As filed with the Securities and Exchange Commission on July 18, 2000
Registration No. 333-35446
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SYMBOLLON CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware 36-3463683
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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37 Loring Drive
Framingham, MA 01702
(508) 620-7676
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Paul C. Desjourdy
President and Chief Operating Officer, Chief Financial Officer
Symbollon Corporation
37 Loring Drive
Framingham, MA 01702
(508) 620-7676
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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With a copy to:
Norman Alpert, Esq.
RubinBaum LLP
30 Rockefeller Plaza
New York, NY 10112
(212) 698-7700
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Approximate date of commencement of proposed sale to the public: From time to
time 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. [ ]
<PAGE>
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
Registration Statement number of the earlier effective registration statement
for the same offering. [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
The registrant hereby amends this registration 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 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.
<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION, DATED JULY 18, 2000
SYMBOLLON CORPORATION
1,734,360 SHARES OF CLASS A COMMON STOCK
This prospectus relates to the proposed sale of up to 1,734,360 shares of our
common stock by certain selling stockholders, of which 897,675 shares are
underlying warrants. We will not receive any of the proceeds from the sale of
these shares.
Our common stock is traded on the Nasdaq SmallCap Market under the symbol
"SYMBA". On July 17, 2000, the last reported sale price of our common stock on
the Nasdaq SmallCap Market was $8.00 per share.
See "Risk factors" beginning on page 4 for certain risks you should consider
before you purchase any shares.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The information contained in this prospectus is not complete and may be changed.
These securities may not be sold 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 these
securities in any state where the offer or sale is not permitted.
The date of this prospectus is , 2000
<PAGE>
TABLE OF CONTENTS
Page
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Symbollon Corporation.......................................................-2-
Risk Factors................................................................-4-
Use of Proceeds............................................................-10-
Selling Stockholders.......................................................-11-
Plan of Distribution.......................................................-13-
Legal Matters..............................................................-15-
Experts....................................................................-15-
Where You Can Find More Information........................................-15-
Note Concerning Forward Looking Statements.................................-16-
SYMBOLLON CORPORATION
We are engaged in development and commercialization of proprietary
iodine-based products. We are a Delaware corporation formed in August 1993 and
are the successor to a corporation initially formed in July 1986. Our principal
executive office is located at 37 Loring Drive, Framingham, Massachusetts 01702
and our telephone number is (508) 620-7676.
We have developed proprietary iodine technology that we believe
maximizes the "therapeutic index" of iodine. The "therapeutic index" of a drug
is the ratio of the largest safe dose to the smallest effective dose. Our
technology accomplishes this by controlling the ratio of molecular iodine (I2),
to the other inactive species of iodine typically present in solution. Iodine
has been shown to be effective in rapidly eliminating a wide range of germs and
as a therapeutic for certain pharmaceutical applications. We believe that our
iodine-based technology has potential use in several product application areas,
notably women's healthcare and infection control. Our current product
development work is focused on proposed product applications for a treatment for
fibrocystic breast disease and the treatment of various dermatological and
ophthalmic diseases.
Bovine Teat Sanitizer Product
Since 1995, we have manufactured a bovine teat sanitizer, IodoZyme(R),
for West Agro, Inc. of Kansas City, MO, a subsidiary of the Tetra Laval Group
and a leading manufacturer and distributor of iodophor-based products for dairy
use. West Agro markets and distributes IodoZyme under an exclusive marketing and
supply agreement which covers IodoZyme as well as other products which we may
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develop for use in dairy facilities. West Agro has the right to terminate the
marketing and supply agreement at any time. 1999 sales for IodoZyme were
$425,209.
Women's Healthcare
We have developed an oral dosage form of our technology that generates
molecular iodine in the stomach of the patient. We refer to this tablet as
IoGen(TM). Based on the scientific literature, we believe that IoGen may be
effective in the prevention and treatment of certain female health problems,
including some types of pre-menopausal breast cancer, fibrocystic breast disease
and endometriosis.
Fibrocystic breast disease is a benign breast condition affecting
primarily women of childbearing age. Medical literature indicates that this
condition is observed in 50% of childbearing age women during lifetime
examinations and in 90% of those women during postmortem examinations. A market
research study published in 1995 estimates that in the United States about 24
million women, or approximately 30% of childbearing age women, report painful or
lumpy breast. However, that market research study indicates that only 3.3
million of those women have been formally diagnosed with the disease.
During 1999, we conducted a Phase I trial of IoGen. Eighteen healthy
females participated. The trial assessed dose proportionality and relative
absorption of IoGen tablets at three concentrations, 1.5 mg, 3.0 mg and 6.0 mg,
based on blood and urine samples collected over a 48-hour period following
dosing. In the Phase I study, the participants tolerated IoGen at all three dose
levels and no drug-related adverse events occurred.
Analysis of the results demonstrated that IoGen is dose-proportional
when evaluated by either peak or mean iodine concentration in the blood samples.
The results also indicated relative absorption of the 1.5, 3.0 and 6.0 mg IoGen
tablets, as measured by the excreted iodine concentrations in urine samples.
We recently also completed a multi-center Phase II clinical trial,
initiated in 1998, evaluating IoGen in patients with moderate to severe
fibrocystic breast disease to assess the clinical effects and safety of IoGen at
three dose levels compared with placebo in a group of approximately 100
patients. We anticipate that the data from this trial will be available in the
third quarter of 2000.
If the results from the Phase II clinical trial warrant, we plan to
continue the clinical development of IoGen. We will need additional resources to
do this. If the clinical development of IoGen does continue, we anticipate
seeking a corporate relationship with a pharmaceutical company to commercialize
IoGen.
Ophthalmology and Dermatology Applications
We currently plan to pursue development of ophthalmic and
dermatological products based on our technology. We are working on potential
dermatological formulations, but have not finalized a product candidate suitable
for clinical trials. Resources allowing, our goal is to initiate human clinical
trials in dermatology. A collaboration with another company to develop
dermatological products was terminated by that company in 1999.
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Since 1997, our efforts at developing ophthalmic products have been
made pursuant to a collaboration and sale/licence agreement with Bausch & Lomb
Pharmaceuticals, Inc. However, this program has experienced delays and is
subject to Bausch & Lomb's right to terminate. In May 2000, we waived a 90-day
notice provision under our collaboration agreement with Bausch & Lomb in order
to allow Bausch & Lomb additional time to gather more information prior to
making a decision on whether to continue their relationship with us. We also
extended by two months to October 4, 2000 Bausch & Lomb's obligation to make the
next milestone payment of $800,000. If Bausch & Lomb does desire to continue the
relationship, we have agreed to enter into negotiations to amend the
collaboration to reflect a more realistic and achievable development plan and
milestone payment schedule. Therefore, it is uncertain if we will receive the
next milestone payment from Bausch & Lomb.
