As filed with the Securities and Exchange Commission on September 15, 1999
Registration No. 333-13469
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-3 TO
REGISTRATION STATEMENT ON FORM SB-2
UNDER THE SECURITIES ACT OF 1933
------------------------------
TITAN PHARMACEUTICALS, INC.
(Exact name of Issuer as specified in its charter)
Delaware 2836 94-3171940
- - - ------------------------- ---------------------------- ----------------------
(State or other jurisdic- (Primary standard industrial (I.R.S. employer
tion of incorporation) classification code number) identification number)
400 Oyster Point Blvd.
South San Francisco, California 94080
(650) 244-4990
(Address and telephone number of principal executive offices
and principal place of business)
------------------------------
Louis R. Bucalo, M.D., Chief Executive Officer
Titan Pharmaceuticals, Inc.
400 Oyster Point Blvd.
South San Francisco, California 94080
(650) 244-4990
(Name, address and telephone number of agent for service)
------------------------------
Copies to:
Fran Stoller, Esq.
Bachner Tally& Polevoy LLP
380 Madison Avenue
New York, New York 10017
(212) 687-7000
Approximate date of proposed sale to the public: As soon as practicable after
this Registration Statement becomes effective.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. |X|
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, 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 registration statement for the same
offering. |_|
If the delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
Pursuant to Rule 416 under the Securities Act of 1933, as amended, there are
also being registered such additional shares of Common Stock as may become
issuable pursuant to anti-dilution provisions upon exercise of the Class A
Warrants.
------------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus contained herein is a combined Prospectus relating to (A)
Registration Statement No. 33-99386 pursuant to which the Company registered (i)
3,625,900
<PAGE>
shares of Common Stock underlying Class A Warrants which were contained in the
Units ("IPO Units") sold in the Company's initial public offering; (ii)
1,875,000 Class A Warrants and the 1,615,877 underlying shares of Common Stock
for resale by certain selling securityholders; and (iii) unit purchase options
to purchase up to 320,000 IPO Units and the underlying securities for a total
fee of $11,701.50; and (B) this Registration Statement No. 333-13469 pursuant to
which the Company registered 1,536,000 Class A Warrants and the 1,536,000
underlying shares of Common Stock for resale by certain selling securityholders
for a total fee of $12,222.
-2-
<PAGE>
Subject to Completion - Dated September 16, 1999
Prospectus
7,031,986 Shares
TITAN PHARMACEUTICALS, INC.
Common Stock
We are offering:
o 3,620,986 shares underlying the class A warrants we issued in our
initial public offering; and
o 3,411,000 shares underlying class A warrants we issued in two
private placements which were subsequently sold into the public
market by, or may in the future be sold by, the private placement
investors.
If all of our currently outstanding class A warrants were exercised, we
would receive gross proceeds of approximately $42.3 million, before deducting
any solicitation fees which we may be required to pay. See "Plan of
Distribution."
Our common stock and class A warrants are traded on the American Stock
Exchange under the symbols TTP and TTP:WS, respectively. On September 14, 1999,
the closing prices of the common stock and warrants were $12.75 and $6.6875,
respectively.
----------
An investment in our securities involves a high degree of risk. See "Risk
Factors" beginning on page 3.
----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
----------
The date of this prospectus is _________, 1999
<PAGE>
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus
or incorporated by reference herein. It is not complete and may not contain all
of the information that you should consider before investing in our securities.
You should read the entire prospectus carefully, including the "Risk Factors"
section, and the financial statements and related notes which are incorporated
by reference herein.
We are a biopharmaceutical company developing therapeutic products for the
treatment of cancer, disorders of the central nervous system and other serious
and life-threatening diseases.
