares:
. 6,401,656 shares have been sold to the public under registration
statements filed with the SEC or under exemptions from registration and
constitute the public float of our common stock.
. 1,128,074 shares are "restricted securities" under Rule 144 of the
Securities Act of 1933 that were issued more than a year ago to persons who
are not our affiliates and may be sold to the public subject to the
requirements of Rule 144 or under a registration statement that we filed
with the SEC.
. 2,755,523 shares are restricted securities that were issued more than a
year ago to our affiliates and may also be sold to the public subject to
the requirements of Rule 144.
We have also reserved for issuance a total of 4,668,212 shares of common
stock upon the exercise of options and warrants that are outstanding and the
conversion of our series B convertible preferred stock. The following shares of
common stock reserved for issuance may be sold publicly in the manner described
below.
. 2,112,250 shares are reserved for issuance on the exercise of options
granted or to be granted under our employee stock option plans. Since we
have filed a registration statement with the SEC for the sale of those
shares and their resale by affiliates, purchasers can resell them to the
public without restriction.
. 753,508 shares are reserved for issuance on the exercise of outstanding
warrants that were issued more than two years ago. All of these warrants
may be converted into common stock without payment of cash for the exercise
price. The number of shares issuable in this "cashless exercise" will
equal the difference between the shares of common stock purchasable under
the warrant and the number of shares having a market value equal to the
total exercise price for those shares. Purchasers may resell shares issued
on exercise of the warrants subject to the requirements of Rule 144. If
the holders exercise their cashless exercise rights and we issue shares to
them in a transaction exempt from registration under Section 3(a)(9) of the
Securities Act, holders may be able to resell the shares immediately
without restriction under SEC Rule 144(k). In addition, holders of 613,508
of those warrants, exercisable at prices ranging from $3.60 to $5.75,
have three demand registration rights exercisable until October 24, 2001,
and unlimited piggyback registration rights exercisable until January 23,
2003. Holders of the remaining 140,000 of those warrants, exercisable
at $8.40 per share, have one demand registration right and limited
piggyback registration rights exercisable until October 29, 2001. We have
obtained waivers of piggyback registration rights with respect to 707,508
of those shares of common stock in connection with this Offering.
. 19,590 shares have been reserved for issuance to a publication and 5,096
shares have been reserved for issuance upon the exercise of warrants
granted or to be granted to that publication in consideration for certain
advertising. These shares may be sold to the public under Rule 144 if the
publication holds them for at least one year after issuance.
. 1,777,768 shares have been reserved for issuance on conversion of our
series B convertible
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preferred stock. All of those shares may be sold to the public under the
registration statement of which this prospectus is a part.
Conversion of our series B convertible preferred stock may result in
substantial dilution to current holders of our common stock and adversely affect
the price of our common stock. Holders of our series B convertible preferred
stock may convert it at a conversion price equal to the lower of $7.19 or the
average of the five lowest closing sale prices of our common stock in the 40
trading days immediately preceding the date of conversion. The number of shares
of common stock issuable on conversion is equal to the sum of $10,000 per share
of series B preferred stock plus an accrual amount equal to 6% per year divided
by the conversion price. Since there is no lower limit on the conversion price,
we would be required to issue an increasingly larger number of shares of common
stock if its price were declining while the holders of the series B convertible
preferred stock were converting. The conversion of the series B convertible
preferred stock and subsequent sale of common stock to the public under this
prospectus could have the further effect of exacerbating the decline in the
price of our common stock. Furthermore, if the holders of preferred stock have
the right to convert it into more shares than the current registration statement
covers, we will be required to file additional registration statements to permit
the public sale of all additional shares.