If Bausch & Lomb elects to terminate its sale/license agreement with
us, then Bausch & Lomb would be required to transfer 482,878 shares of our
common stock to us for no consideration. Those shares were purchased by Bausch &
Lomb for $500,000. Bausch & Lomb would also then have a right to require us to
redeem 93,334 shares of our common stock for $175,000 (Bausch & Lomb's purchase
price) if we have adequate positive cash flow from operations in any year
through 2004.
If Bausch & Lomb terminates its sale/license agreement with us, then
all rights and title to our technology sold or licensed to Bausch & Lomb under
the agreement will revert back to us.
Other Potential Applications
We believe that our technology has potential applications in the
development of a variety of human healthcare and other products such as topical
anti-infectives, oral care and hygiene products, wound care applications, and as
a preventive for urinary tract infection. Given our limited resources, although
certain preliminary research, development and regulatory activities may be
undertaken by us in some of these potential product areas, our ability to fund
the development and commercialization of such applications will depend in large
part on entering into product development and commercialization agreements with
corporate partners.
RISK FACTORS
Investing in our common stock is highly speculative and risky. You
should be able to bear a complete loss of your investment. Before making an
investment decision, you should carefully consider the following risk factors.
We expect to incur additional losses in the future that will require us to raise
substantial funding
We have incurred a cumulative operating loss of $6,665,850 through
March 31, 2000. Our losses have resulted principally from costs incurred in
research and development activities related to our efforts to develop IodoZyme,
IoGen and other potential product formulations, and from the associated
administrative and patent costs. We expect to incur additional significant
operating losses over the next several years and expect cumulative losses to
increase substantially due to expanded development efforts, including
preclinical and clinical testing. In the next few years, our revenues may be
limited to sales of IodoZyme, contract research payments and licensing milestone
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payments under the Bausch & Lomb agreement (unless terminated) and any amounts
received under other research or development collaborations that we may
establish.
Based on the current status of our development efforts, we will not
receive revenues or royalties from commercial sales of our drugs under
development for a significant number of years, if at all. For at least the next
few years, we expect our revenues to be less than our expenses. We will
therefore need to raise additional funding to sustain our operations. If we fail
to achieve profitable operations or raise additional funding to cover losses, we
will not be able to sustain operations.
If our corporate licensing relationships are terminated, our future revenues
will significantly decrease
We generate our revenues from corporate licensing arrangements. In
1999, Oclassen Pharmaceuticals Inc., our development partner, terminated its
relationship covering the use of our technology in dermatology. All of our 1998
and 1999 revenues came from our remaining relationships with West Agro, Inc. and
Bausch & Lomb. They can terminate their collaboration with us at any time. Since
the development program with Bausch & Lomb has not progressed as quickly as
expected, they might choose to terminate their relationship with us. If that
happens, and we are not able to enter into new licensing relationships, our
revenues for 2000 and beyond will significantly decrease.
We have no data that IoGen will effectively treat fibrocystic breast disease
The Phase II clinical trial that we initiated in 1998 and recently
completed is the first trial to evaluate the effectiveness of IoGen. We did not
conduct any animal or human studies to evaluate the potential effectiveness of
IoGen before launching the Phase II trial. We do not yet have the results from
the IoGen Phase II trial. We estimate that our investment in the IoGen
development program exceeded $2.5 million. We expensed these development costs
as incurred. If the Phase II clinical trial is not successful, our financial
situation may force us to discontinue the IoGen development program.
We lack the resources to conduct the necessary clinical trials required prior to
commercial sales of our potential drugs
Any drug candidates we develop will require significant additional
research and development efforts, including extensive preclinical (animal and in
vitro data) and clinical testing and regulatory approval, prior to commercial
sale. In addition to IoGen, our other active drug development efforts are in
dermatology and ophthalmology. We have not initiated our clinical trials in
dermatology or ophthalmology. If our arrangement with Bausch & Lomb continues,
they are financially responsible for any clinical trials conducted in
ophthalmology. We must pay for any future clinical trials in women's healthcare
and dermatology. Our ability to conduct the necessary clinical trials depends on
our generating the resources required to pay for this from future revenues,
financings or licensing relationships. We may not be able to generate the
necessary financial resources.
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We may lose control over development and commercialization of drugs after we
license them
A key element of our strategy has been to fund most of our product
development programs through collaborative agreements with major pharmaceutical
companies. As part of these licensing relationships we may have to grant to the
other party control over the development and commercialization process. For
example, our only existing collaborative agreement is with Bausch & Lomb. Under
that collaboration, Bausch & Lomb is responsible for:
o conducting preclinical and clinical trials;
o obtaining required regulatory approvals of drug candidates;
o manufacturing any resulting products; and
o commercializing any resulting products.
Bausch & Lomb is not obligated to develop or commercialize any drug
candidates under the collaboration. Bausch & Lomb alone controls the amount and
timing of resources dedicated by it to the program. Accordingly, Bausch & Lomb
controls the development program. Moreover, Bausch & Lomb may view certain drug
candidates developed utilizing Symbollon's technology as competitive with its
own drugs or drug candidates. Accordingly, Bausch & Lomb may develop its
existing or alternative technologies in preference to the drug candidates based
on our technology. In addition, Bausch & Lomb has the right to terminate the
relationship at any time and is currently considering this option. If they
terminate the relationship, our limited resources would severely hamper our
ability to develop an ophthalmic product.
IodoZyme's future growth and profitability will depend, in large part,
on the success of West Agro's personnel and others conducting marketing efforts
on their behalf in fostering acceptance of IodoZyme as an alternative to other
available products. West Agro also markets and distributes products which
compete directly with IodoZyme.
If we cannot raise additional funds, then we will have to limit our future
activities
We have adequate cash resources to complete our IoGen Phase II clinical
trial and continue our base operations through 2001. However, we will require
substantial additional funds if we are to continue the clinical development of
IoGen or pursue the development of additional products. We cannot estimate the
amount or timing of our need for future funding since this is dependent on the
scope and nature of product development not yet known.
We intend to seek additional funds for such future product development
through public or private financing or collaborative or other arrangements with
corporate partners. We have not been able to enter into a new corporate
relationship since 1997. We believe that before we can enter into any
significant new relationships, we will have to generate clinical results on our
potential drugs. Our limited financial resources may require us to finance the
cost of generating these results. During 1999, we had difficulty raising funds
by selling equity. We obtained stockholder approval to sell up to 1,250,000
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shares, with a like number of warrants. We were only able to sell 836,685 shares
and warrants.