Our lead CNS therapeutic product, Iloperidone, is currently in Phase III
clinical testing for schizophrenia through a corporate partnership with Novartis
Pharma AG. Novartis has trade named the product Zomaril(TM), and the Phase III
program will enroll approximately 3,300 patients in 24 countries. Zomaril is
being developed for the treatment of schizophrenia and related psychotic
disorders - a market expected to reach $6 billion in 2002. Also in the central
nervous system arena, we are developing a unique cell based therapeutic,
Spheramine(TM), for the treatment of Parkinson's disease. Our cancer
therapeutics in clinical testing include three monoclonal antibodies --
CeaVac(TM), TriAb(TM), and TriGem -- that are designed to stimulate a patient's
immune system against cancer cells. CeaVac(TM) is currently in multicenter,
double-blind, prospectively controlled Phase II clinical testing for colorectal
cancer. TriAb(TM) is currently in multicenter, double-blind, prospectively
controlled Phase II clinical testing for breast cancer. TriGem(TM) has completed
Phase I/II testing in melanoma and we are pursuing later stage clinical trials
through co-operative groups. Another product we have in development,
Pivanex(TM), is a small molecule drug that acts as a cell differentiating agent.
Pivanex is currently in Phase II clinical testing for non-small cell lung
cancer. Additionally, we are developing gene therapy products for treating
various cancers and, with the help of SBIR grants, an implantable drug delivery
system with applications in the treatment of central nervous system disorders.
A portion of our operations are currently conducted through two
consolidated subsidiaries: Ingenex, Inc., engaged in the development of
proprietary gene-based therapies and ProNeura, Inc., engaged in research and
development activities relating to a polymeric implantable drug delivery
technology. References in this prospectus to our company and our products
include the operations and products of our operating subsidiaries.
Our executive offices are located at 400 Oyster Point Blvd., Suite 505,
South San Francisco, California 94080, and our telephone number is (650)
244-4990.
-2-
<PAGE>
RISK FACTORS
An investment in our shares involves various risks. You should carefully
consider the following risk factors and other information incorporated by
reference herein before deciding to purchase shares.
We have a history of operating losses and may never be profitable. Through
June 30, 1999, we had accumulated net losses since inception of approximately
$60 million. We will continue to incur losses for the foreseeable future as a
result of the various costs associated with our research, development,
financial, administrative, regulatory and management activities. We may never
achieve or sustain profitability.
We will need additional financing. At June 30, 1999, we had approximately
$11.8 million of cash which we believe will enable us to fund our operations for
at least 15 months. We will be required to seek substantial additional financing
after such time to continue our product development activities and to
commercialize any products that we may successfully develop. We do not have any
funding commitments or arrangements other than our bank line of credit. If we
are unable to enter into a corporate collaboration, complete a debt or equity
offering, or otherwise obtain any needed financing, we will be required to
reduce, defer or discontinue our product development programs. We may be
required to obtain funds on terms that are not favorable to us and our
stockholders.
Our products are at an early stage of development and may not be
successfully developed or commercialized. Our proposed products are at various
stages of development, but all will require significant further development,
testing and regulatory clearances prior to commercialization. We are subject to
the risk that some or all of our proposed products:
o will be found to be ineffective or unsafe;
o will not receive necessary regulatory clearances;
o will not be capable of being produced in commercial quantities at
reasonable costs; or
o will not be successfully marketed.
We may experience unanticipated problems relating to product development,
testing, regulatory compliance, manufacturing, marketing and competition, and
our costs and expenses could exceed current estimates. We cannot predict whether
we will successfully develop and commercialize any products.
We must comply with extensive government regulations. Our research,
development, pre-clinical and clinical trial activities and the manufacturing
and marketing of any products which we may successfully develop are subject to
an extensive regulatory approval process by the FDA and other regulatory
agencies in the U.S. and other countries. The process of obtaining required
regulatory approvals for drugs, including conducting preclinical and clinical
testing, is lengthy, expensive and uncertain. Even after such time and
expenditures, we may not obtain necessary regulatory approvals for clinical
testing or for the manufacturing or marketing of any products. Regulatory
approval may entail limitations on the indicated usage of a drug, which may
reduce the drug=s market potential. Even if regulatory clearance is obtained,
post-market evaluation of the products, if required, could result in
restrictions on a product=s marketing or withdrawal of the product from the
market as well as possible civil or criminal sanctions. We depend on
laboratories and medical institutions conducting preclinical studies and
clinical trials to maintain both good laboratory and good clinical practices. We
will also depend upon the manufacturers of any products we may successfully
develop to comply with cGMP.
