<PAGE>
As filed with the Securities and Exchange Commission on January 14, 1999
Registration No. 333-66259
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 2
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
Phytera, Inc.
(Exact name of registrant as specified in its charter)
Delaware 8731 04-3159045
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification Number)
incorporation or
organization)
377 Plantation Street
Worcester, Massachusetts 01605
(508) 792-6800
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
MALCOLM MORVILLE, Ph.D.
President and Chief Executive Officer
Phytera, Inc.
377 Plantation Street
Worcester, Massachusetts 01605
(508) 792-6800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copies to:
LYNNETTE C. FALLON, ESQ. ALAN L. JAKIMO, ESQ.
Palmer & Dodge LLP Brown & Wood LLP
One Beacon Street One World Trade Center
Boston, Massachusetts 02108 58th Floor
(617) 573-0100 New York, New York 10048
(212) 839-5300
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
----------------
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, 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 the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to
Section 8(a), may determine.
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<PAGE>
Explanatory Note
This Registration Statement contains two forms of prospectus: (i) one to be
used in connection with an offering in the United States and Canada (the "US
Prospectus") and (ii) the other to be used in connection with a concurrent
offering outside of the United States and Canada (the "European Prospectus").
The European Prospectus will be produced in English and Danish. The US
Prospectus and the European Prospectus are identical in all respects except for
the front cover page and back cover page of the European Prospectus, both of
which are included herein after the final page of the US Prospectus as pages X-
1 and X-2 and are labeled "Alternate Pages for European Prospectus." Final
forms of each of the Prospectuses will be filed with the Securities and
Exchange Commission under Rule 424 (b).
Additionally, an Application Form included as page X-3 will be delivered with
the Danish language version of the European Prospectus to Danish investors in
the European offering.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this Prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is declared effective. This Prospectus is +
+not an offer to sell these securities and we are not soliciting an offer to +
+buy these securities in any jurisdiction where the offer or sale is not +
+permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JANUARY 14, 1999
US PROSPECTUS
2,500,000 Shares
[Logo of Phytera, Inc. appears here]
Common Stock
This is an initial public offering of the shares of common stock of Phytera,
Inc. The shares of common stock will be offered to the public in Denmark.
Additionally, shares of common stock will be offered in private placements in
other European countries. The offering in the United States, Canada and Belgium
will be limited to institutional investors. There is currently no public market
for these shares. Phytera expects that the public offering price will be
between $12.00 and $14.00 per share.
In the United States and Canada, we are offering 750,000 shares of common
stock. In Europe, we are offering 1,750,000 shares of common stock.
We have applied for admission to trading and quotation of the common stock on
the European Association of Securities Dealers Automated Quotation system,
called EASDAQ, and for listing on the Copenhagen Stock Exchange, called the
CSE. We expect that these listings will become effective and that trading in
the shares of common stock will begin promptly after the initial public
offering price is determined through negotiations between the Company and the
Underwriters. Our trading symbol on EASDAQ and our short name on the CSE will
be PHYT.
Our business involves significant risks. These risks are described under the
caption "Risk Factors" beginning on page 8.
None of EASDAQ, the CSE, the US Securities and Exchange Commission nor any
state securities commission has approved or disapproved of these securities or
determined if this Prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
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<TABLE>
<CAPTION>
Per
Share Total
<S> <C> <C>
Public offering price............................................... $ $
Underwriting discounts and commissions.............................. $ $
Proceeds, before expenses, to Phytera............................... $ $
</TABLE>
The US Underwriters may also purchase up to an additional 112,500 shares of
common stock and the European Managers may also purchase up to an additional
262,500 shares of common stock, an aggregate of 375,000 shares, at the public
offering price, less the underwriting discounts and commissions, within 30 days
from the date of this Prospectus to cover over-allotments.
In the distribution of the offering, the US Underwriters will purchase the
offered shares of common stock from the Company and resell such shares to
investors.
------------
SG COWEN
CARNEGIE INC.
BANCBOSTON ROBERTSON STEPHENS
, 1999
<PAGE>
[Graphic: The graphic illustrates the various elements of Phytera's
Combinatorial Drug Discovery Program. Along the length of the page will be a
series of photographs, artist's renderings and other graphics, each
illustrating one of the elements of Phytera's Combinatorial Drug Discovery
Program.]
This diagram illustrates our Combinatorial Drug Discovery Program. We have
identified several lead structures and are developing one candidate drug. We
have not yet conducted any clinical trials, obtained any regulatory approvals,
or commercialized any drug product. Drug discovery and development involves
technological and commercial risks. Our Program and related product development
activities could fail because of these risks.
ExPAND(R) and (u)MARINE(R) are registered trademarks of the Company.
ENRICH(TM) and PINACLE(TM) are trademarks of the Company for which there are
applications for registration pending in the US Patent and Trademark Office.
MANIFOLD(TM) is a trademark of the Company for which there is an application
for registration pending in the European Trademark Office. All other trademarks
and registered trademarks used in this Prospectus are the property of their
respective owners.
----------------
<PAGE>
THE COMPANY
The Company was incorporated in Delaware in May 1992 and operates three
wholly-owned subsidiaries, Phytera Ltd. in the United Kingdom and Phytera A/S
and Phytera Symbion ApS in Denmark. The Company's headquarters and executive
offices are located at 377 Plantation Street, Worcester, Massachusetts 01605,
US and its telephone number is (508) 792-6800.
On September 17, 1998, the Board of Directors of Phytera authorized this
offering.
APPROVAL BY THE BELGIAN BANKING AND FINANCE COMMISSION
The English language Prospectus has been approved by the Belgian Banking and
Finance Commission ("Commission Bancaire et Financiere/Commissie voor het Bank-
en Financiewezen") ("CBF") on December 29, 1998 in accordance with Article
29ter, (S)1, par. 1 of Royal Decree n(degrees) 185 of July 9, 1935 and Article
18 of the Royal Decree of September 18, 1990 on the prospectus to be published
for the admission of securities to listing on the first market of a stock
exchange, which transposes into Belgian law the provisions of Directive
80/390/EEC. The approval of this Prospectus by the CBF does not extend to the
Danish Tax Considerations or to the summary of certain differences between US
GAAP and Danish GAAP nor does it imply any judgment as to the appropriateness
or the quality of this offering, the Common Stock nor of the situation of the
Company. The notice prescribed by Article 29, (S) 1 of the Royal Decree
n(degrees) 185 of July 9, 1935 will appear in the financial press prior to the
first day of trading on EASDAQ. Based on the approval by the CBF, this
Prospectus is recognized by the CSE in compliance with Directive 80/390/EEC.
NO PUBLIC OFFER IN THE UNITED KINGDOM
The Company has not authorized any offer of shares of common stock to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995 (the "Regulations"). The shares of common stock may
not lawfully be offered or sold to persons in the United Kingdom except in
circumstances which do not result in an offer to the public in the United
Kingdom within the meaning of the Regulations or otherwise in compliance with
all applicable provisions of the Regulations.
RESPONSIBILITY FOR THE PROSPECTUS AND
DECLARATION OF CONFORMITY
The Company, here represented by the Board of Directors, confirms that, to
the best of its knowledge, the information given in this Prospectus is in
accordance with the facts in all material respects and contains no omissions
likely to affect the import of the Prospectus in any material respect. Under US
federal securities laws, the Company's Chief Executive Officer, Chief Financial
Officer and members of the Board of Directors are generally liable, subject to
certain defenses, for untrue statements of material fact in this Prospectus and
omissions of material fact which are required to be stated in this Prospectus
or necessary to make the statements in this Prospectus not misleading.
In the case of any doubt about the contents or the meaning of the information
of this document, an authorized or professional person who specializes in
advising on the acquisition of financial instruments should be consulted.
PREPARATION OF THE PROSPECTUS
This Prospectus has been prepared in accordance with the rules and
regulations of the US Securities and Exchange Commission and EASDAQ and in
compliance with the Royal Decree of September 18, 1990 on the prospectus to be
published for the admission of securities to listing on the first market of a
stock exchange, which transposes into Belgian law the provisions of Directive
80/390/EEC. This Prospectus has been produced in English and Danish for use in
connection with this offering. In the event of any inconsistency between the
Danish language version and the English language version, the English language
version shall prevail.
3
<PAGE>
Copies of both the English language and Danish language Prospectuses will be
made available, at no cost, upon prior written request to SG Cowen
International L.P., One Angel Court, London EC2R 7HJ, United Kingdom, telephone
+44 (171) 696-0034, Carnegie Bank A/S, Overgaden neden Vandet 9b, DK-1414
Copenhagen K, Denmark, telephone +45 32 88 02 00 and BancBoston Robertson
Stephens International Ltd., 105 Piccadilly, London W1V 9FN, United Kingdom,
telephone +44 (171) 518-7000.
In addition, copies of the English language and Danish language Prospectuses
will be available for inspection at the EASDAQ offices, 56 Rue des Colonies,
Box 15, B-1000 Brussels, Belgium.
EXPERTS
The audited Consolidated Financial Statements of the Company as of December
31, 1996 and 1997 and for each of the three years in the period ended December
31, 1997 have been audited by Arthur Andersen LLP, independent public
accountants, as stated in their report with respect thereto and are included
herein upon the authority of said firm as experts in auditing and accounting.
Arthur Andersen LLP's mailing address is 225 Franklin Street, Boston, MA 02110-
2812, United States of America.
ADDITIONAL INFORMATION
The Company has filed with the US Securities and Exchange Commission (the
"SEC") a Registration Statement on Form S-1 (together with all amendments and
exhibits, the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus does not contain all of the
information set forth in the Registration Statement and the exhibits and
schedules thereto certain parts of which are omitted in accordance with the
rules and regulations of the SEC. For further information with respect to the
Company and the common stock offered hereby, reference is made to the
Registration Statement and the exhibits and schedules thereto. Statements in
this Prospectus as to the contents of any contract or other document are not
necessarily complete and reference is made in each instance to the copy of such
contract or other document filed as an exhibit to the Registration Statement.
Each statement is qualified in all respects by this reference to the exhibit.
The Registration Statement, including exhibits, may be inspected and copied
without charge at the SEC's principal office located at 450 Fifth Street,
Judiciary Plaza, N.W., Washington, D.C. 20549. Copies of such material may be
obtained by mail from the Public Reference Section of the SEC at 450 Fifth
Street, Judiciary Plaza, N.W., Washington, D.C. 20549 upon payment of
prescribed fees. The SEC also maintains a web site at http://www.sec.gov that
contains reports, proxy and information statements, as well as other
information regarding registrants that file electronically with the SEC.
The Company intends to furnish its stockholders with annual reports
containing audited financial statements and quarterly reports for the first
three quarters of each fiscal year containing interim unaudited financial
information.
The Company will ensure that a summary of the Company's quarterly and annual
financial statements will be provided to shareholders in Europe across the
EASDAQ Company Reporting System. A hard copy of the annual report will be
provided to shareholders promptly after it becomes available. Complete
quarterly statements will either be sent by the Company to its shareholders or
will be available upon request from the Company at its executive offices at 377
Plantation Street, Worcester, MA, 01605, US. Copies of all documents filed with
the SEC by the Company can be obtained by request to the Company at such
offices.
Copies of the Company's Restated Certificate and By-laws will be available
for inspection at the offices of EASDAQ, 56 Rue de Colonies, Box 15, B-1000
Brussels, Belgium.
Companies approved for trading on EASDAQ and CSE are required to publish
relevant financial and other information regularly and to keep the public
informed of all events likely to affect the market price of their securities.
Price sensitive information will be made available to investors in Europe
through the EASDAQ-Reuters Regulatory Company Reporting System, the CSE's
internal information system and other international information vendors.
Investors who do not have direct access to such information systems should ask
their financial intermediary for the terms on which such information will be
provided to them by that financial intermediary.
4
<PAGE>
PROSPECTUS SUMMARY
The following is just a summary. Potential investors should carefully read
the more detailed information contained in this Prospectus, including the
Consolidated Financial Statements and the notes thereto. The shares of common
stock offered hereby involve a high degree of risk. Investors should carefully
consider the information set forth under the heading "Risk Factors." We urge
potential investors to read this Prospectus in its entirety.
The Company
Phytera, Inc. is an international biopharmaceutical company with operations
in the United States, Denmark and the United Kingdom. We apply a range of
proprietary technologies to create novel chemical diversity libraries from
plant cells and marine microbes that we grow and manipulate in cell culture.
These chemical diversity libraries contain a large number of chemical compounds
that we and our partners are evaluating as potential new drugs.
We evaluate our chemical diversity libraries for therapeutic utility in
pharmaceutical screens for different diseases. These diseases include
bacterial, fungal and viral infections, cancer, inflammation, allergy, asthma,
depression, memory and attention deficit disorders, diabetes, stroke and heart
attack. We conduct some of these screening programs in collaboration with our
corporate partners, including Eli Lilly and Company, Chiron Corporation,
Tsumura & Co., NeuroSearch A/S, Galileo Laboratories, Inc. and Nycomed Amersham
plc. Our internal screening programs focus on the discovery and development of
drugs to treat resistant bacterial, fungal and viral infections. We apply
modern genetic engineering techniques to develop proprietary screens that we
believe offer significant advantages in the discovery of novel antibacterial
and antifungal drugs.
Our screening programs are aimed at identifying novel chemical lead
structures from our chemical diversity libraries. A chemical lead structure is
a chemical compound of defined structure that exhibits activity in a
pharmaceutical screen. Chemical lead structures are used as starting points for
a chemical synthesis optimization program, which seeks to identify a candidate
drug that possesses all the necessary attributes for commercial development. We
use proprietary chemical synthesis techniques to optimize natural lead
structures isolated from our chemical diversity libraries into candidate drugs
for commercial development. To date we have identified one candidate drug and
several lead structures. Marinovir, our novel candidate drug for the treatment
of herpes infections, was isolated from a marine microbe and is scheduled to
enter clinical trials in 1999.
Nature is a proven source of new medicines, but a number of factors has
limited its systematic exploration as a source of novel chemical diversity,
chemical lead structures and candidate drugs. Our proprietary technologies
provide solutions to many of these limitations and facilitate access to a
greatly expanded chemical diversity from plant cells and marine microorganisms
in cell culture. We employ several types of cell culture manipulations, alone
and in combination, including genetic, hormonal, infection-related,
environmental and/or chemical treatments. These manipulations substantially
expand the variety and novelty of chemical compounds produced by the cell
culture beyond that found in the natural sourced material or in the initial
cell culture. Using these technologies, we have produced proprietary chemical
diversity libraries comprising 60,000 plant and marine cell culture extracts.
Additionally, we are further refining the process to deliver a library of
individual chemical compounds isolated from such extracts, with resultant
advantages in pharmaceutical screening.
Our objective is to be the leader in the application of combinatorial drug
discovery technology to the search for new medicines derived from nature. To
achieve this objective, we intend to:
. capitalize on our corporate partnerships;
. advance our drug-resistant infectious diseases program; and
. enhance our technology platform through internal innovation, in-licensing
and acquisitions of additional technologies and products.
5
<PAGE>
Except in the Consolidated Financial Statements of the Company or as
otherwise noted, all information in this Prospectus assumes:
. the conversion of all outstanding shares of the Company's Series A
Convertible Preferred Stock, Series B Convertible Preferred Stock, Series
C Convertible Preferred Stock, Series D Convertible Preferred Stock and
Series E Convertible Preferred Stock (the "Existing Preferred Stock")
into an aggregate of 4,949,056 shares of common stock immediately prior
to the closing of this offering (assuming the Series E Convertible
Preferred Stock converts into an aggregate of 722,746 shares of common
stock and the closing of this offering on February 8, 1999 at an offering
price of $13.00 per share (the mid-point of the expected range));
. the exercise of outstanding warrants to purchase an aggregate of 68,995
shares of common stock at $0.02 per share prior to the closing of this
offering;
. that the Underwriters' over-allotment option is not exercised;
. all financial data is stated in US dollars; and
. the effectiveness of a 0.654 for one reverse stock split effected
immediately prior to the declaration of effectiveness of the Registration
Statement for all periods presented.
The Offering
<TABLE>
<S> <C>
Common stock offered hereby.......... 2,500,000 shares (1)
Common stock to be outstanding after
the offering........................ 8,233,750 shares (2)
Underwriters' over-allotment
options............................. 375,000 shares
Use of proceeds...................... To fund research and product development
programs, to repay indebtedness and for
general corporate purposes. See "Use of
Proceeds."
Proposed EASDAQ and CSE symbol....... PHYT
</TABLE>
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(1) Includes 1,750,000 shares to be offered in the European offering and
750,000 shares to be offered in the US offering.
(2) Based on the number of shares outstanding at November 30, 1998 and assuming
the exercise of outstanding warrants to purchase 68,995 shares of common
stock at $0.02 per share prior to the closing of this offering. Excludes an
aggregate of 953,057 shares of common stock issuable upon exercise of stock
options and warrants outstanding as of November 30, 1998 with a weighted
average exercise price of $1.91 per share. See "Capitalization" and
"Description of Capital Stock--Stock Purchase Warrants."
We expect that delivery of the common stock will be made in New York, New
York, US on or about February 8, 1999.
In this Prospectus, references to "USD', "$', or "dollars' are to United
States dollars, "DKK' or "kroner' are to Danish kroner, "(Pounds)' or "pounds'
are to British pounds, "BEF' is to Belgian francs and "ECUs' is to European
Currency Units.
6
<PAGE>
Summary Consolidated Financial Data
(in thousands, except per share data)
<TABLE>
<CAPTION>
Nine Months May 27, 1992
Ended (Inception)
Year Ended December 31, September 30, through
------------------------------------------- ---------------- September 30,
1993 1994 1995 1996 1997 1997 1998 1998
------- ------- ------- ------- ------- ------- ------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Consolidated Statement
of Operations Data:
Collaborative revenue.. $ 68 $ 34 $ 50 $ 247 $ 1,053 $ 730 $ 1,100 $ 2,552
Loss from operations... (1,764) (4,266) (5,339) (8,158) (9,972) (7,880) (6,447) (37,694)
Interest income
(expense), net........ (125) 115 (106) (30) 228 231 14 101
Net loss............... $(1,876) $(4,227) $(5,439) $(8,289) $(9,754) $(7,662) $(6,585) $(37,689)
======= ======= ======= ======= ======= ======= ======= ========
Historical basic and
diluted net loss per
share (1)............. $(10.78) $(16.32) $(15.43) $(19.99) $(19.53) $(15.59) $(12.47)
Pro forma basic and di-
luted net loss per
share (1)............. $ (2.17) $ (1.45)
Shares used in comput-
ing historical basic
and diluted net loss
per share (1)......... 175 260 353 435 521 512 594
Shares used in comput-
ing pro forma basic
and diluted net loss
per share (1)......... 4,693 5,122
</TABLE>
<TABLE>
<CAPTION>
September 30, 1998
---------------------------------------
Pro Forma
Actual Pro Forma (2) As Adjusted (3)
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<S> <C> <C> <C>
Consolidated Balance Sheet Data:
Cash, cash equivalents and marketable
securities........................... $ 6,988 $ 6,988 $36,348
Working capital....................... 5,051 5,051 34,411
Total assets.......................... 9,315 9,315 38,675
Current portion of long-term debt..... 289 289 289
Long-term debt less current portion... 2,189 2,189 2,189
Redeemable convertible preferred
stock................................ 41,139 -- --
Deficit accumulated during development
stage................................ (39,648) (39,648) (39,648)
Total stockholders' equity (deficit).. (36,245) 4,894 34,254
</TABLE>
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(1) Computed as described in note 3(n) of notes to Consolidated Financial
Statements.
(2) Presented on a pro forma basis to give effect to the automatic conversion,
upon the closing of this offering, of all outstanding shares of Existing
Preferred Stock into an aggregate of 4,949,056 shares of common stock.
(3) As adjusted to reflect the sale of 2,500,000 shares of common stock offered
by the Company at an assumed initial public offering price of $13.00 per
share (the mid-point of the expected range) and the application of the
estimated net proceeds therefrom, after deducting the Underwriting
discounts and commissions and estimated offering expenses payable by the
Company. Includes the exercise of outstanding warrants to purchase 69,382
shares of common stock at $0.02 per share prior to the closing of this
offering. See "Use of Proceeds," "Capitalization" and "Description of
Capital Stock."
Please Note: The currency exchange rate between ECUs and dollars at September
30, 1998 was 1.1790 ECUs to $1.00.
7
<PAGE>
RISK FACTORS
An investment in the shares of common stock will be subject to a high degree
of financial risk. In deciding whether to invest, prospective investors should
consider carefully the following risk factors as well as the other information
in this document. The list of risks set out below may not be exhaustive.
It is especially important to keep these risk factors in mind when reading
forward-looking statements. These are statements that relate to future periods
and include statements about our lead structure and candidate drug discovery
efforts, product development and receipt of regulatory approvals. Generally,
the words "anticipates," "expects," "intends," "seeks," "plans" and similar
expressions identify such forward-looking statements. Forward-looking
statements involve risks and uncertainties, and our actual results could differ
significantly from the results discussed in the forward-looking statements.
We Are Uncertain of Our Future Profitability
We are not able to predict when, or if, we will become profitable, nor are we
able to predict whether such profitability will be sustained if it is achieved.
We have never made a profit in any fiscal period and, as of September 30, 1998,
have an accumulated deficit of approximately $39.6 million. We had a net loss
in 1996 of $8.3 million, a net loss in 1997 of $9.8 million, and a net loss for
the nine months ended September 30, 1998 of $6.6 million. In addition, we
expect to incur operating losses over the next several years. To date, our only
sources of revenue have been up-front payments and research and development
funding from our corporate partners. For the foreseeable future, we expect that
our level of revenues and operating results will depend upon our ability to
enter into new partnerships while maintaining existing partnerships. We have
not received any revenues from the discovery, development or sale of a
commercial product and we may not realize any such revenues in the future. See
"Selected Consolidated Financial Data" and "Management's Discussion and
Analysis of Financial Condition and Results of Operations."
We May Be Unable to Discover Drugs or Develop Products
We may fail to discover lead structures or develop products. To date, we have
identified several lead structures and are developing one candidate drug, but
we have not entered into or completed clinical trials, or obtained regulatory
approval for or marketed any product. See "Business--Phytera's Combinatorial
Drug Discovery Program."
We may fail to discover lead structures from natural product sources for many
reasons, including our inability to:
. source the natural species;
. gain access to their chemistry;
. effectively screen and isolate and identify active chemical compounds.
After discovery, our product development efforts may fail for many reasons,
including:
. we fail to develop lead structures into candidate drugs;
. the candidate drug or potential product fails in preclinical studies;
. a potential product is not shown to be safe and effective in clinical
studies;
. required regulatory approvals are not obtained;
. a potential product cannot be produced in commercial quantities at an
acceptable cost; or
. a product does not gain market acceptance.
Our Success Is Highly Dependent on Our Corporate Partnerships
Our revenue stream and our strategy for identifying and developing lead
structures and candidate drugs are dependent on our entering into partnerships
with third parties. We may not be able to establish such corporate
partnerships, and we cannot guarantee that such partnerships will be
established on commercially acceptable terms. Our current or future corporate
partnerships may not ultimately be successful. Each of our existing partnership
agreements has an initial term of three years or less. Our partners could
terminate these agreements or these agreements could expire before any related
lead structures are identified or any related candidate drugs are developed.
The termination or expiration of any or all of these agreements could have a
material adverse effect on our business.
8
<PAGE>
Much of the revenue that we may receive under these partnerships depends upon
our partners' successful development and commercial introduction of new
products derived from our chemical diversity libraries or pharmaceutical
screens. Our partners may develop alternative technologies or products outside
of their partnerships with us, and such technologies or products may be used to
develop treatments for the diseases targeted by our partnerships. This could
have a material adverse effect on our business. See "--We May Be Unable to
Discover Drugs or Develop Products" and "Business--Corporate Partnerships."
We Will Need to Raise Additional Funds
We may be required to repeatedly raise additional capital to fund our
operations. Such capital may be raised through public or private equity
financings, partnerships, debt financings, bank borrowings, or other sources.
Additional funding may not be available on favorable terms or at all. Our
capital requirements will depend upon numerous factors, including the
following:
. the establishment of additional partnerships;
. the development of competing technologies or products;
. changing market conditions;
. the cost of protecting our intellectual property rights;
. the purchase of capital equipment;
. the progress of our drug discovery and development programs;
. the progress of our partnerships and receipt of any option/license,
milestone and royalty payments resulting from those partnerships; and
. in-licensing and acquisition opportunities.
If adequate funds are not otherwise available, we may be required to curtail
operations significantly. To obtain additional funding, we may need to enter
into arrangements that require us to relinquish rights to certain technologies,
candidate drugs, products and/or potential markets. To the extent that
additional capital is raised through the sale of equity, or securities
convertible into equity, you may experience dilution of your proportionate
ownership in Phytera. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Liquidity and Capital Resources."
We Face Intense Competition
Our business may fail because we face intense competition from major
pharmaceutical companies and specialized biotechnology companies providing
chemical diversity libraries, pharmaceutical screening systems, combinatorial
chemistry technologies and other expertise. In addition, in pursuing our
internal drug discovery program, we compete against pharmaceutical and
biotechnology companies developing drugs against infectious diseases, and our
partners face similar competition in the respective markets for which they are
developing drugs. Many of these competitors have greater financial and human
resources and more experience in research and development than we have.
Competitors that identify lead structures, develop candidate drugs, complete
clinical trials, obtain regulatory approvals, and begin commercial sales of
their products before us will enjoy a significant competitive advantage. We
anticipate that we will face increased competition in the future as new
companies enter the market and alternative technologies become available. See
"Business--Competition."
We May Fail to Obtain a License for Marinovir
We must negotiate an exclusive license to certain patent rights in order to
commercialize marinovir. Pursuant to an exclusive option, we are currently
negotiating with an academic institution to determine the terms of this
license. The proposed license would cover an issued US composition of matter
patent on marinovir and a use patent covering its anti-inflammatory properties
and any counterparts issued outside the US. While we believe that we will
obtain such a license on terms consistent with pharmaceutical industry
standards, we cannot guarantee that we will obtain the license on commercially
acceptable terms or at all. See "Business--Products Under Development" and
"Business--Patents and Proprietary Rights."
9
<PAGE>
We Depend on Patents and Proprietary Rights that May Fail to Protect Our
Business
Our success will depend, in large part, on our ability to obtain and maintain
patent or other proprietary protection for our technologies, products, and
processes, and our ability to operate without infringing the proprietary rights
of other parties. We may not be able to obtain patent protection for the
composition of matter of discovered compounds, processes developed by our
employees, or uses of compounds discovered through our technology. Legal
standards relating to the validity of patents covering pharmaceutical and
biotechnological inventions and the scope of claims made under such patents are
still developing. There is no consistent policy regarding the breadth of claims
allowed in biotechnology patents. The patent position of a biotechnology firm
is highly uncertain and involves complex legal and factual questions.
We have been issued three patents and currently have eight patent
applications pending in the US and/or Denmark, with counterparts in several
other countries. We may not receive any issued patents based on currently
pending or any future applications. Any issued patents may not contain claims
sufficiently broad to protect against competitors with similar technology. In
addition, our patents, our partners' patents, and those patents for which we
have license rights may be challenged, narrowed, invalidated or circumvented.
Furthermore, rights granted under patents may not provide us with any
competitive advantage.
We may have to initiate litigation to enforce our patent and license rights.
If our competitors file patent applications that claim technology also claimed
by us, we may have to participate in interference or opposition proceedings to
determine the priority of invention. An adverse outcome could subject us to
significant liabilities to third parties and require us to cease using the
technology or to license the disputed rights from third parties. We may not be
able to obtain any required licenses on commercially acceptable terms or at
all.
The cost to us of any litigation or proceeding relating to patent rights,
even if resolved in our favor, could be substantial. Some of our competitors
may be able to sustain the costs of complex patent litigation more effectively
than we can because of their substantially greater resources. Uncertainties
resulting from the initiation and continuation of any pending patent or related
litigation could have a material adverse effect on our ability to compete in
the marketplace.
We also rely on certain proprietary trade secrets and know-how that are not
patentable. We have taken measures to protect our unpatented trade secrets and
know-how, including the use of confidentiality agreements with our employees,
consultants, and certain contractors. It is possible that the agreements may be
breached, that we would have inadequate remedies for any such breach, or that
our trade secrets will otherwise become known or be independently developed or
discovered by competitors. See "Business--Patents and Proprietary Rights."
Loss of Our Libraries Would Have a Material Adverse Effect on Our Business
Our chemical diversity libraries, cell cultures, cell culture extracts and
chemical compound libraries are critical assets. If the libraries are damaged
or destroyed by any event or series of events, such as a major fire,
earthquake, contamination or other casualty, it could have a material adverse
effect on our business, financial condition and results of operations. Due to
the nature of this risk, we have not been able to obtain adequate casualty
insurance against a loss of this type on commercially reasonable terms. We
believe appropriate loss control measures can provide protection against such a
casualty, but to date we have not been able to fully implement these measures.
We intend to implement these loss control measures as quickly as feasible, but
our chemical diversity libraries, cell cultures, cell culture extracts and
chemical compound libraries will always be subject to some degree of
vulnerability. See "Business--Phytera's Combinatorial Drug Discovery Program."
We May Not Be Able to Obtain or Maintain Needed Sourcing Arrangements
We may not be able to maintain existing sourcing arrangements or establish
any new arrangements that may be required to support the production of chemical
diversity libraries. We rely on such arrangements with botanical gardens,
countries rich in biodiversity, plant and marine research institutions, and
commercial seed companies to provide us with access to the natural species
required for our programs. Sourcing arrangements can be difficult and time-
consuming to establish and, once established, can be affected by changing
commercial, political and environmental circumstances.
The 1992 Convention on Biological Diversity (the "Convention") provides that
each nation has a sovereign right over its genetic resources. The Convention
has been ratified by a number of countries with
10
<PAGE>
significant biodiversity. Our policy is to comply with the terms of the
Convention in sourcing plant materials or marine microorganisms, even where the
source country is not a Convention signatory. While we believe that the
Convention successfully addresses many of the issues that arise in the area of
biodiversity sourcing, many of the Convention's signatories have not yet
adopted mechanisms to implement its provisions. This has added to the
complexity of negotiating sourcing agreements. We may not be able to negotiate
such agreements on commercially reasonable terms or at all. If we fail to
successfully negotiate such sourcing agreements, it could have a material
adverse effect on our sourcing strategy and on our ability to achieve our
business objectives. See "Business--Biodiversity Sourcing Agreements."
Uncertain Pharmaceutical Pricing Environment May Impact Our Business
Our ultimate ability to commercialize any products that we or our partners
develop depends on the extent to which reimbursements to patients for the cost
of such products and related treatments will be available from government
health administration authorities, private health insurance providers, and
other organizations. It is uncertain whether third party payers will reimburse
patients for newly approved health care products or will do so at a level that
will enable us to obtain a satisfactory price for our products. Healthcare
reform is an area of increasing attention and is a priority of many government
officials. Any such reform measures, if adopted, could adversely affect the
pricing of therapeutic or diagnostic products in the US, the European Union
("EU") or elsewhere and the amount of reimbursement available from governmental
agencies or third party insurers. We cannot predict the effect of such measures
upon our business.