Our common stock remains thinly traded. There is very little market
support for our common stock. So long as these conditions exist, future
financings will continue to be difficult. Ultimately, this could impact the
terms and conditions upon which we are able to sell securities and raise funds.
If adequate funds are not available when needed, we would be forced to limit the
scope of our development or perhaps cease operations.
If a competitive drug is marketed to treat fibrocystic breast disease prior to
IoGen, then the potential market opportunity for IoGen will be adversely
affected
The only drug approved by the United States Food and Drug
Administration (commonly called FDA) for the treatment of fibrocystic breast
disease is Danazol, a masculinizing hormone. We are aware of one company,
Mimetix Inc., that has conducted human clinical trials in the United States and
Canada utilizing an iodine-based compound for the treatment of fibrocystic
breast disease. If Mimetix receives marketing approval for its drug compound
before we do, they may achieve a significant competitive advantage through FDA
marketing exclusivity rights. This would delay our ability to receive marketing
approval.
IodoZyme could become subject to FDA marketing clearance that could affect our
ability to market IodoZyme
Teat sanitizers, although considered animal drugs by the FDA, do not
currently require clearance by the FDA prior to marketing. The FDA, however,
issued draft guidelines in 1993 governing teat dips and it is possible that if
such guidelines are adopted that IodoZyme will require clearance by the FDA in
the future. Required compliance with these guidelines or other FDA requirements
which may be adopted, would have a significant adverse effect on the marketing
of IodoZyme and, consequently, on our results of operations.
We have no marketing experience within our company
Although we have no present plans to do so, we may, in the future,
determine to directly market certain of our proposed products. We have no
marketing experience and significant additional capital expenditures and
management resources would be required to develop a direct sales force. In the
event we elect to engage in direct marketing activities, we might have
difficulty obtaining the requisite funds or attracting and retaining the human
resources necessary to successfully market any products.
Because our iodine-based products may stain or corrode some surfaces, potential
applications for our products may not be possible
An important aspect of our present and future product candidates is
that they must be compatible with the surfaces with which they come into
contact. We have ceased efforts to develop products that clean germs from
certain medical and dental instruments as a result of staining and corrosion
caused by the required concentrations of iodine in the formulations. We continue
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to investigate the balance between the level of efficacy and the need to avoid
staining and corrosion. For any proposed product application, staining or
corrosion from a product candidate could be sufficient to limit or forestall
regulatory approval or, if approved, could adversely affect market acceptance of
such product. We might not be successful in overcoming these staining and
corrosion problems.
Our use of hazardous materials in our development and commercial efforts
exposes us to material potential liability
Our manufacturing and development activities involve the controlled use
and shipment of hazardous chemicals and other
materials. Although we believe that our safety procedures for handling, shipping
and disposing of such materials comply with the standards prescribed by federal,
state and local regulations, we cannot completely eliminate the risk of
accidental contamination or injury from these materials. In the event of such an
accident, we could be held liable for any damages that result and any such
liability could exceed the our resources. There can be no assurance that current
or future environmental or transportation laws, rules, regulations or policies
will not have a material adverse effect on us.
Our ability to issue preferred stock without stockholder approval and our
classified Board of Directors could prevent a change in control and could
adversely affect our stock price
Our Certificate of Incorporation, as amended, authorizes the issuance
of 5,000,000 shares of preferred stock, none of which are outstanding, on terms
that may be fixed by our Board of Directors without further stockholder action.
The terms of any series of preferred stock, which may include priority claims to
assets and dividends and special voting rights, could adversely affect the
rights of holders of the common stock. The issuance of such preferred stock
could make a takeover of our company or the removal of our management more
difficult, discourage hostile bids for control of our company in which
stockholders may receive premiums for their shares of common stock, or otherwise
dilute the rights of holders of common stock and the market price of the common
stock.
Our Board of Directors is divided into three classes, with only one
class being elected each year and each elected director to serve three years.
This could discourage efforts to obtain control of our company. It makes it more
difficult for stockholders to change the composition of the Board in a
relatively short period of time since at least two Annual Meetings of
Stockholders will be required to effect a change in the majority of the members.
We are a development stage company with a volatile stock price
The stock market prices of emerging and development stage
biopharmaceutical companies have historically been highly volatile. Future
announcements concerning us or our competitors, including the results of
testing, technological innovations or new commercial products, government
regulations, drug cost reimbursement developments, developments concerning
proprietary rights, litigation or public concern as to safety of products, may
have a significant adverse impact on our stock price. Over the last 12 months
our stock price has ranged from $14.00 to $1.75.
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Trading in our stock has been limited, so investors may not be able to sell as
much stock as they want at prevailing prices.
The average daily trading volume in our common stock was approximately
16,600 shares and the average daily number of
transactions was approximately 30 over the last three months. If limited trading
in our stock continues, it may be difficult for investors to sell their shares
in the public market at any given time at prevailing prices.
Exercise of outstanding warrants and options may adversely affect our stock
price
Warrants to purchase 897,675 shares of common stock and options to
purchase 1,084,895 shares of common stock are currently outstanding. All of the
warrants and many of the options are currently exercisable. These options and
warrants are likely to be exercised at a time when we might be able to obtain
additional equity capital on more favorable terms. We have the right to redeem
the warrants if the average closing bid price of our common stock as quoted by
Nasdaq over twenty successive trading day is equal to or greater than:
Between Closing Bid Price
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August 10, 1999 to August 9, 2000 $5.00
August 10, 2000 to August 9, 2001 $6.00
August 10, 2001 to August 9, 2002 $7.00
August 10, 2002 to August 9, 2003 $8.00
Each of the above prices is $1 higher if our common stock is reported
in the over-the-counter market rather than quoted on Nasdaq. On the date of this
prospectus, the exercise price of the warrants is below the market price for the
shares and we would be permitted to give notice of the redemption of the
warrants. A redemption notice would probably cause the warrants to be exercised
and the underlying shares of our common stock to be issued at prices below the
then market price of our common stock. While these options and warrants are
outstanding, they may adversely affect the terms on which we could obtain
additional capital. If the holders of these outstanding options and warrants
sell the common stock received upon exercise, it is likely to have a negative
effect on the market price of our common stock, particularly in light of the
limited trading volume for our common stock.
In addition, we may have to sell more equity securities in the future
to obtain operating funds. We may sell these securities at a discount to the
market price. Any future sales of equity securities will dilute the holdings of
existing stockholders, possibly reducing the value of your investment.