-3-
<PAGE>
In addition, we and our collaborative partners may be subject to
regulation under state and federal laws, including requirements regarding
occupational safety, laboratory practices, environmental protection and
hazardous substance control, and may be subject to other local, state, federal
and foreign regulation. We cannot predict the impact of such regulation on us,
although it could be material and adverse.
We have may be unable to protect our patents and proprietary rights.
Our future success will depend to a significant extent on our ability to:
o enforce patent protection on our products and technologies;
o maintain trade secrets; and
o operate and commercialize products without infringing on the patents or
proprietary rights of others.
Our patents may not afford any competitive advantages and may be challenged or
circumvented by third parties. Further, patents may not issue on pending patent
applications. Because of the extensive time required for development, testing
and regulatory review of a potential product, it is possible that before a
potential product can be commercialized, any related patent may expire, or
remain in existence for only a short period following commercialization,
reducing any advantage of the patent.
Our business may be materially adversely affected if others independently
develop similar technologies or duplicate any technology we develop.
Furthermore, costly and time consuming litigation may be necessary to:
o enforce any of our patents;
o determine the scope and validity of the patent rights of others; or
o respond to a legal action against us claiming damages for infringement of
patent rights or other proprietary rights or seeking to enjoin commercial
activities relating to the affected product or process.
The outcome of any such litigation is highly uncertain.
To the extent that consultants, key employees or other third parties apply
technological information independently developed by them or by others to our
proposed products, disputes may arise as to the proprietary rights to such
information which may not be resolved in our favor. Most of our consultants are
employed by or have consulting agreements with third parties and any inventions
discovered by such individuals generally will not become our property. There is
a risk that other parties may breach confidentiality agreements or that our
trade secrets become known or independently discovered by competitors, which
could adversely affect us.
We face intense competition. Competition in the pharmaceutical and
biotechnology industries is intense and is expected to increase. We will face
competition from numerous companies that currently market, or are developing,
products for the treatment of the diseases and disorders we have targeted. Many
of these entities have significantly greater research and development
capabilities, experience in obtaining regulatory approvals and manufacturing,
marketing, financial and managerial resources than us. We also compete with
universities and other research institutions in the development of products,
technologies and processes, as well as the recruitment of highly qualified
personnel. Our competitors may succeed in developing technologies or products
that are more effective than the ones we have under
-4-
<PAGE>
development or that render our proposed products or technologies noncompetitive
or obsolete. In addition, certain of such competitors may achieve product
commercialization or patent protection earlier than us.
We are dependent upon our key collaborative relationships and license and
sponsored research agreements. As a small company with limited resources, we
rely significantly on the resources of third parties to conduct research and
development on our behalf. For example, our ability to ultimately derive
revenues from Zomaril is almost entirely dependent upon Novartis conducting the
Phase III trials and completing the regulatory approval process and implementing
the marketing program necessary to commercialize Zomaril if the trials are
successful. Our success in the future will depend, in part, on our ability to
maintain existing collaborative relationships and to develop new collaborative
relationships with third parties. Our license agreements relating to the
in-licensing of technology generally require the payment of up-front license
fees and royalties based on sales with minimum annual royalties, the use of due
diligence in developing and bringing products to market, the achievement of
funding milestones and, in some cases, the grant of stock to the licensor. Our
sponsored research agreements generally require periodic payments on an annual
or quarterly basis. Our failure to meet financial or other obligations under
license or sponsored research agreements in a timely manner could result in the
loss of our rights to proprietary technology or our right to have the applicable
university or institution conduct research and development efforts.