A holder and its affiliates may not convert their series B convertible
preferred stock if, after conversion, they would hold more than 4.99% of the
issued and outstanding shares of common stock after giving effect to the
conversion. A holder could, however, sell its shares to reduce the percentage
it owns and then convert additional shares in a series of transactions. In
addition, we are not required to issue shares of common stock on conversion of
the series B convertible preferred stock if, after the issuance, the total
number of shares of common stock issued on conversion would equal or exceed
2,047,596 shares without violating Nasdaq rules. This limitation does not apply
if we obtain stockholder approval for the issuance of more shares. We have
agreed to seek stockholder approval at our next annual meeting of stockholders,
which is scheduled to be held on May 18, 1999. If we do not obtain stockholder
approval, the holders of the series B convertible preferred stock can require us
to pay them in cash for each share that they cannot convert into common stock as
a result of this limitation the greater of (1) $12,500 plus the 6% accrual
amount or (2) an amount equal to the closing bid price for our common stock on
the date of conversion multiplied by the number of shares that cannot be issued.
If the holders of the series B convertible preferred stock had converted
their shares on March 18, 1999, the conversion price would have been
approximately $4.581 and we would have issued approximately 2,215 shares of
common stock per share of series B convertible preferred stock. The conversion
would have resulted in the issuance of a total of approximately 1,107,836 shares
of common stock, or approximately 10.78% of the outstanding shares before
conversion. The minimum number of shares of common stock issuable on conversion
of each share of series B convertible preferred stock a conversion price of
$7.19 is approximately 1,391 plus approximately 0.2286 shares for each day that
the series B convertible preferred stock is outstanding.
If we cannot satisfy Nasdaq's maintenance requirements, it may delist our
common stock from its National Market System. Our common stock is quoted on the
Nasdaq National Market System. To continue to be listed, we are required to
maintain net tangible assets of $4,000,000, our common stock must maintain a
minimum bid price of $1.00 per share, and we must have at least four market
makers. We may not be able to continue to satisfy all of those maintenance
requirements. If we are unable to satisfy Nasdaq's NMS maintenance
requirements, our common stock may be delisted from the NMS. If we are
delisted, we may not qualify for listing on the Nasdaq SmallCap Market. In that
case, our common stock would be traded in the over-the-counter market and quoted
in the NASD's "Electronic Bulletin Board" or the "pink sheets." Consequently,
it may be more difficult for an investor to obtain price quotations for our
common stock or to sell it.
If our common stock is delisted, it may become subject to the SEC's "penny
stock" rules and be more difficult to sell. SEC rules require brokers to
provide information to purchasers of securities traded at less
-8-
<PAGE>
than $5.00 and not traded on a national securities exchange or quoted on the
Nasdaq Stock Market. If our common stock becomes a "penny stock" that is not
exempt from the SEC rules, these disclosure requirements may have the effect of
reducing trading activity in our common stock and make it more difficult for
investors to sell. The rules require a broker-dealer to deliver a standardized
risk disclosure document prepared by the SEC that provides information about
penny stocks and the nature and level of risks in the penny stock market. The
broker must also give bid and offer quotations and broker and salesperson
compensation information to the customer orally or in writing before or with his
confirmation. The SEC rules also require a broker to make a special written
determination that the penny stock is a suitable investment for the purchaser
and receive the purchaser's written agreement to the transaction before a
transaction in a penny stock.
Other issuances of preferred stock could adversely affect existing holders
of our common stock. Under our certificate of incorporation, our Board of
Directors may, without further stockholder approval, issue up to an additional
4,999,500 shares of preferred stock with dividend, liquidation, conversion,
voting or other rights that could adversely affect the voting power or other
rights of the holders of common stock. We could use new classes of
preferred stock as a method of discouraging, delaying or preventing a change
in persons that control us. In particular, the terms of the preferred stock
could effectively restrict our ability to consummate a merger, reorganization,
sale of all or substantially all of our assets, liquidation or other
extraordinary corporate transaction without the approval of the holders of the
preferred stock. We could also create a class of preferred stock with
rights and preferences similar to those of the series B convertible preferred
stock, which could result in substantial dilution to holders of our common
stock or adversely affect its market price. The 500 shares of series B
convertible preferred stock are the only shares of preferred stock outstanding.
Delaware law anti-takeover provisions and our classified board could also
make it more difficult for a third party to acquire control of us. We are a
Delaware corporation. Anti-takeover provisions of Delaware law could make it
more difficult for a third party to acquire control of us. In addition, our by-
laws provide for a classified board, with each board member serving a staggered
two-year term. The classified board could also make it more difficult to
acquire us.