If we are delisted from the Nasdaq SmallCap Market, stockholders may suffer
In order to qualify for continued listing on the Nasdaq SmallCap
Market, we must, among other things, have net tangible assets of at least
$2,000,000. At March 31, 2000, our balance sheet showed total assets of
$3,279,310 and stockholders' equity of $2,638,882. Since we are expecting
continuing losses during 2000, we may not be able to meet the continued listing
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criteria of the Nasdaq SmallCap Market unless we receive sufficient funds to
maintain our net tangible assets. If our shares of common stock are delisted
from the Nasdaq SmallCap Market, trading, if any, in our stock would thereafter
be conducted in the over-the-counter market in the so-called "pink sheets" or,
if then available, the "OTC Bulletin Board Service." As a result, an investor
might find it more difficult to dispose of, or to obtain accurate price
quotations for our stock.
If we become subject to penny stock rules, our stock will be adversely affected
If our common stock is removed from the Nasdaq SmallCap Market, it may
become subject to the SEC's "penny stock" rules which impose additional sales
practice requirements on broker-dealers who sell such securities to persons
other than established customers and "accredited investors" (generally,
individuals with net worths in excess of $1,000,000 or annual incomes exceeding
$200,000 or $300,000 together with their spouses). For transactions covered by
these rules, a broker-dealer must make a special suitability determination for
the purchase and have received the purchaser's written consent to the
transaction prior to the purchase. Additionally, the rules require delivery of a
risk disclosure document relating to the penny stock market prior to any such
transaction. Finally, monthly statements are required to be sent disclosing
recent price information for the penny stock held in the account and information
on the limited market in penny stocks. Consequently, the "penny stock" rules may
affect the ability of broker-dealers to sell our common stock and may affect the
ability of purchasers in this offering to sell any of their shares in the
secondary market.
Since there are few market makers for our stock, they can substantially
influence its price
There are a limited number of market makers which currently make a
market in our common stock and our common stock is thinly traded. Consequently,
these market makers may exert a dominating influence on the market for our
common stock. Such market-making activity may be discontinued at any time. The
price and liquidity of our common stock may be significantly affected by the
degree of any current market maker's participation in the market.
USE OF PROCEEDS
The selling stockholders will sell all of the common stock covered
by this prospectus. We will not receive any of the proceeds from those sales.
If all of the 897,675 warrants whose underlying shares are being
registered for resale are exercised at their current $3.00 exercise price, we
will receive net proceeds from such exercise of approximately $2,693,000. The
exercise price increases by $1.00 annually, up to $6.00. The proceeds from the
exercise of the warrants would be used for working capital and other general
corporate purposes.
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SELLING STOCKHOLDERS
This prospectus covers offers and sales by the selling stockholders
of the shares of our common stock, including shares issuable upon exercise of
warrants, issued in our 1999 private placement.
In the private placement, we offered to accredited investors units,
at a price of $1.75 per unit, consisting of one share of common stock and one
warrant. Each warrant is exercisable for a four year period expiring August 10,
2003 to purchase one share of common stock at an exercise price (subject to
adjustment) of $3.00 during the first year, $4.00 during the second year, $5.00
during the third year and $6.00 during the fourth year. We sold a total of
836,685 units. In addition, pursuant to our obligation to the placement agent
for the offering, Indianapolis Securities, Inc., we issued an aggregate of
60,990 warrants (the placement agent transferred some of those warrants to
certain of its employees). We issued these warrants as compensation to the
placement agent, in addition to paying the placement agent $106,733 (in the
aggregate) as a 10% cash commission for units sold by it.
The table below lists the selling stockholders, shows the shares of
common stock beneficially owned by each of the selling stockholders as of March
31, 2000 and the shares offered for resale by each of the selling stockholders.
Beneficial ownership includes shares which the selling stockholders can acquire
upon exercise of the warrants (all of which are currently exercisable) or of
options exercisable currently or within 60 days after March 31, 2000. Our
registration of these shares does not necessarily mean that any selling
stockholder will sell all or any of its shares of common stock. The "Beneficial
Ownership After Offering" columns in the table assume that all shares covered by
this prospectus will be sold by the selling stockholders and that no additional
shares of common stock are bought or sold by any selling stockholder. Except for
Indianapolis Securities, Inc., or as noted in the footnotes, no selling
stockholder has had, within the past three years, any position, office or other
material relationships with us.
The information provided in the table below is from the selling
stockholders, reports furnished to us under rules of the SEC, and our stock
ownership records.
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<TABLE>
<CAPTION>
Beneficial
Beneficial Ownership Prior to Offering Ownership After
Offering
--------------------------------------------------- ------------------
Total
Shares Total Shares % of Number of
Underlying Ownership Total Shares
Name of Selling Stockholder Shares (1) Warrants Shares Offered Shares %
-------------------------------------- ------------ ------------- -------------- --------- ----------- ---------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Richard M. & Tina D. Lilly (2) 288,110 75,110 363,220 9.6% 97,210 266,010 7.2%
Mary Beth Cooney 6,700 6,700 13,400 * 13,400 -0- *
Ferdie A. & Ursula M. Falk 6,000 6,000 12,000 * 12,000 -0- *
KG Associates 26,000 26,000 52,000 1.4% 52,000 -0- *
Charles R. Behrmann 13,600 10,000 23,600 * 20,000 3,600 *
Richard P. Morgenstern (3) 127,500 127,500 255,000 6.7% 255,000 -0- *
Alan S. Morgenstern 1994 Trust 45,000 45,000 90,000 2.4% 90,000 -0- *
Carol E. Morgenstern (4) 90,000 90,000 180,000 4.9% 180,000 -0- *
Pure Holdings, LP 30,000 30,000 60,000 1.6% 60,000 -0- *
Star Investments, LP 30,000 30,000 60,000 1.6% 60,000 -0- *
Paul and Carol McHugh Cole 26,000 26,000 52,000 1.4% 52,000 -0- *
Eugene Lieberstein (5) 35,016 15,000 50,016 1.3% 30,000 20,016 *
Norman Alpert (6) 7,500 7,500 15,000 * 15,000 -0- *
Edward Klimerman and Janet C. Walden
(7) 2,500 2,500 5,000 * 5,000 -0- *
Thomas L. Hansberger 20,000 20,000 40,000 1.1% 40,000 -0- *
