<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 17, 1998
REGISTRATION NO. 333-67687
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ANESTA CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 2834 87-0424798
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
ORGANIZATION)
</TABLE>
4745 WILEY POST WAY
PLAZA 6, SUITE 650
SALT LAKE CITY, UTAH 84116
(801) 595-1405
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
THOMAS B. KING
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ANESTA CORP.
4745 WILEY POST WAY
PLAZA 6, SUITE 650
SALT LAKE CITY, UT 84116
(801) 595-1405
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
<TABLE>
<S> <C>
JAMES C. T. LINFIELD, ESQ. ELIZABETH R. FLINT, ESQ.
COOLEY GODWARD LLP WILSON SONSINI GOODRICH & ROSATI
2595 CANYON BOULEVARD, SUITE 250 650 PAGE MILL ROAD
BOULDER, COLORADO 80302-6737 PALO ALTO, CALIFORNIA 94304-1050
(303) 546-4000 (650) 493-9300
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the 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, check the following box. [ ]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of earlier effective registration
statement for the same offering. [X] 333-67687
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434, check
the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) REGISTRATION FEE(3)
- --------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value..... 575,000 $21.25 $12,218,750 $3,397
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes 75,000 shares of Common Stock issuable upon exercise of the
Underwriters' over-allotment option.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(a) under the Securities Act of
1933.
(3) 2,875,000 shares were registered under SEC File No. 333-67687, for which a
filing fee of $17,125 was previously paid with the earlier registration
statement.
------------------------
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 THAT 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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Registration Statement filed under the Securities Act of 1933, as
amended, by Anesta Corp. (the "Company") with the Securities and Exchange
Commission (the "Commission") hereby incorporates by reference the contents of
the Registration Statement on Form S-3 (File No. 333-67687) relating to the
offering of up to 2,875,000 shares of Common Stock filed on November 18, 1998,
as amended by Amendment No. 1 filed on December 16, 1998.
<PAGE> 3
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 the filing of on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Salt Lake City, County of Salt Lake City, State of
Utah, on the 17th day of December, 1998.
ANESTA CORP.
By: /s/ THOMAS B. KING
-----------------------------------
Thomas B. King
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* /s/ WILLIAM C. MOELLER Chairman of the Board and December 17, 1998
- ------------------------------------------------ Treasurer
William C. Moeller
* /s/ THEODORE H. STANLEY, M.D. Founding Chairman of the December 17, 1998
- ------------------------------------------------ Board
Theodore H. Stanley, M.D.
/s/ THOMAS B. KING President, Chief Executive December 17, 1998
- ------------------------------------------------ Officer and Director
Thomas B. King (Principal Executive
Officer)
* /s/ ROGER P. EVANS Vice President Finance and December 17, 1998
- ------------------------------------------------ Administration (Principal
Roger P. Evans Financial and Accounting
Officer)
* /s/ EDWIN M. KANIA, JR. Director December 17, 1998
- ------------------------------------------------
Edwin M. Kania, Jr.
* /s/ DANIEL L. KISNER, M.D. Director December 17, 1998
- ------------------------------------------------
Daniel L. Kisner, M.D.
* /s/ RICHARD H. LEAZER Director December 17, 1998
- ------------------------------------------------
Richard H. Leazer
* /s/ EMANUEL M. PAPPER, M.D., PH.D. Director December 17, 1998
- ------------------------------------------------
Emanuel M. Papper, M.D., Ph.D.
* /s/ RICHARD P. URFER Director December 17, 1998
- ------------------------------------------------
Richard P. Urfer
*By: /s/ THOMAS B. KING
--------------------------------------------
Thomas B. King
Attorney-in-fact
</TABLE>
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT PAGE
NUMBER DESCRIPTION OF DOCUMENT NUMBER
- ------- ----------------------- ------------
<C> <S> <C>
5.1 Opinion of Cooley Godward LLP..............................
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants................................................
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit
5.1........................................................