Forward-Looking Statements
Some of the information in this prospectus and the documents we incorporate
by reference may contain forward-looking statements. These statements can be
identified by the use of forward-looking terminology such as "may," "will,"
"expect," "believe," "intend," "anticipate," "estimate," "continue" or similar
words. They discuss future expectations, estimate the happening of future
events, anticipate our future financial condition or state other "forward-
looking" information. When considering such forward-looking statements, you
should keep in mind the risk factors and other cautionary statements in this
prospectus and the documents that we incorporate by reference. The risk factors
provided in this prospectus and other factors noted throughout this prospectus
and the documents that we incorporate by reference, including certain risks and
uncertainties, could cause our actual results to differ materially from those
contained in any forward-looking statement.
Selling Securityholders
The following table sets forth the name and address of each selling
securityholder, the number of shares of common stock it beneficially owned as of
March 18,1999, the number of shares that it may offer, and the number of shares
of common stock that it will beneficially own upon completion of the offering,
assuming all of the shares offered are sold. The selling securityholders can
sell up to 1,107,836 shares of our common stock under this prospectus. We have,
however, filed a registration statement with the SEC with respect to the selling
securityholders' sale of a total of 1,777,768 shares of common stock. Therefore,
if we supplement this prospectus, the selling securityholders can sell an
additional 669,932 shares not covered by this prospectus. None of the selling
securityholders has, or within the past three years has had, any position,
office or other material relationship with us or any of our predecessors or
affiliates.
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<PAGE>
The number of shares of common stock that each selling securityholder can
acquire on conversion of its series B convertible preferred stock will vary with
changes in the market price of our common stock. Our series B convertible
preferred stock is convertible at a Conversion Price equal to the lower of the
Variable Price of our common stock on the date of conversion or the Base Price.
The Variable Price is equal to the average of the five lowest closing sale
prices of our common stock in the 40 trading days immediately preceding the
conversion. The Base Price is presently $7.19, which is 120% of the average of
the closing prices of our common stock on the last five trading days of February
1999. The Variable Price and the Base Price may be reduced if we do not comply
with all of our obligations to the selling securityholders. The number of shares
of common stock issuable on conversion of each share of series B convertible
preferred stock is equal to the sum of $10,000 plus an accrual amount equal to
6% per annum divided by the Conversion Price. On March 18, 1999, the Variable
Price was $4.581, and since it was lower than the Base Price, the Variable Price
would have been the Conversion Price. The 6% accrual amount on that date would
have been $147.95 per share for the 90 days that the series B convertible
preferred stock was outstanding. Therefore, if a holder of series B preferred
stock had converted on that date, it would have received approximately 2,215
shares of common stock for each share of series B convertible preferred stock,
determined by dividing $10,147.95 by $4.581. If holders of all shares of series
B convertible preferred stock had converted on that date, we would have issued
approximately 1,107,614 shares of common stock. The minimum number of shares of
common stock issuable on conversion of each share of series B convertible
preferred stock at the Base Price is approximately 1,391 shares, plus
approximately 0.2286 shares for each day that the series B convertible preferred
stock is outstanding. If holders of all shares of the series B convertible
preferred stock had converted on March 18, 1999, we would have issued a total of
approximately 705,699 shares of common stock.
We are not required to issue shares of common stock on conversion of the
series B convertible preferred stock if, after the issuance, the total number of
shares of common stock issued on conversion would equal or exceed 2,047,596
shares without violating Nasdaq rules. This limitation does not apply if we
obtain stockholder approval for the issuance of a greater number of shares. We
have agreed to seek stockholder approval at our next annual meeting of
stockholders, which is scheduled to be held on May 18, 1999. If we do not
obtain stockholder approval, the holders of the series B convertible preferred
stock can require us to pay them in cash for each share that cannot be converted
into common stock as a result of that limitation the greater of (1) $12,500
plus the 6% accrual amount or (2) an amount equal to the closing bid price for
our common stock on the date of conversion multiplied by the number of shares
that cannot be issued. Other than these limitations, there is no minimum
Conversion Price or maximum number of shares of common stock issuable on
conversion.