Qualified Managerial and Scientific Personnel Are Scarce in Our Industry
We are highly dependent on the principal members of our scientific and
management staff. Our success will depend in part on our ability to identify,
attract and retain qualified managerial and scientific personnel. There is
intense competition for such personnel. We may not be able to continue to
attract and retain personnel with the advanced technical qualifications or
managerial expertise necessary for the development of our business. If we fail
to attract and retain key personnel, it could have a material adverse effect on
our business, financial condition and results of operations. See "Business--
Organization."
Management and Significant Stockholders Will Control the Company After the
Offering
Upon completion of this offering, our significant stockholders, executive
officers, Directors, and affiliated entities together will beneficially own
approximately 35.85% of the outstanding shares of common stock (34.35% if the
Underwriters' over-allotment option is exercised in full). This assumes the
conversion of the Series E Convertible Preferred Stock into an aggregate of
722,746 shares of common stock (assuming the closing of this offering on
February 8, 1999 at a public offering price of $13.00 per share (the mid-point
of the expected range)), the exercise of warrants to purchase 68,995 shares of
common stock at $0.02 per share and the exercise of an aggregate of 361,932
then exercisable options or warrants held by our significant stockholders,
executive officers, Directors and affiliated entities. As a result, these
stockholders, acting together, will be able to influence significantly and
possibly control most matters requiring stockholder approval. This
concentration of ownership may have the effect of delaying or preventing a
change in control of Phytera, including transactions in which stockholders
might otherwise receive a premium for their shares over then current market
prices. See "Principal Stockholders" and "Description of Capital Stock."
Series E Convertible Preferred Stock Conversion Rate Provision Could Have a
Dilutive Effect
For the purposes of this Prospectus, we have assumed that all outstanding
Existing Preferred Stock other than Series E Convertible Preferred Stock will
convert to common stock at the rate of 0.654 for one. The outstanding shares of
Series E Convertible Preferred Stock have a special conversion rate adjustment
that is triggered by the timing and pricing of our initial public offering. The
Series E Convertible Preferred Stock would convert to common stock immediately
prior to the closing of this offering at the rate of 0.654 for one only if this
offering is closed on or before June 25, 1999, and the price per share in this
offering is not less than the "Minimum Price" which, as of November 30, 1998,
was $16.94. The Minimum Price increases, up to a maximum of $19.11, over the
period ending June 25, 1999. If this offering is closed after June 25, 1999, or
if the price per share in this offering is less than the Minimum Price, more
than one share of common stock will be issued upon conversion of each share of
Series E Convertible Preferred Stock. The information presented in this
Prospectus assumes that this offering will close on or prior to February 8,
1999 at a per share price of $13.00 (the mid-point of the expected range). Such
price is below the Minimum Price for that date and would result in an
additional 191,315 shares of common stock becoming issuable upon conversion of
the Series E Convertible Preferred Stock. The closing of this offering on a
date later than February 8, 1999 or at a per share
11
<PAGE>
price below $13.00 would result in a greater number of shares outstanding at
the time of the closing of this offering. See "--Shares Eligible for Future
Sale Could Have an Adverse Effect on Market Price," "Capitalization,"
"Description of Capital Stock" and "Dilution."
Shares Eligible for Future Sale Could Have an Adverse Effect on Market Price
Future sales of common stock in the public market could adversely affect the
stock's market price. Upon completion of this offering there will be 8,233,750
shares of common stock outstanding, assuming no currently outstanding options
or warrants are exercised (other than warrants to purchase 68,995 shares of
common stock with an exercise price of $0.02 per share that otherwise expire
upon the closing of this offering) and that the Series E Convertible Preferred
Stock converts at the rate stated in the above paragraph. The 2,500,000 shares
sold in this offering (plus any additional shares sold upon exercise of the
Underwriters' over-allotment option) will be freely transferable.
The 5,733,750 shares of common stock expected to be outstanding prior to this
offering will, subject to certain agreements described below, be eligible for
immediate resale in Denmark and other member states of the EU. In the US, such
resales will also be subject to Rule 144 under the Securities Act. Certain of
our stockholders, Directors and employees, holding (on an as-converted basis)
in the aggregate approximately 4,948,819 shares of common stock (plus
approximately 223,878 shares issuable upon exercise of warrants exercisable at
$0.02 and vested options), have agreed, subject to certain limited exceptions,
not to sell or otherwise dispose of any of their shares for a period of 180
days after the date of this Prospectus. The holders of an additional 763,349
shares of common stock are subject to agreements not to sell or otherwise
dispose of any of their shares for a period of 90 days after the effectiveness
of the offering. See "Shares Eligible for Future Sale" and "Underwriting."
There Has Been No Prior Public Market for Common Stock; Stock Price May Be
Volatile
Prior to this offering, there has been no public market for the common stock.
An active public market for the common stock may not develop or be sustained
after the offering. We and the Underwriters will, through negotiations,
determine the initial public offering price. The initial public offering price
is not necessarily indicative of the market price at which the common stock
will trade after this offering. The market prices for securities of companies
comparable to us have been highly volatile and the market has experienced
significant price and volume fluctuations that are unrelated to the operating
performance of the individual companies. Many factors may have a significant
adverse effect on the market price of the common stock, including:
. announcements of technological innovations or new commercial products by
us or our competitors;
. developments concerning proprietary rights, including patent and
litigation matters;
. publicity regarding actual or potential results with respect to products
or compounds under development by us or our partners;
. unexpected terminations of partnerships;
. regulatory developments in the US, the EU and its member states, and
other countries;
. general market conditions; and
. quarterly fluctuations in our revenues and other financial results.
Anti-Takeover Provisions in Our Charter and By-laws and Delaware Law May Limit
Stock Price
Our Certificate of Incorporation, certain provisions of our By-laws and
certain provisions of Delaware law could delay or make more difficult a merger,
tender offer or proxy contest involving us. These provisions may have the
effect of delaying or preventing a change of control without action by the
stockholders and, therefore, could adversely affect the price of the common
stock. See "Management," "Description of Capital Stock--Preferred Stock" and
"Description of Capital Stock--Anti-Takeover Measures."
Investors Will Face Immediate and Substantial Dilution
Investors in this offering will experience immediate and substantial dilution
in the value of their investment. This dilution will equal the difference
between the initial public offering price and the per share net book value of
the Company immediately after this offering. Investors will experience
additional dilution upon the exercise of outstanding options and warrants.
Furthermore, owners of common stock do not have preferred subscription rights
and we do not anticipate that they will be accorded such rights in the future.
See "Dilution" and "Shares Eligible for Future Sale."
12
<PAGE>
Year 2000 Issues Could Cause Interruption or Failure of Our Computer Systems
We use a significant number of computer systems and software programs in our
operations, including applications used in support of research and development
activities, accounting, and various administrative functions. Although we
believe that our internal systems and software applications contain source code
that is able to interpret appropriately the dates following December 31, 1999,
our failure to make or obtain necessary modifications to our systems and
software could result in systems interruptions or failures that could have a
material adverse effect on our business. We do not anticipate that we will
incur material expenses to make our systems Year 2000 compliant. Unanticipated
costs necessary to avoid potential systems interruptions could exceed our
present expectations and consequently have a material adverse effect on our
business. In addition, if our key supply and service providers fail to make
their respective computer software programs and operating systems Year 2000
compliant, it could have a material adverse effect on our business. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Year 2000."
13
<PAGE>
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the common
stock offered hereby are estimated to be $29,360,000, ($33,893,750 if the
Underwriters' over-allotment option is exercised in full), based on an assumed
initial public offering price of $13.00 per share (the mid-point of the
expected range) and after deducting Underwriting discounts and commissions and
estimated offering expenses payable by the Company.
The Company intends to use the net proceeds of this offering as follows:
$20,000,000 for the continued development and expansion of the Company's
Combinatorial Drug Discovery Program, $6,000,000 for clinical development,
$816,000 for repayment of debt due upon the closing of this offering and the
remainder for general corporate purposes. Such general corporate purposes may
include acquisitions of other businesses, technologies or product rights. The
amount and timing of the Company's actual expenditures will depend upon a
number of factors, including the Company's ability to enter into additional
partnership or licensing arrangements, as well as the timing of and terms
governing such arrangements. In addition, the Company's research and
development expenditures will vary with the progress of programs and as a
result of variability in funding from its partners. The Company's management
will have broad discretion to allocate proceeds of this offering to uses that
it believes are appropriate.
The Company currently believes the net proceeds of the offering, together
with the Company's existing cash, cash equivalents, short-term investments and
cash generated from operations and research funding from corporate partners,
will enable the Company to maintain its current and planned operations until
December 31, 2000. See "Risk Factors--We Will Need to Raise Additional Funds"
and "Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources."
Pending such uses, the Company intends to invest the net proceeds of this
offering primarily in interest-bearing investment-grade securities.
DIVIDEND POLICY
The Company has never declared or paid any cash dividends on its common stock
and does not anticipate doing so in the foreseeable future. The Company
currently intends to retain future earnings, if any, for the development of its
technologies and future products.
14
<PAGE>
CAPITALIZATION
The following table sets forth, as of September 30, 1998, (i) the actual
capitalization of the Company, (ii) the pro forma capitalization of the Company
after giving effect to (a) the increase in the number of authorized shares of
common stock to 25,000,000 and the authorization of 1,000,000 shares of
undesignated Preferred Stock and (b) the conversion of all issued and
outstanding Existing Preferred Stock into 4,949,056 shares of common stock and
(iii) the pro forma capitalization as adjusted to reflect the sale of the
2,500,000 shares of common stock offered hereby at an assumed initial public
offering price of $13.00 per share (the mid-point of the expected range) after
deducting Underwriting discounts and commissions and estimated offering
expenses and the application of the estimated net proceeds therefrom of the
Company as set forth in "Use of Proceeds" and the exercise of outstanding
warrants to purchase 69,382 shares of common stock at $0.02 per share prior to
the closing of this offering. This table should be read in conjunction with the
Consolidated Financial Statements of the Company, notes thereto and other
financial information included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
September 30, 1998
---------------------------------------
Pro Forma As
Actual Pro Forma (1) Adjusted (1)(2)
-------- ------------- ---------------
(in thousands)
<S> <C> <C> <C>
Current portion of long-term debt..... $ 289 $ 289 $ 289
======== ======== =======
Long-term debt, less current portion.. $ 2,189 $ 2,189 $ 1,373
-------- -------- -------
Redeemable convertible preferred
stock, par value $0.01 per share,
14,446,382 shares authorized and
7,274,833 issued and outstanding,
actual; no shares authorized, issued
or outstanding, pro forma and pro
forma as adjusted.................... 41,139 -- --
-------- -------- -------
Stockholders' equity (deficit):
Preferred Stock, par value $0.01 per
share, no shares authorized, issued
or outstanding, actual; 1,000,000
shares authorized and none issued
and outstanding, pro forma and pro
forma as adjusted.................. -- -- --
Common stock, par value $0.01 per
share, 13,000,000 shares authorized
and 709,949 issued and outstanding
actual; 25,000,000 shares
authorized and 5,659,005 shares
issued and outstanding pro forma;
8,228,387 shares issued and
outstanding pro forma as adjusted
(1)(2)............................. 11 57 82
Additional paid-in capital.......... 5,203 46,296 75,631
Deficit accumulated during
development stage.................. (39,648) (39,648) (39,648)
Deferred compensation (3)........... (1,811) (1,811) (1,811)
-------- -------- -------
Total stockholders' equity
(deficit)........................ (36,245) 4,894 34,254
-------- -------- -------
Total capitalization.............. $ 7,083 $ 7,083 $35,627
======== ======== =======
</TABLE>
- --------
(1) Presented on a pro forma basis to give effect to the automatic conversion,
upon the closing of this offering, of all outstanding shares of Existing
Preferred Stock into an aggregate of 4,949,056 shares of common stock. If
this offering closes after February 8, 1999 or the public offering price is
less than 13.00 per share, a greater number of shares would be outstanding
at the time of the closing of the offering. See "Description of Capital
Stock."
(2) As adjusted to reflect the sale of 2,500,000 shares of common stock offered
by the Company hereby at an assumed initial public offering price of $13.00
per share (the mid-point of the expected range) and the application of
estimated net proceeds therefrom after deducting Underwriting discounts and
commissions and estimated offering expenses payable by the Company.
Includes the exercise of outstanding warrants to purchase 69,382 shares of
common stock at $0.02 per share prior to the closing of this offering.
Excludes an aggregate of 958,092 shares of common stock issuable upon
exercise of stock options and warrants outstanding as of September 30, 1998
with a weighted average exercise price of $1.90 per share. See "Description
of Capital Stock--Stock Purchase Warrants."
(3) Deferred compensation is the aggregate difference between the deemed value
of certain stock options and the exercise price of such stock options.
These stock options were not exercisable by the holders on September 30,
1998. A compensation expense will be recorded as the right to exercise
these stock options vests with the holder in future periods.
15
<PAGE>
DILUTION
The pro forma net tangible book value of the Company as of September 30, 1998
was $4,894,000 or approximately $0.86 per share of common stock. Pro forma net
tangible book value per share represents the total tangible assets of the
Company, less total liabilities, divided by 8,228,387 shares of common stock to
be outstanding after giving effect to the conversion of all outstanding shares
of Existing Preferred Stock into 4,949,056 shares of common stock upon the
closing of this offering. Assuming the receipt by the Company of the net
proceeds from the sale of the 2,500,000 shares of common stock offered hereby
at an assumed public offering price of $13.00 per share (the mid-point of the
expected range) and the exercise of outstanding warrants to purchase 69,382
shares of common stock at $0.02 per share prior to the closing of this
offering, the pro forma net tangible book value of the Company as of September
30, 1998 would have been $34,254, or $4.16 per share. This represents an
immediate increase in the pro forma net tangible book value of $3.30 per share
to existing stockholders of the Company and an immediate dilution of $8.84 per
share to new investors purchasing common stock in this offering. The following
table illustrates the per share dilution to be incurred by new investors:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share................ $13.00
Pro forma net tangible book value per share before this
offering.................................................... $0.86
Increase per share attributable to new investors............. 3.30
-----
Pro forma net tangible book value per share after this
offering...................................................... 4.16
------
Dilution per share to new investors............................ $ 8.84
======
</TABLE>
The following table sets forth, as of September 30, 1998 (after giving effect
to the conversion of all outstanding shares of Existing Preferred Stock into
4,949,056 shares of common stock and the exercise of outstanding warrants to
purchase 69,382 shares of common stock at $0.02 per share prior to the closing
of this offering and assuming the Series E Stock is convertible into an
aggregate of 722,746 shares of common stock (assuming the closing of this
offering on February 8, 1999 at a public offering price of $13.00 per share
(the mid-point of the expected range)), the differences between the existing
stockholders and the new investors with respect to the number of shares of
common stock acquired from the Company, the total consideration paid and the
average price per share (assuming a public offering price of $13.00 per share):
<TABLE>
<CAPTION>
Shares Purchased Total Consideration
----------------- ------------------- Average Price
Number Percent Amount Percent Per Share
--------- ------- ----------- ------- -------------
<S> <C> <C> <C> <C> <C>
Existing stockholders....... 5,728,387 70% $43,944,000 57% $ 7.67
New investors............... 2,500,000 30% 32,500,000 43% $13.00
--------- --- ----------- ---
Total..................... 8,228,387 100% $76,444,000 100%
========= === =========== ===
</TABLE>
Total Consideration is the aggregate purchase price paid by existing
stockholders for previously issued shares and is calculated by totaling the
gross proceeds from previous sales of the Company's stock. The above
information excludes, as of September 30, 1998, an aggregate of 958,092 shares
of common stock issuable upon exercise of stock options and warrants
outstanding as of September 30, 1998 with a weighted average exercise price of
$1.90 per share. To the extent that such options and warrants are exercised,
there will be further dilution to new investors. See "Description of Capital
Stock."
16
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated balance sheet data set forth below, as of December
31, 1995, 1996 and 1997, and the consolidated statements of operations data for
each of the three years in the period ended December 31, 1997, are derived from
the Company's Consolidated Financial Statements which have been audited by
Arthur Andersen LLP, independent public accountants, and which are included
elsewhere in this Prospectus. The selected consolidated financial data as of
December 31, 1993 and 1994 and for the years then ended are derived from the
Company's Consolidated Financial Statements not included in this Prospectus,
all of which have been audited by Arthur Andersen LLP, independent public
accountants. The selected financial data as of September 30, 1998 and for the
nine months ended September 30, 1997 and 1998 and for the period from inception
(May 27, 1992) to September 30, 1998 are derived from the Company's unaudited
Consolidated Financial Statements which are included elsewhere in this
Prospectus and which include, in the opinion of the Company, all adjustments
(consisting only of normal recurring adjustments) that are necessary for a fair
presentation of its financial position and the results of its operations for
those periods. Operating results for the nine months ended September 30, 1998
are not necessarily indicative of the results that may be expected for the
fiscal year ending December 31, 1998. The selected consolidated financial data
should be read in conjunction with, and are qualified by reference to
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," the Company's Consolidated Financial Statements and notes thereto
and the Report of Independent Public Accountants included elsewhere in this
Prospectus.
<TABLE>
<CAPTION>
Nine Months May 27, 1992
Ended (inception)
Year Ended December 31, September 30, through
------------------------------------------- ---------------- September 30,
1993 1994 1995 1996 1997 1997 1998 1998
------- ------- ------- ------- ------- ------- ------- -------------
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Consolidated Statement
of Operations Data:
Collaborative revenue.. $ 68 $ 34 $ 50 $ 247 $ 1,053 $ 730 $ 1,100 $ 2,552
Operating expenses:
Research and
development........... 1,230 3,270 3,964 5,232 7,673 5,711 5,638 27,191
General and
administrative........ 602 1,030 1,425 1,675 1,740 1,287 1,909 8,633
Charge for acquired
research and
development........... -- -- -- 1,498 1,612 1,612 -- 4,422
------- ------- ------- ------- ------- ------- ------- --------
Total operating
expenses............. 1,832 4,300 5,389 8,405 11,025 8,610 7,547 40,246
------- ------- ------- ------- ------- ------- ------- --------
Loss from operations... (1,764) (4,266) (5,339) (8,158) (9,972) (7,880) (6,447) (37,694)
Interest income
(expense), net........ (125) 115 (106) (30) 228 231 14 101
Foreign currency
translation gain
(loss)................ 13 (76) 6 (101) (10) (13) (152) (96)
------- ------- ------- ------- ------- ------- ------- --------
Net loss............... $(1,876) $(4,227) $(5,439) $(8,289) $(9,754) $(7,662) $(6,585) $(37,689)
======= ======= ======= ======= ======= ======= ======= ========
Historical basic and
diluted net loss per
share (1)............. $(10.78) $(16.32) $(15.43) $(19.99) $(19.53) $(15.59) $(12.47)
Pro forma basic and
diluted net loss per
share (1)............. $(2.17) $ (1.45)
Shares used in
computing historical
basic and diluted net
loss per share (1).... 175 260 353 435 521 512 594
Shares used in
computing pro forma
basic and diluted net
loss per share (1).... 4,693 5,122
</TABLE>
<TABLE>
<CAPTION>
December 31, September 30, 1998
---------------------------------------------- -----------------------
1993 1994 1995 1996 1997 Actual Pro Forma (2)
------- ------- -------- -------- -------- -------- -------------
(in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated Balance
Sheet Data:
Cash, cash equivalents
and marketable
securities............ $ 8,107 $ 4,383 $ 470 $ 10,117 $ 3,792 $ 6,988 $ 6,988
Working capital........ 8,933 2,789 (797) 8,976 2,586 5,051 5,051
Total assets........... 9,439 6,924 2,704 12,396 6,289 9,315 9,315
Current portion of
long-term debt........ 19 1,092 825 301 300 289 289
Long-term debt, less
current portion....... 710 752 745 1,274 1,550 2,189 2,189
Redeemable convertible
preferred stock....... 11,863 11,879 11,894 30,945 34,186 41,139 --
Deficit accumulated
during development
stage................. (3,417) (7,659) (13,113) (22,055) (32,233) (39,648) (39,648)
Deferred compensation.. -- -- -- -- -- (1,811) (1,811)
Stockholders' equity
(deficit)............. (3,410) (7,648) (13,101) (21,210) (30,886) (36,245) 4,894
</TABLE>
- --------
(1) Computed as described in note 3(n) of notes to Consolidated Financial
Statements.
(2) Presented on a pro forma basis to give effect to the automatic conversion,
upon the closing of this offering, of all outstanding shares of the
Existing Preferred Stock into an aggregate of 4,949,056 shares of common
stock.
17
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Overview
Phytera, Inc. was incorporated as a Delaware corporation on May 27, 1992. The
Company is a development stage biopharmaceutical company focused on applying
its proprietary Combinatorial Drug Discovery Program to the identification and
optimization of new lead structures and candidate drugs for pharmaceutical
application. The Company's operations have been funded primarily through the
sale of equity securities and revenues generated from research partnerships
with pharmaceutical and biotechnology companies. As of September 30, 1998, the
Company has signed partnership agreements with Eli Lilly and Company, Chiron
Corporation, Tsumura & Co., NeuroSearch A/S, Galileo Laboratories, Inc. and
Nycomed Amersham plc. See "Business--Corporate Partnerships."
The Company has not been profitable since its inception and has an
accumulated deficit of approximately $39,648,000 as of September 30, 1998.
Losses have resulted primarily from expenses related to research and
development programs focused on expanding the Company's Combinatorial Drug
Discovery Program, which includes combinatorial biology, pharmaceutical
screening, combinatorial chemistry and preclinical development of a novel
candidate drug. The Company has also incurred costs related to the
administrative activities required to support these research and development
efforts. The Company's ability to fund its operations and achieve profitability
is dependent on its near-term ability to market the Company's broad technology
base to and enter into research partnerships with pharmaceutical and
biotechnology companies, and on the longer-term development and
commercialization of products derived from these partnerships and the Company's
internal drug discovery programs.
Phytera has built and expanded its technology base via the acquisition of
three companies. Plant Science Limited, a UK-based plant cell culture company,
was acquired in September 1992 and is now a wholly-owned subsidiary, Phytera
Ltd. Neptune Pharmaceuticals, Inc., a US-based marine microbiology company, was
acquired in July 1996 and has been integrated into the operations of Phytera,
Inc. Auda Pharmaceuticals ApS, a Danish combinatorial chemistry company, was
acquired in March 1997 and is now a wholly-owned subsidiary, Phytera Symbion
ApS. Each of these transactions was accounted for as a purchase with
approximately $1,312,000, $1,498,000 and $1,612,000, respectively of the
purchase price charged to operations as the cost of acquired research and
development. The results of operations of each of the acquired companies are
included in the Consolidated Statements of Operations since the date of
acquisition.
In addition to the above acquisitions, the Company established Phytera A/S, a
wholly-owned Danish subsidiary, in February 1996 with an equity investment of
approximately $89,500 in order to expand the Company's plant cell culture
capabilities. The results of operations of Phytera A/S are included in the
Consolidated Statements of Operations since its date of incorporation.
The Consolidated Financial Statements include the accounts of Phytera, Inc.
and its wholly-owned subsidiaries, Phytera Ltd., Phytera Symbion ApS and
Phytera A/S. For the remainder of this discussion Phytera, Inc. and its
subsidiaries together will be referred to as "Phytera" or "the Company."
Results of Operations
Nine Months Ended September 30, 1998 and 1997
Revenues from research and development partnership agreements were $1,100,000
and $730,000 for the nine months ended September 30, 1998 and 1997,
respectively. For the nine months ended September 30, 1998, all of the revenue
recognized by the Company was derived from its partnerships with Tsumura & Co.,
Chiron Corporation and Eli Lilly and Company. For the nine months ended
September 30, 1997, revenues were derived entirely from the Company's
partnership with Tsumura & Co., as payment for access to Phytera's extract
libraries and in support of the Company's research activities under
the partnership. The results of operations for the nine months ended September
30, 1998 do not reflect the full impact of the Company's partnerships with
Lilly and Chiron, which are expected to have a more substantial effect on
revenues and expenses in future periods. See "Business--Corporate
Partnerships."
Research and development expenses decreased by 1% to $5,638,000 for the nine
months ended September 30, 1998 from $5,711,000 for the nine months ended
September 30, 1997, due to reduced outside research support for preclinical
development and decreased laboratory supplies expense in the US. These
decreases were partially offset by an increase in research and development
expenses by the Company's Danish subsidiaries,
18
<PAGE>
reflecting a full nine months of operations in 1998 for Phytera Symbion ApS,
which was acquired in March 1997, and increased plant sourcing costs in support
of Phytera A/S' plant cell culture activity.
General and administrative expenses increased by 48.3% to $1,909,000 for the
nine months ended September 30, 1998 from $1,287,000 for the nine months ended
September 30, 1997. This increase resulted from compensation expense
attributable to stock options granted, and executive incentive compensation
programs, and a full nine months of expenses related to Phytera Symbion ApS.
General and administrative expenses at Phytera Symbion ApS during this period
included salary related costs, travel and other costs associated with the
Managing Director of Phytera A/S and Phytera Symbion ApS who joined the Company
at the time of the Auda acquisition.
Net interest income was $14,000 for the nine months ended September 30, 1998,
compared to $231,000 for the same period in 1997. Interest income in 1998
decreased as a result of a decreasing cash balance resulting from the use of
cash for operations, while interest expense for the nine months ended September
30, 1998 increased due to interest accrued for additional debt funding received
from VdkstFonden of Copenhagen, Denmark.
Years Ended December 31, 1997, 1996 and 1995
The Company's collaborative revenues for the years ended December 31, 1997,
1996 and 1995 were $1,053,000, $247,000 and $50,000, respectively and were
derived from research and development partnership and marketing agreements. In
1997 and 1996, such revenues were derived entirely from the partnership with
Tsumura & Co., while revenue in 1995 was derived from the Nycomed Amersham plc
research partnership in the area of plant culture-derived enzymes. See
"Business--Corporate Partnerships."
Research and development expenses increased to $7,673,000 in 1997 from
$5,232,000 in 1996 and $3,964,000 in 1995, primarily as a result of the
expansion of the Company's plant cell culture, marine microbiology,
combinatorial chemistry and general drug discovery capabilities. Subsequent to
the acquisition of Neptune Pharmaceuticals, Inc. in 1996, the Company
established a research program focused on the sourcing, culturing and
extraction of marine microbes. Also in 1996, the Company established Phytera
A/S as a wholly-owned subsidiary to conduct plant cell culture activities. The
Company acquired Auda Pharmaceuticals ApS in March 1997 and research and
development expenses in 1997 include costs associated with this operation
through the end of the year. In addition, research and development staff at the
Company's Worcester facility increased by four people in 1996 compared to 1995
and by seven people in 1997 compared to 1996.
General and administrative expenses were $1,740,000, $1,675,000, and
$1,425,000 for 1997, 1996 and 1995, respectively. The increase in 1997 compared
to 1996 was approximately 3.8% and was primarily due to normal cost increases.
The increase in 1996 compared to 1995 was approximately 17.6% and related
principally to general and administrative expenses incurred as a result of the
establishment of Phytera A/S, and to increased costs at Phytera, Inc. related
to increased staff.
Net interest income was $228,000 in 1997, compared to net interest expense of
$30,000 and $106,000 in 1996 and 1995, respectively. This increase in 1997
resulted from a larger cash balance available for investment during the year as
a result of the sale of Series D Convertible Preferred Stock that occurred in
late 1996.
Liquidity and Capital Resources
Phytera has experienced net losses and negative cash flow from operations
each year since its inception and, as of September 30, 1998, had an accumulated
deficit of $39,648,000. The Company has financed its operations primarily
through private equity financings. As of September 30, 1998, net proceeds from
equity financings were $39,044,000. The Company received total research
payments from its corporate partnerships of $3,161,000 through September 30,
1998, of which $2,552,000 has been recognized as collaborative revenue.
$609,000 of the research payments that have been received by the Company has
not been recognized as revenue as of September 30, 1998. Phytera has entered
into several loan agreements to fund leasehold improvements, the acquisition of
equipment, for working capital purposes and the acquisition of Phytera Ltd.
In 1992, the Company issued a promissory note in the principal amount of
(Pounds)480,000 (approximately $816,000 at the September 30, 1998 exchange
rate) note payable to the University of Sheffield, bearing interest at 10% per
annum, in connection with the acquisition of Phytera Ltd. The note will be
payable on the closing of this offering. Interest on the unpaid principal
balance is due each October 1.
19
<PAGE>
In July 1994, the Company entered into a $1,100,000 equipment line of credit
with a United States bank. The Company borrowed the maximum amount through
December 31, 1994, at which time the amount outstanding under the equipment
line of credit was converted into a promissory note. The note is payable in 48
equal monthly installments, beginning in January 1995 and is scheduled to end
in December 1998, bearing interest at the bank's prime rate (8.5% at September
30, 1998) plus 2%. Borrowings under the note are secured by substantially all
of the Company's assets. The note contains certain covenants, including minimum
levels of liquidity and net worth. The Company was in compliance with all
covenants at September 30, 1998. As of September 30, 1998, $68,750 was
outstanding under this note.
In 1996, Phytera entered into an agreement with VdkstFonden to obtain funding
for the Company's Danish subsidiaries. This agreement was originally focused on
providing partial funding for the development of Phytera A/S, but was recently
expanded to include Phytera Symbion ApS. Under the agreement, VdkstFonden
provides a research and development loan of approximately DKK 13.2 million
(approximately $2,087,000 at the September 30, 1998 exchange rate) over a three
year period to finance approximately 45% of the operations of both Phytera A/S
and Phytera Symbion ApS. The loan accrues interest at an annual interest rate
of 7.98% and will be repaid over a five year period beginning in April 1999.
The loan was granted subject to certain conditions, each of which has been met
by Phytera. The loan is secured by a guarantee from Phytera, Inc. and by way of
a pledge of certain rights in the projects funded by the loan. As of September
30, 1998, approximately DKK 8,546,000 (approximately $1,347,000 at the
September 30, 1998 exchange rate) has been received from VdkstFonden.
During the nine months ended September 30, 1998 and the years ended December
31, 1997, 1996 and 1995, the Company made purchases of equipment and leasehold
improvements in the amounts of approximately $297,000, $913,000, $627,000 and
$150,000, respectively. In addition to the VdkstFonden loan, the Company
entered into several loans and operating leases that provided aggregate
financing of DKK 2,800,000 (approximately $442,000 at the September 30, 1998
exchange rate) to the Company's Danish subsidiaries during 1996 and 1997 and
the nine months ended September 30, 1998.