We may be dependent on third parties to manufacture and market any
products we may successfully develop. To date, we have not introduced any
products on the commercial market. We may not have the resources in the
foreseeable future to allocate to the commercial manufacture or direct marketing
of any proposed products. Collaborative arrangements may be pursued regarding
the manufacture and marketing of any products that may be successfully
developed. We may be unable to enter into additional collaborative arrangements
to manufacture or market any proposed products or, in lieu thereof, establish
our own manufacturing operations or sales force.
We may not be able to retain our key management and scientific personnel.
As a small company with a limited number of personnel, we are highly dependent
on the services of Dr. Louis R. Bucalo, President and Chief Executive Officer,
as well as the other principal members of our management and scientific staff.
The loss of one or more of such individuals could substantially impair ongoing
research and development programs and could hinder our ability to obtain
corporate partners. Our success depends in large part upon our ability to
attract and retain highly qualified personnel. We compete in our hiring efforts
with other pharmaceutical and biotechnology companies, as well as universities
and nonprofit research organizations, and we may have to pay higher salaries to
attract and retain personnel.
Future sales of our common stock in the public market could adversely
impact our stock price. Future sales of our common stock by existing
stockholders pursuant to Rule 144 under the Securities Act, pursuant to an
effective registration statement or otherwise, could have an adverse effect on
the price of our securities.
We may redeem the class A warrants. We may redeem the warrants at a
redemption price of $.05 per warrant if the closing bid price of our common
stock averages in excess of $9.10 for 30 consecutive trading days ending within
15 days of the notice. If we redeem the warrants, you could be forced to:
-5-
<PAGE>
o exercise the warrants and pay the exercise price therefor at a time when
it may be disadvantageous for you to do so;
o sell the warrants at the then current market price when you might
otherwise wish to hold the warrants; or
o accept the nominal redemption price.
You may be unable to exercise your warrants if we do not have a current
prospectus in effect. You may be unable to exercise your warrants if:
o a current prospectus relating to the shares underlying the warrants is not
in effect; and
o the shares have not been qualified for sale under the applicable
securities laws of the state where you reside or your exercise of warrants
is exempt from qualification.
Persons holding warrants who reside in jurisdictions in which the underlying
shares are not qualified and in which there is no exemption will be unable to
exercise their warrants and would either have to sell their warrants in the open
market or allow them to expire unexercised. We may exercise our right to redeem
the warrants even if we are unable to qualify the underlying shares for sale
under all applicable state securities laws.
USE OF PROCEEDS
To date, only 59,014 warrants have been exercised. Holders of warrants are
not obligated to exercise their warrants and we cannot predict whether holders
will choose to exercise all or any of their warrants. In the event that all of
the remaining outstanding warrants are exercised, we will receive gross proceeds
of approximately $42.3 million, before deducting any solicitation fees. See
"Plan of Distribution."
We will use any proceeds we receive from the exercise of warrants for
product development, product and technology acquisitions and general working
capital purposes.
DIVIDEND POLICY
We have never paid cash dividends on our common stock and do not
anticipate paying cash dividends in the near future.
FORWARD-LOOKING STATEMENTS
Statements in this prospectus or in the documents incorporated by
reference herein that are not descriptions of historical facts are
forward-looking statements within the meaning of the "safe harbor" provisions of
the Private Securities Litigation Reform Act of 1995. Reference is made in
particular to the description of our plans and objectives for future operations,
assumptions underlying such plans and objectives and other forward-looking
terminology such as "may," "expects," "believes," "anticipates," "intends,"
"expects," "projects," or similar terms, variations of such terms or the
negative of such terms. Forward-looking statements are based on management's
current expectations. Actual results could differ materially from those
currently anticipated due to a number of factors, including those set forth
under "Risk Factors" including, in particular, risks relating to:
o the results of ongoing research and development activities;
-6-
<PAGE>
o uncertainties relating to pre-clinical and clinical testing, financing and
strategic agreements and relationships;
o the early stage of products under development;
o government regulation;
o patent matters; and
o competition.