In general, a holder of series B convertible preferred stock may not
convert if, after giving effect to the conversion, it and its affiliates would
own more than 4.99% of the issued and outstanding common stock. The
beneficial ownership of HFTP Investments LLC set forth in the table below
reflects this limitation. The beneficial ownership of each of Fisher Capital
Ltd. and Wingate Capital Ltd., which are affiliates, does not reflect that
limitation, since their individual conversion would not violate the 4.99%
restriction. However, as affiliates, they could not own more than a total of
540,189 shares between them based on the number of shares of common stock
outstanding on March 18, 1999. Any selling security holder could sell shares
under this prospectus to reduce its beneficial ownership, which would permit it
to convert additional shares of series B convertible preferred stock without
violating the 4.99% limitations.
For purposes of calculating the number of shares of common stock that
each selling securityholder beneficially owns as set forth in the table below,
we have used a conversion rate of 2,215 shares of common stock for each share of
series B preferred stock as of March 18, 1999. The number of shares includes
all shares that the selling securityholder has the right to acquire within 60
days after that date, whether by conversion or otherwise. We have based the
calculation of the percentage owned on 10,277,280 shares issued and outstanding
on March 18, 1999, plus the shares of common stock that the selling
securityholder has the right to acquire within 60 days.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Shares of Shares of Shares of
Common Stock Commmon Stock Common Stock
Beneficially Owned Offered in the Beneficially Owned
Name and Address of Selling Before Offering Offering After Offering
--------------------- ------------------ --------------------
</TABLE>
-10-
<PAGE>
<TABLE>
<CAPTION>
Securityholder Number Percent(2) Number Number Percent
- -------------- -------- ----------- ------- ------ -------------
<S> <C> <C> <C> <C> <C>
HFTP Investments LLC(1) 540,189 4.99% 553,918 0 --
c/o Promethean Investment Group, L.L.C.
750 Lexington Avenue, 22/nd/ Floor
New York, NY 10022
Fisher Capital Ltd.(2) 361,154 3.39% 361,154 0 --
c/o Citadel Investment Group, L.L.C.
225 West Washington Street
Chicago, IL 60606
Wingate Capital Ltd.(2) 192,764 1.84% 192,764 0 --
c/o Citadel Investment Group, L.L.C.
225 West Washington Street
Chicago, IL 60606
</TABLE>
________
(1) Promethean Investment Group L.L.C. is the investment manager of HFTP
Investments LLC ("HFTP") and consequently has voting control and investment
discretion over securities held by HFTP. Promethean Investment Group,
L.L.C. is indirectly controlled by Mr. James F. O'Brien. Mr. O'Brien
disclaims beneficial ownership of the shares beneficially owned by
Promethean Investment Group L.L.C. and HFTP.
(2) Citadel Limited Partnership is the trading manager of each of Fischer
Capital Ltd. and Wingate Capital Ltd. (collectively, the "Citadel
Entities") and consequently has voting control and investment discretion
over securities held by the Citadel Entities. Kenneth C. Griffin
indirectly controls Citadel Limited Partnership. The ownership for each of
the Citadel Entities does not include the ownership information for the
other Citadel Entity. Citadel Limited Partnership, Kenneth C. Griffin,
and each of the Citadel Entities disclaims ownership of the shares held by
the other Citadel Entities.