In September 1998, Phytera entered into a $1,000,000 equipment line of credit
with a United States finance company. This agreement provides for the funding
of equipment purchases made by the Company through July 15, 1999. Separate
loans are created each time funding is provided, and each loan is to be repaid
over 48 months from the date of the funding with a final payment of 12.5% of
the initial principal amount. The repayment amount is based on a percentage of
the outstanding principal of the loan. The percentage rate can vary prior to
each funding, but is then fixed for the term of the specific loan created by
the specific funding event. There was no outstanding balance under this line of
credit at September 30, 1998.
Management estimates that the proceeds from this offering, along with
existing cash balances, amounts to be received under existing partnership
agreements and funds available under existing borrowing arrangements, will be
sufficient to fund operations until December 31, 2000. The Company's cash
requirements may vary materially from those now planned, depending upon the
results of its research and development strategies, the ability of the Company
to enter into any corporate partnerships, the results of research and
development, competitive and technological advances, in-licenses and
acquisitions and other factors. If the Company experiences increased losses, it
may have to seek additional financing from public or private sale of its
securities, including equity securities.
There have been no material events or significant changes in the financial or
other conditions of the Company since September 30, 1998.
Tax Matters
At December 31, 1997, the Company had available net operating loss
carryforwards of approximately $25,200,000 for US federal income tax purposes,
which expire at various dates beginning in 2009. The Company also has available
US federal tax credits of approximately $330,000 expiring through the year
2010. The Company's non-US subsidiaries have approximately $690,000 of
available net operating loss carryforwards for non-US income tax reporting
purposes as of December 31, 1997. The Company has recorded a full valuation
allowance against its deferred tax asset due to uncertainties surrounding the
realization of these assets.
The US Internal Revenue Code of 1986, as amended (the "Code"), contains
provisions that may limit the US net operating loss and tax credit
carryforwards available to be used in any given year upon the occurrence
20
<PAGE>
of certain events, including changes in the ownership interests of significant
stockholders. In the event of a cumulative change in ownership in excess of 50%
over a three year period, the amount of the US net operating loss carryforwards
that the Company can utilize in any one year may be limited. In the event of a
change in ownership, as defined, the annual limitation on the use of the
existing net operating loss carryforwards is equal to an amount determined by
multiplying the value of the Company at the time of the ownership change by the
US federal applicable rate of interest as determined by the US Internal Revenue
Service.
Year 2000
Many currently installed computer systems and software applications are coded
to accept only two digit entries in the year entry of the date code field.
Beginning in the year 2000, these codes will need to accept four digit year
entries to distinguish 21st century dates from 20th century dates. The Company
has completed a review of all of its microprocessor-based computer systems to
assess what steps, if any, are required to achieve full Year 2000 compliance.
The Company relies upon microprocessor-based personal computers and
commercially available applications software. These technologies have been put
into service recently, and our review has confirmed that virtually all the
Company's systems are currently Year 2000 compliant. The small number of
systems that are not yet Year 2000 compliant are systems that are integral
components of certain laboratory instrumentation used by the Company. The
Company is in the process of replacing these systems. The Company does not
anticipate that it will incur material expenses or meaningful delays in making
these systems Year 2000 compliant.
The Company is not able to assess the Year 2000 readiness of its research
partners, or the potential impact, if any, on its research programs if a
research partner is not Year 2000 compliant. The Company is currently
discussing Year 2000 readiness with its material supply and service vendors. To
date, those vendors that have been contacted have indicated that their hardware
or software are or will be Year 2000 compliant on a timely basis. However, the
Company intends to continue to assess its exposure to Year 2000 noncompliance
on the part of any of its material vendors and there can be no assurance that
their systems will be Year 2000 compliant.
The Company believes that Year 2000 issues will not pose significant
operational problems for its business. Therefore, the Company does not have,
and does not intend to create, a contingency plan in the event Year 2000
compliance cannot be achieved in a timely manner. See "Risk Factors--Year 2000
Issues Could Cause Interruption or Failure of Our Computer Systems."
New Accounting Pronouncements
Recently issued accounting standards may affect the Company's Consolidated
Financial Statements in the future. See note 3(o) of notes to Consolidated
Financial Statements.
21
<PAGE>
BUSINESS
Overview
Phytera is an international biopharmaceutical company engaged in identifying
and optimizing novel chemical lead structures through its Combinatorial Drug
Discovery Program. The Company conducts operations in the United States,
Denmark, and the United Kingdom. The Company's Combinatorial Drug Discovery
Program enhances the pharmaceutical industry's ability to use nature as a
source of chemical diversity by applying proprietary combinatorial biology,
pharmaceutical screening and combinatorial chemistry techniques. The Company
uses combinatorial biology to create novel chemical diversity libraries from
two relatively untapped natural resources, plant cells and marine microbes,
that it grows and manipulates in cell culture. The combinatorial manipulations
substantially increase the variety and novelty of chemical compounds produced
in cell culture beyond that found in the native specimen. Phytera has entered
into partnerships with Eli Lilly and Company, Chiron Corporation, Tsumura &
Co., NeuroSearch A/S, Gallileo Laboratories, Inc. and Nycomed Amersham plc.
Together with these partners, Phytera tests its chemical diversity libraries
for therapeutic utility in pharmaceutical screens for diseases such as fungal
infections, cancer, inflammation, allergy, asthma, depression, memory and
attention deficit disorders, diabetes, stroke and myocardial infarction. The
Company's internal drug discovery efforts are focused on drug-resistant
bacterial, fungal and viral infections. In particular, the Company has
developed bacterial and fungal screens in which Multiple Drug Resistance pumps
("MDR pumps") have been inactivated. The Company believes that these "MDR
knockout-based" screens offer significant advantages in discovering novel
antibacterial and antifungal drugs. Phytera uses proprietary combinatorial
chemistry techniques to optimize lead structures identified through screening
into candidate drugs for further development.
Nature is a source of a substantial portion of new medicines, but a number of
factors has limited the systematic exploration of nature as a source of
chemical diversity. These factors include access to sufficient quantity of
novel source material, difficulty in reaccessing source material, limited and
fixed chemical diversity, chemistry which is not easily reproducible or
scalable, difficulties associated with screening complex extract mixtures and
limited ability to optimize natural product lead structures. Phytera's
Combinatorial Drug Discovery Program encompasses a number of technologies to
provide an integrated solution to these limitations.
The Company's combinatorial biology program produces chemical diversity
libraries from plant cell cultures using its ExPAND(R) technology and from
marine microbe cultures using its (u)MARINE(R) technology. The Company has
established an extensive network of species sourcing collaborations in order to
access plants and marine microorganisms for its combinatorial biology program.
The Company's combinatorial biology technologies facilitate access and reaccess
to novel plant and marine microbial source material. The chemical diversity of
cell cultures is increased by applying proprietary manipulations, such as
genetic, hormonal, infection-related, environmental or chemical treatments. The
resulting chemical expression states are highly reproducible, ensuring that
increased quantities of interesting chemical compounds can be produced to
facilitate drug discovery and development. To date, the Company has produced
over 60,000 high quality cell culture extracts through its ENRICH(TM)
extraction technology and a pilot library of individual natural chemical
compounds by applying its PINACLE(TM) chemical isolation methodology.
The Company is applying its proprietary MANIFOLD(TM) combinatorial chemistry
technologies to optimize lead structures and select additional candidate drugs
for preclinical and clinical development. MANIFOLD is particularly suited for
optimizing natural product lead structures, many of which are not amenable to
conventional combinatorial chemistry techniques. Phytera has produced one
candidate drug and several lead structures. Marinovir, the Company's candidate
drug from a marine microbe, is aimed at treating herpes infections and is
currently scheduled to enter clinical studies in 1999.
Corporate Strategy
Phytera's objective is to be the leader in the application of combinatorial
drug discovery technology to the search for new medicines derived from nature.
To achieve this objective, the Company will leverage its broad range of
proprietary technologies in the following ways:
. Capitalize on Revenue-Generating Partnerships. The Company has
established several revenue-generating partnerships, such as its
antifungal alliance with Eli Lilly and Company, and is continuing to
pursue additional such relationships. These revenue-generating
partnerships provide Phytera with both
22
<PAGE>
near-term and potential longer-term revenues through up-front payments,
option/license fees, research funding, milestone payments and royalties
and provide its partners with access to Phytera's novel chemical diversity
libraries, proprietary screens and other proprietary technologies and
resources. See "--Corporate Partnerships."
. Capitalize on Joint Research and Development Partnerships with Retained
Product Rights. The Company retains substantial product rights under a
number of joint research and development partnerships, such as its
alliance with NeuroSearch A/S, and is continuing to pursue additional
relationships of this type with other partners. These retained product
rights partnerships combine the Company's novel chemical diversity
libraries and other proprietary resources with pharmaceutical screens
developed by the Company's partners. Lead structures and candidate drugs
identified by the screening of the Company's libraries are expected to be
the focus of joint development and commercialization efforts. See "--
Corporate Partnerships."
. Advance the Company's Drug-Resistant Infectious Diseases Program. Phytera
intends to continue its internal drug discovery efforts, with particular
focus on the use of its proprietary screen portfolio for drug-resistant
infectious diseases. Included in this portfolio are antibacterial screens
based on the Company's MDR knockout technology (a joint discovery between
Phytera and an academic institution to which the Company holds exclusive
commercial rights) which offer advantages in screening for new drugs to
treat resistant infections. The Company is currently seeking to advance
one preclinical candidate drug, marinovir, to the clinic and is currently
optimizing several lead structures identified within the program. See "--
Phytera's Resistant Infectious Diseases Screening Program" and "--Patents
and Proprietary Rights."
. Broaden and Leverage the Company's Technology Platform. The Company
believes its intellectual property position represents a substantial
barrier to entry by competitors. Phytera intends to broaden and leverage
this position through further internal innovation and in-licensing and
acquisitions of new technologies and novel products. The Company is also
pursuing application of its current technologies to other business areas,
such as agriculture.
23
<PAGE>
Nature as a Source of Chemical Diversity
Historically, natural products have represented a major source of medicines
used to treat human disease and, together with medicinal synthetic chemistry,
continue to generate a substantial number of pharmaceuticals. Drugs can be
derived from natural sources either directly or, more commonly, indirectly.
Direct derivation occurs when the natural chemical compound is used as a
pharmaceutical, as in the case of Taxol(R), a cancer drug from the Pacific yew
tree. Indirect derivation occurs when a lead structure from a natural source is
used as a chemical basis or conceptual starting point for a drug analog and
optimization program that results in a commercial product. An example of this
is Zocor(R), a cholesterol-lowering drug derived from a fungal lead structure.
A recent study from the US National Institutes of Health reported that
natural product-derived drugs accounted for 39% of all approvals by the US FDA
from 1983 to 1994 across all therapeutic categories. In the case of infectious
diseases, 56% of all FDA-approved drugs were derived from natural products.
Many of today's most commercially important drugs were derived from a natural
product starting point, as illustrated below.
Derivation of Certain Commercially Significant Drugs
<TABLE>
<CAPTION>
1997 Worldwide Therapeutic
Brand Name Sales Rank(1) Indication Natural Product Derivation
- -----------------------------------------------------------------------------------
<S> <C> <C> <C>
Zocor(R) 1 High cholesterol Fungal lead structure
Vasotec(R) 4 Hypertension Snake venom lead structure
Zantac(R) 5 Ulcers Based on histamine-derived
structure
Augmentin(R) 9 Bacterial infection Bacterial lead structure
and fungal product
combination
Pravachol(R) 13 High cholesterol Fungal lead structure
Mevalotin(R) 14 High cholesterol Fungal lead structure
Biaxin(R) 15 Bacterial infection Bacterial lead structure
Sandimmune(R) 16 Transplant rejection Fungal product
Taxol(R) 30 Cancer Plant product
</TABLE>
(1) Medical Advertising News, 17(5) 1998 and Biodiversity and Human Health,
Island Press, 1997.
As the table above illustrates, two natural product sources, terrestrial
fungi and bacteria, have played prominent roles in the development of new drugs
in the recent past. These successes have been driven by decades of extensive
evaluation of these sources by the pharmaceutical industry. However, continued
study of terrestrial microbes is increasingly resulting in the rediscovery of
the same natural chemistry. Thus, the Company believes that terrestrial
microbes have diminished value as potential sources of new chemical diversity.
Plants and marine microorganisms represent two relatively untapped natural
sources of novel chemicals that may be useful in the discovery of new drugs.
According to scientific and other literature, only a small percentage of the
estimated 250,000 species of plants has been evaluated as a source of new
pharmaceuticals. The Company believes that the pharmaceutical industry's
evaluation of plants for drug discovery has been limited by the use of
traditional sourcing approaches. These approaches require large amounts of
plant material so that species that are available only in small quantities or
are subject to conservation efforts cannot be readily sampled. An additional
problem is the difficulty of reaccessing the source material to obtain greater
quantities for further discovery and development once the plant extract is
found to contain a pharmaceutically active chemical compound. Reaccessing the
source material can be logistically difficult and time consuming, and it is
often not possible to successfully reaccess the species, or its
pharmaceutically important chemistry.
24
<PAGE>
Marine microorganisms are a genetically and chemically distinct class of
organisms that are only just beginning to be examined as a source of lead
structures or candidate drugs. Marine microorganisms have never been
systematically sourced by the pharmaceutical industry. In the cases where
marine microorganisms have been sourced, both their isolation and subsequent
culture have been constrained by the failure to recognize their dependence on
specific marine nutrients for growth.
The most significant limitation in traditional natural product drug discovery
is the inability to access much of the potential chemical diversity of a
sourced species. Traditional natural product drug discovery technologies sample
a species from a single environment and therefore access only a minor portion
of the chemical potential of that species. Changing environmental conditions
cause a plant or marine microbe to express different chemical compounds. In
order to fully access the chemical potential of a sourced species, living
tissue or cells from the sample must be exposed to a wide array of
environmental and other conditions. The Company believes this is best
accomplished under the controlled laboratory conditions of cell culture by
applying certain technologies collectively termed "combinatorial biology".
In addition, pharmaceutical screening of complex extract mixtures
traditionally derived from natural products requires difficult chemical
isolation and identification steps after screening. The presence of nuisance
and dilutive chemical compounds in such mixtures creates problems for the
screening process and can also hinder the isolation and identification process.
Finally, active compounds discovered by screening of natural product extracts
are often not suitable drug candidates themselves. Rather, they are of value as
lead structures which can then be chemically modified to improve potency,
selectivity or physical and chemical characteristics. Such optimization of
natural product-derived lead structures has relied on traditional and
relatively slow medicinal chemistry approaches as many of the methods used in
conventional combinatorial chemistry are not easily applicable to such
situations.
Combinatorial Biology
Historically, the term combinatorial biology has referred to the manipulation
of cells using recombinant DNA techniques, which involve the insertion of
genetic material from one type of organism into the genome of a second
organism. Such gene manipulation can enable the latter organism to produce
different chemistry than was possible in its original state. A more expansive
definition of combinatorial biology also encompasses the manipulation of the
genetic and enzymatic machinery of an organism. Such manipulation may include
chemical and environmental stresses, infection-related or hormonal
perturbations, the introduction of substances that chemically change the
organism's DNA, and various combinations of the foregoing. Applied in this way,
combinatorial biology allows cells to produce an extremely wide variety of
chemical compounds, many of which may not be produced by the organism in its
natural state. As such, combinatorial biology is an attractive method for
gaining access to a far greater portion of a species' chemical diversity than
is currently possible using traditional approaches.
25
<PAGE>
Phytera's Combinatorial Drug Discovery Program
The worldwide pharmaceutical industry depends upon the continuing discovery
of new lead structures and candidate drugs to maintain its drug development
pipeline. This requires, among other things:
. multiple sources of novel chemicals;
. innovative means of screening those chemicals for pharmaceutical
activity; and
. efficient methods of optimizing the chemical structures of
pharmaceutically active compounds (lead structures) for preclinical and
clinical development.
Phytera's Combinatorial Drug Discovery Program integrates these three
elements by combining combinatorial biology, pharmaceutical screening and
combinatorial chemistry to exploit the diversity of chemistry from plants and
marine microorganisms more effectively than traditional approaches. The Company
believes that this program addresses many of the significant problems and
limitations of traditional natural product drug discovery programs.
Phytera's Solutions to Natural Product Drug Discovery Problems
<TABLE>
<CAPTION>
Phytera Solution
Problem Approach Technology(1)
- -----------------------------------------------------------------------------------
<S> <C> <C>
Access to "novel" source Cell culture technology requires ExPAND
material only a seed or leaf/stem clipping,
permitting access to those plant
species that are available in
limited quantity
Isolation and cell culture (u)MARINE
technology permits access to marine
microorganisms not previously
isolated
Difficulty in Cell culture storage technology ExPAND and (u)MARINE
reaccessing source eliminates need to reaccess source
material material
Limited and fixed Combinatorial biology expands ExPAND and (u)MARINE
chemical diversity chemical diversity in cell culture
Chemistry not easily Cell culture results in reproducible ExPAND and (u)MARINE
reproducible or scalable and scalable chemistry
Difficulties associated Extraction technology creates ENRICH
with screening of refined cell culture extracts for
complex extract mixtures screening
Individual chemical compounds are PINACLE
isolated prior to screening
Limited optimization of Proprietary combinatorial chemistry MANIFOLD
natural product lead techniques are used to optimize
structures natural product lead structures
</TABLE>
(1)Phytera's technological acronyms are:
ExPAND Expanded Phytochemistry Aimed at Novel Discovery
(u)MARINE Broad access to the chemical diversity of MARINE micro(u)organisms
ENRICH ENRICHed chemical extraction of natural species
PINACLE Pre-isolated Individual NAtural Chemical Library Elements
MANIFOLD Multiple Analoging of Natural Isolates For Optimal Lead
Development
26
<PAGE>
The following diagram illustrates the various elements of Phytera's
Combinatorial Drug Discovery Program:
PHYTERA'S COMBINATORIAL DRUG DISCOVERY PROGRAM
----------------------------------------------
WORLDWIDE SOURCING OF DIVERSE
PLANT AND MARINE SPECIMENS
. Botanical gardens . Commercial seed suppliers
. Biodiversity-rich countries . Marine sourcing expeditions
----------------------------------------------
|
\|/
----------------------------------------------
GENERATE CHEMICAL DIVERSITY LIBRARIES
. Establish and manipulate cell cultures using combinatorial biology
. EXPAND (plant) and (mu)MARINE (marine microorganisms)
. Produce extracts using ENRICH
. Isolate individual chemical compounds using PINACLE
----------------------------------------------
|
\|/
----------------------------------------------
PHARMACEUTICAL SCREENING
. Phytera's resistant infectious diseases screening program
- bacterial, fungal, viral and MDR-based screens
. Partnership programs
- screens for cancer, inflammation, allergy, asthma, stroke,
myocardial infarction, diabetes, memory and attention deficit
disorders and depression
----------------------------------------------
|
\|/
----------------------------------------------
CANDIDATE DRUG IDENTIFICATION
. Isolate and identify lead structures
. Optimize lead structures using combinatorial chemistry (MANIFOLD)
----------------------------------------------
|
\|/
----------------------------------------------
PHARMACEUTICAL DEVELOPMENT
. Preclinical and future clinical development of candidate drugs
----------------------------------------------
27
<PAGE>
Sourcing of Plants and Marine Microorganisms
Phytera has established worldwide sourcing programs for plant and marine
specimens. The Company believes that its sourcing arrangements, combined with
its proprietary technology for establishing plant and marine microbial cell
cultures, represent an important strategic asset and a substantial barrier to
entry for potential competitors. Further, the Company believes that its
reputation and proprietary technologies provide it with important advantages in
forming additional sourcing collaborations. See "--Biodiversity Sourcing
Agreements."
Combinatorial Biology Program
Phytera uses combinatorial biology to generate unique access to the chemistry
inherent in plant and marine samples obtained under its extensive sourcing
arrangements. The Company's combinatorial biology program involves the
manipulation of the genetic and enzymatic machinery of an organism by exposing
it to chemical and environmental stresses, infection-related or hormonal
perturbations or the introduction of substances that chemically change the
organism's DNA and, various combinations of the foregoing. This program is
comprised of two novel and proprietary cell culture-based technologies, ExPAND
(for plants) and (u)MARINE (for marine microorganisms).
The Company's culture libraries currently contain over 3,000 plant species
and over 8,000 marine microbial isolates and, to the Company's knowledge, are
unequaled in the number and diversity of species.
EXPAND and (u)MARINE technologies enable:
. Initial establishment of cell cultures from sourced species. This
overcomes difficulties in culturing plant cells and creating novel marine
microbial cell cultures.
. Combinatorial manipulation of genes, enzymes and metabolic pathways. This
broadens access to the chemical diversity and novelty in each species
beyond what is expressed in the native sample.
. Maintenance and long-term storage of cell cultures. This facilitates
reaccess to the plant cell or marine microorganism.
. Reproducible and scalable reaccess to interesting chemical
compounds. This enables access to pharmaceutically active chemical
compounds at all stages of the discovery and early development process.
ExPAND Technology
Phytera's ExPAND technology program establishes plant cell cultures from
sourced plant species. This is a multi-stage process that establishes a cell
culture made up of finely dispersed plant cells in liquid medium. Successful
production of cell cultures from plants requires optimal culture conditions for
each species.
Once established in cell culture, plant cells are subjected to multiple,
proprietary manipulations in the form of genetic, hormonal, infection-related,
environmental or chemical treatments, applied singly and in combination. The
combinatorial matrix of manipulations substantially increases the variety and
novelty of chemical compounds in the cell culture by modulating the expression
of genes, enzymes and metabolic pathways. Interactions of the products of
manipulated genes and pathways also generate chemical compounds not otherwise
produced by the plant species. The Company routinely applies various
combinations from a panel of as many as 15 manipulations to each plant cell
culture and has created libraries of very large numbers of reproducible cell
culture extracts.
Sunillin, the structurally novel prototype for a series of antifungal
compounds, is a product identified by the Company's ExPAND technology. Sunillin
is only produced by certain combinatorial manipulations of a plant cell
culture. Sunillin was not detected in numerous samples of the native plant
species used to generate the cell cultures. See figure below. See "--Products
Under Development--Sunillin Antifungal Series."
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<PAGE>
Sunillin Is Produced by Combinatorial Manipulations
[CHART DEPICTING SUNILLIN PRODUCTION APPEARS HERE]
*As a % of maximum level produced by combinatorial manipulations
In addition to enabling broader access to novel chemical diversity, Phytera's
ExPAND technology addresses other significant problems associated with
traditional natural product drug discovery, including access and reaccess to
species source material and reproducibility and scalability of species
chemistry.
Small quantities of plant material, such as a seed or leaf or stem clipping,
are required to establish a cell culture. This enables access to plant species
available from botanical gardens and commercial seed vendors. It also provides
access to species in limited supply due to conservation concerns, sourcing
logistics or other issues. The Company believes that these advantages will
facilitate access to the majority of the world's plant species.
Reaccess to source material can be a major problem with traditional
approaches and often requires new sourcing expeditions to harvest larger
quantities of the original plant material. This can present significant
logistical hurdles, require a great deal of time and often results in a failure
to reaccess the source or its pharmaceutically important chemistry. By
contrast, Phytera's ability to preserve and store its plant cell cultures,
primarily by cryopreservation or freezing, obviates the need for reaccess to
the source. Further, the ExPAND process is reproducible and scalable, providing
the increased quantities of chemical compounds required for further
pharmaceutical evaluation and preclinical development.
Phytera has developed its expertise and know-how in the area of plant cell
culture over more than 15 years and has successfully cultured thousands of
diverse plant species. The Company believes that this expertise and the
resultant cell culture libraries represent significant barriers to entry for
competitors. The Company is seeking to broaden its chemical diversity libraries
through the sourcing of additional species and development of additional
manipulation techniques.
(u)MARINE Technology
Marine microorganisms represent a promising and largely unexplored source of
lead structures and candidate drugs. The isolation and culture of marine
microorganisms has historically been limited by an incomplete understanding of
the environmental niches they occupy in the oceans. Traditional marine
microorganism isolation media are only minor modifications of those used for
terrestrial microorganisms and fail to reproduce the natural marine
environment. As a result, such media typically enable the isolation of only a
small percentage of the microorganisms present in a given marine sample.
Phytera's (u)MARINE technology significantly increases isolation success rates
by utilizing microbial isolation conditions which more closely replicate the
growth conditions of marine microbes in their natural environment. Phytera
believes that its (u)MARINE technology may provide access to many species of
marine microorganisms that have never before been isolated.
The (u)MARINE program is driven by broad sourcing of microbe-containing marine
specimens such as sediment, plant and animal macroorganisms and seawater.
Phytera's (u)MARINE culture library emphasizes the
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<PAGE>
most chemically prolific classes of marine microbes, fungi and actinomycetes,
rather than more commonly sampled and less chemically diverse organisms such as
eubacteria. Each microbial cell culture is fermented under a variety of
proprietary, marine nutrient-based conditions to induce multiple genetic and
enzymatic changes which modify its chemistry. As in the case of plant cell
cultures, combinatorial manipulations of marine microbial cell culture
conditions result in diverse chemical expression states, providing access to
novel chemical compounds. Marine microorganism cell cultures can be
successfully stored by cryopreservation (freezing) and reaccessed for future
use. The Company's antiviral candidate, marinovir, is a marine microbial
product that is not produced by the originating cell culture under non-(u)MARINE
conditions. See "--Products Under Development--Marinovir--Preclinical Candidate
for Herpes Infections."
Generation of Chemical Diversity Libraries
ENRICH Extraction Technology
One limiting factor in natural product-based drug discovery has been the use
of overly crude extracts which have not been processed to remove nuisance and
dilutive compounds prior to screening. To overcome this limitation, Phytera has
developed its ENRICH technology which refines extracts to generate high-quality
pharmaceutical screening samples. Studies have confirmed that ENRICH extraction
selectively increases the abundance of potentially important chemicals in
pharmaceutical screening samples and removes a substantial number of nuisance
and dilutive compounds.
To date, Phytera has generated over 60,000 ENRICH cell culture extracts,
22,000 from its ExPAND program and 38,000 from its (u)MARINE program, and
expects to increase its extract libraries further in the future. Numerous
samples of these extracts are stored in a format that is compatible with the
high-throughput screening methods used by Phytera and other pharmaceutical and
biotechnology companies. Each stored sample is capable of supporting hundreds
of pharmaceutical screenings, enabling long term access to the Company's novel
chemical diversity libraries. In the event that these extract libraries become
depleted, Phytera can replenish each sample by regrowth, re-manipulation and re-
extraction of the respective plant or marine microbial culture from its storage
bank.
PINACLE Technology
While Phytera believes that its novel extract-based technologies overcome
many of the key limitations to successful natural product-based drug discovery,
the approach involves screening mixtures of natural chemical compounds.
Phytera's PINACLE technology is designed to solve many of the problems
associated with the screening of complex mixtures. The objective of Phytera's
PINACLE technology is to combine the high degree of chemical diversity
available from its combinatorial biology technology with the benefits of a one-
chemical-compound-per-screening-sample format. The Company has established a
pilot library of PINACLE compounds, and is further developing this program in
order to produce a larger-scale library to be made available to commercial
partners in 2000.
The PINACLE process begins by subjecting plant cell and marine microbial
cultures to up to 15 manipulations using ExPAND and (u)MARINE technologies. The
precise series of subsequent steps is the subject of an ongoing technology
development effort. In the initial phase of PINACLE operation, manipulated
cultures grown at intermediate scale are being subjected to a series of
proprietary extraction and separation methods to isolate individual chemical
compounds. Isolated compounds then undergo multiparameter analysis using
techniques such as liquid chromatography, ultraviolet absorption, mass
spectrometry and nuclear magnetic resonance spectroscopy. These compounds are
then catalogued in a proprietary database and placed in 96-well microtiter
plates for later screening in a one-chemical-compound-per-screening-sample
format. As the PINACLE compound library grows, it will be increasingly
desirable to ensure that each culture subjected to this process has a high
probability of contributing new chemicals to the library which have not been
seen in previous cultures. Thus, a second phase of PINACLE technology
development is underway which will miniaturize and automate some parts of the
process. The goal will be to subject each plant species to up to
30 manipulations, to further diversify chemical expression. These manipulations
will be performed on smaller scale cultures, which will be rapidly extracted
and subjected to a protocol of multiparameter analysis to generate a unique
chemical profile for each extract. These profiles will be continuously compared
to identify those cell culture extracts containing the largest amounts of the
most novel and diverse chemistry. Only these selected cultures will then be
regrown on a larger scale and subjected to the separation, isolation and
analytical steps currently in use generating, if successful, large numbers of
additional compounds for entry into the PINACLE library database and
distribution into 96-well microtiter plates.
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<PAGE>
Pharmaceutical Screening
For a novel chemical compound to be identified as a lead structure or
candidate drug, it must first exhibit activity in a pharmaceutical screen that
acts as a surrogate for the human disease state. In order to leverage its novel
chemical diversity libraries, the Company has built an extensive pharmaceutical
screen portfolio that combines an internal program of screens for resistant
infectious diseases with partnership screens that span a wide variety of
disease areas. Phytera's screen portfolio is evolving over time as new
pharmaceutical screens are incorporated to replace certain existing screens and
to expand the portfolio to address new therapeutic targets.
Phytera's Resistant Infectious Diseases Screening Program
Escalating drug resistance is now considered by many the single most
important issue in the management of human infectious diseases. The Company
believes that the area of resistant infectious diseases is particularly suited
to screening Phytera's plant and marine microbial combinatorial biology-derived
libraries. Both plants and microbes are attacked by bacterial, fungal and viral
pathogens that have much in common with human pathogens. Plants and microbes
have, therefore, evolved chemical defense mechanisms that combat pathogen
invasion and reproduction. Further, they have developed approaches that deal
with the problem of resistance development in the invading pathogen. Phytera's
plant- and marine microbe-derived chemical diversity libraries thus offer a
potentially rich source of novel antimicrobial agents that may not be
susceptible to the current resistance problems encountered in the human
therapeutic area.
Phytera believes that this area represents a particularly attractive focus
for its internal drug discovery program due to:
. Critical and growing medical need not addressed by existing therapies:
particularly important in this regard is the continued emergence of new
drug resistant pathogens;
. Large commercial markets for effective new agents;
. Reduced development risk since activity of a candidate drug in a
laboratory model of infectious disease is often highly predicative of
clinical efficacy in man; and
. Relatively rapid and cost-effective clinical studies since many human
infectious diseases involve acute, short treatment periods with easily
measured symptoms and outcomes.
Phytera's resistant infectious diseases screening program consists of over 20
molecular targets and whole cell screens which act as surrogates for human
diseases. Molecular target-based screens enable the testing of samples against
the increasing number and variety of important enzymes, receptors or ion
channels being identified via genomic studies as relevant to key diseases. By
contrast, whole cell screens offer the opportunity to discover drugs which act
by entirely new mechanisms, independent of existing knowledge of molecular
targets. This is particularly important in view of the novel chemistry that is
contained in Phytera's chemical diversity libraries because it increases the
odds of discovering agents which act by novel mechanisms. Finally, information
generated from screening efforts is tracked, analyzed and integrated with
upstream sourcing and culturing activities and downstream natural product
chemistry through a computerized database and bioinformatics system.