We expressly disclaim any obligation or undertaking to release publicly
any updates or revisions to any forward-looking statements contained herein to
reflect any change in our expectations or any changes in events, conditions or
circumstances on which any such statement is based.
PLAN OF DISTRIBUTION
The shares are being offered directly by Titan pursuant to the terms of
the warrants. No underwriter is being utilized in connection with this offering.
D. H. Blair Investment Banking Corp. acted as underwriter of our initial
public offering and as placement agent for the private placements. As
compensation for its services, Blair and its designees received (i) options to
purchase an aggregate of 320,000 units at $6.50 per unit, each unit consisting
of one share and one warrant; and (ii) options to purchase 321,065 units at
$9.97 per unit (after adjustments), each unit consisting of one share and one
warrant.
We may be required to pay a fee of 5% upon any exercise of warrants
solicited by Blair or its agents if (i) the market price of our common stock on
the date the warrant is exercised is greater than the then exercise price of the
warrants; (ii) the exercise of the warrant was solicited by a member of the
National Association of Securities Dealers, Inc. as designated in writing on the
warrant certificate subscription form; (iii) the warrant is not held in a
discretionary account; (iv) disclosure of compensation arrangements was made
both at the time of the offering and at the time of exercise of the warrants,
and (v) the solicitation of exercise of the warrant was not in violation of
Regulation M promulgated under the Exchange Act.
DESCRIPTION OF WARRANTS
Each warrant entitles the registered holder to purchase one share of
common stock at an exercise price of $6.02 at any time until 5:00 P.M., New York
City time, on January 18, 2001. We may redeem the warrants on 30 days' written
notice at a redemption price of $.05 per warrant if the closing sale price of
our Common Stock for any 30 consecutive trading days ending within 15 days of
the notice of redemption averages in excess of $9.10 per share. All warrants
must be redeemed if any are redeemed.
The warrants were issued pursuant to warrant agreements, copies of which
are on file with Continental Stock Transfer & Trust Company, New York, New York,
our warrant agent. The warrants provide for adjustment of the exercise price and
for a change in the number of shares issuable upon exercise to protect holders
against dilution in the event of a stock dividend, stock split, combination or
reclassification of the common stock or upon issuance of shares of common stock
at prices lower than the market price of the common stock, with certain
exceptions specified in the warrant agreements.
-7-
<PAGE>
We have reserved from our authorized but unissued shares a sufficient
number of shares of common stock for issuance upon the exercise of the warrants.
A warrant may be exercised upon surrender of the warrant certificate on or prior
to its expiration date (or earlier redemption date) at the offices of the
warrant agent, with the subscription form on the reverse side of the warrant
certificate completed and executed as indicated, accompanied by payment of the
full exercise price (by certified or bank check payable to the order of Titan)
for the number of shares with respect to which the warrant is being exercised.
Shares issued upon exercise of warrants and payment in accordance with the terms
of the warrants will be fully paid and non-assessable.
For the life of the warrants, the holders thereof have the opportunity to
profit from a rise in the market value of the common stock, with a resulting
dilution in the interest of all other stockholders. So long as the warrants are
outstanding, the terms on which we could obtain additional capital may be
adversely affected. The holders of the warrants might be expected to exercise
them at a time when we would, in all likelihood, be able to obtain any needed
capital by a new offering of securities on terms more favorable than those
provided for by the warrants.
The warrants do not confer upon the holder any voting or other rights of a
stockholder of Titan. Upon notice to the warrantholders, we have the right to
reduce the exercise price or extend the expiration date of the warrants.
LEGAL MATTERS
The validity of the securities offered hereby have been passed upon for
Titan by Bachner Tally & Polevoy LLP, New York, New York.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which we have filed with the Commission (File No.