We are registering the shares for resale by the selling securityholders in
accordance with registration rights granted to the selling securityholders. We
will pay the registration and filing fees, printing expenses, listing fees, blue
sky fees, if any, and fees and disbursements of our counsel and the selling
security holders' counsel in connection with this offering, but the selling
securityholders will pay any underwriting discounts, selling commissions and
similar expenses relating to the sale of the shares. In addition, we have
agreed to indemnify the selling securityholders, underwriters who they may
select, and certain affiliated parties against certain liabilities, including
liabilities under the Securities Act, in connection with this offering. The
selling securityholders have agreed to indemnify us and our directors and
officers, as well as any person that controls us, against certain liabilities,
including liabilities under the Securities Act. Insofar as indemnification for
liabilities under the Securities Act may be permitted to our directors or
officers, or persons that control us, we have been informed that in the opinion
of the SEC such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Plan of Distribution
The selling securityholders (or, subject to applicable law, their pledgees,
donees, distributees, transferees or other successors in interest) may sell
shares from time to time in public transactions, on or off The Nasdaq National
Market, or private transactions, at prevailing market prices or at privately
negotiated prices, including but not limited to, one or any combination of the
following types of transactions:
. ordinary brokers' transactions;
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<PAGE>
. transactions involving cross or block trades or otherwise on the Nasdaq
National Market;
. purchases by brokers, dealers or underwriters as principal and resale by
such purchasers for their own accounts pursuant to this prospectus;
. "at the market" to or through market makers or into an existing market
for the common stock;
. in other ways not involving market makers or established trading
markets, including direct sales to purchasers or sales effected through
agents;
. through transactions in options, swaps or other derivatives (whether
exchange-listed or otherwise);
. in privately negotiated transactions; or
. to cover short sales.
In effecting sales, brokers or dealers engaged by the selling
securityholders may arrange for other brokers or dealers to participate in the
resales. The selling securityholders may enter into hedging transactions with
broker-dealers, and in connection with those transactions, broker-dealers may
engage in short sales of the shares. The selling securityholders also may sell
shares short and deliver the shares to close out such short positions. The
selling securityholders also may enter into option or other transactions with
broker-dealers that require the delivery to the broker-dealer of the shares,
which the broker-dealer may resell pursuant to this prospectus. The selling
securityholders also may pledge the shares to a broker or dealer, and upon a
default, the broker or dealer may effect sales of the pledged shares pursuant to
this prospectus.
Brokers, dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling securityholders in amounts to
be negotiated in connection with the sale. The selling securityholders and any
participating brokers or dealers may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales and any such
commission, discount or concession may be deemed to be underwriting
compensation.
Information as to whether underwriters who the selling securityholders may
select, or any other broker-dealer, is acting as principal or agent for the
selling securityholders, the compensation to be received by underwriters that
the selling securityholders may select or by any broker-dealer acting as
principal or agent for the selling securityholders, and the compensation to be
paid to other broker-dealers, in the event the compensation of such other
broker-dealers is in excess of usual and customary commissions, will, to the
extent required, be set forth in a supplement to this prospectus. Any dealer or
broker participating in any distribution of the shares may be required to
deliver a copy of this prospectus, including a prospectus supplement, if any, to
any person who purchases any of the shares from or through such dealer or
broker.
We have advised the selling securityholders that during such time as they
may be engaged in a distribution of the shares they are required to comply with
Regulation M promulgated under the Securities Exchange Act. With certain
exceptions, Regulation M precludes any selling securityholder, any affiliated
purchasers and any broker-dealer or other person who participates in such
distribution from bidding for or purchasing, or attempting to induce any person
to bid for or purchase any security that is the subject of the distribution
until the entire distribution is complete. Regulation M also prohibits any bids
or purchases made in order to stabilize the price of a security in connection
with the distribution of that security. All of the foregoing may affect the
marketability of the common stock.
Information About The Company
At Enamelon, Inc., we develop and market over-the-counter oral care
products that help stop cavities before they begin. Our initial product,
Enamelon/(R)/ all family toothpaste, uses our proprietary technologies to
enhance tooth remineralization. Our second product, Enamelon/(R)/ Calcium
Whitening System toothpaste, uses
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<PAGE>
our proprietary technologies to whiten teeth as it strengthens and remineralizes
them. We intend to use our proprietary technologies, which include patented
remineralizing technologies licensed from the American Dental Association Health
Foundation, to develop other remineralizing products, such as a toothpaste for
sensitive teeth, a mouthwash, chewing gum, and other food and confectionery
products.
We file reports, proxy statements and other information with the SEC. You
may read and copy any document we file at the Public Reference Room of the SEC
at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Regional Offices of the SEC at Seven World Trade Center, Suite 1300, New York,
New York 10048, and at 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Please call 1-800-SEC-0330 for further information concerning the
Public Reference Room. Our filings also are available to the public from the
SEC's website at www.sec.gov. We distribute to our stockholders annual reports
containing audited financial statements.