Judith W. Schrafft 4,000 4,000 8,000 * 8,000 -0- *
Robert Kiken 10,000 10,000 20,000 * 20,000 -0- *
Kenneth M. Kiken 22,000 10,000 32,000 * 20,000 12,000 *
Norman P. Kiken 10,000 10,000 20,000 * 20,000 -0- *
Assaf Family Trust 14,000 14,000 28,000 * 28,000 -0- *
Warren M. Knight 25,000 4,000 29,000 * 8,000 21,000 *
Russell R. Desjourdy (8) 20,000 20,000 40,000 1.1% 40,000 -0- *
Gopen Family Trust 50,000 50,000 100,000 2.7% 100,000 -0- *
Brett P. & Mary Sheila Smith 17,500 17,500 35,000 * 35,000 -0- *
Matthew A. Frinzi 10,000 10,000 20,000 * 20,000 -0- *
Jan McArt 20,200 20,200 40,400 1.1% 40,400 -0- *
Paul C. Desjourdy (9) 288,054 10,000 298,054 7.6% 20,000 278,054 7.1%
Peter K. and Jill Boli 19,885 14,285 34,170 * 28,570 5,600 *
Eileen Botfeld 5,000 5,000 10,000 * 10,000 -0- *
Jane A. & Barron G. Postmus 10,000 10,000 20,000 * 20,000 -0- *
Western Investment Corporation 50,000 15,000 65,000 1.8% 30,000 35,000 *
Merrick Management Corporation 15,000 15,000 30,000 * 30,000 -0- *
Tony and Carmen Chamoun 5,000 5,000 10,000 * 10,000 -0- *
George Kottler 9,000 9,000 18,000 * 18,000 -0- *
Stanley and Lesley Berkovitz 10,000 10,000 20,000 * 20,000 -0- *
Edwin W. and Ellen A. Harley 3,000 3,000 6,000 * 6,000 -0- *
Carl J. Domino 20,000 20,000 40,000 1.1% 40,000 -0- *
Ronald C. & Pamela A. Retterath 3,000 3,000 6,000 * 6,000 -0- *
Ronald L. and Sheila L. Miller 20,000 20,000 40,000 1.1% 40,000 -0- *
Robert B. Forsyth 3,400 3,400 6,800 * 6,800 -0- *
Herbert J. Stangl Trust 10,000 10,000 20,000 * 20,000 -0- *
Roger D. Bensen 68,800 50,000 118,800 3.2% 100,000 18,800 *
Indianapolis Securities, Inc. (10) -0- 14,748 14,748 * 14,748 -0- *
Ian G. Walker (11) -0- 6,480 6,480 * 6,480 -0- *
Ann Greene (11) -0- 1,500 1,500 * 1,500 -0- *
---------------------------------------------------------------
</TABLE>
12
<PAGE>
* Less than 1% of the common stock outstanding.
(1) Exclusive of shares underlying warrants.
(2) Includes shares owned by Mr. Lilly's revocable trust dated December 1,
1989 and includes 10,000 shares owned by his children. Also, includes
38,262 placement agent warrants transferred to Mr. and Mrs. Lilly by
Indianapolis Securities, Inc. and another 14,748 placement agent
warrants owned by Indianapolis Securities, Inc., which Mr. Lilly may be
considered to beneficially own. As described in the "Selling
Stockholders" section, Indianapolis Securities, Inc. was placement
agent for our 1999 private placement and received warrants as part of
its compensation.
(3) Includes shares owned by Mr. Morgenstern's living trust and includes
67,500 shares of common stock and 67,500 warrants owned by Mr.
Morgenstern's children.
(4) Includes 45,000 shares of common stock and 45,000 warrants owned by Ms.
Morgenstern's children.
(5) Mr. Lieberstein is a Symbollon director and provides legal services to
us. Includes currently exercisable options to
purchase 7,916 shares of common stock.
(6) Mr. Alpert is a member of RubinBaum LLP, which provides legal services
to us.
(7) Mr. Klimerman is a member of RubinBaum LLP, which provides legal
services to us.
(8) Russell Desjourdy is the brother of our President, Paul C. Desjourdy.
(9) Mr. Desjourdy is our President, Chief Operating Officer, Chief
Financial Officer, General Counsel and Treasurer, and he is also a
Symbollon director. Includes currently exercisable options to purchase
232,854 shares of common stock.
(10) See note 2.
(11) Employee of Indianapolis Securities, Inc. and transferee of a portion
of its placement agent warrants.
PLAN OF DISTRIBUTION
We are registering the common stock covered by this prospectus for the
selling stockholders pursuant to a registration right granted to the selling
stockholders. The selling stockholders have indicated that they are acting
independently from us in determining the manner and extent of sales of the
shares of our common stock. These shares may be sold or distributed from time to
time by the selling stockholders, by their donees, pledgees and transferees or
by their other successors in interest. Such sales may be made in one or more
types of transactions (which may include block transactions) in the
over-the-counter market, in negotiated transactions, through put or call options
transactions relating to the shares, through short sales of shares, hedging
transactions, or a combination of such methods of sale, at market prices
prevailing at the time of sale, or at negotiated prices. Such transactions may
or may not involve brokers or dealers. Sales of shares in the over-the-counter
market involving brokers or dealers may be by means of one or more of the
following transactions:
o in a block trade in which a broker or dealer will attempt to
sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction;
o in transactions in which brokers, dealers or underwriters
purchase the shares as principal and resell the shares for
their own accounts pursuant to this prospectus; and
o in ordinary brokers' transactions and transactions in which
the broker solicits purchasers.
The selling stockholders have advised us that they have made no
arrangements or agreements with any underwriters, brokers or dealers regarding
the resale of the common stock prior to the effective date of this prospectus.
The selling stockholders may pay commissions or allow discounts to any brokers
13
<PAGE>
or dealers participating in the resale of the common stock, which commissions or
discounts may be less than or in excess of the customary rates of such brokers
or dealers for similar transactions.
We have agreed to pay the fees and expenses of registering the common
stock, including the reasonable fees and disbursements of persons retained by
us; however, we will not pay the commissions and discounts of underwriters,
dealers or agents.
The selling stockholders also may sell these shares in accordance with
Rule 144 under the Securities Act of 1933.
The participating selling stockholders and any underwriters, brokers or
dealers engaged by them may be deemed underwriters, and any profits on sales
of the common stock by them and any discounts, commissions or concessions
received by any selling stockholder or underwriter, broker or dealer may be
deemed to be underwriting discounts or commissions under the Securities
Act of 1933.
If the selling stockholder notifies us that a material arrangement has
been entered into with an underwriter, broker or dealer for the sale of the
common stock through a secondary distribution or a purchase by an underwriter,
broker or dealer, a supplemented prospectus will be filed, if required,
disclosing such of the following information as we believe is appropriate:
o the name of each such selling stockholder and of the participating
underwriter, broker or dealer;
o the number of shares of common stock involved;
o the price at which such common stock was sold;
o the commissions paid or discounts or concessions allowed to such
underwriter, broker or dealer;
o where applicable, that such broker or dealer did not conduct any
investigation to verify the information set out or incorporated by
reference in the prospectus; and
o other facts material to the transaction.