0-27436) pursuant to the Exchange Act of 1934 are incorporated herein by
reference:
1. Our Annual Report on Form 10-K for the fiscal year ended December 31,1998,
including any documents or portions thereof incorporated by reference therein;
2. Our definitive Proxy Statement dated August 6, 1999;
3. Our Quarterly Report on Form 10-Q for the period ended March 31, 1999;
4. Our Quarterly Report on Form 10-Q for the period ended June 30, 1999;
5. Our Registration Statement on Form 8-A registering the common stock and class
A warrants under the Exchange Act; and
6. All other documents filed by us pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this prospectus and prior to
the termination of this offering.
Any statement contained in any document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is
-8-
<PAGE>
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as modified or superseded, to constitute a part of this prospectus.
We will provide without charge to each person to whom this prospectus is
delivered, upon written or oral request of any such person, a copy of any or all
of the documents incorporated herein by reference, other than exhibits to such
documents which are not specifically incorporated by reference into such
documents. Requests for documents should be directed to us at 400 Oyster Point
Boulevard, South San Francisco, California 94080, Attention: Chief Financial
Officer, telephone (650) 244-4990.
AVAILABLE INFORMATION
We have filed with the Commission a Registration Statement on Form S-3
under the Securities Act of 1993 covering the shares offered by this prospectus.
This prospectus does not contain all of the information set forth in the
Registration Statement and the exhibits thereto. Statements contained in this
prospectus as to the contents of any contract or other document referred to are
not necessarily complete and in each instance such statement is qualified by
reference to each such contract or document. The Company is subject to the
informational requirements of the Exchange Act, and in accordance therewith
files reports and other information with the Commission. Copies of such material
can be obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. The Company is an
electronic filer, and the Commission maintains a web site that contains reports,
proxy and information statements and other information regarding the Company at
www.sec.gov./edgar.html.
-9-
<PAGE>
================================================================================
TITAN PHARMACEUTICALS, INC.
PROSPECTUS
, 1999
================================================================================
================================================================================
[Back Cover]
No dealer, salesman or other person has been authorized to give any
information or to make any representations, other than those contained in this
prospectus, and, if given or made, such information or representations must not
be relied upon as having been authorized by the Company or by the Underwriter.
This prospectus does not constitute an offer to sell, or a solicitation of an
offer to buy, any securities offered hereby by anyone in any jurisdiction in
which such offer or solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to anyone to whom it is
unlawful to make such offer, or solicitation. Neither the delivery of this
prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that the information herein contained is correct as of any time
subsequent to the date of this prospectus.
TABLE OF CONTENTS
Page
----
Prospectus Summary ................................................... 2
Risk Factors ......................................................... 3
Use of Proceeds ...................................................... 6
Dividend Policy ...................................................... 6
Forward-Looking Statements ........................................... 6
Plan of Distribution ................................................. 7
Description of Warrants .............................................. 7
Legal Matters ........................................................ 8
Incorporation of Certain
Documents by Reference .......................................... 8
Available Information ................................................ 9
================================================================================
<PAGE>
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses payable by the Registrant in connection with the
issuance and distribution of the securities being registered are as follows:
SEC Registration Fee ............................. $ 0
Printing and Engraving Expenses .................. 3,500.00
Legal Fees and Expenses .......................... 3,500.00
Blue Sky Fees and Expenses ....................... 1,000.00
Accounting Fees and Expenses ..................... 5,000.00
------------
Total........................................ $ 13,000.00
Item 15. Indemnification of Directors and Officers
The Amended and Restated Certificate of Incorporation and By-Laws of the
Registrant provide that the Registrant shall indemnify any person to the full
extent permitted by the Delaware General Corporation Law (the "GAL"). Section
145 of the GAL, relating to indemnification, is hereby incorporated herein by
reference.