MDR Knockout-Based Screens
Among the most innovative of Phytera's screens are those based on its
proprietary MDR pump technology. One way pathogens effectively defend
themselves against antimicrobial drugs is through the operation of MDR pumps,
which remove the drug from the cell. These pumps, discovered in the 1980s, are
responsible for a significant percentage of drug resistance in both bacteria
and fungi. For example specific MDR pumps have been identified that expel the
leading antifungal drug, fluconazole (active ingredient in Diflucan(R)), from
the fungal cell.
The Company believes that the presence of MDR pumps in strains of pathogens
used as screening tools over the last several decades may have resulted in a
failure to detect whole classes of potential antimicrobial chemical compounds.
Phytera has established an MDR pump-based genomics program which combines its
internal resources with those of a number of leading academic centers in the US
and Europe. In this program, the Company uses genetic engineering techniques to
generate a proprietary library of fungal and bacterial mutants that have one or
more of their MDR pumps selectively inactivated (or "knocked out"). Knowledge
of the MDR pump gene sequence(s) for certain microbial pathogens enables
identification of related sequences in a broader range of pathogens and
facilitates the construction of further MDR knockout strains. This approach has
generated numerous MDR knockout strains of microbial pathogens or related
organisms, each of which displays hypersensitivity to a wide range of
antimicrobial agents.
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<PAGE>
Based on these MDR knockouts, Phytera has developed high-sensitivity, high-
throughput pharmaceutical screens. Within its internal drug discovery program,
the Company is using bacterial MDR knockouts; in one revenue generating
partnership, the Company is using fungal MDR knockouts. The Company's library
of MDR knockouts includes, among others, several major bacterial pathogens such
as Staphylococcus aureus and Escherichia coli (E. coli) and important fungal
pathogens such as Candida albicans.
Phytera's efforts to date clearly demonstrate that MDR knockout strains are
capable of detecting the antimicrobial activity of chemical compounds that is
undetected in screens using the corresponding wild-type strain of the pathogen
with normal MDR pump(s). Traditional antimicrobial screens used by the
pharmaceutical industry employ these wild-type strains. Thus, MDR knockout
pathogen strains offer the opportunity to discover chemically and
mechanistically novel classes of antibacterials and antifungals.
A candidate drug identified by this approach can be used to treat pathogens
with active MDR pumps in three ways:
. the concentration of the drug could be increased to overcome the effect of
the active MDR pump in the pathogen. Marketed drugs that achieve this
effect include antibacterials, such as erythromycin, and antifungals, such
as Diflucan(R) (fluconazole);
. the original lead structure identified by the screen could be synthetically
modified to reduce the impact of the action of the MDR pump in the
pathogen; and
. the drug could be combined with a compound that inhibits the action of the
MDR pump in the pathogen.
MDR Knockout-Based Screens Can Detect Novel Antimicrobial Drugs
[Graphic representation of a "Wild-type Microbe" that has functioning MDR pumps
with the following adjacent text:
. Drug largely removed from microbe by MDR pump
. Microbial screen does not detect the activity of novel antimicrobial drugs
Graphic representation of an "MDR Knockout Microbe" in which there are no
functioning MDR pumps with the following adjacent text:
. Drug not removed from microbe
. Microbial screen detects the activity of novel antimicrobial drugs]
Partnership Screens
Phytera is leveraging its chemical diversity libraries through a number of
corporate partnerships that expose this chemistry to a wide array of innovative
screening targets across numerous important therapeutic areas. Phytera's
partnership screens currently span 12 therapeutic areas. See "--Corporate
Partnerships."
Combinatorial Chemistry Program
Lead structures identified by pharmaceutical screening rarely possess all the
properties required to be selected as a candidate drug. Usually, a lead
structure needs to be optimized to improve efficacy, safety, drug delivery
characteristics, pharmacokinetics or manufacturing procedures, prior to its
advancement as a candidate drug.
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Recently, combinatorial chemistry has emerged as an important and powerful
ancillary technology in the optimization of lead structures into candidate
drugs. Combinatorial chemistry is a chemical synthesis technology that, in many
ways, is analogous to the methods that living cells use to produce chemical
diversity. The basic concept involves the chemical reaction of a family of
closely related chemical structures (for example, family A/1/, A/2/ and A/3/)
with a different family of closely related structures (for example, family
B/1/, B/2/, and B/3/) to produce a number of combinatorial chemical analogs
(A/1/B/1/, A/1/B/2/, A/1/B/3/, A/2/B/1/, . . ., A/3/B/3/). If each chemical
family is large, then the resultant chemical library will be exponentially
larger. Two families of 100 chemicals will yield 10,000 new chemical compounds
when optimally combinatorialized. Thus, once a lead structure is identified,
combinatorial chemistry can be applied to produce large numbers of structural
analogs, which can be examined for the improved properties required in a
candidate drug. Together with medicinal synthetic chemistry and computer
assisted design, combinatorial chemistry now plays an important role in the
process of optimization of a lead structure.
The Company's combinatorial chemistry program, MANIFOLD, integrates solid
phase combinatorial chemistry techniques with other proprietary methods for
analoging natural product structures. These technologies greatly facilitate the
optimization of lead structures derived from the Company's combinatorial
biology-based screening program. Certain of these natural product lead
structures may not be easily approachable by conventional combinatorial
chemistry. The Company further applies its proprietary MANIFOLD technologies in
the generation of combinatorial libraries based on novel natural product
structures isolated within the PINACLE program and other interesting lead
structures identified from the literature or by Phytera's academic
collaborators.
Among the structures to which Phytera has applied MANIFOLD are Actinomycin D,
balanol and a number of others that have been identified through the Company's
combinatorial biology program. Actinomycin D is a potent but non-selective
natural inhibitor of DNA repair that is currently used for cancer therapy,
analogs of which could have wider indications in cancer and infectious
diseases. Balanol is a potent but non-selective inhibitor of the enzyme protein
kinase C, isoforms of which have been implicated in a wide variety of diseases.
Among structures identified within the Company's combinatorial biology program
are PHY400 and PHY1100, both discovered from screening of Phytera's ExPAND
plant cell culture-derived chemical library. PHY400 is the prototype of a novel
series of antibacterial compounds which inhibit a specific molecular target
found in important pathogenic bacteria such as Staphylococcus spp. Inhibition
of the molecular target is correlated with in vitro activity against bacterial
pathogens. The objective of the associated MANIFOLD combinatorial chemistry
effort is to identify an analog of PHY400 which displays potent antibacterial
activity in vivo. Enhancement of in vivo activity is also the goal of a
MANIFOLD analog program around PHY1100, a potent, structurally novel inhibitor
of human angiogenesis in in vitro models, which was identified in partnership
with Tsumura & Co. Other lead structures identified in internal screening
programs or from external publications will enter the MANIFOLD analog program
in 1999.
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Corporate Partnerships
Phytera is actively seeking to develop revenue-generating and retained
product rights partnerships with pharmaceutical and biotechnology companies.
The table below summarizes the focus of each of Phytera's current corporate
partnerships:
Phytera's Corporate Partnerships(/1/)
<TABLE>
<CAPTION>
Type of Partnership(/2/)
Corporate Partner Partnership Focus Revenue-Generating Retained Product Rights
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Eli Lilly and Company Fungal diseases X
Chiron Corporation Cancer and other areas X
Tsumura & Co. Inflammation and allergy X X
NeuroSearch A/S Asthma, depression, diabetes, X
memory and attention deficit
disorders
Galileo Laboratories, Stroke and myocardial X
Inc. infarction
Nycomed Amersham plc. Plant-derived enzymes for X X
research laboratory use or
clinical diagnostics
</TABLE>
(1) For payments received by the Company pursuant to corporate partnerships
through September 30, 1998, see note 9 of notes to Consolidated Financial
Statements.
(2) Revenue-generating partnerships are intended to provide the Company with a
source of near-term and potential longer-term revenues through up-front
payments, license fees, research funding, milestone payments and royalties.
Retained product rights partnerships provide the Company marketing rights
to products developed through joint research with partners.
Eli Lilly and Company
In July 1998, Phytera entered into a revenue-generating partnership with Eli
Lilly and Company ("Lilly"), a US pharmaceutical company, to discover novel
agents for the diagnosis, treatment and prevention of infectious fungal
diseases in humans and animals. The partnership involves several of the
Company's proprietary technologies, including chemical diversity libraries, MDR
knockout-based antifungal screens and the isolation and identification of
active chemical compounds. Lilly will also provide chemical compounds for
screening and will be responsible for lead structure optimization and candidate
drug development and commercialization. The initial term of the agreement is
two years, and Lilly has the right to extend the program for three additional
years, in one year increments. Lilly is obligated to make certain payments to
the Company to support ongoing research and to make milestone payments at
certain points in the development process. The value of milestone payments
which may be received by the Company in the future, if any, depends upon the
success of the partnership in discovering novel agents, the number of such
agents Lilly chooses to develop, and the level of success of the development
effort. Therefore, the value of future milestone payments, if any, cannot be
accurately estimated, and the Company may not receive any such payments.
Royalty payments are due on the sales of any products derived from this
partnership. Lilly has made an initial equity investment of $500,000 in
connection with this agreement and will make a further equity payment if a
specific research milestone is triggered. See note 9(c) of notes to
Consolidated Financial Statements.
Chiron Corporation
In May 1998, the Company entered into a revenue-generating partnership with
Chiron Corporation ("Chiron"), a US biotechnology company, to discover novel
agents for the treatment of various forms of cancer and other diseases. Phytera
has provided chemical diversity libraries to Chiron for screening in certain of
Chiron's proprietary high throughput screening systems and will carry out the
isolation and identification of active chemical compounds. Under the terms of
this agreement, Phytera has received an up-front payment, will receive funding
for research activities, and may receive option and license fees based on
Chiron's selection of certain chemical compounds for further development.
Phytera is also entitled to future milestone payments at certain specified
points in the development process. The value of option fees, license fees, and
milestone
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<PAGE>
payments which may be received by the Company in the future, if any, depends
upon the success of the partnership in discovering novel agents, the number of
such agents Chiron chooses to develop, and the level of success of the
development effort. Therefore, the value of future option fees, license fees
and milestone payments, if any, cannot be accurately estimated, and the Company
may not receive any such payments. Royalty payments are due on sales of
marketed products derived from the partnership. The Chiron partnership
terminates upon the completion of screening and the isolation and
identification of any active chemical compounds. The agreement with Chiron
contemplates an initial collaboration term of up to 15 months, during which
time Chiron will screen Phytera's chemical diversity libraries. After the 15
month collaboration, Chiron may, at its option, enter into an exclusive license
to commercialize one or more lead structures upon payment of an additional fee
to Phytera, or terminate this agreement upon 30 days' notice.
Tsumura & Co.
In June 1996, the Company entered into a revenue-bearing and retained product
rights partnership with Tsumura & Co. ("Tsumura"), a Japanese pharmaceutical
company, to discover novel agents for the treatment of inflammation and
allergies. Under the terms of the agreement, Phytera provides access to its
chemical diversity libraries for screening against selected allergy and
inflammation targets. Phytera and Tsumura share responsibilities for the
discovery and development of chemical compounds from this partnership. Tsumura
is responsible for primary screening and lead structure optimization, while
Phytera is responsible for the isolation and identification of active chemical
compounds. Phytera and Tsumura will jointly own any patents resulting from the
partnership. Phytera has retained North American development and marketing
rights to any discoveries emanating from the partnership and Tsumura has been
granted development and marketing rights outside North America. The parties
have agreed to work together to facilitate the optimal development of candidate
drugs in their respective territories. The agreement was originally entered
into for a three-year period and has been extended for an additional year, now
remaining in effect until June 2000. Under the agreement, Tsumura makes annual
extract library access payments and provides other research funding to Phytera
and will make milestone payments at certain specified points in the drug
development process. The value of milestone payments which may be received by
the Company in the future, if any, depends upon the successful entry of lead
structures into clinical development and the level of success of the
development effort. Therefore, the value of future milestone payments, if any,
cannot be accurately estimated, and the Company may not receive any such
payments. Royalty payments are due on marketed products derived from the
partnership.
NeuroSearch A/S
In May 1998, the Company entered into a retained product rights partnership
with NeuroSearch A/S ("NeuroSearch"), a Danish neuropharmaceutical company, to
discover novel agents that interact with potassium ion channels. These agents
may prove useful in the treatment or prevention of a wide array of diseases,
such as memory and attention deficit disorders, depression, asthma, and
diabetes. The Company is providing extracts from its chemical diversity
libraries for screening in NeuroSearch's proprietary potassium ion channel
assay systems. Phytera will also conduct the isolation and identification of
active chemical compounds. The parties share equally both the rights to and the
costs of the discovery and development of chemical compounds identified from
this partnership and will collaborate on lead structure optimization
activities. The parties will negotiate in good faith with respect to a
development strategy once lead structures have been identified. In the event
the parties are not able to reach agreement with respect to a development
strategy, Phytera will retain exclusive commercial rights in North America,
NeuroSearch will retain exclusive commercial rights in Europe, and the parties
will share commercial rights in the rest of the world equally. The agreement
remains in effect for a three year term, subject to extension by mutual
agreement.
Galileo Laboratories, Inc.
In April 1998, Phytera entered into a retained product rights partnership
with Galileo Laboratories, Inc. ("Galileo"), a US biotechnology company. Under
the terms of this agreement, Phytera will provide chemical diversity libraries
to Galileo for screening in Galileo's proprietary assay systems for the purpose
of discovering chemical compounds that are useful for the prevention or
treatment of diseases such as stroke and myocardial infarction. The parties
share equally both the rights to and the costs of the discovery and development
of chemical compounds identified from this partnership. Phytera is responsible
for providing cell culture extracts for screening and for the isolation and
identification of active chemical compounds. Galileo is responsible for
conducting the primary and secondary pharmaceutical screening of the extracts.
The parties have agreed to collaborate on lead structure optimization
activities and will negotiate in good faith with respect to a development
strategy once lead structures have been identified. In the event the parties
are not able to reach
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<PAGE>
agreement with respect to a development strategy, either or both Phytera or
Galileo may independently develop such lead compounds at their own expense. In
the event both partners choose to undertake development, Phytera will retain
exclusive commercial rights in Europe, Galileo will retain exclusive commercial
rights in North America, and the parties will share commercial rights in the
rest of the world equally. In the event only one party chooses to develop the
compound, such party shall be obligated to pay royalties to the other party.
The agreement terminates upon the execution of a final agreement regarding the
development of one or more candidate drugs identified pursuant to this
partnership.
Nycomed Amersham plc
In July 1993, the Company established a revenue-bearing and retained product
rights partnership with Nycomed Amersham plc ("Amersham"), a UK company. Under
this partnership, Phytera and Amersham pursued a research and development
program in the area of plant cell culture-derived enzymes for application
within Amersham's Life Science Group. Amersham provided research support to
Phytera and agreed to make royalty payments based on Amersham's net sales of
products derived from the partnership. The parties will equally share any
royalties derived from licensing any inventions made by the partnership for
clinical diagnostic applications. In addition, Phytera retained rights to any
inventions made by the partnership for applications other than laboratory
testing, forensics testing and clinical diagnostics.
Phytera successfully completed this research program in 1995 with the
identification and bulk supply to Amersham of several novel enzymes meeting the
project specification. The agreement was amended in
October 1998 to provide that Phytera would assume responsibility for pursuing
out-licenses to the intellectual property that was developed under the research
program in the clinical diagnostics area.
Products Under Development
Marinovir--Preclinical Candidate for Herpes Infections
Marinovir (formerly known as cyclomarin-A) is a novel chemical compound
isolated from a marine microbial cell culture utilizing Phytera's (u)MARINE
technology. Marinovir's dual antiviral/anti-inflammatory activity addresses two
important components of herpes pathology. As such, it has the potential of
providing a superior overall therapeutic effect in herpes virus infections. The
Company is currently carrying out preclinical studies with the objective of
commencing clinical studies in 1999. See "Risk Factors--We May Be Unable to
Discover Drugs or Develop Products."
Preclinical tests have indicated that marinovir inhibits proliferation of
HSV-1 and HSV-2 in vitro with potencies similar to that of acyclovir, the
leading marketed product for the treatment of herpes infections. Marinovir
displays in vivo topical activity in two animal models of human herpes
infection and has also demonstrated anti-inflammatory action in the same animal
species. In a mouse model of vaginal herpes infection, topical application of
marinovir had a significant impact across all endpoints under study, including
herpes-related mortality, vaginal herpes levels, inflammatory indices and
neural deficits resulting in excessive urination. Phytera believes marinovir
may work through a novel mechanism of action because it is structurally
distinct from all other antiviral and anti-inflammatory agents known to the
Company and is effective against acyclovir-resistant strains of HSV-2.
Marinovir was initially identified by academic collaborators as a novel anti-
inflammatory chemical compound using technology ultimately incorporated into
Phytera's (u)MARINE program. Subsequently, Phytera demonstrated that marinovir
had activity against the herpes virus. Phytera holds a use patent on the
application of marinovir as a treatment of viral infections and has exclusive
rights to license composition of matter and anti-inflammatory use patents on
marinovir from the originating academic institution. See "--Patents and
Proprietary Rights."
Sunillin Antifungal Series
Sunillin, the lead structure for a series of over 8,000 analogs generated by
Phytera's MANIFOLD technology, was isolated from manipulated plant cell
cultures using the Company's ExPAND technology. Sunillin and its analogs are
structurally distinct from all other antifungal agents known to the Company.
Phytera's extensive preclinical development work with sunillin demonstrated
that it is not suitable for commercial development, as is the case with most
lead structures. The Company believes that within the large number of analogs
synthesized on the basis of the sunillin chemical structure, compounds may be
identified
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<PAGE>
that retain antifungal activity and possess more acceptable properties
commensurate with commercial development. Phytera is currently in the process
of selecting a candidate drug for preclinical development from this series.
The sunillin series has demonstrated a broader in vitro spectrum of
antifungal activity than fluconazole, the active ingredient in the leading
systemic antifungal drug, Diflucan(R). Sunillin and certain of its analogs
suppress growth of strains of fungal pathogens resistant to fluconazole and
have demonstrated the ability to protect mice in vivo from a lethal challenge
with Candida albicans or Aspergillus fumigatus, two human fungal pathogens.
Such compounds have also demonstrated the ability to inhibit an identified
molecular target within the fungal cell which appears to play a role in fungal
pathology. Other known antifungal drugs do not inhibit this target, indicating
that members of the sunillin series produce at least some of their antifungal
effects through a distinct mechanism of action. The fact that members of the
series have produced synergistic antifungal effects in conjunction with known
antifungal drugs has reinforced the concept of a distinct mechanism of action
for sunillin and its analogs.
Biodiversity Sourcing Agreements
The Company's proprietary plant and marine microorganism cell culture
technologies enable broad sourcing of biological material. Phytera believes
these technologies represent an important strategic asset and competitive
advantage. In the case of plants, the small amount of material required to
initiate the cell cultures (for example, a seed, leaf or stem clipping) enables
access to species that would not be available by traditional sourcing methods.
The Company's marine microorganism culture technology allows access to species
that, to the best of the Company's knowledge, have never previously been grown
successfully under laboratory conditions. Further, application of the Company's
proprietary combinatorial biology technology generates expression of a greater
range of chemical compounds than is found using traditional natural product
approaches. In addition, the ability to store plant and marine microorganism
cultures provides reproducible and scalable access to such compounds.
The combination of these advantages provides a strategic asset that
facilitates the negotiation of sourcing agreements and has led to a number of
these agreements with botanical gardens and certain countries or their
appointed designees. This combination also serves as a barrier to entry by
competitors because it relies substantially on proprietary technologies which
Phytera believes cannot easily be replicated by others.
Phytera's policy is to conduct all of its sourcing activities in compliance
with the requirements of the 1992 Convention on Biological Diversity. The most
important precept of this Convention is that each country has a sovereign right
over the genetic resources that are within its borders and therefore has the
right to control access to these resources. Parties wishing to access these
resources must do so only by agreement with the respective country, its
government or its appointed representative. A further concept embodied in the
Convention is that access should be linked with a sharing of benefits derived
from such access with the country of origin. While various forms of payment for
access to genetic resources are desirable, benefits sharing may also include
elements such as associated conservation efforts, education, technology
transfer, product rights and/or milestone and royalty payments on products
discovered and developed from these resources.
INBio Agreement
In July 1998, Phytera entered into a two-year collaborative research
agreement with Instituto Nacional de Biodiversidad ("INBio") in Costa Rica.
INBio is a private, non-profit organization empowered by the government of
Costa Rica to develop and implement viable approaches to manage the country's
biodiversity resources. Under this joint research effort, access to a portion
of indigenous plant species that could not otherwise be investigated is made
possible through the unique combination of Phytera's ExPAND technology and
INBio's inventory and bioprospecting approach. Phytera will provide research
funding to INBio during the term of the agreement and INBio will be entitled to
royalties on the sales of products derived from the cultures provided to
Phytera. Ten percent of research funding and fifty percent of royalties
received by INBio shall be donated to the Ministry of Environment and Energy in
Costa Rica for biodiversity conservation.
Other Plant Sourcing
In addition to commercial seed sources, the Company has established plant
sourcing agreements with a number of botanical gardens that provide Phytera
with access to a quantity and diversity of plant species
37
<PAGE>
sufficient to support continued production of ExPAND extracts and PINACLE
libraries. Although specimens in the collections of such gardens that pre-date
the Convention are not governed by its terms, Phytera nonetheless structures
its agreements with the gardens to honor the tenets of the Convention whenever
possible. As part of those agreements, Phytera will make milestone and royalty
payments to the country of origin related to products developed from specimens
originally sourced by the botanical garden from such country, if it can be
identified. If a country of origin cannot be determined, Phytera will make such
payments to a non-profit trust established by the Company for the purpose of
promoting research and conservation of biodiversity resources.
Marine Sourcing
The Company also maintains an active program to acquire samples of marine
microorganisms from US territorial waters. Phytera acquires samples through a
variety of approaches, including charters, contract diving companies and
collaborations with academic groups conducting marine biology research
expeditions. The Company expects that marine sourcing expeditions outside of US
territorial waters may be conducted in the future.
Patents and Proprietary Rights
Phytera seeks to protect its core enabling technologies and drug discoveries
through patents or trade secrets, depending on the nature of the technology or
discovery, and in consultation with its external intellectual property
advisors. The Company holds three patents, an issued US patent on the use of
marinovir to treat viral infections and two issued US use patents on the
production of novel enzymes in plant cell culture. The Company is pursuing
counterpart patents in other jurisdictions. Novel chemical compounds isolated
from natural sources are potentially patentable as composition of matter
patents, even if a crude natural product (for example, an extract or blend of
extracts) containing the chemical compound claimed has previously been used or
marketed by others. In addition, the Company has eight patent applications
pending in the US or Denmark with counterpart filings in other countries. One
of these applications covers the identification and use of MDR knockouts. This
invention was a joint discovery by Phytera and an academic institution. Phytera
has licensed the academic institution's rights so that it now holds exclusive
rights to this invention. In connection with this license, Phytera is obligated
to pay a portion of research and development revenue deriving from the patented
technology to the academic institution. The Company is also obligated to pay
certain milestone and royalty payments to the institution as products are
identified, developed and commercialized.
Phytera has an option from an academic institution to an exclusive license
with respect to an issued US composition of matter patent on marinovir and an
issued US use patent on its anti-inflammatory use and all associated foreign
patent applications. The Company is currently negotiating the terms of its
exclusive license with the academic institution. Phytera believes that a
license will be obtained under terms that are consistent with pharmaceutical
industry standards, in part because the Company holds an issued patent on the
use of marinovir in the treatment of viral infections. However, there can be no
guarantee that the Company will obtain the license on commercially acceptable
terms or at all.
Patent law, as it relates to inventions in the pharmaceutical and
biotechnology fields, is still evolving and involves complex legal and factual
questions for which legal principles are not firmly established. Moreover,
because (i) patent applications in the United States are maintained in secrecy
until patents issue, (ii) patent applications in certain other countries
generally are not published until more than 18 months after they are filed,
(iii) publication of technological developments in the scientific or patent
literature often lags behind the date of such developments and (iv) searches of
prior art may not reveal all relevant prior inventions, the Company cannot be
certain that it was the first to invent the subject matter covered by its
patent applications or that it was the first to file patent applications for
such inventions. Accordingly, there can be no assurance that patents will be
granted with respect to any of the Company's pending patent applications or
with respect to any patent applications filed by the Company in the future.
There can be no assurance that patent applications filed by Phytera will
result in patents being issued, that the claims of such patents will offer
significant protection for the Company's technology, or that any patents issued
to or licensed by Phytera will not be challenged, narrowed, invalidated or
circumvented. The Company may also be subject to proceedings that result in the
revocation of patent rights previously owned by or licensed to Phytera, as a
result of which the Company may be required to obtain licenses from others to
continue to develop, test or commercialize its products. There can be no
assurance that Phytera will be able to obtain such licenses on acceptable terms
or at all. In addition, there may be pending or issued patents held by parties
not affiliated with Phytera that relate to the technology utilized by Phytera.
As a result, Phytera may
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<PAGE>
need to acquire licenses, to assert infringement of, or contest the validity
of, such patents or other similar patents which may be issued. Phytera could
incur substantial costs in defending itself against patent infringement claims,
interference proceedings, opposition proceedings or other challenges to its
patent rights made by third parties, or in bringing such proceedings or
enforcing any patent rights of its own.
The Company also relies upon trade secrets, know-how and continuing
technological advances to develop and maintain its competitive position. Such
information may become available to the Company's competitors. In an effort to
maintain the confidentiality and ownership of trade secrets and proprietary
information, the Company requires employees, consultants and certain
collaborators to execute confidentiality and invention assignment agreements
upon commencement of a relationship with the Company. These agreements are
intended to enable the Company to protect its proprietary information by
controlling the disclosure and use of technology to which it has rights and
provide for ownership by the Company of proprietary technology developed at the
Company or with the Company's resources. There can be no assurance, however,
that these agreements will provide meaningful protection for the Company's
trade secrets or other confidential information in the event of unauthorized
use or disclosure of such information or that adequate remedies would exist in
the event of such unauthorized use or disclosure. The loss or exposure of trade
secrets possessed by Phytera could adversely affect its business.
The Company relies upon common law trademark protection for its trademarks as
well as registration of trademarks with the US Patent and Trademark Office ("US
PTO") and the European Trademark Office. Trademark registrations have been
issued by the US PTO for the ExPAND and (u)MARINE marks. Applications have been
filed with the US PTO for the PINACLE and ENRICH marks and with the European
Trademark Office for the MANIFOLD mark, but registrations have not yet issued.
There can be no assurance that any registered or unregistered trademarks or
trade name of the Company may not infringe upon a third party's rights. The
requirement to change the trademark or trade name of the Company could entail
significant expenses and could have a material adverse effect on the Company's
business, financial condition and results of operations. See "Risk Factors--We
Depend on Patents and Proprietary Rights that May Fail to Protect Our
Business."
Regulation
Phytera's preclinical studies and future clinical trials, as well as the
manufacturing and marketing of its potential products, are subject to extensive
regulation by numerous governmental authorities, including the US Food and Drug
Administration ("FDA") and the European Medicines Evaluation Agency ("EMEA").
The Company will be subject to similar regulation by agencies in other
countries where the Company and its collaborators may test and market products.
These regulatory authorities require certain steps including preclinical
studies in animal models to assess a candidate drug's efficacy and to identify
potential health problems resulting from use of a drug. Preclinical safety
tests must be conducted by laboratories that comply with applicable regulations
regarding Good Laboratory Practices ("GLP"). The results of these studies are
submitted to the appropriate regulatory authorities as part of an
Investigational New Drug Application ("IND") which is filed to comply with FDA
and EMEA regulations, prior to beginning clinical testing.
Clinical trials are typically conducted in three sequential phases, which
sometimes overlap. In Phase I, clinical trials are conducted with a small
number of subjects to determine the early safety profile and the pattern of
drug distribution and metabolism. In Phase II, clinical trials are conducted
with groups of patients afflicted with a specified disease in order to
determine efficacy, optimal dosages and provide additional safety data. In
Phase III, large scale, multicenter comparative clinical trials are conducted
with patients afflicted with a target disease, in order to provide enough data
for the statistical proof of efficacy and safety required by the regulatory
authorities. The human trials must be adequate and well controlled to establish
the safety and efficacy of the drug for its intended use.
The results of the preclinical testing and clinical trials are then submitted
to the FDA for a pharmaceutical product in the form of an New Drug Application
("NDA"), for approval to commence commercial sales. In responding to an NDA,
the FDA may grant marketing approval, request additional information, or deny
the application if it determines that the application does not satisfy its
regulatory approval criteria. Preparing an NDA involves considerable data
collection, verification, analysis and expense.
At the European level, the EMEA assists in the operation of two new
procedures for obtaining marketing authorization in Europe--a centralized
community procedure and a decentralized country-based procedure--the
39
<PAGE>
latter being based on the principle of mutual recognition pursuant to which
approval by the relevant regulatory authority of one member state is
recognized by those of others. As such, the Company can choose to file for
full authorization of pharmaceutical products in the European community as a
whole, or authorization in single European countries can be sought by filing
authorization applications with the respective countries' regulatory
authorities.
If the centralized EU procedure is chosen, pharmaceutical legislation
requires that a Marketing Authorization Application ("MAA") for a drug
produced through the use of biotechnology be submitted for review by the EMEA.
Similar to the requirements of the FDA, the pharmaceutical legislation of the
European Union requires that the safety and efficacy of a drug be demonstrated
in clinical trials prior to approval of an MAA for that drug. If approved by
the EMEA, an MAA is recommended for acceptance by the European Union.
In addition to obtaining FDA and EMEA approval for each type of product,
each manufacturing establishment for new drugs must receive approval by the
FDA and EMEA, regardless of whether the centralized community procedure or the
decentralized procedure is utilized for EMEA approval. Manufacturing
facilities, both within and outside the US, are subject to inspections by, or
under the authority of, the FDA and EMEA and by other federal, state or local
agencies. Manufacturing facilities also must comply with the FDA's current
Good Manufacturing Practice regulations and parallel manufacturing regulations
of the EMEA.
Approval of a product by regulatory authorities outside the US and Europe
must be obtained prior to the commencement of commercial sales of the product
in such countries. The requirements governing the conduct of clinical trials
and product approvals vary widely from country to country, and the time
required for approval may be longer or shorter than that required for FDA or
EMEA approval. Although there are some procedures for unified regulatory
filings for certain countries, in general, each country at this time has its
own procedures and requirements.
Our research and development processes involve the controlled use of
hazardous materials. We are subject to national, state and local laws and
regulations governing the use, manufacture, storage, handling and disposal of
hazardous materials and certain waste products. We currently incur costs to
comply with environmental laws and regulations. We cannot eliminate completely
the risk of accidental contamination or injury from hazardous materials. If an
accident of this type occurs, we could be liable for damages that result and
such liability could exceed our resources. If we fail to control these risks,
it could result in loss of permits that allow us to use hazardous materials,
which could result in a material adverse effect on our business, financial
condition and results of operations.