We have agreed to indemnify the selling stockholders against certain
liabilities relating to resale of the common stock under the Securities Act of
1933. Each of the selling stockholders has agreed to indemnify us (and our
officers and directors and any person that controls us) against such liabilities
to the extent resulting from untrue statements or omissions in the prospectus or
registration statement based on written information furnished by the selling
stockholder specifically for use in preparing this prospectus or the
registration statement. The selling stockholders may agree to indemnify any
agent, dealer or broker-dealer that participates in transactions involving sales
of the shares against certain liabilities, including liabilities arising under
the Securities Act of 1933. Insofar as indemnification for liabilities under the
Securities Act of 1933 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 of
1933 and is therefore unenforceable.
14
<PAGE>
Although all of the shares are being registered for public sale, the
sale of any or all of such shares by the selling stockholders may depend on the
sale price of such shares and market conditions generally prevailing at the
time. We are unable to predict the effect which sales of the common stock
offered hereby might have upon our ability to raise further capital.
Because selling stockholders may be deemed to be "underwriters" within
the meaning of the Securities Act of 1933, the selling stockholders will be
subject to the prospectus delivery requirement of the Securities Act of 1933 and
the rules promulgated thereunder. We have informed the selling stockholders that
the anti-manipulative provisions of Regulation M under the Securities Exchange
Act of 1934 may apply to their sales in the market.
In order to comply with certain states' securities laws, if
applicable, the common stock will be sold in these states only through
registered or licensed brokers or dealers. In addition, in certain states, the
shares of common stock may not be sold unless they have been registered or
qualified for sale in such states or an exemption from registration or
qualification is available and complied with.
LEGAL MATTERS
For the purpose of this offering, RubinBaum LLP, New York, New York, is
giving an opinion on the validity of the common stock offered by this
prospectus. Messrs. Alpert and Klimerman are members of RubinBaum LLP and also
are selling stockholders hereunder. See "Selling Stockholders."
EXPERTS
The financial statements incorporated by reference in this
prospectus have been audited by BDO Seidman, LLP, independent certified public
accountants, to the extent and for the periods set forth in their report
incorporated herein by reference, and are incorporated herein in reliance upon
such report given upon the authority of said firm as experts in auditing and
accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission, commonly called
the SEC. You may read and copy any document that we file at the SEC's Public
Reference Room at 450 Fifth Street, N.W. Washington, D.C. 20549. Please call the
SEC at 1-800-SEC-0330 for further information on the operation of the Public
Reference Room. Our SEC filings are also available to you free of charge at the
SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supercede this information. We incorporate
by reference the documents listed below and any future filings we will make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
15
<PAGE>
of 1934 until this offering has been completed:
o Our Annual Report on Form 10-KSB for the year ended
December 31, 1999.
o Our Proxy Statement for the 2000 Annual Meeting of Stockholders
held on May 24, 2000.
o Our Quarterly Report on Form 10-QSB for the quarterly period ended
March 31, 2000.
o The description of our Class A Common Stock contained under the
heading "Description of Securities" in our Registration
Statement on Form SB-2 (Registration Statement No. 33-68828)
which is incorporated by reference in our Registration
Statement on Form 8-A under the Securities Exchange Act of
1934, dated November 12, 1993, including any amendments or reports
filed for the purpose of updating such description.
You may request free copies of these filings by writing or
telephoning us at our principal office, which is located at the following
address:
Symbollon Corporation
37 Loring Drive
Framingham, MA 01702
Attention: Chief Financial Officer
(508) 620-7676
NOTE CONCERNING FORWARD LOOKING STATEMENTS
All statements contained in this Prospectus and the documents we
incorporate by reference that are not statements of historical fact are
"forward-looking statements." Sometimes these statements contain words like
"believes," "belief," "plans," "anticipates," "expects," "estimates, "may,"
"will" or similar terms. Forward-looking statements involve known or unknown
risks, uncertainties and other factors that could cause our actual results to be
materially different from historical results or from any future results
expressed or implied by the forward-looking statements. The "Risk Factors"
section of this Prospectus, beginning on page 4, summarizes certain of the
material risks and uncertainties that could cause our actual results,
performance or achievements to differ materially from what we say in this
Prospectus and in the documents we incorporate by reference. The Risk Factors
apply to all of our forward-looking statements. Given these uncertainties, you
should not place undue reliance on these forward-looking statements, which speak
only as of the date of this Prospectus. We will not revise these forward-looking
statements to reflect events or circumstances after the date of this Prospectus
or to reflect the occurrence of unanticipated events.
16
<PAGE>
SYMBOLLON CORPORATION
1,734,630 SHARES OF CLASS A COMMON STOCK
PROSPECTUS
, 2000
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than
any underwriting discounts and commissions, payable in connection with the sale
of the common stock being registered. All amounts are estimates except the SEC
registration fee.
SEC Registration and filing fee $ 2,727
Printing fees 1,000
Accounting fees and expenses 1,500
Legal fees and expenses 9,000
Miscellaneous 773
--------
Total $15,000
=======
Item 15. Indemnification of Directors and Officers.
Reference is made to Section 145 of the Delaware General Corporation
Law (the "DGCL"), Article TENTH of the Registrant's Certificate of
Incorporation, as amended (Exhibit 3.1), Article VIII of the Registrant's
By-Laws, as amended (Exhibit 3.2) and the Indemnification Agreements entered
into with certain of the Registrant's directors and officers (Exhibit 10.5).
Section 145 of the DGCL generally provides that a corporation is
empowered to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation or is or was serving, at the request of the corporation, in
any of such capacities with another corporation or other enterprise, if such
director, officer, employee or agent acted in good faith and in a manner he
reasonably believed 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. In the case of an action or suit by or in
the right of the corporation, no indemnification shall be made with respect to
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the court having
jurisdiction shall determine that such person is fairly and reasonably entitled
to indemnity. This statute describes in detail the right of the Registrant to
indemnify any such person.
Pursuant to Article NINTH of the Registrant's Certificate of
Incorporation and Article VIII of the Registrant's By-Laws, the Registrant shall
indemnify, to the fullest extent permitted by the DGCL, any person, including
officers and directors, with regard to any action or proceeding.
The Registrant has entered into an indemnification agreement with its
directors and officers. Such agreement provides that the Registrant will
indemnify the indemnitee to the fullest extent permitted by applicable law
against expenses, including reasonable attorneys' fees, judgments, penalties,
II-1
<PAGE>
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with any civil or criminal action or administrative proceeding
arising out of his performance of his duties as a director or officer of the
Registrant other than an action initiated by a director or officer. Such
indemnification is available if the indemnitee acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Registrant, and with respect to any criminal action, had no reasonable cause
to believe his conduct was unlawful.