23.3 Consent of Kirton & McConkie...............................
23.4 Consent of Morin & Krasny..................................
</TABLE>
<PAGE> 1
EXHIBIT 5.1
Cooley Godward LLP
ATTORNEYS AT LAW San Francisco, CA
415 693-2000
2595 Canyon Boulevard Palo Alto, CA
Suite 250 415 843-5000
Boulder, CO Menlo Park, CA
80302-6737 415 843-5000
MAIN: 303 546-4000 San Diego, CA
FAX: 303 546-4099 619 550-6000
Denver, CO
WEB http://www.cooley.com 303 606-4800
JAMES C.T. LINFIELD
Direct: (303) 546-4010
Internet: [email protected]
December 17, 1998
Anesta Corp.
4745 Wiley Post Way
Plaza 6, Suite 650
Salt Lake City, UT 84116
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Anesta Corp. (the "Company") of a Registration Statement on
Form S-3 (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission"), pursuant to Rule 462(b) promulgated under the
Securities Act of 1933, as amended, and the underwritten public offering of up
to 575,000 shares of the Company's Common Stock (the "Shares").
In connection with this opinion, we have (i) examined and relied upon the
Registration Statement, (ii) reviewed the Company's Amended and Restated
Certificate of Incorporation and Bylaws, as amended, and the originals or copies
certified to our satisfaction of such records, documents, certificates,
memoranda and other instruments as in our judgment were necessary or appropriate
to enable us to render the opinion expressed below, (iii) assumed that the
Shares to be sold to the underwriters by the Company will be sold at a price
established by the Board of Directors of the Company or the Pricing Committee
thereof in accordance with Section 153 of the Delaware General Corporation Law
and (iv) examined and relied upon a certificate executed by an officer of the
Company to the effect that consideration for the Shares being sold pursuant to
the Underwriting Agreement was received by the Company in accordance with the
applicable Board of Directors' resolutions and any plan or agreement relating to
the issuance of such Shares, and we have undertaken no independent verification
with respect thereto.
On the basis of the foregoing and in reliance thereon, we are of the opinion
that the Shares (when issued and paid for in accordance with the underwriting
agreement filed as an exhibit to the Registration Statement) will be, validly
issued, fully paid and nonassessable.
We consent to the reference to our firm under the caption "Legal Matters" in the
Registration Statement and to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ James C. T. Linfield
------------------------
James C. T. Linfield
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-3 of our report, which includes an explanatory paragraph that refers to a
change in accounting for external legal costs related to patents, as discussed
in Note 3 to the financial statements, dated February 11, 1998, on our audits of
the financial statements of Anesta Corp. which appears on Page F-2 of Amendment
No. 1 to the Registration Statement on Form S-3 dated December 16, 1998 (No.
333-67687) (the "Registration Statement"). We also consent to the references to
our firm under the captions "Experts" and "Selected Financial Data" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
Salt Lake City, Utah
December 17, 1998
<PAGE> 1
[KIRTON & MCCONKIE LETTERHEAD]
EXHIBIT 23.3
CONSENT OF KIRTON & MCCONKIE
----------------------------
We hereby consent to incorporation by reference in this Registration
Statement of the following language in reference to our firm under the caption
"Experts" in the Registration Statement on Form S-3 of Anesta Corporation (File
No. 333-67687) and related prospectus in connection with statements under the
captions "Our Success Depends on Protecting Our Intellectual Property," and
"Patents, Proprietary Rights and Licenses."
DATED this 17th day of December, 1998.
KIRTON & MCCONKIE
By: /s/ MICHAEL F. KRIEGER
-------------------------------------
Michael F. Krieger
<PAGE> 1
EXHIBIT 23.4
[MORIN & KRASNY LETTERHEAD]
December 17, 1998
Thomas B. King
President and CEO
Anesta Corporation
4745 Wiley Post Way
Plaza 6, Suite 650
Salt Lake City, UT 84116
Dear Tom:
With reference to the Registration Statement on Form S-3 of Anesta Corp.
(the "Company") proposed to be filed with the Securities and Exchange Commission
for the registration of the Company's Common Stock, this law firm hereby
consents to the incorporation by reference in this Registration Statement of the
reference to our firm in the Registration Statement on Form S-3 (File No.
333-67687) under the heading "Experts" -- our expertise in this instance being
confined to regulatory/administrative law matters, including Government
Regulation.
Sincerely,
/s/ Charles L. Morin
Charles L. Morin
CLM:jtc