Competition
The biotechnology and pharmaceutical industries are characterized by rapidly
evolving technology and intense competition. The Company competes against
major pharmaceutical companies and specialized biotechnology companies
providing chemical diversity libraries, pharmaceutical screening systems,
combinatorial chemistry technologies and other expertise. In addition, in
pursuing its internal drug discovery program, Phytera competes against
pharmaceutical and biotechnology companies developing drugs against infectious
diseases. Many of these competitors have greater financial and human resources
and more experience in research and development than Phytera. Competitors that
identify lead structures, develop candidate drugs, complete clinical trials,
obtain regulatory approvals, and begin commercial sales of their products
before Phytera will have a significant competitive advantage. Companies that
are able to achieve superior patent positions, develop lower cost
alternatives, or develop drugs with superior efficacy, lower side effects or
improved delivery characteristics will also have a significant competitive
advantage. Products currently exist for the treatment of many of the disease
conditions that the Company is targeting with its internal discovery programs
and partnerships, and additional products are under development for these
conditions. The existence of these products may adversely affect the
commercialization or marketability of products which Phytera and its partners
may develop. Companies also compete with Phytera in recruiting and retaining
highly qualified scientific and management personnel.
The Company anticipates that it will face increased competition in the
future as new companies enter the market and advanced technologies become
available. The Company's processes may be rendered obsolete or uneconomical by
technological advances or entirely different approaches developed by one or
more of the Company's competitors. The existing approaches of Phytera's
competitors or new approaches or technology
40
<PAGE>
developed by Phytera's competitors may be more effective than those developed
by the Company. See "Risk Factors--We Face Intense Competition."
Facilities
The Company has approximately 26,000 square feet of laboratory and office
space in Worcester, Massachusetts, US pursuant to a lease that expires in March
2004. Phytera's subsidiaries also lease approximately 10,000 square feet in
Sheffield, UK, approximately 4,600 square feet in Taastrup, Denmark and
approximately 4,100 square feet in Copenhagen, Denmark. Phytera believes its
current facilities are adequate for its current operations. The Company
believes that suitable additional space will be available, when needed, on
commercially reasonable terms.
Litigation; Legal Proceedings
Phytera is not a party to any litigation or material legal proceedings.
Organization
As of November 30, 1998, Phytera employed 75 people. Of these, 64 were
engaged in research and development and 11 were engaged in general
administration. As of each of December 31, 1997 and December 31, 1996, Phytera
employed 74 and 53 people, respectively. None of Phytera's employees are
covered by collective bargaining agreements. Phytera believes its employee
relations are good.
The Company conducts operations in Denmark, the United Kingdom and the United
States. The activities comprising the Company's Combinatorial Drug Discovery
Program and preclinical development program conducted at each of these
locations are illustrated in the following chart.
Phytera, Inc.
(Worcester, MA, US)
. Combinatorial biology
. Marine microorganism culture
. Pharmaceutical screening
. Preclinical development
Phytera Ltd. Phytera Symmbion ApS Phytera A/S
(Sheffield, UK) (Copenhagen, Denmark) (Taastrup, Denmark)
. Combinatorial biology . Combinatorial chemistry . Combinatorial biology
. Plant cell culture . Plant cell culture
41
<PAGE>
MANAGEMENT
Executive Officers, Key Employees and Directors
The following table sets forth certain information regarding the executive
officers, key employees and Directors of the Company as of November 30, 1998:
<TABLE>
<CAPTION>
Name Age Position
---- --- --------
<S> <C> <C>
Robert G. Foster (1)............. 60 Chairman of the Board of Directors
Malcolm Morville, Ph.D. ......... 53 Director, President and Chief Executive
Officer
Christopher J. Pazoles, Ph.D. ... 48 Vice President of Research
Stephen J. DiPalma .............. 39 Chief Financial Officer and Vice
President
Neil Goldsmith................... 35 Managing Director of Phytera Symbion ApS
and Phytera A/S
Uffe Bundgaard-Jorgensen, Ph.D. 53 Director
(2)..............................
Gustav A. Christensen............ 51 Director
Graham K. Crooke, MB. BS. (1).... 39 Director
Steven J. Roth (1)(2)............ 50 Director
Poul Schluter.................... 69 Director
</TABLE>
- --------
(1) Member of Compensation Committee
(2) Member of Audit Committee
Robert G. Foster is a founder of the Company and has served as Chairman of
the Board since August 1995. Mr. Foster is a founder of Commonwealth
BioVentures, Inc. ("CBI") and has served as Chairman, President and Chief
Executive Officer of CBI since November 1987. Through CBI, he was a founding
investor in Alpha-Beta Technology, Inc., EcoScience Corp., and TSI Corp., among
others. Prior to founding CBI, Mr. Foster served as Chairman, President and
Chief Executive Officer of Ventrex Laboratories, Inc. from 1976 to 1987. Mr.
Foster is also a director of Meridian Medical Technologies, Inc. and the Wyman-
Gordon Company.
Malcolm Morville, Ph.D. has served as President, CEO and Director since he
joined the Company in 1993. From 1988 to 1993, Dr. Morville held senior
management positions at ImmuLogic Pharmaceutical Corp., most recently as
Division Vice President, Allergic Diseases Strategic Business Unit. From 1970
to 1988, Dr. Morville held scientific and management positions at Pfizer, Inc.,
both in the US and UK. Dr. Morville is also a member of the Boards of Directors
of Interneuron Pharmaceuticals, Inc. and the Massachusetts Biotechnology
Council. He received his Ph.D. in Biochemistry from the University of
Manchester, UK.
Christopher J. Pazoles, Ph.D. has served as Vice President of Research since
he joined the Company in 1994. From 1981 to 1994, Dr. Pazoles served at Pfizer,
Inc., most recently as Director of Early Development Planning and Assistant
Director, Department of Immunology and Infectious Diseases. Dr. Pazoles
received his Ph.D. in microbiology from the University of Notre Dame and
conducted post-doctoral studies at the National Institutes of Health.
Stephen J. DiPalma has served as Chief Financial Officer and Vice President
since he joined the Company in 1997. Mr. DiPalma previously served as Chief
Financial Officer of Aquila Biopharmaceuticals, Inc. (formerly Cambridge
Biotech Corporation) from 1996 to 1997. Prior to joining Aquila
Biopharmaceuticals, Mr. DiPalma served as Chief Operating Officer at The Picker
Institute from 1995 to 1996 and Chief Financial Officer of Genica
Pharmaceuticals Corporation (currently Athena Diagnostics, Inc.) from 1988 to
1995. He holds an MBA from Babson College.
Neil Goldsmith has served since 1997 as Managing Director of Phytera Symbion
ApS and Phytera A/S. He also provides senior management support to Phytera Ltd.
under a consulting agreement with Prospero Biotech Ltd. From 1996 to 1997, Mr.
Goldsmith served as Managing Director of Auda Pharmaceuticals ApS ("Auda") and
joined the Company when Phytera acquired Auda. Prior to his service at Auda,
Mr. Goldsmith served as Managing Director at GX BioSystems A/S from 1995 to
1996 and PNA Diagnostics A/S in 1994. Mr. Goldsmith was Vice President,
Business Development at Pharmacia Biosensor AB from 1992 to 1993.
42
<PAGE>
Uffe Bundgaard-Jorgensen, Ph.D. has served as a Director of the Company since
1996 and as Managing Director of Danish Venture Finance A/S since 1988. Dr.
Bundgaard-Jorgensen worked for Hoff & Overgaard Consultants as a Planning
Consultant from 1970 to 1979 and Komgas (Energy) as Managing Director (Denmark)
from 1979 to 1988. Dr. Bundgaard-Jorgensen is Chairman of SAXoTech A/S and HTC
A/S and a director of Data Flight Europe A/S and PPU Maconomy A/S. Dr.
Bundgaard-Jorgensen received his Ph.D. from the University of Copenhagen.
Gustav A. Christensen is a founder of the Company and has served as a
Director of Phytera, Inc. since 1992. He is also a part-time consultant to
Phytera, Inc. Mr. Christensen has served as Chairman of Alpha-Beta Technology,
Inc. since 1991. From 1988 to 1990, Mr. Christensen served as President and
Chief Executive Officer of ImmuLogic Pharmaceutical Corp. From 1983 to 1988, he
served as Senior Vice President, Commercial Affairs at Genetics Institute.
Prior to joining Genetics Institute, Mr. Christensen held a variety of
management positions at Baxter International Inc. Mr. Christensen is also a
director of several privately held biotechnology companies and Diatide, Inc., a
publicly held biotechnology company. Mr. Christensen holds an MBA from Harvard
Business School and a M.Sc. in economics from the University of Aarhus.
Graham K. Crooke, MB. BS. has served as a Director of the Company since 1995
and is a partner at Ticonderoga Capital, Inc. (formerly Dillon, Read Venture
Capital). Prior to joining Dillon, Read Venture Capital in 1992, Dr. Crooke
worked as a consultant for Booz, Allen & Hamilton, Inc. from 1990 to 1991. He
served as Product Manager at Molecular Devices Corporation from 1988 to 1990.
Dr. Crooke is a Director of Centaur Pharmaceuticals, InsMed Pharmaceuticals,
Epic Therapeutics and ProScript. Dr. Crooke earned his medical degree from the
University of Western Australia in 1983 and his MBA from Stanford Business
School in 1988.
Steven J. Roth has served as a Director of the Company since 1995. Mr. Roth
has been a private equity investor since 1984 and a Partner and Principal of CR
Management Associates, Inc. since 1990. Prior to 1990, Mr. Roth held senior
positions with Bartex Publishing Group, Heublein, Inc., Corning, Inc. and
Touche Ross & Co., Inc. He holds an MBA with distinction from Harvard Business
School.
Poul Schluter has served as a Director of the Company since 1997. Mr.
Schluter was a member of the Danish parliament from 1964 through 1994, and
served as Prime Minister of Denmark from 1982 to 1993. Since 1994, Mr. Schluter
has served as a member of the European Parliament, holding the office of Vice
President from 1994 to 1996. Mr. Schluter also serves as a director for several
organizations, including Bayer A/S, and Henke-Ecolab. In addition, he is an
advisor to the Republic National Bank of New York and Waste Management
International.
Classification of the Board of Directors
The Company's Restated Certificate, to be filed concurrently with the closing
of this offering, provides for a staggered Board of Directors consisting of
three classes, with each class being as nearly equal in number as possible. At
each annual meeting of the Company's stockholders, the term of one class
expires and their successors are elected for a term of three years. The Company
has designated two Class I Directors (Dr. Crooke and Mr. Schluter), two Class
II Directors (Messrs. Foster and Roth) and three Class III Directors (Dr.
Morville, Mr. Christensen and Dr. Bundgaard-Jorgensen). These Class I, Class II
and Class III Directors will serve until the annual meetings of stockholders to
be held in 1999, 2000 and 2001, respectively, and until their respective
successors are duly elected and qualified, or until their earlier resignation
or removal. The Restated Certificate provides that Directors may be removed
only for cause by a majority of stockholders. There are no family relationships
among any of the Directors or executive officers. See "Description of Capital
Stock--Anti-Takeover Measures."
Board Committees
The Company has standing Audit and Compensation Committees of the Board of
Directors. The Audit Committee, consisting of Dr. Bundgaard-Jorgensen and Mr.
Roth, held two meetings in 1997. The primary function of the Audit Committee is
to assist the Board of Directors in the discharge of its duties and
responsibilities by providing the Board with an independent review of the
financial health of the Company and of the reliability of the Company's
financial controls and financial reporting systems. The Audit Committee reviews
the general scope of the Company's annual audit, the fee charged by the
Company's independent accountants and other matters relating to internal
control systems.
The Compensation Committee of the Board of Directors determines the
compensation to be paid to all executive officers of the Company, including the
Chief Executive Officer. The Compensation Committee also
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<PAGE>
administers the Company's 1998 Equity Incentive Plan (which amended and
restated the Company's 1992 Stock Option Plan), including the grant of stock
options and other awards under such plans. The Compensation Committee held four
meetings during 1997. The Compensation Committee is currently composed of
Messrs. Foster and Roth and Dr. Crooke.
Scientific Advisors
The Company's scientific advisors are individuals with demonstrated expertise
in various fields who advise the Company on long-term scientific planning,
research and development. Members also evaluate the Company's research program,
recommend personnel to the Company and advise the Company on technology
matters. While the scientific advisors have not met as an entire group,
individual advisors and small groups have been available to advise the Company
on specific scientific and technical issues. The scientific advisors are
compensated on a time and expenses basis and, in some cases, have received
shares of common stock, stock options or warrants of the Company. The Company
has entered into consulting agreements with a number of scientific advisors.
Aggregate amounts paid to scientific advisors during 1996, 1997 and 1998 do not
constitute a material component of amounts spent by the Company on research and
development, when taken as a whole.
No scientific advisor is employed by the Company and individual members may
have other commitments to or consulting or advisory contracts with their
employers or other entities that may conflict or compete with their obligations
to the Company. Accordingly, such persons are expected to devote only a small
portion of their time to the Company. The Company's scientific advisors are:
<TABLE>
<CAPTION>
Scientific Advisors Academic Institution/Affiliation
------------------- --------------------------------
<C> <S>
Marine Science
Arnold L. Demain, Ph.D. .......... Massachusetts Institute of Technology,
Massachusetts, US
William Fenical, Ph.D. ........... Scripps Institution of Oceanography,
California, US
Molecular Biology
Kim Lewis, Ph.D. ................ Tufts University, Massachusetts, US
Dominique Sanglard, Ph.D. ....... Centre Hospitalier Universitaire Vaudois,
Lausanne, Switzerland
Pharmaceutical Development
Ze'ev Shaked, Ph.D. ............. ZS & Associates, Massachusetts, US
Cornelius Wortel, M.D., Ph.D. .... Clinquest Inc., Massachusetts, US
Plant Science
Charles Arntzen, Ph.D. ........... Boyce Thompson Institute for Plant Research,
Cornell University, New York, US
Michael W. Fowler, Ph.D. ......... High Value Horticulture Ltd., Oxford, UK
Robert Verpoorte, Ph.D. .......... Leiden/Amsterdam Center for Drug Research,
Leiden,
Netherlands
Chemistry
Robert Langer, Ph.D. ............. Massachusetts Institute of Technology,
Massachusetts, US
Lester Mitscher, Ph.D. ........... University of Kansas, Kansas, US
John Nielsen, Ph.D. .............. The Technical University of Denmark,
Copenhagen, Denmark
Infectious Diseases
Gary Doern, Ph.D. ................ University of Massachusetts Medical Center,
Massachusetts, US
Robert C. Moellering, Jr., M.D. .. Deaconess Hospital & Harvard Medical School,
Massachusetts, US
Alan H. Sugar, M.D. .............. Boston University School of Medicine,
Massachusetts, US
</TABLE>
The Company's Directors and consultants are eligible to participate in the
1998 Equity Incentive Plan. See "--1998 Equity Incentive Plan."
44
<PAGE>
Executive Compensation
The following tables summarizes the compensation paid to or earned during the
fiscal year ended December 31, 1997 by the Company's Chief Executive Officer
and all of the other executive officers of the Company whose salary and bonus
exceeded $100,000 (collectively, the "Named Executive Officers").
Summary Compensation Table
<TABLE>
<CAPTION>
Annual Compensation Long-Term Compensation
------------------------------------- ---------------------------------------------
Securities
Other Annual Underlying Restricted Stock All Other
Name and 1997 Principal Position Salary ($) Bonus ($) Compensation ($) Options (#) Award(s) ($) Compensation ($)
- -------------------------------- ---------- --------- ---------------- ----------- ---------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Malcolm Morville,
Ph.D................... 250,000 30,000 -- -- -- --
President and Chief
Executive Officer,
Director
Stephen J. DiPalma (1).. 9,231 -- -- 49,050 12,263 --
Vice President, Finance
Christopher J. Pazoles,
Ph.D................... 181,715 -- -- -- -- --
Vice President of
Research
John S. McBride (2)..... 63,144 -- -- -- -- --
</TABLE>
- --------
(1) Mr. DiPalma commenced employment with the Company on December 8, 1997.
Restricted stock was awarded in December 1997, but was not purchased until
March 1998. The restricted stock is subject to a repurchase right for those
shares unvested should Mr. DiPalma cease to be employed with the Company.
(2) Mr. McBride served as Vice President, Business Development to the Company
until May 1997.
1997 Option Grants
The following table contains certain information regarding stock option
grants during the twelve months ended December 31, 1997 by the Company to the
Named Executive Officers:
Option Grants In Last Fiscal Year
<TABLE>
<CAPTION>
Potential Realizable
Value at Assumed
Number of Annual Rates of Stock
Securities Percent of Total Price Appreciation
Underlying Options Granted Exercise or for Option Term (1)
Options to Employees Base Price Expiration ----------------------
Name Granted (#) in Fiscal Year ($/Share) Date 5% ($) 10% ($)
---- ----------- ---------------- ----------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C>
Malcolm Morville,
Ph.D. ................. -- -- -- -- -- --
Stephen J. DiPalma (2).. 49,050 27% 1.15 12/09/07 35,375 89,648
Christopher J. Pazoles,
Ph.D. ................. -- -- -- -- -- --
John S. McBride......... -- -- -- -- -- --
</TABLE>
- --------
(1) The dollar amounts under these columns are the result of calculations at
the 5% and 10% rates set by the Securities and Exchange Commission and,
therefore, are not intended to forecast possible future appreciation, if
any, in the price of the underlying common stock. No gain to the optionees
is possible without an increase in price of the common stock, which will
benefit all stockholders proportionately. In order to realize the potential
values set forth in the 5% and 10% columns of this table, the per share
price of the common stock would have to be $1.87 and $2.98, or
approximately 63% and 160% above the respective exercise or base price
shown.
(2) Represents an option grant on December 9, 1997 covering 49,050 shares,
exercisable with respect to 16,350 of the underlying shares on December 8
in each of the years 1999, 2000 and 2001.
45
<PAGE>
Option Exercises and Year-End Option Values
The following table provides information about the number of shares issued
upon option exercises by the Named Executive Officers during the year ended
December 31, 1997, and the value realized by the Named Executive Officers. The
table also provides information about the number and value of options held by
the Named Executive Officers at December 31, 1997.
Aggregated Option Exercises In Last Fiscal Year And
Fiscal Year-End Option Values
<TABLE>
<CAPTION>
Number of Securities Value of Unexercised
Underlying Unexercised In-the-Money Options
Options at Fiscal At Fiscal Year End ($)
Year-End (#) (1)
Shares Acquired Value ------------------------- -------------------------
Name on Exercise (#) Realized ($)(1) Exercisable Unexercisable Exercisable Unexercisable
---- --------------- --------------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Malcolm Morville, Ph.D.
(2).................... -- -- 88,454 89,762 1,068,508 1,083,412
Stephen J. DiPalma...... -- -- 0 49,050 0 581,400
Christopher J. Pazoles,
Ph.D. (2).............. 13,489 164,013 16,105 37,442 194,418 453,652
John S. McBride (3)..... 8,502 108,476 -- -- -- --
</TABLE>
- --------
(1) Based on the difference between the option exercise price and an assumed
initial public offering price of $13.00 per share of the underlying common
stock.
(2) Certain unvested options are subject to acceleration of vesting upon the
occurrence of milestone events.
(3) All unvested options held by Mr. McBride were terminated upon his departure
from the Company on May 19, 1997. Vested options not exercised have lapsed.
Loans to Insiders
The Company has not made any loans to its Directors or executive officers.
1998 Equity Incentive Plan
The Company's 1998 Equity Incentive Plan, which amends and restates the
Company's 1992 Stock Option Plan, authorizes the grant of certain tax-
advantaged stock options, non tax-advantaged stock options, stock grants and
other stock-based awards ("Awards") for the purchase of an aggregate of up to
1,569,600 shares (subject to adjustment for stock splits and similar capital
changes) of common stock to employees, consultants and Directors of the Company
or any Affiliate (as defined in the 1998 Equity Incentive Plan) capable of
contributing to the Company's performance. As of November 30, 1998, options to
purchase 792,802 shares of common stock were outstanding. Grants of Awards
under the 1998 Equity Incentive Plan and all questions of interpretations with
respect to the 1998 Equity Incentive Plan are determined by the Board of
Directors of the Company. The Board of Directors has appointed the Compensation
Committee to administer the 1998 Equity Incentive Plan. In the event of a
consolidation or merger of the Company or the sale of substantially all of its
assets, the Board of Directors may terminate outstanding options after a 20 day
notice to the option holders. If the Board does not take such action, the
holders of outstanding options will be entitled to an option for securities of
the successor corporation.
Employee Stock Purchase Plan
The Company has also adopted an employee stock purchase plan (the "Purchase
Plan") under which employees may purchase shares of common stock at a discount
from fair market value. There are 163,500 shares of common stock reserved for
issuance under the Purchase Plan. The shares of common stock to be issued under
the Purchase Plan will not be purchased in the open market and are authorized,
unissued shares of the Company's common stock. The Purchase Plan is intended to
qualify as an employee stock purchase plan within the meaning of Section 423 of
the US Internal Revenue Code of 1986, as amended (the "Code"). Rights to
purchase common stock under the Purchase Plan are granted at the discretion of
the Compensation Committee, which determines the frequency and duration of
individual offerings under the Plan and the dates when stock may be purchased.
Eligible employees participate voluntarily and may withdraw from any offering
at any time before stock is purchased. Participation terminates automatically
upon termination of employment. The purchase price per share of common stock in
an offering is 85% of the lesser of its fair market value at the beginning of
the offering period or on the applicable exercise date and may be paid through
payroll deductions, periodic lump sum payments or a combination of both. The
Purchase Plan terminates on September 17, 2008.
46
<PAGE>
Compensation of Directors
The Company currently reimburses its Directors for out-of-pocket expenses
incurred in connection with their rendering of services as Directors. The
Company's Directors generally receive no cash remuneration for their services,
with the exception of Mr. Schluter who receives $1,000 per board meeting. Mr.
Christensen receives a stipend for consulting services provided to the
Company. For the 12 months ended December 31, 1997, Mr. Christensen was paid
$160,000 for his consulting services. For the 11 months ended November 30,
1998, Mr. Christensen was paid $133,333 for his consulting services.
Directors who are not currently receiving compensation as officers or
employees of the Company are eligible to receive options under the 1998 Equity
Incentive Plan in consideration for their service as Directors. The
Compensation Committee of the Board of Directors determines the number of
options awarded to non-employee directors based on comparative analysis of
similarly situated companies. During the twelve months ended December 31,
1997, the Company granted options to purchase 9,810 shares of common stock to
each of Mr. Foster and Dr. Crooke and warrants to purchase 9,810 shares of
common stock to each of Mr. Schluter and Danish Venture Finance A/S (for Dr.
Bundgaard-Jorgensen's service as a member of the Board of Directors). See
"Principal Stockholders." During the eleven months ended November 30, 1998,
the Company granted options to purchase 3,270 shares of common stock to
members of the Board.
Executive Employment Agreements
Under an Employment Agreement dated June 5, 1996, the Company agreed to
employ Dr. Morville as President and Chief Executive Officer of the Company
for a period of three years at a minimum annual salary of $250,000, plus
incentive bonuses as determined by the Compensation Committee. If Dr. Morville
is terminated without cause (including a failure to renew the agreement) or if
Dr. Morville terminates his employment for good reason (as defined in the
agreement), he will be entitled to receive a lump sum payment equal to six
months base salary, plus any benefits to which he is entitled for a period of
up to six months and a portion of the options granted to, and restricted stock
held by, Dr. Morville which would have otherwise vested on the next vesting
date following termination. Such portion is calculated by multiplying the
number of shares which would otherwise be exercisable on the next applicable
vesting date by a fraction, the numerator of which is the number of calendar
days elapsed from the last vesting date until termination and the denominator
of which is the total number of days from the last vesting date until the next
vesting date.
Compensation Committee Interlocks And Insider Participation
The Compensation Committee is responsible for determining salaries,
incentives and other forms of compensation for Directors, executive officers
and other employees of the Company. The Compensation Committee also
administers various incentive compensation and benefit plans. The Compensation
Committee currently consists of Messrs. Foster and Roth and Dr. Crooke.
Commonwealth BioVentures, Inc., of which Mr. Foster is President, is a general
partner of both Commonwealth BioVentures IV Limited Partnership and
Commonwealth BioVentures V Limited Partnership, each of which is a venture
capital fund and a principal stockholder of the Company. Dr. Crooke is a
partner of Ticonderoga Capital, Inc., a venture capital firm and the general
partner of Venture Associates II, L.P., which is the general partner of
Concord Partners II, L.P., a principal stockholder of the Company. CR
Management Associates, of which Mr. Roth is a partner and principal, is a
general partner of CR Management Capital Partners I, L.P., a stockholder of
the Company. See "Principal Stockholders" and "Certain Transactions."
47
<PAGE>
CERTAIN TRANSACTIONS
In September and December 1995 each of BancBoston Ventures, Inc.,
Commonwealth BioVentures V Limited Partnership ("CBIV"), Concord Partners II,
L.P. and CR Management Capital Partners I, L.P. (the "Bridge Investors")
purchased a Convertible Term Note in the principal amount of $250,000, except
in the case of CBIV, which purchased a Convertible Term Note of $900,000 (the
"1995 Bridge Financing"). In connection with the 1995 Bridge Financing, the
Company issued to each of the Bridge Investors other than CBIV warrants to
purchase 14,683 shares of common stock at an exercise price of $8.41 per share;
CBIV received warrants to purchase 35,673 shares of common stock at an exercise
price of $8.41 per share. In January 1996, the Bridge Investors and Danish
Development Finance Corporation (now known as Danish Venture Finance A/S)
purchased shares of Series C Convertible Preferred Stock at a price of $8.41
per underlying common stock share and warrants to purchase common stock at a
price of $0.02 per share as set forth below:
<TABLE>
<CAPTION>
Common Stock Underlying
------------------------------------
Investor Series C Shares(#) Warrant Shares(#)
-------- ------------------ -----------------
<S> <C> <C>
Danish Venture Finance A/S............... 188,352 25,993
BancBoston Ventures, Inc................. 26,837 3,704
Commonwealth BioVentures V Limited
Partnership............................. 95,758 13,215
Concord Partners II, L.P. ............... 84,389 11,656
CR Management Capital Partners I, L.P.... 84,389 11,656
</TABLE>
On March 11, 1997, the Company completed the acquisition of Auda
Pharmaceuticals ApS ("Auda") (later renamed Phytera Symbion ApS), a Danish
biotechnology company headquartered in Copenhagen. Danish Venture Finance A/S,
a principal stockholder of the Company, of which Dr. Bundgaard-Jorgensen is a
Director, owned approximately 92.4% of the outstanding share capital of Auda
prior to its acquisition. As consideration for its interest in Auda, Danish
Venture Finance A/S received 402,000 shares of the Company's Series D
Convertible Preferred Stock, convertible into 262,908 shares of common stock,
valued at $11.47 per underlying common stock share, for total compensation
valued at $3,015,000.
In separate closings as of each of May 26 and June 25, 1998, the Company
issued shares of its Series E Convertible Preferred Stock, $0.01 par value per
share (the "Series E Stock") convertible into 678,274 shares of common stock to
certain qualified institutions and high net worth individuals. Shares of Series
E Stock were purchased for $11.24 per underlying common stock share. Danish
Venture Finance A/S and Concord Partners II, L.P., principal stockholders of
the Company, purchased shares of Series E Stock convertible into 17,269 and
21,364 shares of common stock, respectively. In addition, Mr. Steven J. Roth, a
member of the Board of Directors, purchased shares of Series E Stock
convertible into 8,894 shares of common stock for his own account.
Each of the Series C Convertible Preferred Stock, Series D Convertible
Preferred Stock, and Series E Stock currently converts into common stock at the
rate of 0.654 for one. The rate of conversion of the Series E Stock may adjust
depending on the timing and price of the offering. See "Description of Capital
Stock."
48
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of the shares of the Company's common stock as of November 30, 1998,
by (i) each person known by the Company to own beneficially more than 5% of the
common stock, (ii) each Director of the Company, (iii) each Named Executive
Officer and (iv) all Directors and Named Executive Officers of the Company as a
group. The table reflects the conversion of the Existing Preferred Stock of the
Company into an aggregate of 4,949,443 shares of common stock upon the closing
of this offering. The number of shares of common stock deemed outstanding after
this offering includes an additional 2,500,000 shares of common stock of the
Company which are being offered for sale by the Company in this offering. The
ownership numbers and percentages have been calculated in accordance with the
rules of the SEC. These rules require the inclusion of shares, that may be
obtained upon the exercise of any presently exercisable option or warrant or
any option or warrant that becomes exercisable within 60 days of November 30,
1998, with respect to the holder of any such option of warrant. Since the
number of options or warrants, if any, may vary among the stockholders listed,
the denominator used to calculate the percentages may vary among the
stockholders listed.
<TABLE>
<CAPTION>
Percentage of Total
Shares ----------------------
Beneficially Before After
Beneficial Owner (1) Owned Offering Offering
-------------------- ------------ --------- ---------
<S> <C> <C> <C>
5% Stockholders
Commonwealth BioVentures IV Limited
Partnership............................ 884,831 15.47% 10.77%
Commonwealth BioVentures V Limited Part-
nership (2)
4 Milk Street
Portland, ME 04101, US
Concord Partners II, L.P. (3)........... 491,343 8.63% 6.00%
535 Madison Avenue
New York, NY 10022, US
A/S Forsikringsselskabet Codan Pension.. 476,112 8.40% 5.83%
A/S Forsikringsselskabet Codan Liv
Codan Forsikring A/S
c/o Codanhus
Gammel Kongevuej 60
DK-1790 Copenhagen V, Denmark
Danish Development Finance Corporation
Denmark (4)............................ 435,007 7.67% 5.32%
(now known as Danish Venture Finance
A/S)
Gladsaxevej 376
DK-2860 Soborg, Denmark
Directors
Robert G. Foster (5).................... 913,253 15.93% 11.09%
c/o Commonwealth BioVentures, Inc.
4 Milk Street
Portland, ME 04301, US
Graham K. Crooke, M.D. (6).............. 499,191 8.76% 6.09%
c/o Ticonderoga Capital, Inc.
555 California Street, Suite 4360
San Francisco, CA 94104, US
Uffe Bundgaard-Jorgensen, Ph.D. (7)..... 435,007 7.67% 5.32%
c/o Danish Venture Finance A/S
Gladsaxevej 376
DK-2860 Soborg, Denmark
Steven J. Roth (8)...................... 213,688 3.75% 2.61%
192 E. Emerson Road
Lexington, MA 02173, US
Gustav A. Christensen (9)............... 132,386 2.32% 1.61%
c/o Alpha-Beta Technology, Inc.