Under such indemnification agreement, the entitlement of a director or
officer to indemnification is determined by a majority vote of a quorum of
disinterested directors, or if such quorum either is not obtainable or so
directs, by independent counsel or by the stockholders or the Registrant, as
determined by such quorum of disinterested directors. Under certain
circumstances, a party to the indemnification agreement is conclusively presumed
to have met the applicable statutory standard of conduct unless the Registrant's
Board of Directors, stockholders or independent legal counsel determine that the
relevant standard has not been met. If a change of control of the Registrant has
occurred, the entitlement of such director or officer to indemnification is
determined by independent counsel selected by such director or officer, unless
such director or officer requests that either the Board of Directors or the
stockholders make such determination.
The Registrant currently has Director and Officer liability insurance
which covers, among other things, certain liabilities arising under the
Securities Act.
The agreement with the selling stockholders pursuant to which this
Registration Statement is being filed provided that each selling stockholder
will indemnify and hold harmless the Registrant, its directors and officers and
any controlling person of the Registrant from and against, and will reimburse
the Registrant, its directors and officers, and any such controlling person with
respect to, any and all loss, damage, liability, cost or expense to which the
Registrant or any controlling person may become subject under the Act or
otherwise, insofar as such losses, damages, liabilities, costs or expenses are
caused by any untrue statement or alleged untrue statement of any material fact
contained in such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance upon and in
strict conformity with written information furnished by or on behalf of such
selling stockholders specifically for use in the preparation thereof.
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 Registrant 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."
II-2
<PAGE>
Item 16. Exhibits
(a) Exhibit
Number Description
------ -----------
3.1 Amended Certificate of Incorporation of the Company; including Certificate
of Designations, Preferences and Rights of Series A Preferred Stock of the
Company. (previously filed as exhibit 3.1 to Form 10-QSB for the quarter
ended June 30, 1999 and incorporated by reference.)
3.2 Amended By-Laws of the Company. (previously filed as exhibit 3.2 to Form
10-QSB for the quarter ended June 30, 1999 and incorporated by reference.)
3.3 Agreement of Merger, dated as of August 4, 1993, between the Company and
Symbollon Corporation, a Massachusetts corporation (including Certificate
of Merger and other state filings). (previously filed as exhibit number
3.3 of the Registration Statement (the "Registration Statement") on Form
SB-2 (Registration No. 33-68828) filed on November 24, 1993 and declared
effective on December 7, 1993, and incorporated by reference.)
4.1 Form of Specimen Class A Common Stock Certificate. (previously filed as
exhibit number 4.2 of the Registration Statement and incorporated by
reference.)
4.2 Form of Stock Restriction Agreement among the Company, the Class B
Stockholders and the Underwriter. (previously filed as exhibit number 4.4
of the Registration Statement and incorporated by reference.)
5.1 Opinion by RubinBaum LLP *
10.1 1993 Stock Option Plan of the Company, as amended. (previously filed as
exhibit 10.1 to Form 10-QSB for the quarter ended June 30, 1999 and
incorporated by reference.)
10.2 Employment Agreement, dated December 14, 1999, between the Company and
Paul C. Desjourdy. (previously filed as exhibit number 10.2 to Form 10-KSB
for the year ended December 31, 1999 and incorporated by reference.)
10.3 Employment Agreement, dated December 14, 1999, between the Company and Dr.
Jack H. Kessler (previously filed as exhibit number 10.3 to Form 10-KSB
for the year ended December 31, 1999 and incorporated by reference.)
10.4 Commercial Lease dated June 5, 1997, between Pine Street Realty Trust and
the Company. (previously filed as exhibit number 10.18 to Form 10-QSB for
the quarter ended June 30, 1997 and incorporated by reference.)
10.5 Form of Indemnification Agreement between the Company and each officer
and director of the Company. (previously filed as exhibit number 10.6
of the Registration Statement and incorporated by reference.)
10.6 Marketing and Supply Agreement, dated January 11, 1995 between the
Company and West Agro. (previously filed as exhibit number 10.1 to Form
8-K of the Registrant dated January 11, 1995 and incorporated by
reference). ***
10.7 Agreement, dated August 31, 1992 among the Company, Dr. Jack H. Kessler
and Dr. Robert Rosenbaum. (previously filed as exhibit number 10.8 of
the Registration Statement and incorporated by reference.)
10.8 Form of Stock Option Agreement to be entered into between the Company and
each option holder. (previously filed as exhibit number 10.10 to Form
10-KSB for the year ended December 31, 1993 and incorporated by
reference.)
10.9 1994 Employee Stock Purchase Plan of the Company. (incorporated by
reference to Exhibit B to the Company's 1994 Annual Stockholders Meeting
Proxy Statement filed under cover of Schedule 14A dated May 4, 1994.)
10.10 1995 Non-Employee Directors' Stock Option Plan of the Company. (previously
filed as exhibit number 10.1 to Form 10-QSB for the quarter ended
June 30, 1995 and incorporated by reference.)
10.11 Collaboration and Sale/License Agreement, dated August 4, 1997, between
the Company and Bausch & Lomb Pharmaceuticals, Inc. (previously filed
as exhibit number 10.19 to Form 10-QSB for the quarter ended June 30,
1997 and incorporated by reference.) ***
10.12 Stock Purchase Agreement, dated August 4, 1997, between the Company and
Bausch & Lomb Pharmaceuticals, Inc. (previously filed as exhibit number
10.20 to Form 10-QSB for the quarter ended June 30, 1997 and
incorporated by reference.)
II-3
<PAGE>
10.13 Form of Subscription Agreement, dated as of August 10, 1999, between
the Company and the purchasers of Units (previously filed as exhibit
number 10.14 to Form 10-QSB for the quarter ended September 30, 1999
and incorporated by reference.)
10.14 Form of Redeemable Warrant for the purchase of shares of Class A Common
Stock, dated as of August 10, 1999, issued to purchasers of Units
(previously filed as exhibit number 10.15 to Form 10-QSB for the
quarter ended September 30, 1999 and incorporated by reference.)
23.1 Consent by BDO Seidman, LLP **
23.3 Consent by RubinBaum LLP (included in Exhibit 5.1) *
24.1 Power of Attorney (included on the signature page of the registration
statement) *
-------------------------------------------------------------------------------
* Previously filed.
** Filed herewith.
*** Indicates that material has been omitted and confidential treatment has
been granted or requested therefor. All such omitted material has been
filed separately with the Commission pursuant to Rule 24b-2.