Information Incorporated by Reference
The SEC allows us to "incorporate by reference" the information that we
file with it, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings that we make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
until the offering is completed:
1. Annual Report on Form 10-KSB for the fiscal year ended December 31, 1998.
2. Proxy Statement dated April [ ] 1999.
3. The description of our common stock contained in our Registration
Statement on Form 8-A (File No. 0-21595) under Section 12 of the Securities
Exchange Act.
4. The description of our series B Convertible preferred stock contained
in our Form 8-K, dated December 18, 1998.
You may request a copy of these filings, at no cost, by writing or calling us
at:
Enamelon, Inc.
7 Cedar Brook Drive
Cranbury, New Jersey 08512
Attention: Chief Financial Officer
Telephone: (609) 395-6900
This prospectus is part of a registration statement that we filed with the
SEC. You should rely only on the information or representations provided in this
prospectus. We have not authorized anyone to provide you with different
information. The common stock will not be offered in any state where an offer is
not permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the cover of this prospectus.
Legal Matters
The validity of the shares of common stock offered hereby has been passed upon
by Snow Becker Krauss P.C., 605 Third Avenue, New York, New York 10158. SBK
Investment Partners, a partnership consisting of member of Snow Becker Krauss
P.C., owns 107,325 shares of common stock. In addition, certain members of Snow
Becker
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<PAGE>
Krauss P.C. beneficially own common stock individually.
Experts
The consolidated financial statements of Enamelon, Inc. at December 31, 1998
and for the years ended December 31, 1997 and 1998, appearing in our Annual
Report on Form 10-KSB for the year ended December 31, 1998, have been
audited by BDO Seidman LLP, independent auditors, as set forth in their report
thereon incorporated herein by reference. Such consolidated financial statements
are incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
-14-
<PAGE>
Part II
Information Not Required in the Prospectus
Item 14. Other Expenses of Issuance and Distribution
The expenses payable by the Registrant in connection with the issuance and
distribution of the securities being registered are estimated below:
SEC registration fee..... $ 3,892
Listing fees............. 17,500
Legal fees and expenses.. 30,000
Printing expenses........ 10,000
Accounting fees.......... 5,000
Miscellaneous............ 6,108
-------
Total $72,500
Item 15. Indemnification of Directors and Officers.
Article VI of the Registrant's by-laws provides that a director or officer
shall be indemnified against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement (provided such settlement is approved in
advance by the Registrant) in connection with certain actions, suits or
proceedings, whether civil, criminal, administrative or investigative if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. A similar standard of care is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
an action, except that no person who has been adjudged to be liable to the
Registrant shall be entitled to indemnification unless a court determines that
despite such adjudication of liability but in view of all of the circumstances
of the case, the person seeking indemnification is fairly and reasonably
entitled to be indemnified for such expenses as the court deems proper.
Article 6.3 of the Registrant's by-laws further provides that directors and
officers are entitled to be paid by the Registrant the expenses incurred in
defending the proceedings specified above in advance of their final disposition,
provided that such payment will only be made upon delivery to the Registrant by
the indemnified party of an undertaking to repay all amounts so advanced if it
is ultimately determined that the person receiving such payments is not entitled
to be indemnified.
Article 6.4 of the Registrant's by-laws provides that the right to
indemnification and the payment of expenses incurred in defending a proceeding
in advance of its final disposition conferred in the Article will not be
exclusive of any other right which any person may have or acquire under the by-
laws, or any statute or agreement or otherwise.
Finally, Article 6.6 of the Registrant's by-laws provides that the
Registrant may maintain insurance, at its expense, to reimburse itself and
directors and officers of the Registrant and of its direct and indirect
subsidiaries against any expense, liability or loss, whether or not the
Registrant would have the power to indemnify such persons against such expense,
liability or loss under the provisions of Article VI of the by-laws. The
Registrant maintains and has such insurance in effect.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Securities Act") may be permitted to directors, officers or
persons controlling the Registrant pursuant to the foregoing provisions, the
Registrant 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.