In accordance with Section 102(a)(7) of the GAL, the Certificate of
Incorporation of the Registrant eliminates the personal liability of directors
to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director with certain limited exceptions set forth in
Section 102(a)(7).
The Registrant also enters into indemnification agreements with each of
its officers and directors, the form of which has been filed as Exhibit 10.6 and
reference is hereby made to such form.
In addition, the Registrant currently maintains an officers' and
directors' liability insurance policy which insures, subject to the exclusions
and limitations of the policy, officers and directors of the Company against
certain liabilities which might be incurred by them solely in such capacities.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant, pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. See
Item 17, "Undertakings."
Item 16. Exhibits
3.1 - Restated Certificate of Incorporation of the Registrant(1)
3.2 - Form of Amendment to Restated Certificate of Incorporation of the
Registrant(1)
3.3 - By-laws of the Registrant(1)
4.3 - Form of Warrant Agreement(1)
4.4 - Form of Underwriter's Unit Purchase Option(1)
4.5 - Form of Investor Rights Agreement between the Registrant and the
holders of Series A and Series B Preferred Stock(1)
II-1
<PAGE>
4.6 - Form of Placement Agent's Unit Purchase Option(4)
4.7 - Certificate of Designation of Series C Preferred Stock(8)
4.8 - Certificate of Designation of Series D Preferred Stock(8)
10.1 - 1993 Stock Option Plan(1)
10.2 - 1995 Stock Option Plan(1)
10.3 - Employment Agreement between the Registrant and Louis Bucalo dated
February 1, 1993, amended as of February 3, 1994(1)
10.4 - Employment Agreement between Registrant and Richard Allen dated
July 28, 1995(1)
10.5 - Employment Agreement between Registrant and Sunil Bhonsle, dated
August 6, 1995(1)
10.6 - Form of Indemnification Agreement(1)
+10.9 - MDR Exclusive License Agreement between Ingenex, Inc. (formerly
Pharm-Gen Systems Ltd.) and the Board of Trustees of the University
of Illinois dated May 6, 1992(1)
+10.11 - License Agreement between Theracell, Inc. and New York University
dated November 20, 1992, as amended as of February 23, 1993 and as
of February 25, 1995(1)
+10.12 - License Agreement between the Registrant and the Massachusetts
Institute of Technology dated September 28, 1995(1)
+10.14 - Exclusive License Agreement between Ingenex, Inc. and the Board of
Trustees of the University of Illinois, dated July 1, 1994(1)
+10.15 - Exclusive License Agreement between Ingenex, Inc. and the Board of
Trustees of the University of Illinois, dated July 1, 1994(1)
+10.16 - License Agreement between Ingenex, Inc. and the Massachusetts
Institute of Technology, dated September 11,1 992(1)
+10.17 - License Agreement between Ingenex, Inc. and Baylor College of
Medicine, dated October 21, 1992(1)
10.18 - Lease for Registrant's facilities(2)
+10.19 - License Agreement between Theracell, Inc. and the University of
South Florida dated March 15, 1996(3)
+10.20 - License Agreement between Trilex Pharmaceuticals, Inc. (formerly
Ascalon Pharmaceuticals, Inc.) and the University of Kentucky
Research Foundation dated May 30, 1996(4)
+10.22 - License Agreement between the Registrant and Hoechst Marion Roussel,
Inc. effective as of December 31, 1996(5)
10.23 - Employment Agreement between Registrant and Robert E. Farrell dated
August 9, 1996(5)
10.24 - Financing Agreement between the Registrant and Ansan
Pharmaceuticals, Inc. dated March 21, 1997(6)
10.25 - Agreement for Purchase and Sale of Assets between the Registrant and
Pharmaceuticals Product Development, Inc. dated June 4, 1997(6)
+10.27 - License Agreement between the Registrant and Bar-Ilan Research and
Development Company Limited effective November 25, 1997(7)
10.28 - License Agreement between the Registrant and Ansan Pharmaceuticals,
Inc. dated November 24, 1997(7)
10.29 - Stock Purchase Agreement between the Registrant and Ansan
Pharmaceuticals, Inc. effective November 25, 1997(7)
+10.30 - Sublicense Agreement between the Registrant and Novartis Pharma AG
dated November 20, 1997(7)
10.31 - 1998 Stock Option Plan(9)
23.1 - Consent of Ernst & Young LLP, Independent Auditors - Included on
Page II-6
II-2
<PAGE>
+ Confidential treatment has been granted with respect to portions of this
exhibit.