One Innovation Drive
Worcester, MA 01605, US
Poul Schluter (10)...................... 5,886 * *
Frederiksberg Alle 66
DK-1820 Frederiksberg C, Denmark
Named Executive Officers
Malcolm Morville, Ph.D. (11)............ 312,891 5.41% 3.78%
Christopher J. Pazoles, Ph.D. (12)...... 39,158 * *
John S. McBride......................... 21,582 * *
5 Olde Connecticut Path
Westborough, MA 01581
Stephen J. DiPalma (13)................. 32,700 * *
All Directors and Named Executive
Officers as a group
(10 persons) (14)...................... 2,605,742 43.24% 30.56%
</TABLE>
49
<PAGE>
- --------
*Indicates less than 1%
(1) Unless otherwise indicated, the address of each shareholder is Phytera,
Inc., 377 Plantation Street, Worcester, MA 01605, US. Except as indicated
by footnote, each of the parties listed above has sole voting and
investment power with respect to all shares shown as beneficially owned by
them.
(2) Includes (i) 480,229 shares held by Commonwealth BioVentures IV Limited
Partnership ("CBI IV") and (ii) 404,602 shares held by Commonwealth
BioVentures V Limited Partnership ("CBI V"), 53,661 shares of which are
issuable on exercise of warrants, all of which will terminate upon the
closing of this offering if not exercised.
(3) Includes 28,896 shares issuable on exercise of warrants, all of which will
terminate upon the closing of this offering if not exercised.
(4) Includes 5,886 shares issuable on exercise of warrants exercisable as of
November 30, 1998 or within 60 days thereafter.
(5) Includes (i) 480,229 shares held by CBI IV and (ii) 404,602 shares, 53,661
of which are issuable on exercise of warrants which will terminate upon
the closing of this offering if not exercised, held by CBI V. Mr. Foster,
President and Chief Executive Officer of CBI IV and CBI V, disclaims
beneficial ownership of the shares and warrants held by CBI IV and CBI V,
except to the extent of his proportional pecuniary interests therein. Also
includes stock options to purchase 13,080 shares exercisable as of
November 30, 1998 or within 60 days thereafter.
(6) Includes 491,343 shares, 28,896 of which are issuable on exercise of
warrants which will terminate upon the closing of this offering if not
exercised, held by Concord Partners II, LP. Dr. Crooke is a partner of
Ticonderoga Capital, Inc., an affiliate of Concord Partners II, LP. He
disclaims beneficial ownership of the shares held by Concord Partners II,
LP, except to the extent of his proportional pecuniary interests therein.
Also includes stock options to purchase 1,962 shares exercisable as of
November 30, 1998 or within 60 days thereafter.
(7) Consists of 435,007 shares, 5,886 of which are issuable on exercise of
warrants exercisable as of November 30, 1998 or within 60 days thereafter,
held by Danish Venture Finance A/S of which Dr. Bundgaard-Jorgensen is the
Managing Director. Dr. Bundgaard-Jorgensen disclaims beneficial ownership
of the shares held by Danish Venture Finance A/S, except to the extent of
his proportional pecuniary interest therein.
(8) Includes 198,908 shares, 31,283 of which are issuable on exercise of
warrants which will terminate upon the closing of this offering if not
exercised, held by CR Management Capital Partners I, L.P., of which Mr.
Roth is a general partner. Mr. Roth disclaims beneficial ownership of the
shares and warrants held by CR Management Capital Partners I, L.P., except
to the extent of his proportional pecuniary interest therein. Also
includes stock options to purchase 5,886 shares exercisable as of November
30, 1998 or within 60 days thereafter.
(9) Includes (i) 3,807 shares, 145 of which are issuable on exercise of
warrants which will terminate upon the closing of this offering if not
exercised, held in trust for the benefit of Mr. Christensen and (ii) 29,430
shares held in trust for the benefit of his children. Also includes 50,276
shares subject to stock options exercisable as of November 30, 1998 or
within 60 days thereafter. Also includes 13,080 shares of common stock
subject to a repurchase right held by the Company.
(10) Represents shares issuable upon exercise of warrants exercisable as of
November 30, 1998 or within 60 days thereafter.
(11) Includes 39,240 shares held by Dr. Morville's wife and 19,620 shares held
by Dr. Morville's children, as to which Dr. Morville disclaims beneficial
ownership, and 18,312 shares held in trust for his benefit by Delaware
Charter Guarantee & Trust Co. Also includes stock options to purchase
122,952 shares exercisable as of November 30, 1998 or within 60 days
thereafter.
(12) Includes stock options to purchase 25,670 shares exercisable as of
November 30, 1998 or within 60 days thereafter.
(13) Includes 16,350 shares of common stock subject to a repurchase right held
by the Company and 16,350 shares issuable upon exercise of stock options
exercisable as of November 30, 1998 or within 60 days thereafter.
(14) See notes 5 through 13 above.
50
<PAGE>
DESCRIPTION OF CAPITAL STOCK
Upon the closing of this offering, the authorized capital stock of the
Company will consist of 25,000,000 shares of common stock, $0.01 par value per
share, and 1,000,000 shares of Preferred Stock, $0.01 par value per share,
after giving effect to the amendment and restatement of the Company's Restated
Certificate. At each of September 30, 1998 and November 30, 1998, there was
outstanding an aggregate of (i) 709,949 and 715,312 shares, respectively of
common stock and (ii) 7,274,833 shares of Existing Preferred Stock which will
automatically convert into 4,949,056 shares of common stock upon the closing of
this offering, assuming that in connection with conversion of the Series E
Stock the closing of this offering occurs on February 8, 1999 at a price per
share of $13.00 (the mid-point of the expected range). As of the date of this
Prospectus, the Company had 246 shareholders. Assuming the closing of this
offering occurs on February 8, 1999 at a per share price of $13.00 (the mid-
point of the expected range) and the exercise of warrants to purchase 68,995
shares of common stock, upon the closing of this offering, the Company will
have 8,233,750 shares of common stock outstanding.
The following summary of certain provisions of the common stock and Preferred
Stock does not purport to be complete and is subject to, and qualified in its
entirety by, the provisions of the Company's Restated Certificate, the form of
which is included as an exhibit to the Registration Statement, and by the
provisions of applicable law.
Since 1992 there has been a stock option plan ("the Plan") for the Company's
employees and officers, consultants and Board of Directors. The following table
sets forth the total number of options which are outstanding at November 30,
1998, their exercise prices and their expiration.
<TABLE>
<CAPTION>
Year Granted Total Numbers Range of Exercise Prices Expiration
------------ ------------- ------------------------ ----------
<S> <C> <C> <C>
1993 16,791 $0.02 2003
1994 39,270 $0.84 2004
1995 19,146 $0.84 2005
1996 312,972 $0.84-$0.99 2006
1997 105,187 $0.99-$1.15 2007
1998 304,437 $1.15-$7.65 2008
-------
792,802
=======
</TABLE>
The Company has issued warrants which give rights to purchase its capital
stock. The following table sets forth the total number of warrants which are
outstanding at November 30, 1998, their exercise prices and their expiration.
<TABLE>
<CAPTION>
Type of Stock Year Granted Total Numbers Range of Exercise Prices Expiration
------------- ------------ ------------- ------------------------ ----------
<S> <C> <C> <C> <C>
Common 1995 85,637 $8.41 1999 or IPO*
Common 1997 62,683 $0.99-$1.15 2003
-------
229,249
=======
Series C
Preferred 1996 68,995 $0.02 2001 or IPO*
Series C
Preferred 1996 11,934 $8.41 2001 or IPO*
-------
80,929
=======
</TABLE>
- --------
* the earlier to occur
Common Stock
Holders of common stock are entitled to one vote per share on matters to be
voted upon by the stockholders. There are no cumulative voting rights or
preemptive rights. Upon the liquidation, dissolution or winding up of the
Company, holders of common stock share ratably in the assets of the Company
available for distribution to its stockholders, subject to the preferential
rights of any then outstanding shares of Preferred Stock. There will be no
shares of Preferred Stock outstanding immediately following the effective date
of the Registration Statement. The common stock outstanding upon the effective
date of the Registration Statement, and the shares offered by the Company
hereby, upon issuance and sale, will be fully paid and nonassessable. The
Company does not have an established procedure pursuant to which it purchases
back shares of common stock from its stockholders.
51
<PAGE>
Holders of common stock are entitled to receive dividends when, as and if
declared by the Board of Directors out of funds legally available therefor. The
Company has not paid any dividends since its incorporation. The Company does
not anticipate paying any dividends in the foreseeable future. If the Company
were to pay any dividends, they would be distributed first to satisfy any
preferential payments to holders of any Preferred Stock then outstanding, if
any, and then distributed ratably to the holders of common stock. Any dividends
declared and paid by the Company will be delivered by the Company or its agent
to each stockholder at the stockholder's last known address. Generally, any
dividend which is delivered by the Company or its agent and not claimed by the
holder of the shares in respect of which the dividend has been paid within a
certain period of time will become the property of the governing body of the
jurisdiction of the stockholders's last known address. The time period referred
to in the previous sentence varies depending on the jurisdiction. In the United
States, this time period is determined by each state, and in Europe, this time
period is determined by each country.
As described more fully in the section headed "Settlement and Clearance", the
shares of common stock issued pursuant to this offering will be in the form of
either one global share certificate or one book entry (such form to be
determined in the discretion of the Underwriters just prior to closing), which
will be deposited with The Depository Trust Company ("DTC"), a US clearing
agency. Common Stock held by existing stockholders will continue to be
represented by physical share certificates issued in the name of each holder
until appropriate arrangement has been made by the Company and the holder to
convert to book entry. Additional shares of common stock, up to the authorized
but as yet unissued total stated in the Company's Restated Certificate, may be
issued in such number and at such price as may be determined in the discretion
of the Company's Board of Directors. Any increase in the authorized number of
shares of common stock requires the consent and approval of the Company's
stockholders.
Contingent Series E Conversion Adjustment
The Series E Stock would convert to common stock on a 0.654 for one basis if
this offering (i) is closed on or before June 25, 1999 (the "Series E
Anniversary") and (ii) the price per share in the offering is not less than
$15.29 plus $3.82 multiplied by a fraction, the numerator of which is the
number of days elapsed from June 25, 1998 up to and including the closing date
of this offering and the denominator of which is 365 (the "Minimum Price"). In
the event that either the offering is closed after the Series E Anniversary or
the price per share in the offering is less than the Minimum Price, the number
of shares of common stock outstanding after the offering will increase as a
result of a greater number of shares being issued upon conversion of the
currently outstanding shares of Series E Stock. If the offering is closed at a
per share price less than the Minimum Price, the number of shares of common
stock issuable upon conversion of the Series E Stock will increase to a number
that is equal in value (determined with reference to the actual offering price)
to the Minimum Price. If the offering is closed after the Series E Anniversary,
the number of shares of common stock issuable upon conversion shall increase by
a specified percentage on each of the Series E Anniversary and the dates five
months and ten months after the Series E Anniversary. Assuming this offering is
closed on February 8, 1999 at a per share price of $13.00 (the mid-point of the
expected price range), an additional 191,315 shares of common stock will be
issued upon the conversion of the Series E Stock.
Preferred Stock
The Company's Board of Directors has the authority to issue up to 1,000,000
shares of Preferred Stock in one or more series and to fix the relative rights,
preferences, privileges, qualifications, limitations and restrictions thereof,
including dividend rights, dividend rates, conversion rights, voting rights,
terms of redemption, redemption prices, liquidation preferences and the number
of shares constituting any series or the designation of such series, without
further vote or action by the stockholders. The Board of Directors could,
without the approval of the stockholders, issue Preferred Stock having voting
or conversion rights that could adversely affect the voting power of the
holders of common stock and the issuance of Preferred Stock could be used,
under certain circumstances, to render more difficult or discourage a hostile
takeover of the Company. The Company has no present plans to issue any shares
of Preferred Stock.
Stock Purchase Warrants
From September through December 1995, the Company, in connection with the
issuance of certain Convertible Term Notes, issued warrants to purchase an
aggregate of 85,637 shares of common stock (the "Bridge Warrants"). The Bridge
Warrants are exercisable at $8.41 per share and expire on the earlier of
52
<PAGE>
(i) January 31, 1999 or (ii) the closing of this offering. As of November 30,
1998, all of the Bridge Warrants remained outstanding. For the purpose of this
Prospectus, we have not assumed these warrants will be exercised prior to this
offering.
In January and July of 1996, the Company, in connection with the issuance of
certain Series C Convertible Preferred Stock (the "Series C Stock"), issued
warrants to purchase an aggregate of 148,041 shares of Series C Stock,
convertible into 96,819 shares of common stock, at an exercise price of $0.01
($0.02 on an as converted basis) per share of Series C Stock and warrants to
purchase an aggregate of 18,247 shares of Series C Stock, convertible into
11,934 shares of common stock, at an exercise price of $5.50 ($8.41 on an as
converted basis) per share of Series C Stock (collectively, the "Series C
Warrants"). The Series C Warrants expire on the earlier of (i) five years from
the respective date of the issuance of the Series C Warrant or (ii) the closing
of this offering. As of November 30, 1998, 123,744 Series C Warrants were
outstanding and 42,544 had been exercised, convertible into 80,929 and 27,824
shares of common stock, respectively. Of the outstanding Series C Warrants,
105,497 are exercisable at the price of $0.01 ($0.02 on an as converted basis)
per share which are convertible into 68,995 shares of common stock. For the
purposes of this Prospectus, we have assumed the Series C Warrants with a $0.01
exercise price ($0.02 on an as converted basis) will be exercised prior to the
closing of this offering and that the remaining Series C Warrants will not be
exercised prior to this offering.
In December 1997, the Company issued warrants to purchase an aggregate of
39,793 shares of common stock to selected employees and Directors in Denmark.
These warrants have an exercise price of $1.15 per share, vest over a three to
five year period beginning on January 1, 1999 and expire on December 9, 2003.
The Company also issued warrants to DACC ApS to purchase an aggregate of 22,890
shares of common stock at an exercise price of $0.99. These warrants vest over
a two year period beginning on January 1, 1999, and expire on December 9, 2003.
Stockholders' Meetings
The Company is required to hold an annual meeting of stockholders that is
held on a date selected by the Company's Board of Directors. Matters generally
put to a stockholders' vote include the election of Directors, the approval of
certain changes in the capital stock of the Company, the adoption and/or
amendment of certain employee benefit plans, the approval of certain amendments
to the Certificate of Incorporation and By-laws of the Company, and other
extraordinary matters. The presence in person or by proxy of stockholders
owning a majority of all votes entitled to be cast at a meeting constitutes a
quorum. A plurality of the votes cast is required for the election of
Directors, which means that those Directors receiving the most votes are
elected to office although they may not necessarily have received a majority of
votes. Most other matters require the affirmative vote of a majority of the
votes cast by those stockholders present at the meeting, although certain
extraordinary matters require a greater vote.
All stockholders (including those residing in Denmark and Belgium) will be
sent notice of an annual or special meeting not less than ten days nor more
than 60 days before it is scheduled to be held. In addition, Delaware law and
the rules of the SEC require greater advance notice for certain transactions.
Shares cannot be voted at a meeting unless the holder of record is present in
person or by proxy, a means by which a stockholder may authorize the voting of
his or her shares at a meeting. At a meeting, the shares represented by each
properly executed proxy card will be voted in accordance with the stockholder's
directions, thereby providing an alternative to a stockholder appearing in
person at a meeting in order to cast his or her vote. Any stockholder executing
a proxy card has the right to revoke it by providing written or oral notice of
revocation to the secretary of the Company, or by delivering a subsequently
executed proxy card, at any time before the proxy is voted.
Anti-Takeover Measures
In addition to the Board of Directors' ability to issue shares of Preferred
Stock, the Restated Certificate and the By-laws of the Company contain several
other provisions that are commonly considered to discourage unsolicited
takeover bids. Under the Restated Certificate and By-laws, the Board of
Directors may enlarge the size of the Board and fill any vacancies on the
Board. The By-laws also provide that special meetings of the Company's
stockholders may be called only by the President, the Chairman of the Board,
the Board of Directors, any officer, stockholders holding a majority of the
outstanding voting capital stock, or any stockholder or stockholders holding at
least 10% of any series of Preferred Stock, and require advance notice of
business to be brought by a stockholder before such special meeting.
The Company may be subject to a Delaware law regulating corporate takeovers
(the "Anti-Takeover Law"). In certain circumstances, the Anti-Takeover Law
prevents certain public Delaware corporations, from engaging in a "business
combination" (which includes a merger or sale of more than 10% of the
corporation's
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assets) with an "interested stockholder" (a stockholder who owns 15% or more of
the corporation's outstanding voting stock) for three years following the date
on which such stockholder became an "interested stockholder" subject to certain
exceptions, unless the transaction is approved by the Board of Directors and
the holders of at least 66 2/3% of the outstanding voting stock of the
corporation (excluding shares held by the interested stockholder). The
statutory ban does not apply if, upon consummation of the transaction in which
any person becomes an interested stockholder, the interested stockholder owns
at least 85% of the outstanding voting stock of the corporation (excluding
shares held by persons who are both directors and officers or by certain
employee stock plans). A Delaware corporation subject to the Anti-Takeover Law
may "opt out" of the Anti-Takeover Law with an express provision either in its
certificate of incorporation or by-laws resulting from a stockholders'
amendment approved by at least a majority of the outstanding voting shares;
such an amendment is effective following expiration of twelve months from
adoption. The Anti-Takeover Law applies to Delaware corporations with a class
of stock listed on a national securities exchange or Nasdaq. It is not clear
whether the Anti-Takeover Law would apply to the Company if the stock is not
listed on Nasdaq or another US exchange but is listed on foreign exchanges. The
Company has not "opted out" of the Anti-Takeover Law.
The foregoing provisions of Delaware law and the Restated Certificate and By-
laws could have the effect of discouraging others from attempting a hostile
takeover of the Company and, as a consequence, they may also inhibit temporary
fluctuations in the market price of the common stock that might result from
actual or rumored hostile takeover attempts. Such provisions may also have the
effect of preventing changes in the management of the Company. It is possible
that such provisions could make it more difficult to accomplish transactions
which stockholders may otherwise deem to be in their best interests.
Equity
The table below shows the changes to equity capital in the Company since its
formation. The data are for the three years ended December 31, 1995, 1996 and
1997 and the nine months ended September 30, 1998. The net proceeds from
capital issues were derived from the sale of the Existing Preferred Stock, the
sale of common stock and the exercise of options and warrants to purchase
common stock.
Equity Capital
<TABLE>
<CAPTION>
Accumulated
As of Paid in Capital Total Value of Shares Net Loss Stockholders Equity
----- --------------- --------------------- ------------- -------------------
<S> <C> <C> <C> <C>
December 31, 1995....... $ 834 $ 11,854,317 $ (13,061,259) $ (1,206,942)
December 31, 1996....... 19,231,008 31,085,325 (21,350,139) 9,735,186
December 31, 1997....... 3,319,440 34,404,765 (31,104,151) 3,300,614
September 30, 1998...... 8,177,865 42,582,630 (37,688,864) 4,893,766
</TABLE>
Transfer Agent
The transfer agent and registrar for the common stock is American Stock
Transfer & Trust Company.
Recent Sales of Unregistered Securities
Since September 1995, the Company has issued and sold the following
securities, in each case in reliance on an exemption from required registration
pursuant to the Securities Act.
1995 Bridge Financing
From September through December 1995, the Company issued certain Convertible
Term Notes (the "Bridge Notes"), for an aggregate principal amount of
$1,762,236 bearing interest on unpaid principal at a rate of 7% per annum and
convertible into Series C Stock at the conversion price of $6.25 ($9.56 on an
as converted basis) per share of Series C Stock, and the Bridge Warrants,
exercisable at the price of $5.50 ($8.41 on an as converted basis) per share,
to certain current stockholders of the Company (collectively, the "Bridge
Financing").
Series C Private Placement
In January and July 1996, the Company sold an aggregate of 1,113,055 shares
of Series C Stock convertible into 727,938 shares of common stock, at a price
of $6.25 ($9.56 on an as converted basis) per share of Series C Stock, and
issued the Series C Warrants (together with the Series C Stock, the "Series C
Private Placement").
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Both the 1995 Bridge Financing and the Series C Private Placement were exempt
from the registration requirements of the Securities Act pursuant to the
private offering exemption under Section 4(2) thereof. In determining the
availability of this exemption, the Company relied on representations made by
the purchasers in the stock purchase agreement pursuant to which the Series C
Stock was purchased.
Neptune Acquisition
On July 31, 1996, as consideration for the acquisition by the Company of
Neptune Pharmaceuticals, Inc. ("Neptune"), a US pharmaceutical company, the
Company issued 246,050 shares of Series B Convertible Preferred Stock, $0.01
par value per share ("Series B Stock"), to the stockholders of Neptune
convertible into 160,917 shares of common stock. Shares of Series B Stock were
valued at $5.50 ($8.41 on an as converted basis) per share.
The shares issued in connection with the Neptune acquisition were exempt from
the registration requirements of the Securities Act pursuant to the private
offering exemption under Section 4(2) thereof. In determining the availability
of this exemption, the Company relied on representations made by the
stockholders of Neptune in the acquisition agreement.
Series D Private Placement
In separate closings as of each of October 30 and November 29, 1996, the
Company issued an aggregate of 1,900,000 shares of its Series D Convertible
Preferred Stock, $0.01 par value per share ("Series D Stock"), convertible into
1,242,600 shares of common stock, to a large number of institutional and
individual investors. All purchasers of Series D Stock were "Non-US Persons" as
defined by Rule 902 under Regulation S under the Securities Act, primarily
resident in Scandinavia. In determining the availability of this exemption, the
Company relied on representations made by investors in subscription agreements
pursuant to which the Series D Stock was purchased, as well as certain
representations from the placement agent in the placement agreement. Shares of
Series D Stock were purchased for $6.50 ($9.94 on an as converted basis) per
share, which represents the initial conversion price at which shares of Series
D Stock convert into common stock. Carnegie Bank A/S, ("Carnegie") acted as
placement agent for the sale of the Series D Stock and, pursuant to the terms
of a placement agreement between Carnegie and the Company dated as of October
5, 1996, received a placement fee equal to 7% of the aggregate proceeds raised,
plus accountable expenses.
Auda Acquisition
On March 11, 1997, as consideration for the acquisition by the Company of
Auda the Company issued additional shares of Series D Stock to the selling
stockholders of Auda. The Company issued 402,000 shares (convertible into
262,908 shares of common stock) to Danish Venture Finance A/S (previously known
as Danish Development Finance Corporation) and 33,000 shares (convertible into
21,582 shares of common stock) to GJK Holding ApS, a Danish corporation. Shares
of Series D Stock were valued at $7.50 ($11.47 on an as converted basis) per
share.
The private placement of the Series D Stock and the shares issued in
connection with the Auda acquisition were exempt from the registration
requirements of the Securities Act pursuant to Regulation S. In determining the
availability of this exemption, the Company relied on representations made by
Danish Development Finance Corporation and GJK Holding ApS in the Auda
acquisition agreement.
Series E Private Placement
In separate closings as of each of May 26 and June 25, 1998, the Company
issued an aggregate of 762,586 shares of the Series E Stock which are
convertible into an aggregate of 678,274 shares of common stock (assuming the
closing of this offering on February 8, 1999 at a public offering price of
$13.00 per share (the mid-point of the expected range)) to certain qualified
institutions and high net worth individuals. Shares of Series E Stock were
purchased for $10.00 per share. Carnegie acted as placement agent for the sale
of the Series E Stock and, pursuant to the terms of a placement agreement
between Carnegie and the Company dated March 23, 1998, received a placement fee
equal to 7% of the gross proceeds from the subscription of Series E Stock by
new investors and 2% of the gross proceeds from the subscription of Series E
Stock by existing investors of the Company.
Additional shares of Series E Stock convertible into an aggregate of 44,472
shares of common stock (based on the same assumptions as the immediately
preceding paragraph) were purchased by Lilly on September 18, 1998 at a price
of $10.00 per share. The issuance to Lilly did not involve any compensation to
Carnegie.
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The sale of the Series E Stock and the sale to Lilly were exempt from the
Securities Act pursuant to Regulation D. In determining the availability of
this exemption, the Company relied on representations made by Series E
investors in subscription agreements for the Series E Stock, as well as on
selling restrictions contained in the agreement with the placement agent.
Employee, Director and Consultant Issuances
The following securities have been sold in reliance on an exemption from
registration pursuant to Section 4(2) of the Securities Act:
Since inception, the Company has granted employees and consultants options
under its 1998 Equity Incentive Plan, which amends and restates the Company's
1992 Stock Option Plan, which have a ten-year term and are exercisable at a
price equal to the fair market value of the common stock at the date of grant,
as determined in good faith by the Compensation Committee of the Board of
Directors. As of November 30, 1998, options for 792,802 shares of the Company's
common stock were outstanding. As of such date, options for 187,775 shares of
common stock had been exercised at an average price of $0.55 per share.
In December 1997, the Company issued warrants to purchase an aggregate of
39,793 shares of its common stock to its Danish employees and certain members
of the Board of Directors based in Denmark which vest over a three to five year
period beginning on January 1, 1999 and are exercisable at $1.15 per share,
being a price equal to the fair market value of the common stock at the date of
grant, as determined in good faith by the Compensation Committee of the Board
of Directors. The Company also issued warrants to DACC ApS to purchase an
aggregate of 22,890 shares of common stock at an exercise price of $0.99 per
share. Such warrants vest over a two-year period beginning on January 1, 1999.
In addition, from inception through November 30, 1998, the Company made
grants of an aggregate of 434,372 shares of common stock to certain employees,
Directors and consultants to the Company. Such shares were sold at fair market
value and are subject to repurchase rights held by the Company.
SHARES ELIGIBLE FOR FUTURE SALE
Future sales of common stock in the public market could adversely affect the
stock's market price. Upon completion of this offering there will be 8,233,750
shares of common stock outstanding, assuming no currently outstanding options
or warrants (other than the warrants for 68,995 shares with a price of $0.02
per share which expire on the closing of this offering) are exercised and that
the Series E Convertible Preferred Stock converts at the rate of one-to-one.
The 2,500,000 shares sold in this offering (plus any additional shares sold
upon exercise of the Underwriters' over-allotment option) will be freely
transferable. The 5,733,750 shares of common stock expected to be outstanding
prior to this offering will, subject to certain agreements described below, be
eligible for immediate resale in Denmark and other member states of the EU. In
the US, such resales will also be subject to Rule 144 under the Securities Act,
as described below.
Certain Phytera stockholders, Directors and employees holding in the
aggregate approximately 4,948,819 shares of common stock (plus approximately
223,878 shares issuable upon exercise of vested options and warrants
exercisable at $0.02 per share), have agreed, subject to certain limited
exceptions, not to sell or otherwise dispose of any of their shares for a
period of 180 days after the date of this Prospectus without the prior written
consent of SG Cowen Securities Corporation. The holders of an additional
763,349 shares of common stock are subject to agreements not to sell or
otherwise dispose of any of their shares for a period of 90 days after the
effectiveness of the offering.
For US securities law purposes, the 5,733,750 outstanding shares of common
stock owned by existing stockholders are deemed "Restricted Shares" pursuant to
Rule 144 ("Rule 144") under the Securities Act. These shares may not be resold
in the US, except pursuant to an effective registration statement or an
applicable exemption from registration. If the Company establishes a public
market for its common stock in the US, the holders of the Restricted Shares may
sell such shares into the US public market relying on the exemptions from
registration under Rule 144 and Rule 701 under the Securities Act ("Rule 701").
Upon expiration of the 180 day lock-up agreements described above, 4,834,965
shares will be eligible for immediate sale in the US under Rules 144 and 701.
The remaining 113,854 locked-up Restricted Shares will become eligible for
resale under Rule 144 from time to time thereafter upon the expiration of the
minimum one year holding period prescribed by Rule 144.
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Of the 784,931 Restricted Shares not subject to the 180 day lock-up
agreements, 13,208 Restricted Shares may be sold in the US pursuant to Rule
144(k) immediately upon the effectiveness of this offering, and the remaining
771,723 shares not subject to the 180 day lock-up agreement (which amount
includes 763,349 Restricted Shares subject to a 90 day lock-up agreement) may
be sold under Rule 144 and Rule 701 under the Securities Act upon the
expiration of 90 days after the effectiveness of this offering.
In general, under Rule 144, as currently in effect, a person (or persons
whose shares are aggregated), including an affiliate, who has beneficially
owned Restricted Shares for at least one year from the later of the date such
Restricted Shares were acquired from the Company and (if applicable) the date
they were acquired from an affiliate, is entitled to sell in the US, within any
three-month period, a number of shares that does not exceed the greater of 1%
of the then outstanding shares of common stock (57,337 shares based on the
number of shares to be outstanding after this offering) or the average weekly
trading volume in the public market (combined volume on all markets) during the
four calendar weeks preceding such sale. Sales in the US under Rule 144 are
also subject to certain requirements as to the manner and notice of sale and
the availability of public information concerning the Company. Affiliates may
sell shares not constituting Restricted Shares in accordance with the foregoing
volume limitations and other restrictions, but without regard to the one-year
holding period. All sales of Restricted Shares held by affiliates of the
Company must be sold under Rule 144, subject to the foregoing volume
limitations and other restrictions. Further, under Rule 144(k), if a period of
at least two years has elapsed between the later of the date Restricted Shares
were acquired from the Company or an affiliate of the Company, a holder of such
Restricted Shares who is not an affiliate of the Company at the time of the
sale and has not been an affiliate of the Company for at least three months
prior to the sale would be entitled to sell the shares immediately without
regard to the volume limitations or other conditions described above.
Rule 701 under the Securities Act provides an exemption from the registration
requirements of the Securities Act for offers and sales of securities issued
pursuant to certain compensatory benefit plans or written contracts of a
company not subject to the reporting requirements of Sections 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Any
employee, officer or director of or consultant to the Company who acquired
shares of common stock from the Company prior to this offering or on exercise
of a stock option granted prior to this offering is entitled to rely on the
resale provisions of Rule 701, which permit non-affiliates to sell such shares
without having to comply with the public information, holding period, volume
limitation, or notice requirements of Rule 144 and permit affiliates to sell
their Rule 701 shares without having to comply with the holding period
requirements of Rule 144 commencing, in each case, 90 days after the date of
this Prospectus.
No prediction can be made as to the effect, if any, that market sales of
additional shares or the availability of such additional shares for sale will
have on the market price of the common stock. Nevertheless, sales of
substantial amounts of common stock in the public market may have an adverse
impact on the market price for the common stock. See "Risk Factors--Investors
Will Face Immediate and Substantial Dilution."
Registration Rights
Pursuant to the terms of an Amended and Restated Investors' Rights Agreement
dated as of May 26, 1998, the holders of the 4,949,056 shares of common stock
to be issued on conversion of the Existing Preferred Stock (the "Registrable
Shares") and the holders of 68,995 shares expected to be issued on exercise of
warrants expiring in connection with the offering are entitled to certain
rights with respect to registration under the Securities Act of the Registrable
Shares. If the Company proposes to register any of its securities under the
Securities Act, either for its own account or for the account of other security
holders, the Company is obligated to use its best efforts to include the
Registrable Shares in such registration. These shares will not form a part of
the shares of common stock registered in this offering. In addition, such
stockholders have certain demand registration rights with respect to the
Registrable Shares.