II-1
<PAGE>
<TABLE>
<CAPTION>
Item 16. Exhibits
Exhibit
No. Description
- ------- -----------
<S> <C>
4.1 -- Securities Purchase Agreement./1/
4.2 -- Certificate of Designations, Preference and Rights of Series B Convertible Preferred Stock./1/
4.3 -- Registration Rights Agreement./1/
5.1 -- Opinion of Snow Becker Krauss P.C./*/
23.1 -- Consent of Snow Becker Krauss P.C. (included in Exhibit 5.1).
23.2 -- Consent of BDO Seidman LLP, independent auditors./**/
- ----------
</TABLE>
/1/ Incorporated by reference to the Registrant's Current Report on Form 8-K,
dated December 18, 1998.
/*/ Previously filed
/**/ To be filed by amendment.
Item 17. Undertakings.
(a) Rule 415 Offering
The undersigned small business issuer hereby undertakes that it will:
(1) File, during any period in which it offers or sells securities, a post-
effective amendment to this registration statement to:
(i) Include any prospectus required by section l0(a) (3) of the
Securities Act.
(ii) Reflect in the prospectus any facts or events which, individually or
in the aggregate, represent a fundamental change in the information
set forth in the registrant 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) Include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) For determining any liability under the Securities Act, each such post-
effective amendment shall be deemed a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time to be the initial bona fide offering thereof.
(3) Remove from registration by means of a post-effective amendment any of the
securities being registered that remain unsold at the termination of the
offering.
II-2
<PAGE>
(e) Request for Acceleration of Effective Date
Insofar as indemnification for liabilities arising under the Securities Act of
1933 (the "Securities Act") may be permitted to directors, officers and
controlling persons of the small business issuer pursuant to the foregoing
provisions, or otherwise, the small business issuer 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 small business issuer of the expenses
incurred or paid by a director, officer, or controlling person of the small
business issuer 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 small business issuer 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, hereunto
duly authorized, in the City of Yonkers, State of New York, on March ___, 1999
ENAMELON, INC.
By /s/ Dr. Steven R. Fox
---------------------
Dr. Steven R. Fox
Chief Executive Officer
and Chairman
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates stated:
SIGNATURES
<TABLE>
<S> <C> <C>
/s/ Dr. Steven R. Fox Chairman of the Board of Directors and March ___, 1999
- -------------------------- Chief Executive Officer (Principal
Dr. Steven R. Fox Executive Officer)
/s/ Edwin Diaz Treasurer, Vice President - Finance and March ___, 1999
- --------------------------- Chief Financial Officer (Principal
Edwin Diaz Financial Officer)
* Director March ___, 1999
- ---------------------------
Dr. Bert D. Gaster
* Director March ___, 1999
- ---------------------------
Richard A. Gotterer
* Director March ___, 1999
- ---------------------------
Eric D. Horodas
* Director March ___, 1999
- ---------------------------
Dr. S.N. Bhaskar
* Director March ___, 1999
- ---------------------------
Walter W. Williams
*By /s/ Dr. Steven R. Fox
----------------------
Dr. Steven R. Fox
Attorney-in-fact
</TABLE>
<PAGE>
Exhibit Index
<TABLE>
<CAPTION>
Exhibit
No. Description Page
------ ----------------------------------------------------------------- ----
<S> <C> <C>
4.1 -- Securities Purchase Agreement./1/
4.2 -- Certificate of Designations, Preferences and Rights of Series B Convertible
Preferred
Stock./1/
4.3 -- Registration Rights Agreement./1/
5.1 -- Opinion of Snow Becker Krauss, P.C.*
23.1 -- Consent of Snow Becker Krauss P.C. (included in Exhibit 5.1)
23.2 -- Consent of BDO Seidman LLP, independent auditors.**
</TABLE>
__________
/1/ Incorporated by reference to the Registrant's Current Report on Form 8-K,
dated December 18, 1998.
*Previously Filed
**To be filed by amendment.