(1) Incorporated by reference from the Registrant's Registration Statement on
Form SB-2 (File No. 33-99386).
(2) Incorporated by reference from the Registrant's Annual Report on Form
10-KSB for the year ended December 31, 1995.
(3) Incorporated by reference from the Registrant's Quarterly Report on Form
10-QSB for the period ended March 31, 1996.
(4) Incorporated by reference from the Registrant's Registration Statement on
Form SB-2 (File No. 333-13469).
(5) Incorporated by reference from the Registrant's Annual Report on Form
10-KSB for the year ended December 31, 1996.
(6) Incorporated by reference from the Registrant's Quarterly Report on Form
10-QSB for the period ended March 31, 1997.
(7) Incorporated by reference from the Registrant=s Registration Statement on
Form S-3 (File No. 333-42367).
(8) Incorporated by reference from the Registrant=s Annual Report on Form 10-K
for the year ended December 31, 1997.
(9) Incorporated by reference from the Registrant=s Annual Report on Form 10-K
for the year ended December 31, 1998.
Item 17. Undertakings
Undertaking Required by Item 512 of Regulation S-K.
The undersigned registrant hereby undertakes that, for purpose of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
II-3
<PAGE>
SIGNATURES
In accordance with 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 authorized this Registration
Statement or Amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of South San Francisco, State of
California on the 14th day of September, 1999.
TITAN PHARMACEUTICALS, INC.
By: /s/ Louis R. Bucalo
----------------------------
Louis R. Bucalo, M.D., President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below under the heading "Signature" constitutes and appoints Louis R. Bucalo and
Robert Farrell, or either of them, his true and lawful attorney-in-fact and
agent with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities to sign any or all amendments
to this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, each acting alone,
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 for all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement or Amendment thereto has been signed by the following
persons in the capacities and on the dates stated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Louis R. Bucalo President, Chief Executive Officer and September 14, 1999
- - - ---------------------------- Director (principal executive officer)
Louis R. Bucalo, M.D.
/s/ Ernst Gunter-Afting Director September 14, 1999
- - - ----------------------------
Ernst Gunter-Afting
/s/ Victor J. Bauer Director September 14, 1999
- - - ----------------------------
Victor J. Bauer
Director September , 1999
- - - ----------------------------
Eurelio Cavalier
/s/ Michael K. Hsu Director September 14, 1999
- - - ----------------------------
Michael K. Hsu
/s/ Hubert E. Huckel Director September 14, 1999
- - - ----------------------------
Hubert E. Huckel, M.D.
/s/ Marvin E. Jaffe Director September 14, 1999
- - - ----------------------------
Marvin E. Jaffe, M.D.
/s/ Konrad M. Weis Director September 14, 1999
- - - ----------------------------
Konrad M. Weis, Ph.D.
/s/ Kenneth J. Widder Director September 14, 1999
- - - ----------------------------
Kenneth J. Widder, M.D.
/s/ Robert E. Farrell Executive Vice President and Chief September 14, 1999
- - - ---------------------------- Financial Officer (principal financial
Robert E. Farrell and accounting officer)
</TABLE>
II-4
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-3) and the related prospectus of Titan Pharmaceuticals, Inc. for the
registration of 7,031,986 shares of the common stock of our report dated
February 12, 1999, with respect to the consolidated financial statements of
Titan Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
September 13, 1999
II-5