Item 17. Undertakings.
The registrant 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 10(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 registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) Include any additional or changed material information on the
plan of distribution;
provided, however, that paragraphs (1)(i) and (1)(ii) will not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of such securities at that time to be the initial bona
fide offering thereof.
II-4
<PAGE>
(3) File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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 the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant 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 of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant small business issuer
of expenses incurred or paid by a director, officer or controlling person of the
registrant small business issuer in the successful defense of any action, suit
of proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant 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 Act and will be governed by the final adjudication of such
issue.
II-5
<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,
thereunto duly authorized, in the City of Framingham, Commonwealth of
Massachusetts, on July 18, 2000.
SYMBOLLON CORPORATION
By /s/ Paul C. Desjourdy .
------------------------------------
Paul C. Desjourdy, President
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the Registration Statement has been signed by the following persons
in the capacities and on the dates indicated:
Signature Title Date
/s/ Jack H. Kessler Chief Executive Officer, July 18, 2000
----------------------------- Chief Scientific Officer,
Jack H. Kessler Secretary and Chairman
of the Board of Directors
(Principal Executive Officer)
/s/ Paul C. Desjourdy President, Chief Operating Officer, July 18, 2000
----------------------------- Treasurer, General Counsel, Chief
Paul C. Desjourdy Financial Officer, and Director (Principal
Financial and Accounting Officer)
* Director July 18, 2000
-----------------------------
James C. Richards
* Director July 18, 2000
-----------------------------
Richard F. Maradie
* Director July 18, 2000
-----------------------------
Eugene Lieberstein
* By: /s/ Paul C. Desjourdy
-----------------------------------
Paul C. Desjourdy, Attorney-in-fact
II-6
<PAGE>
INDEX TO EXHIBITS
3.1 Amended Certificate of Incorporation of the Company; including
Certificate of Designations, Preferences and Rights of Series
A Preferred Stock of the Company. (previously filed as exhibit 3.1
to Form 10-QSB for the quarter ended June 30, 1999 and
incorporated by reference.)
3.2 Amended By-Laws of the Company. (previously filed as exhibit 3.2 to
Form 10-QSB for the quarter ended June 30, 1999 and
incorporated by reference.)
3.3 Agreement of Merger, dated as of August 4, 1993, between the Company
and Symbollon Corporation, a Massachusetts corporation (including
Certificate of Merger and other state filings). (previously filed as
exhibit number 3.3 of the Registration Statement (the "Registration
Statement") on Form SB-2 (Registration No. 33-68828) filed on November
24, 1993 and declared effective on December 7, 1993, and incorporated
by reference.)
4.1 Form of Specimen Class A Common Stock Certificate. (previously filed
as exhibit number 4.2 of the Registration Statement and
incorporated by reference.)
4.2 Form of Stock Restriction Agreement among the Company, the Class B
Stockholders and the Underwriter. (previously filed as exhibit number
4.4 of the Registration Statement and incorporated by reference.)
5.1 Opinion by RubinBaum LLP. *
10.1 1993 Stock Option Plan of the Company, as amended. (previously filed
as exhibit 10.1 to Form 10-QSB for the quarter ended
June 30, 1999 and incorporated by reference.)
10.2 Employment Agreement, dated December 14, 1999, between the Company and
Paul C. Desjourdy. (previously filed as exhibit number 10.2 to Form
10-KSB for the year ended December 31, 1999 and incorporated by
reference.)
10.3 Employment Agreement, dated December 14, 1999, between the Company
and Dr. Jack H. Kessler. (previously filed as exhibit
number 10.3 to Form 10-KSB for the year ended December 31, 1999 and
incorporated by reference.)
10.4 Commercial Lease dated June 5, 1997, between Pine Street Realty Trust
and the Company. (previously filed as exhibit number 10.18 to Form
10-QSB for the quarter ended June 30, 1997 and
incorporated by reference.)
10.5 Form of Indemnification Agreement between the Company and each
officer and director of the Company. (previously filed as exhibit
number 10.6 of the Registration Statement and incorporated by
reference.)
10.6 Marketing and Supply Agreement, dated January 11, 1995 between the
Company and West Agro. (previously filed as exhibit number 10.1 to Form
8-K of the Registrant dated January 11, 1995 and incorporated by
reference). ***
10.7 Agreement, dated August 31, 1992 among the Company, Dr. Jack H. Kessler
and Dr. Robert Rosenbaum. (previously filed as exhibit number 10.8 of
the Registration Statement and incorporated by reference.)
10.8 Form of Stock Option Agreement to be entered into between the Company
and each option holder. (previously filed as exhibit number 10.10 to
Form 10-KSB for the year ended December 31, 1993 and incorporated by
reference.)
10.9 1994 Employee Stock Purchase Plan of the Company. (incorporated by
reference to Exhibit B to the Company's 1994 Annual Stockholders
Meeting Proxy Statement filed under cover of Schedule 14A
dated May 4, 1994.)
10.10 1995 Non-Employee Directors' Stock Option Plan of the Company.
(previously filed as exhibit number 10.1 to Form 10-QSB for
the quarter ended June 30, 1995 and incorporated by reference.)
10.11 Collaboration and Sale/License Agreement, dated August 4, 1997, between
the Company and Bausch & Lomb Pharmaceuticals, Inc. (previously filed
as exhibit number 10.19 to Form 10-QSB for the quarter ended June 30,
1997 and incorporated by reference.) ***
10.12 Stock Purchase Agreement, dated August 4, 1997, between the Company and
Bausch & Lomb Pharmaceuticals, Inc. (previously filed as exhibit number
10.20 to Form 10-QSB for the quarter ended June 30, 1997 and
incorporated by reference.)
10.13 Form of Subscription Agreement, dated as of August 10, 1999, between
the Company and the purchasers of Units (previously filed as exhibit
number 10.14 to Form 10-QSB for the quarter ended September 30, 1999
and incorporated by reference.)
10.14 Form of Redeemable Warrant for the purchase of shares of Class A Common
Stock, dated as of August 10, 1999, issued to purchasers of Units
(previously filed as exhibit number 10.15 to Form 10-QSB for the
quarter ended September 30, 1999 and incorporated by reference.)
23.1 Consent of BDO Seidman, LLP **
23.2 Consent by RubinBaum LLP (included in Exhibit 5.1) *
24.1 Power of Attorney (included on the signature page of the registration
statement) *
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* Previously filed.
** Filed herewith.
*** Indicates that material has been omitted and confidential treatment has
been granted or requested therefor. All such omitted material has been
filed separately with the Commission pursuant to Rule 24b-2.
II-7