Reporting Requirements
Phytera is required to register the shares of common stock offered hereby
under Section 12(g) of the Exchange Act, subjecting the Company and its
shareholders to Exchange Act reporting requirements. Under Section 13 of the
Exchange Act, any person who is the beneficial owner of more than 5% of the
Company's common stock (a "5% Holder") must file with the Commission to report
acquisitions or holdings of the common stock. Under Section 16 of the Exchange
Act, any person who is a beneficial holder of more than 10%
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of any of the Company's common stock, and all Directors and executive officers
of the Company, are required to file with the Commission to report all changes
in such person's beneficial ownership of the common stock.
Under EASDAQ rules, any person who is a 5% Holder must report to the Company
all acquisitions and dispositions of the Company's common stock. Phytera is
required to notify EASDAQ, and to disclose to the public through the EASDAQ
Publication Mean, the identity and number of shares of common stock held by all
5% Holders.
Under Danish law, any person who possesses any of the Company's common stock
which in the aggregate represents either (i) 5% or more of the Company's common
stock, or (ii) 5% or more of the total voting power attributable to the
Company's common stock, is required immediately to report the extent of such
holdings and such shareholders' identity to the Company and the CSE. Subsequent
changes in percentage of common stock held or voting power acquired must be
reported immediately at each respective 5% interval (e.g. 10%, 15% and 20%) and
at 33 1/3% and 66 2/3%. Reductions in common stock and voting power must also
be reported at such intervals accordingly.
SETTLEMENT AND CLEARANCE
The following summarizes the Company's understanding of the operation of the
clearing system which will be in place after this offering. Persons proposing
to trade the common stock on EASDAQ or on the CSE should inform themselves
about the costs of such trading.
The common stock sold in this offering will be represented by one global
share certificate that will be deposited with DTC in the United States.
Transactions in the common stock executed in the United States will be settled
by book-entry through financial institutions that are participants in DTC.
DTC is a limited-purpose trust company that was created to hold securities
for its participating organizations (collectively, "DTC Participants") and to
facilitate the clearance and settlement of transactions in such securities
between Participants through electronic book-entry changes in accounts of DTC
Participants. DTC Participants include securities brokers and dealers, banks
and trust companies, clearing corporations and certain other organizations.
Access to DTC's system is also available to other entities such as banks,
brokers, dealers and trust companies (collectively "DTC Indirect Participants")
that clear through or maintain a custodial relationship with a DTC Participant,
either directly or indirectly. Persons who are DTC Participants may
beneficially own securities held by or on behalf of DTC only through DTC
Participants or DTC Indirect Participants.
The Company's common stock will be quoted on EASDAQ in USD. Transactions in
the common stock on EASDAQ will be settled in USD or any other Euroclear
eligible currency through the Euroclear System. Investors in the common stock
on EASDAQ must have a securities account with a financial institution which
directly or indirectly has access to Euroclear. Euroclear is a DTC Indirect
Participant.
Euroclear holds securities and book-entry interests in securities for its
direct participants, which include banks, securities brokers and dealers, other
professional intermediaries and foreign depositories and facilitates the
clearance and settlement of securities transactions between Euroclear
participants, and between Euroclear participants and participants of certain
other securities intermediaries, including DTC, through electronic book-entry
changes in accounts of such participants or other securities intermediaries.
Euroclear provides Euroclear participants, among other things, with
safekeeping, administration, clearance and settlement, securities lending and
borrowing, and related services. Euroclear participants are investment banks,
securities brokers and dealers, banks, Central banks, supranationals,
custodians, investment managers, corporations, trust companies and certain
other organizations and include certain of the Underwriters.
The Company's common stock will be quoted in DKK on the CSE. Transactions in
the common stock on the CSE will be settled in DKK or any other eligible
currency through account-holding institutions at the Danish Securities Center
(Vaerdipapircentralen), where the common stock will be registered. Such
account-holding institutions include banks, stock broking companies and
mortgage associations. The Danish Securities Center will have a relationship
with a direct participant in Euroclear. For real time settlement on a gross
basis, delivery against payment is carried out in real time on a final and
irrevocable basis. Cash settlement is effected through account-holding
institutions with the Danish Central Bank.
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TAX CONSIDERATIONS
The following is a general discussion of the tax consequences of an
investment in the common stock under US Federal, Danish and Belgian
regulations. This discussion is based on provisions of the law and the
regulations, administrative rulings and judicial discussions thereunder now in
effect, all of which are subject to change (possibly with retroactive effect)
or different interpretations. This discussion does not purport to be a
comprehensive description of all of the tax considerations that may be relevant
to a decision to acquire, hold, or dispose of the common stock. This discussion
is provided for general information purposes only, and does not constitute, and
should not be considered as, legal or tax advice to any prospective holder of
the common stock. Each prospective purchaser of the common stock is urged to
consult its own tax advisor with respect to the tax consequences of acquiring,
holding and disposing of common stock, the laws of any national, state or local
taxing jurisdiction.
United States Tax Considerations
The following is a general discussion of the material US federal income
consequences of the ownership and disposition of common stock by a person that
for United States federal income tax purposes is: (i) a non-resident alien
individual, (ii) a foreign corporation, (iii) a foreign partnership, or (iv) an
estate or trust which is not subject to US federal income tax without regard to
the source of its income (a "non-US holder"). This discussion does not address
the US federal income tax consequences that may be relevant to particular non-
US holders subject to special treatment under the federal income tax law as a
result of their personal circumstances, and does not address the treatment of
non-US holders of common stock under the laws of any state, local or foreign
taxing jurisdiction.
Dividends
Distributions paid to a non-US holder of common stock which constitute
dividends for US federal income tax purposes generally will be subject to
withholding of US federal income tax at a 30% rate or such lower rate as may be
specified by an applicable income tax treaty (such as that between the US and
Belgium), unless the dividends are effectively connected with the conduct of a
trade or business carried by the non-US holder within the US (and are
attributable to a US permanent establishment or fixed base of such holder, if
an applicable income tax treaty so requires as a condition for the non-US
holder to be subject to US income tax on a net income basis with respect to
such dividends). Such "effectively connected" dividends are generally subject
to tax at rates applicable to US citizens, resident aliens and domestic US
corporations, and are not generally subject to withholding (provided that the
non-US holder provides certain appropriate certification). Any such effectively
connected dividends received by a non-US corporation may also, under certain
circumstances, be subject to an additional "branch profits tax" at a 30% rate
or such lower rate as may be specified by an applicable income tax treaty.
Under the "Convention Between the United States of America and the Kingdom of
Belgium For the Avoidance of Double Taxation and the Prevention of Fiscal
Evasion With Respect to Taxes on Income" (the "Belgium Treaty"), a non-US
holder that qualifies as a "resident of Belgium" may, as long as the shares of
common stock held by such person are not attributable to the conduct of a trade
or business or the rendering of independent personal services in the US through
a permanent establishment or fixed base situated therein, be entitled to a
reduced withholding tax rate on dividends paid by the Company equal to 15%,
rather than 30% as discussed above. For this purpose, the term "resident of
Belgium" generally means (i) a Belgian corporation and (ii) any person other
than a corporation (including an individual, a partnership, an estate, a trust,
or any body of persons) who is a resident of Belgium for purposes of its tax
status. In addition, the Belgium Treaty provides that if a non-US holder
entitled to a reduced rate of withholding under the above test is a Belgian
company that owns at least ten percent of the voting stock of the Company, the
withholding tax rate is further reduced to five percent. Furthermore, under the
Notice 87-56, the additional 30% branch profits tax described above may be
eliminated for "qualified residents" of Belgium (the term qualified resident
having the meaning set forth in Section 884(e)(4) of the Code).
Under currently effective US Treasury Regulations, dividends paid to an
address in a foreign country are presumed to be paid to a resident of that
country (unless the payor has knowledge to the contrary) for purposes of the
withholding discussion above and, under the current interpretation of US
Treasury Regulations, for purposes of determining the applicability of a tax
treaty rate. Under recently finalized US Treasury Regulations that will
generally be effective for distributions after December 31, 1998 (extended,
under certain transition
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rules, until December 31, 1999) (the "Final Withholding Regulations"), however,
a non-US holder of common stock who wishes to claim the benefit of an
applicable treaty rate would be required to satisfy applicable certification
requirements. In addition, under the Final Withholding Regulations, in the case
of common stock held by a foreign partnership among other things, (i) the
certification requirement would generally be applied to the partners of the
partnership and (ii) the partnership would be required to provide certain
information, including a US taxpayer identification number or be subject to
withholding at the full 30% rate. The final Withholding Regulations also
provide look-through rules for tiered partnerships.
A non-US holder of common stock that is eligible for a reduced rate of US
withholding tax pursuant to a tax treaty may obtain a refund of any excess
amounts currently withheld by the timely filing of an appropriate claim for
refund with the US Internal Revenue Service.
Gain on Disposition of Common Stock
A non-US holder generally will not be subject to US federal income tax in
respect of gain recognized on a disposition of common stock except in the
following circumstances: (i) where the gain is effectively connected with the
conduct of a trade or business in the US by such non-US holder (and is
attributable to a permanent establishment or fixed base maintained in the US by
such non-US holder if an applicable income tax treaty so requires as a
condition for such non-US holder to be subject to United States taxation on a
net income basis with respect to such gain), (ii) in the case of a non-US
holder who is an individual and holds the common stock as a capital asset, such
holder is present in the United States for 183 or more days in the taxable year
of the sale and certain other conditions exist, (iii) in some cases where the
Company is or has been a "US real property holding corporation" for US federal
income tax purposes (which the Company believes it is not currently and will
not become) or (iv) the non-US holder is subject to tax pursuant to certain
provisions of the Code applicable to US expatriates. Effectively connected
gains realized by a corporate non-US holder may also, under certain
circumstances, be subject to an additional "branch profits tax" at a 30% rate
or such lower rate as may be specified by an applicable income tax treaty.
Information Reporting and Backup Withholding
Under current law, US information reporting requirements (other than
reporting of dividend payments for purposes of the withholding tax noted above)
and backup withholding tax generally will not apply to dividends paid to non-US
holders that are either subject to the 30% withholding tax discussed above or
that are not so subject because an applicable tax treaty (such as the Belgium
Treaty) reduces such withholding. Otherwise, backup withholding of US federal
income tax at a rate of 31% may apply to dividends paid with respect to common
stock to non-US holders that are not "exempt recipients" and that fail to
provide certain information (including the holder's US taxpayer identification
number). Generally, unless the payor of dividends has definite knowledge that
the payee is a United States person (as such term is defined in the Code and
attendant regulations), the payor may treat dividend payments to a payee with a
foreign address as exempt from information reporting and backup withholding.
However, under the Final Withholding Regulations, dividend payments generally
will be subject to information reporting and backup withholding unless
applicable certification requirements are satisfied. See the discussion above
with respect to the rules applicable to foreign partnerships under the Final
Withholding Regulations.
In general, US information reporting and backup withholding requirements also
will not apply to a payment made outside the US of the proceeds of a sale of
common stock through an office outside the United States of a non-United States
broker. However, US information reporting (but not backup withholding)
requirements will apply to a payment made outside the US of the proceeds of a
sale of common stock through an office outside the US of a broker (i) that is a
United States person, (ii) that derives 50% or more of its gross income for
certain periods from the conduct of a trade or business in the US, (iii) that
is a "controlled foreign corporation" as to the US or (iv) (effective beginning
January 1, 1999) that is a foreign partnership with certain connections to the
US, unless the broker has documentary evidence in its records that the holder
or beneficial owner is a non-US person or the holder or beneficial owner
otherwise establishes an exemption. Payment of the proceeds of the sale of
common stock to or through a US office of a broker is currently subject to both
US backup withholding and information reporting unless the holder certifies its
non-US status under penalties of perjury or otherwise establishes an exemption.
Non-US holders should consult their tax advisors regarding the application of
information reporting and backup withholding in their particular situations,
the availability of an exemption therefrom, and the procedure
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for obtaining such an exemption, if available. Any amounts withheld from a
payment to a non-US holder under the backup withholding rules will be allowed
as a credit against such holder's US federal income tax liability provided the
required information is furnished to the US Internal Revenue Service. A non-US
holder generally may obtain a refund of any excess amounts withheld under the
backup withholding rules by filing the appropriate claim for refund with the
US Internal Revenue Service.
Danish Tax Considerations
The following discussion summarizes certain Danish tax consequences relating
to an investment in common stock by a Danish resident investor. This summary
deals only with common stock held by portfolio investors with less than 25% of
the share capital of the Company.
Dividends
For Danish resident shareholders, the US withholding tax on dividend
payments by the Company is in principle reduced from 30% to 15% pursuant to
the US-Danish income tax treaty. Special rules apply to the calculation of the
relief available under this treaty in different circumstances.
Residents
The gross amount of distributions by the Company will be treated as taxable
income for resident shareholders. The dividend is deemed acquired as of the
date of the shareholders' meeting where the decision regarding distribution is
taken. For Danish resident individuals, dividends on common stock are taxed as
share income. For the 1999 tax year, the first DKK 36,000 (DKK 72,000 if
married) of share income is taxed at a rate of 25%, any dividend income over
that amount is taxed at a rate of 40%. These share income levels are subject
to change in subsequent tax years. The US-Danish income tax treaty provides
that any US withholding tax can be set-off against the Danish tax. Dividend
income is not subject to local income taxes. For information regarding
individual pension accounts, see below.
For Danish resident companies holding less than 25% of a company's share
capital, 66% of the total dividend is taxed as ordinary income; 34% of the
dividend is tax-exempt. Given that the Danish corporation tax rate is
currently 34%, the effective tax rate on dividends is approximately 22%. In
addition, Danish resident companies are entitled to a reduction in share
income for the US tax withheld. Dividend income is not subject to local income
taxes.
Dividends received by Danish banks and other entities in the business of
share investment are taxed as ordinary business income at a rate of 34%. No
part of the dividend is tax-exempt.
Pension funds are tax exempt, but must pay a real interest rate duty on
dividend income. Pension funds, life insurance companies, and other entities
subject to the Danish real interest duty are subject to a five percent duty on
dividends. The US withholding tax can be set-off against the five percent duty
on the dividend. The real interest rate rules apply to all pension capital
arising from tax deductible pension schemes, including pension accounts of
individuals held by banks.
Non-residents
If a non-resident holds common stock other than through a business that is a
permanent establishment in Denmark, no Danish tax is levied on dividends.
Capital Gains Tax
Residents
Shares of Phytera common stock disposed of by Danish residents will be
subject to the same capital gains tax as shares of Danish listed companies.
Gains and losses on shares are calculated as the difference between the market
value in DKK at the time of purchase and the market value in DKK at the time
of disposal. Accordingly, the capital gains tax is affected by changes in the
exchange rate between US dollars and Danish kroner.
Capital gains received on the disposal of common stock by an individual are
taxed as investment income (approximately 40%-59%) or share income (25%-40%).
If the shares were held for less than three years, capital gains on the
disposal of shares are taxed as investment income (approximately 40%-59%).
Such gains and losses are computed according to the so-called "share-for-share
method." Under this method, gains and losses are
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calculated as the difference between the purchase price and the corresponding
disposal price for each separate share. Any losses on shares held for less
than three years may be offset against similar gains or, if no such gains are
available, may be carried forward for five years.
Gains on shares held for three years or longer are tax-exempt if the market
value of the individual's total portfolio of listed shares, listed investment
fund certificates, and the like, within the last three years, has not exceeded
a certain level, which is DKK 113,300 for the 1999 tax year. For married
couples the aggregate value of both spouses' portfolios cannot exceed this
level. The market value of an individual's or married couples' portfolio is
generally measured immediately after each purchase and immediately prior to
each disposal of a listed share, and again at the end of each calendar year.
Gains on the disposal of listed shares are tax-exempt only if the market value
of the portfolio does not exceed the limit at any of the measurement dates.
If the shares are held for at least three years, and the portfolio exceeds
DKK 113,300, capital gains are taxed as share income (25%-40%). Gains and
losses on shares held for three years or longer are calculated in accordance
with the "average method." Under this method, the gain or loss is calculated
as the difference between the purchase price of the shares, which is
calculated as a fraction of the total purchase price for all of the shares in
the same company held for at least three years, and the disposal price of the
shares. Any losses on listed shares held for more than three years may be
offset against similar gains (assuming the portfolio exceeds the DKK 113,300
limit), or may be carried forward for five years.
For information regarding individual pension accounts, see below.
The taxation of capital gains upon the disposal of shares of common stock by
a resident individual is outlined as follows:
<TABLE>
<CAPTION>
Ownership for three years or longer
-------------------------------------------------
Value less than or Value greater than
Disposal of Shares Ownership for less than three years equal to DKK 113,300 DKK 113,300
- ------------------ ----------------------------------- ------------------------ ------------------------
<S> <C> <C> <C>
Capital gains Investment income Tax exempt Share income
Capital losses . Offset against taxable Capital losses cannot be . Offset against taxable
gains on the sale of set off gains on listed shares
shares held for less held for three years
than three years or more (incl.
(incl. spouses' spouses' shares)
shares).
. Carried forward for . Carried forward for
five years. five years
Calculation method Share-for-share method Average method
</TABLE>
Capital gains on common stock held by a company for less than three years
are taxed as ordinary income at a rate of 34%. Gains and losses are calculated
in accordance with the average method, as discussed above. Losses realized on
the sale of shares held by a company for less than three years can be deducted
from taxable gains on the sale of other shares owned for less than three
years, or can be carried forward for five years. Losses are reduced by the
amount of tax exempt dividends received in connection with such shares.
Gains on common stock held for more than three years are tax exempt and
losses are not deductible.
The taxation of capital gains upon the disposal of shares of common stock by
a resident company is outlined as follows:
<TABLE>
<CAPTION>
Disposal of Shares Ownership for less than three years Ownership for three years or longer
- ------------------ ----------------------------------- -----------------------------------
<S> <C> <C>
Capital gains Ordinary income (34%) Tax exempt
Capital losses . Offset against taxable gains on disposal of .No set-off
other shares held for less than three years.
. Tax-exempt dividends are deducted from the .No tax deduction
loss.
. Carried forward for five years.
</TABLE>
For Danish banks and other entities in the business of share investment,
capital gains received on the disposal of common stock are taxed as ordinary
business income at a rate of 34% irrespective of the period of ownership. Any
corresponding losses are deductible.
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<PAGE>
Life insurance companies are subject to both a corporate tax and a real
interest rate duty on capital gains. In order to avoid double taxation, the
real interest rate duty is reduced by a percentage of the taxable income. The
deduction of provisions, insurance payments and the like may be reduced to the
extent the company has tax exempt dividends or capital gains on shares
(realized or unrealized). Thus, the benefits of the exempt 34% of the total
dividends received (100%-66%) and the tax exempt gains on the shares of common
stock may indirectly trigger corporate taxation.
Pension funds are tax exempt, but must pay a real interest rate duty of five
percent on any capital gains on listed shares. The capital gain is calculated
annually using the "mark-to market" method. Capital losses on listed shares are
calculated using the same method and are deductible against capital gains. The
real interest rate rules apply to all pension capital arising from tax
deductible pension schemes, including pension accounts of individuals held by
banks.
The proceeds from the sale of shares to the issuing company are taxed as a
deemed dividend distribution whether the sale is made by an individual or a
company. In certain circumstances and upon application to the tax authorities,
permission can be obtained to subject the sale to normal capital gains tax
rules.
Non-residents
If a non-resident holds common stock other than through a business that is a
permanent establishment in Denmark, no Danish tax is levied on capital gains.
Transfer Duty
On the disposal of common stock by a Danish resident, a duty of 0.5% is
assessed based upon the market value of the transferred shares. Non-residents
are not subject to the share transfer tax.
Belgian Tax Considerations
The following is a summary of the material Belgian income and stamp tax
consequences of the acquisition, ownership and disposition of common stock. The
summary uses the term, "Belgian Holders," to refer to beneficial owners of
common stock of the Company whose ownership of such common stock is not
attributable to a permanent establishment or a fixed base in another country
and who are considered residents of Belgium for the purposes of Belgian law.
Dividends
Belgian Withholding Tax
Dividends distributed on common stock are subject to a withholding tax at the
rate of 25%, when paid or attributed through a professional intermediary in
Belgium. However, no dividend withholding tax is due if no Belgian professional
intermediary is used to pay or attribute the dividend. The Company has no
intention to use a Belgian professional intermediary to pay or attribute
dividends to non-Belgian Holders. No withholding tax is due on dividends paid
on the common stock to a company with its fiscal residence in Belgium.
In a case where dividends are paid outside Belgium without any intervention
of a paying agent in Belgium, no dividend withholding tax is, in principle,
due. However, where the Belgian Holder is a Belgian resident or entity subject
to the tax on legal entities (for example, a pension fund), the Belgian Holder
itself must pay the dividend withholding tax at the rate of 25%.
Income Tax
In the hands of a Belgian Holder who is an individual holding common stock as
a private investment, the Belgian dividend withholding tax is a final tax and
the dividends need not be reported in the individual's annual income tax
return. If no withholding tax has been levied (i.e., in case of payment or
attribution outside of Belgium), the individual must report the dividends in
his or her tax return. Thus, in the case of the Company, such Belgian Holder
will be taxed at the separate rate of 15%, to be increased with a municipal
surcharge (varying, as a rule, from six percent to nine percent).
In the hands of an individual Belgian Holder whose holding of common stock is
effectively connected with a business, the dividends are taxable at the
ordinary rates for business income (i.e., varying from 25% to 55%, to be
increased by a crisis contribution of three percent of the tax due and the
appropriate municipal surcharge). Any Belgian withholding tax is creditable
against the final income tax due by the Belgian Holder,
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<PAGE>
provided that the Belgian Holder has the full legal ownership of the common
stock at the time of payment or attribution of any dividends, and provided
further that the dividend distribution does not entail a reduction in value of
or a capital loss on the common stock.
Dividends received by Belgian Holders which are resident companies are, in
principle, subject to corporate income tax at the rate of 40.17% (i.e., the
standard rate of 39% increased by the crisis contribution of three percent of
the corporate income tax due). Lower rates may be applicable to Belgian
resident companies which, among other conditions, are not 50% or more owned by
another company and which derive taxable income below certain thresholds fixed
by law.
However, provided that the dividends benefit from the so-called "dividend-
received deduction," only five percent of the dividends received will be
taxable. In order to benefit from this deduction, the Company must not fall
within one of the categories in which the distributed dividends are expressly
excluded from the "dividend-received deduction" (for example, dividends which
are distributed by tax-haven countries or are paid out of income has benefited
from a special tax regime) and the beneficiary should hold, at the time of
payment of the dividends, a participation of at least five percent in the
Company or a participation which has an acquisition value of at least BEF 50
million.
For Belgian resident entities subject to the Belgian Tax on Juridical
Entities (for example, pension funds), the Belgian dividend withholding tax is
a final tax.
Capital Gains
Individual Belgian Holders holding the common stock as a private investment
and entities subject to Belgian tax on legal entities are not subject to
Belgian capital gains tax on the disposal of the common stock. Individual
Belgian Holders may, however, be subject to a 33% tax (to be increased by the
three percent crisis, contribution and the appropriate municipal surcharge) if
the capital gain is deemed to be "speculative" in nature, as defined by Belgian
case law.
Individual Belgian Holders whose holding of common stock may be considered as
effectively connected with a business will be taxable at ordinary (progressive)
rates on any capital gains realized upon a disposal of common stock if they
have held it for five years or less, but will be taxed at 16.5% (to be
increased by the three percent crisis contribution and the appropriate
municipal surcharge) on such gains if they have held the common stock for more
than five years before disposing of same.
Belgian resident companies are not subject to capital gains taxation,
provided that the dividends received on the shares which such companies have
disposed of would qualify for the "dividend-received deduction" (except for the
minimum holding requirement). As noted above, it is the Company's view that any
dividends it may distribute might qualify.
Indirect Taxes
In principle, a stamp tax is levied upon the subscription of new common stock
and the purchase and sale in Belgium of common stock, if effected by means of a
professional intermediary. The rate applicable to subscriptions of new common
stock is 0.35%, but there is a limit of 10,000 BEF per transaction. The rate
applicable for secondary sales and purchases in Belgium of common stock through
a professional intermediary is 0.17%, but there is a limit of 10,000 BEF per
transaction.
An exemption is available to professional intermediaries (e.g., credit
institutions), insurance companies, pension funds, and collective investment
vehicles which are acting for their own account. A non-resident holder of
common stock who is acting for his or her own account will also be entitled to
an exemption from this stamp tax, provided that he or she delivers to the
issuer or the professional intermediary in Belgium, as the case may be, an
affidavit confirming his or her non-resident status vis-a-vis Belgium.
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UNDERWRITING
Subject to the terms and conditions set forth in an Underwriting agreement
(the "European Underwriting Agreement"), the Company has agreed to sell to each
of the European managers named below (the "European Managers"), and each of the
European Managers, for whom SG Cowen Securities International L.P., Carnegie
Bank A/S and BancBoston Robertson Stephens International Ltd are acting as lead
managers (the "Lead Managers"), has severally agreed to purchase from the
Company, the respective number of shares of common stock set forth opposite the
name of such European Manager below:
<TABLE>
<CAPTION>
Number
European Manager of Shares
---------------- ---------
<S> <C>
SG Cowen International L.P. .......................................
Carnegie Bank A/S..................................................
BancBoston Robertson Stephens International Ltd....................
---------
Total............................................................ 1,750,000
=========
</TABLE>
Subject to the terms and conditions set forth in an Underwriting agreement
(the "US Underwriting Agreement"), the Company has agreed to sell to each of
the Underwriters named below (the "US Underwriters"), and each of the US
Underwriters, for whom SG Cowen Securities Corporation, Carnegie Inc. and
BancBoston Robertson Stephens Inc. are acting as representatives (the "US
Representatives"), has severally agreed to purchase from the Company, the
respective number of shares of common stock set forth opposite the name of such
US Underwriter below:
<TABLE>
<CAPTION>
Number
US Underwriter of Shares
-------------- ---------
<S> <C>
SG Cowen Securities Corporation....................................
Carnegie Inc.......................................................
BancBoston Robertson Stephens Inc. ................................
-------
Total............................................................ 750,000
=======
</TABLE>
The US Underwriters and the European Managers are collectively referred to as
the "Underwriters" and the US Representatives and the Lead Managers are
collectively referred to as the "Representatives." The European Underwriting
Agreement and the US Underwriting Agreement are collectively referred to as the
"Underwriting Agreements." The offering price and aggregate Underwriting
discounts and commissions per share for the European offering and the US
offering are identical. The completion of each offering is contingent upon the
completion of the other.
The Underwriting Agreements provide that the obligations of the Underwriters
are subject to certain conditions precedent, including the absence of any
material adverse change in the Company's business and the receipt of certain
certificates, opinions and letters from the Company and its counsel and
independent auditors, and that the Underwriters are committed to purchase all
shares of common stock offered hereby and covered by the respective
Underwriting Agreements (other than those covered by the over-allotment options
described below) if any such shares are purchased.
The Underwriters propose to offer shares of common stock directly to the
public at the initial public offering price set forth on the cover page of this
Prospectus and to certain dealers at such price less a concession not in excess
of $ per share. The Underwriters may allow, and such dealers may re-allow, a
concession not in excess of $ per share to certain other brokers and
dealers. After the shares of common stock are released for sale to the public,
the offering price and other selling terms may from time to time be varied by
the Representatives and the Underwriters will bear the risk that investors from
whom they have obtained indications of interest will not purchase the shares of
common stock. We expect that delivery of the common stock will be made in New
York, New York, US on or about February 8, 1999.
Pursuant to the Agreement Among US Underwriters and European Managers (the
"Intersyndicate Agreement"), each US Underwriter has represented and agreed
that, with certain exceptions: (i) it is not purchasing any Shares (as defined
herein) for the account of anyone other than a United States or Canadian Person
(as defined herein) and (ii) it has not offered or sold, and will not offer or
sell, directly or indirectly, any Shares or distribute any prospectus relating
to the Shares outside the United States or Canada or to anyone
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<PAGE>
other than a United States or Canadian Person. Pursuant to the Intersyndicate
Agreement, each European Manager has represented and agreed that, with certain
exceptions: (i) it is not purchasing any Shares for the account of any United
States Person or Canadian and (ii) it has not offered or sold, and will not
offer or sell, directly or indirectly, any Shares or distribute any prospectus
relating to the Shares in the United States or Canada or to any United States
or Canadian Person. With respect to any underwriter or manager that is both a
US Underwriter and a European Manager, the foregoing representations and
agreements (i) made by it in its capacity as a US Underwriter apply only to it
in its capacity as a US Underwriter and (ii) made by it in its capacity as a
European Manager apply only to it in its capacity as a European Manager. The
foregoing limitations do not apply to stabilization transactions or to certain
other transactions specified in the Intersyndicate Agreement. As used herein,
"United States or Canadian Person" means any national or resident of the United
States or Canada or any corporation, pension, profit-sharing or other trust or
other entity organized under the laws of the United States or Canada or of any
political subdivision thereof (other than a branch located outside the United
States or Canada of any United States or Canadian Person), and includes any
United States or Canadian branch of a person who is otherwise not a United
States or Canadian Person.
Pursuant to the Intersyndicate Agreement, sales may be made between the US
Underwriters and the European Managers of such number of shares of common stock
as may be mutually agreed. The price of any shares so sold shall be the public
offering price, less an amount not greater than the selling concession.
The Company has granted to the US Underwriters and the European Managers
options, exercisable for up to 30 days after the date of this Prospectus, to
purchase up to an aggregate of 375,000 additional shares of common stock,
respectively, to cover over-allotments, if any. If the Underwriters exercise
the over-allotment options, the Underwriters have severally agreed, subject to
certain conditions, to purchase approximately the same percentage thereof that
the number of shares of common stock to be purchased by each of them as shown
in the foregoing tables bears to the total number of shares of common stock
offered hereby. The Underwriters may exercise such options only to cover over-
allotments made in connection with the sale of shares of common stock offered
hereby.
The Company, the Company's officers, all Directors who own shares of common
stock and certain other stockholders, warrantholders and optionholders of the
Company have agreed that for a period of 180 days following the date of this
Prospectus, without the prior consent of SG Cowen Securities Corporation, they
will not, directly or indirectly, offer, sell, assign, transfer, encumber,
pledge, contract to sell, grant an option to purchase or otherwise dispose of,
other than by operation of law, any shares of common stock or any securities
convertible into or exercisable or exchangeable for shares of common stock,
including, without limitation, options, warrants and the like which are owned
either of record or beneficially or which are acquired on or prior to the date
of this Prospectus or which are received upon the exercise of options and
warrants. SG Cowen Securities Corporation has advised the Company that it has
no present intention of releasing any of the Company's stockholders or
optionholders from such lock-up agreements until the expiration of the 180-day
period.
The Company has agreed to indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended, and to contribute to payments the Underwriters may be required to make
in respect thereof.
The Representatives have advised the Company that the Underwriters do not
intend to confirm sales in excess of five percent of the shares of common stock
offered hereby to any account over which they exercise discretionary authority.
Until the distribution of common stock is completed, rules of the US
Securities and Exchange Commission and EASDAQ may limit the ability of the
Underwriters and certain selling group members to bid for and purchase the
common stock. As an exception to these rules, the Underwriters, through a
stabilizing manager to be designated by them, are permitted to engage in
certain transactions on EASDAQ that stabilize the price of the common stock.
Such transactions consist of bids or purchases for the purpose of pegging,
fixing or maintaining the price of the common stock. Under EASDAQ rules, the
maximum price at which any such stabilizing transactions may be made may not
exceed the initial public offering price.
If the Underwriters create a short position in the common stock in connection
with this offering, i.e., if they sell more shares of common stock than are set
forth on the cover page of this Prospectus, they may reduce that short position
by purchasing common stock in the open market. The Underwriters may also elect
to reduce any short position by exercising all or part of the over-allotment
option described above.
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The Underwriters may impose a penalty bid on certain Underwriters and selling
group members. This means that if the Underwriters purchase common stock in the
open market to reduce the Underwriters' short positions or to stabilize the
price of the common stock, they may reclaim the amount of the selling
concession from the Underwriters who sold those shares of common stock as part
of this offering.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of a security to be higher than
it might be in the absence of such purchases. The imposition of a penalty bid
might also have an effect on the price of a security to the extent that it were
to discourage resales of the security.
Neither the Company nor any of the Underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the common stock. In addition, neither
the Company nor any of the Underwriters makes any representation that the
Underwriters will engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
Prior to this offering, there has been no public market for the common stock.
Consequently, the initial public offering price was determined by negotiations
between the Company and the Representatives. Among the factors considered in
such negotiations were prevailing market conditions, the results of operations
of the Company in recent periods, the market capitalizations and the stages of
development of other companies that the Company and the Representatives believe
to be comparable to the Company, estimates of the business potential of the
Company, the present state of the Company's development and other factors
deemed relevant.
Although the shares of common stock offered for sale by the Underwriters will
be registered under the Securities Act, the Company does not intend to apply
for listing of its common stock on any securities exchange in the United States
or for quotation through the National Association of Securities Dealers
Automated Quotation System. The US Underwriters have advised the Company that
they intend to offer or sell shares of common stock only to United States or
Canadian Persons that they reasonably believe to be institutional investors.
Therefore, US purchasers of shares of common stock may be required to seek
liquidity for their shares outside of the United States on EASDAQ or on the
CSE.
Carnegie Bank A/S, one of the Lead Managers and an affiliate of Carnegie
Inc., one of the U.S. Representatives, acted as placement agent for the sale of
the Company's Series E Stock and received a placement fee in connection
therewith.
SUBSCRIPTION AND SALE
The offerings of the common stock will commence on the date that the
Underwriters and the Company determine the initial public offering price for
the common stock. Pricing for the offerings will occur simultaneously. The
closing of the issuance and sale of the common stock by the Company in respect
of the offerings will occur simultaneously and are expected to occur on the
fourth business day following the determination of the initial public offering
price. In the event that the offerings are oversubscribed, the available shares
will be apportioned by the Underwriters among the subscriptions received.
Denmark
In Denmark, the offering of the shares of common stock will be subject to the
following subscription procedures:
The subscription period is expected to commence on February 1, 1999 and
terminate at 5:00 P.M. Central European time on the date that the initial
public offering price is determined, unless terminated earlier. The CSE
will be notified of the termination of the subscription period. The initial
public offering price will be announced in Denmark through the CSE.
Certain selling agents in Denmark may request that investors use a
subscription application form which is included with the Danish version of
this Prospectus. This form, if requested, must be received by the selling
agent from whom it was obtained prior to the termination of the
subscription period and is subject to the written instructions included
therein.
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Names and addresses of investors must be disclosed to the European
Managers who are entitled to pass on such information to the Company.
Belgium
The shares of common stock will not be offered publicly, directly or
indirectly, in Belgium at the time of this offering. Nevertheless, the
admission to trading on EASDAQ of the shares of common stock constitutes a
public offer in Belgium necessitating the approval of this Prospectus by the
CBF as described on page 3 of this Prospectus.
Austria
The shares of common stock have not been offered and will not be offered to
the general public in Austria but will be offered to a defined group of certain
institutional investors on the basis of a private placing or otherwise only in
circumstances where an exemption from the duty to publish a securities sale
prospectus under the Austrian Capital Market Act is applicable. Therefore, this
Prospectus is not intended for subscription and sale to the general public and
it is addressed to institutional investors only.
France
The offering does not and is not intended to constitute an offer to the
public ("appel public a l'epargne") under French law. The Prospectus is issued
in France only to persons who are qualified investors as defined under French
law, in particular Article 6 of the Ordinance No. 67-833 dated 28 September
1967 (as amended) in conjunction with Article 1 of the Decree No. 98-880 dated
1 October 1998. The Prospectus has not been submitted for approval to the
French Commission des Operations de Bourse (COB), nor have any procedures
required under French law for the public offering of shares in France been
followed. This Prospectus may not be used in connection with any offer or sale
of securities issued by the Company to the public in France.
Germany
The shares of common stock have not been offered and will not be offered to
persons in Germany except to persons who acquire or dispose of securities or
dispose of securities as part of their profession or as a business either for
their own account or for the account of third parties (Section 2, No. 1
Securities Sales Prospectus Act "Wertpapierverkaufspropekt-Gesetz") or
otherwise only in circumstances where an exemption from the duty to publish a
securities sales prospectus under the German Securities Sales Prospectus Act is
applicable.
Italy
The European Managers have represented and agreed that no action has been or
will be taken which would allow the offering of the shares of common stock to
the public in the Republic of Italy and that individual sales of shares of
common stock to any person in the Republic of Italy have only been or will only
be made in accordance with Italian securities, tax and other applicable laws
and regulations. Accordingly, the shares of common stock may not be offered,
sold or delivered and neither this Prospectus nor any other offering material
relating to the shares of common stock may be distributed or made available in
the Republic of Italy unless (i) such activities are carried out by a
securities intermediary appropriately authorized to conduct such activities in
the Republic of Italy and in accordance with applicable Italian securities laws
and any other applicable law or regulatory requirements and (ii) the applicable
requirements, if any, for notices to the Consob under Article 4 of Consob
Regulation 6430 and to the Bank of Italy under Article 129 of Legislative
Decree No. 385 of 1st September, 1993, as amended, and the Bank of Italy's
instructions issued thereunder, are fully complied with.
Sweden
The shares of common stock will be offered to a limited number of potential
investors only. The offered shares of common stock will not be offered to the
public in Sweden and are therefore not within the scope of the prospectus
regulations in the Swedish Financial Instruments Trading Act. This Prospectus
has not been submitted for approval by or registration with the Swedish
Financial Supervisory Authority.
68
<PAGE>
United Kingdom
The European Managers have represented and agreed with the Company that:
They have not offered or sold and prior to the expiration of the period of
six months from the date of the issue of the shares of common stock, will not
offer or sell any shares of common stock to persons in the United Kingdom,
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes
of their business or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995 or the Financial
Services Act of 1986.
They have complied and will comply with all applicable provisions of the
Financial Services Act of 1986 with respect to anything done by it in relation
to the shares of common stock in, from or otherwise involving the United
Kingdom.
They have only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issue of the
shares of common stock to a person who is of a kind described in Article 11(3)
of the Financial Services Act of 1986 (Investment Advertisements) (Exceptions)
Order 1996 (as amended) or is a person to whom such document may otherwise
lawfully be issued or passed on.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed upon
for the Company by Palmer & Dodge LLP, Boston, Massachusetts. Lynnette C.
Fallon, a partner of Palmer & Dodge LLP, is the Secretary of the Company.
Certain legal matters in connection with this offering will be passed upon for
the Underwriters by Brown & Wood LLP, New York, New York. Certain legal matters
in connection with the Company's patents will be passed upon for the Company by
Clark & Elbing, LLP, Boston, Massachusetts. Certain matters of Danish law,
including, among other things, the statements of Danish law included in this
Prospectus under the caption "Income Tax Considerations--Danish Tax
Considerations" will be passed upon by Dragsted & Helmer Nielsen, Copenhagen,
Denmark, and Bech-Bruun & Trolle, Copenhagen, Denmark, for the Company and the
Underwriters, respectively. Certain matters of English law will be passed upon
by Denton Hall, London, England, for the Company. Palmer & Dodge LLP and Brown
& Wood LLP will rely upon Dragsted & Helmer Nielsen and Bech-Bruun & Trolle
with respect to certain matters governed by Danish law and upon Denton Hall
with respect to certain matters governed by English law.
69
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Consolidated Financial Statements
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C>
Report of Independent Public Accountants................................. F-2
Consolidated Balance Sheets as of December 31, 1995, 1996, 1997 and
September 30, 1998 (unaudited) and Pro Forma September 30, 1998
(unaudited)............................................................. F-3
Consolidated Statements of Operations for the Years Ended December 31,
1995, 1996 and 1997, for the Nine Months Ended September 30, 1997 and
1998 (unaudited) and for the Period from Inception (May 27, 1992) to
September 30, 1998 (unaudited).......................................... F-4
Consolidated Statements of Changes in Stockholders' Equity (Deficit) for
the Period from Inception (May 27, 1992) to December 31, 1997, and for
the Nine Months Ended September 30, 1998 (unaudited) and Pro Forma
September 30, 1998 (unaudited).......................................... F-5
Consolidated Statements of Cash Flows for the Years Ended December 31,
1995, 1996 and 1997, for the Nine Months Ended September 30, 1997 and
1998 (unaudited) and for the Period from Inception (May 27, 1992) to
September 30, 1998 (unaudited).......................................... F-6
Notes to Consolidated Financial Statements............................... F-7
</TABLE>
F-1
<PAGE>
After the .654-for-one reverse stock split discussed in Note 6(a) to the
Company's financial statements is effected, we expect to be in a position to
render the following audit report.
Arthur Andersen LLP
Boston, Massachusetts
January 14, 1999
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholders and Board of Directors of
Phytera, Inc.:
We have audited the accompanying consolidated balance sheets of Phytera, Inc.
(a Delaware corporation in the development stage) and subsidiaries as of
December 31, 1995, 1996 and 1997, the related consolidated statements of
operations and cash flows for each of the three years in the period ended
December 31, 1997, and the related statement of stockholders' equity (deficit)
for the period from inception (May 27, 1992) through December 31, 1997. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Phytera, Inc. and subsidiaries
as of December 31, 1995, 1996 and 1997, and the results of their operations and
their cash flows for each of the three years in the period ended December 31,
1997, in conformity with United States generally accepted accounting
principles.
Boston, Massachusetts
February 20, 1998 (except with respect
to the matters discussed in Note 6(a),
as to which the date is January 14, 1999)
F-2
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Consolidated Balance Sheets
<TABLE>
<CAPTION>
December 31, Pro Forma
--------------------------------------- September 30, September 30,
1995 1996 1997 1998 1998
----------- ------------ ------------ ------------- -------------
(unaudited) (unaudited)
<S> <C> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and cash
equivalents.......... $ 470,010 $ 4,011,527 $ 3,342,130 $ 5,887,649 $ 5,887,649
Marketable
securities........... -- 6,105,391 450,000 1,100,000 1,100,000
Prepaid expenses and
other current
assets............... 136,273 246,327 232,788 295,288 295,288
----------- ------------ ------------ ------------ ------------
Total current
assets............. 606,283 10,363,245 4,024,918 7,282,937 7,282,937
----------- ------------ ------------ ------------ ------------
Equipment and
Improvements, at cost:
Laboratory equipment.. 1,989,571 2,331,802 2,985,962 2,974,963 2,974,963
Leasehold
improvements......... 455,506 603,518 751,899 905,019 905,019
Office equipment...... 307,592 465,792 584,930 739,703 739,703
----------- ------------ ------------ ------------ ------------
2,752,669 3,401,112 4,322,791 4,619,685 4,619,685
Less--Accumulated
depreciation and
amortization......... 894,662 1,448,540 2,153,328 2,717,617 2,717,617
----------- ------------ ------------ ------------ ------------
1,858,007 1,952,572 2,169,463 1,902,068 1,902,068
----------- ------------ ------------ ------------ ------------
Other Assets............ 239,561 79,695 94,633 129,649 129,649
----------- ------------ ------------ ------------ ------------
Total Assets........ $ 2,703,851 $ 12,395,512 $ 6,289,014 $ 9,314,654 $ 9,314,654
=========== ============ ============ ============ ============
LIABILITIES, REDEEMABLE
CONVERTIBLE PREFERRED
STOCK AND
STOCKHOLDERS' EQUITY
(DEFICIT)
Current Liabilities:
Current portion of
long-term debt (note
4)................... $ 825,000 $ 300,993 $ 299,536 $ 289,278 $ 289,278
Accounts payable...... 297,098 199,868 243,790 431,368 431,368
Accrued expenses...... 281,019 339,860 363,340 862,633 862,633
Deferred revenue...... -- 546,079 531,898 648,529 648,529
----------- ------------ ------------ ------------ ------------
Total current
liabilities........ 1,403,117 1,386,800 1,438,564 2,231,808 2,231,808
----------- ------------ ------------ ------------ ------------
Long-Term Debt, less
current portion (note
4)..................... 745,440 1,273,526 1,549,836 2,189,080 2,189,080
----------- ------------ ------------ ------------ ------------
Convertible Debt........ 1,762,236 -- -- -- --
----------- ------------ ------------ ------------ ------------
Commitments (note 8)
Redeemable Convertible
Preferred Stock, $0.01
par value--Authorized--
14,446,382 shares; no
shares pro forma Issued
and outstanding--
2,766,486 shares,
6,025,591 shares,
6,460,591 shares,
7,274,833 shares and no
shares as of December
31, 1995, 1996 and
1997, September 30,
1998 and pro forma
September 30, 1998,
respectively........... 11,893,915 30,945,219 34,186,184 41,138,563 --
----------- ------------ ------------ ------------ ------------
Stockholders' Equity
(Deficit) (note 6):
Preferred stock, $0.01
par value--
Authorized--1,000,000
shares pro forma
Issued and
outstanding--no
shares -- -- -- -- --
Common stock, $0.01
par value--
Authorized--13,000,000
shares actual;
25,000,000 shares pro
forma
Issued and
outstanding--499,035
shares, 529,758
shares, 607,783
shares, 709,949
shares and 5,659,005
shares as of December
31, 1995, 1996 and
1997, September 30,
1998 and pro forma
September 30, 1998,
respectively......... 4,990 5,298 6,078 7,099 56,590
Additional paid-in
capital.............. 7,501 839,919 1,341,534 5,206,617 46,295,689
Deficit accumulated
during the
development stage.... (13,113,348) (22,055,250) (32,233,182) (39,647,629) (39,647,629)
Deferred
compensation......... -- -- -- (1,810,884) (1,810,884)
----------- ------------ ------------ ------------ ------------
Total stockholders'
equity (deficit)... (13,100,857) (21,210,033) (30,885,570) (36,244,797) 4,893,766
----------- ------------ ------------ ------------ ------------
Total liabilities,
redeemable
preferred stock and
stockholders'
equity (deficit)... $ 2,703,851 $ 12,395,512 $ 6,289,014 $ 9,314,654 $ 9,314,654
=========== ============ ============ ============ ============
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-3
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Consolidated Statements of Operations
<TABLE>
<CAPTION>
Inception
Nine Months Ended (May 27,
Years Ended December 31, September 30, 1992) to
------------------------------------- ------------------------ September 30,
1995 1996 1997 1997 1998 1998
----------- ----------- ----------- ----------- ----------- -------------
(unaudited) (unaudited)
<S> <C> <C> <C> <C> <C> <C>
Collaborative Revenue... $ 49,632 $ 247,000 $ 1,052,657 $ 730,311 $ 1,100,257 $ 2,551,963
----------- ----------- ----------- ----------- ----------- ------------
Operating Expenses:
Research and
development.......... 3,964,007 5,231,383 7,672,748 5,711,002 5,638,715 27,191,166
General and
administrative....... 1,424,539 1,675,317 1,739,806 1,287,038 1,908,900 8,632,962
Charge for acquired
research and develop-
ment................. -- 1,498,339 1,611,728 1,611,728 -- 4,421,517
----------- ----------- ----------- ----------- ----------- ------------
5,388,546 8,405,039 11,024,282 8,609,768 7,547,615 40,245,645
----------- ----------- ----------- ----------- ----------- ------------
Loss from
operations......... (5,338,914) (8,158,039) (9,971,625) (7,879,457) (6,447,358) (37,693,682)
Other:
Interest income....... 100,801 142,413 383,591 319,702 167,610 1,035,765
Interest expense...... (207,135) (172,505) (155,793) (89,115) (152,833) (935,285)
Foreign currency
translation gain
(loss)............... 6,720 (100,749) (10,185) (13,496) (152,132) (95,662)
----------- ----------- ----------- ----------- ----------- ------------
Net loss............ $(5,438,528) $(8,288,880) $(9,754,012) $(7,662,366) $(6,584,713) $(37,688,864)
=========== =========== =========== =========== =========== ============
Net Loss per Share:
Basic and Diluted..... $ (15.43) $ (19.99) $ (19.53) $ (15.59) $ (12.47)
Pro Forma Basic and
Diluted.............. $ (2.17) $ (1.45)
Weighted Average Common
Shares Outstanding:
Basic and Diluted..... 353,444 434,801 521,178 512,008 593,552
Pro Forma Basic and
Diluted.............. 4,692,624 5,121,511
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-4
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Consolidated Statements of Changes in Stockholders' Equity (Deficit)
<TABLE>
<CAPTION>
Deficit
Common Stock Accumulated
-------------------- Additional During the Total
Number of $0.01 Par Paid in Development Deferred Stockholders'
Shares Value Capital Stage Compensation Equity (Deficit)
--------- --------- ----------- ------------ ------------ ----------------
<S> <C> <C> <C> <C> <C> <C>
Initial Sale of Common
Stock.................. 196,200 $ 1,962 $ 1,038 $ -- $ -- $ 3,000
Exercise of stock
options............... 13,080 131 69 -- -- 200
Accretion of preferred
stock................. -- -- -- (6,093) -- (6,093)
Net loss............... -- -- -- (1,519,500) -- (1,519,500)
--------- ------- ----------- ------------ ----------- -----------
Balance, December 31,
1992................... 209,280 2,093 1,107 (1,525,593) -- (1,522,393)
Sale of common stock... 256,695 2,567 1,358 -- -- 3,925
Exercise of stock
options............... 13,080 131 69 -- -- 200
Accretion of preferred
stock................. -- -- -- (15,332) -- (15,332)
Net loss............... -- -- -- (1,876,218) -- (1,876,218)
--------- ------- ----------- ------------ ----------- -----------
Balance, December 31,
1993................... 479,055 4,791 2,534 (3,417,143) -- (3,409,818)
Sale of common stock... 4,905 49 4,076 -- -- 4,125
Exercise of stock
options............... 13,521 135 72 -- -- 207
Accretion of preferred
stock................. -- -- -- (15,332) -- (15,332)
Net loss............... -- -- -- (4,227,013) -- (4,227,013)
--------- ------- ----------- ------------ ----------- -----------
Balance, December 31,
1994................... 497,481 4,975 6,682 (7,659,488) -- (7,647,831)
Exercise of stock
options............... 1,553 15 819 -- -- 834
Accretion of preferred
stock................. -- -- -- (15,332) -- (15,332)
Net loss............... -- -- -- (5,438,528) -- (5,438,528)
--------- ------- ----------- ------------ ----------- -----------
Balance, December 31,
1995................... 499,035 4,990 7,501 (13,113,348) -- (13,100,857)
Exercise of stock
options............... 23,904 239 343 -- -- 582
Exercise of Series C
Warrants (note 6(f)).. -- -- -- (251,447) -- (251,447)
Issuance of stock
options to
consultants........... -- -- 4,890 -- -- 4,890
Repurchase of
restricted stock...... (10,628) (106) (57) -- -- (163)
Issuance of restricted
stock for consulting
services.............. 17,447 175 14,497 -- -- 14,672
Accretion of preferred
stock................. -- -- -- (401,575) -- (401,575)
Warrants issued in
connection with
issuance of Series C
preferred stock (note
6(c))................. -- -- 812,745 -- -- 812,745
Net loss............... -- -- -- (8,288,880) -- (8,288,880)
--------- ------- ----------- ------------ ----------- -----------
Balance, December 31,
1996................... 529,758 5,298 839,919 (22,055,250) -- (21,210,033)
Exercise of stock
options............... 36,362 364 24,752 -- -- 25,116
ESOP purchases......... 5,693 56 6,473 -- -- 6,529
Sale of common stock... 35,970 360 35,390 -- -- 35,750
Issuance of Series D
redeemable convertible
preferred stock in
connection with Auda
Pharmaceuticals ApS
acquisition........... -- -- 435,000 -- -- 435,000
Accretion of preferred
stock................. -- -- -- (423,920) -- (423,920)
Net Loss............... -- -- -- (9,754,012) -- (9,754,012)
--------- ------- ----------- ------------ ----------- -----------
Balance, December 31,
1997................... 607,783 6,078 1,341,534 (32,233,182) -- (30,885,570)
Deferred compensation
related to grants or
common stock options.. -- -- 2,115,350 -- (2,115,350) --
Amortization of
deferred
compensation.......... -- -- -- -- 304,466 304,466
Issuance of common
stock options......... -- -- 35,600 -- -- 35,600
Exercise of stock
options............... 85,816 858 70,374 -- -- 71,232
Exercise of Series C
redeemable convertible
preferred stock
warrants (note 6(f)).. -- -- -- (10,333) -- (10,333)
Sale of restricted
common stock.......... 16,350 163 18,587 -- -- 18,750
Value of discount
ascribed to the
guaranteed rate of
return on Series E
redeemable convertible
preferred stock....... -- -- 1,625,172 -- -- 1,625,172
Accretion of preferred
stock................. -- -- -- (413,108) -- (413,108)
Accretion of discount
ascribed to the
guaranteed rate of
return on Series E
redeemable convertible
preferred stock....... -- -- -- (406,293) -- (406,293)
Net Loss............... -- -- -- (6,584,713) -- (6,584,713)
--------- ------- ----------- ------------ ----------- -----------
Balance, September 30,
1998 (unaudited)....... 709,949 7,099 5,206,617 (39,647,629) (1,810,884) (36,244,797)
Conversion of
redeemable convertible
preferred stock into
common stock
(unaudited)........... 4,949,056 49,491 41,089,072 -- -- 41,138,563
--------- ------- ----------- ------------ ----------- -----------
Pro Forma Balance,
September 30, 1998
(unaudited)........... 5,659,005 $56,590 $46,295,689 $(39,647,629) $(1,810,884) $ 4,893,766
========= ======= =========== ============ =========== ===========
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-5
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Consolidated Statements of Cash Flows
<TABLE>
<CAPTION>
Nine Months Ended Inception
Years Ended December 31, September 30, (May 27, 1992) to
------------------------------------- ------------------------ September 30,
1995 1996 1997 1997 1998 1998
----------- ----------- ----------- ----------- ----------- -----------------
(unaudited) (unaudited)
<S> <C> <C> <C> <C> <C> <C>
Cash Flows from
Operating Activities:
Net loss............... $(5,438,528) $(8,288,880) $(9,754,012) $(7,662,366) $(6,584,713) $(37,688,864)
Adjustments to
reconcile net loss to
net cash used in
operating activities--
Charge for acquired
research and
development, net of
cash paid............ -- 1,459,651 1,611,728 1,611,728 -- 4,103,038
Stock issuance in
exchange for
interest on bridge
financing loan....... -- 10,622 -- -- -- 70,074
Stock issuance in
exchange for rent.... -- -- -- -- -- 93,500
Stock issuance in
exchange for
consulting
services............. -- 14,406 -- -- -- 14,406
Compensation related
to issuance of
common stock
options.............. -- 4,890 -- -- 340,293 345,183
Depreciation and
amortization......... 485,286 553,878 704,788 493,562 564,289 2,850,531
Changes in assets and
liabilities--
Accounts receivable,
prepaid expenses and
other current
assets.............. 210,404 (110,054) 26,041 (188,400) (62,500) (273,724)
Accounts payable..... (270,888) (225,625) 4,702 264,848 187,576 244,329
Accrued expenses..... (812) 76,499 18,133 97,298 499,293 855,439
Deferred revenue..... -- 528,421 (14,181) 288,743 116,630 648,528
----------- ----------- ----------- ----------- ----------- ------------
Net cash used in
operating
activities......... (5,014,538) (5,976,192) (7,402,801) (5,094,587) (4,939,132) (28,737,560)
----------- ----------- ----------- ----------- ----------- ------------
Cash Flows from
Investing Activities:
Purchases of equipment
and improvements...... (149,604) (626,723) (913,422) (892,106) (296,894) (4,689,058)
Decrease (increase) in
marketable
securities............ 1,547,640 (6,105,391) 5,655,391 3,455,638 (650,000) (1,100,000)
(Increase) decrease in
restricted cash....... (220,000) 220,000 -- -- -- --
Increase in other
assets................ (19,561) (60,134) (13,803) (17,933) (35,016) (128,514)
Net cash acquired in
acquisition of Auda
Pharmaceuticals ApS,
net of acquisition
costs................. -- -- 1,662,990 1,662,990 -- 1,662,990
----------- ----------- ----------- ----------- ----------- ------------
Net cash provided by
(used in) investing
activities......... 1,158,475 (6,572,248) 6,391,156 4,208,589 (981,910) (4,254,582)
----------- ----------- ----------- ----------- ----------- ------------
Cash Flows from
Financing Activities:
Net (payments of)
proceeds from notes
payable............... (266,606) (139,554) (295,420) (228,972) (227,911) 162,115
Proceeds from long-term
debt.................. -- 67,073 627,244 429,140 769,342 1,386,835
Proceeds from
convertible debt...... 1,762,236 -- -- -- -- 1,762,236
Net proceeds from sale
(repurchase) of
preferred stock....... -- 16,058,311 -- -- 7,747,576 35,494,761
Proceeds from sale of
common stock.......... -- (163) 35,750 35,750 18,750 64,387
Proceeds from the
exercise of stock
options and warrants.. 834 985 25,116 20,489 71,249 98,791
Proceeds from ESOP
purchases............. -- -- 6,529 -- -- 6,529
Proceeds from the
issuance of stock in
exchange for
consulting services... -- 266 -- -- -- 266
Net effect of foreign
currency translation
adjustments........... (6,096) 103,039 (56,971) (68,756) 87,555 (96,129)
----------- ----------- ----------- ----------- ----------- ------------
Net cash provided by
financing
activities......... 1,490,368 16,089,957 342,248 187,651 8,466,561 38,879,791
----------- ----------- ----------- ----------- ----------- ------------
Net (decrease) increase
in cash and cash
equivalents............ (2,365,695) 3,541,517 (669,397) (698,347) 2,545,519 5,887,649
Cash and Cash
Equivalents, beginning
of period.............. 2,835,705 470,010 4,011,527 4,011,527 3,342,130 --
----------- ----------- ----------- ----------- ----------- ------------
Cash and Cash
Equivalents, end of
period................. $ 470,010 $ 4,011,527 $ 3,342,130 $ 3,313,180 $ 5,887,649 $ 5,887,649
=========== =========== =========== =========== =========== ============
Supplemental Disclosure
of Noncash
Transactions:
Acquisition of Phytera
Ltd.--
Assumed liabilities.... $ -- $ -- $ -- $ -- $ -- $ (1,073,327)
Fair value of assets
acquired.............. -- -- -- -- -- 42,668
Issuance of stock in
connection with
Phytera Ltd.
acquisition........... -- -- -- -- -- 1,000
Acquisition of Neptune
Pharmaceuticals,
Inc.--
Assumed liabilities.... $ -- $ (128,394) $ -- $ -- $ -- $ (128,394)
Fair value of assets
acquired.............. -- 22,018 -- -- -- 22,018
Issuance of stock in
connection with
Neptune
Pharmaceuticals,
Inc................... -- 1,353,275 -- -- -- 1,353,275
Acquisition of Auda
Pharmaceuticals ApS--
Assumed liabilities.... $ -- $ -- $ (44,569) $ (44,569) $ -- $ (44,569)
Fair value of assets
acquired.............. -- -- 1,739,370 1,739,370 -- 1,739,370
Issuance of stock in
connection with Auda
Pharmaceuticals ApS... -- -- 3,262,500 3,262,500 -- 3,262,500
Conversion of
convertible debt and
interest into
preferred stock....... $ -- $ 1,799,038 $ -- $ -- $ -- $ 1,799,038
Supplemental Disclosure
of Cash Flow
Information:
Cash paid for
interest.............. $ 181,079 $ 187,474 $ 134,355 $ 32,113 $ 21,285 $ 692,973
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-6
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes to Consolidated Financial Statements
(Including Data Applicable to Unaudited Periods)
(1) Operations
Phytera, Inc. and subsidiaries (the Company) was incorporated on May 27,
1992. The Company is an international biopharmaceutical Company engaged in
identifying and optimizing novel chemical lead structures through its
Combinatorial Drug Discovery Program.
The Company is in the development stage. Under United States generally
accepted accounting principles ("US GAAP"), a development stage enterprise is
defined as an enterprise which is devoting substantially all of its efforts
toward developing products, raising capital and marketing products under
development. Under US GAAP, development stage enterprises are required to
provide certain additional disclosure in their financial statements. The
Company is subject to a number of risks similar to those of other development
stage companies, including dependence on key individuals, competition from
substitute products and larger companies, the development of commercially
usable products and the need to obtain adequate additional financing necessary
to fund the development of its products.
(2) Acquisitions
On July 31, 1996, the Company issued 246,050 shares of its Series B
redeemable convertible preferred stock for 100% of the outstanding capital
stock of Neptune Pharmaceuticals, Inc. ("Neptune"). These shares were valued at
$5.50 per share which represented the fair market value based upon comparable
sales of Series B redeemable convertible preferred stock. The acquisition was
accounted for as a purchase in accordance with Accounting Principles Board
Opinion ("APB") No. 16. The assets acquired from Neptune consisted primarily of
intellectual property which, at the date of acquisition, had not established
technological feasibility and has no alternative future uses. The intellectual
property consisted of know-how and methodologies related to marine culture
extracts and an option to license certain technology from an academic
institution. In order for the intellectual property acquired from Neptune to be
commercialized and generate cash flows, the Company needs to expend a
substantial amount on additional research and development, preclinical testing
and clinical trials, regulatory clearances, and manufacturing, distribution and
marketing arrangements the outcome of which is uncertain. The cost and time
required to complete the development of the intellectual property is
significant and difficult to estimate given the uncertainties of research and
development and the regulatory process. Accordingly, the net realizable value
of the acquired intellectual property is uncertain. The portion of the purchase
price allocated to intellectual property, totaling $1,498,339, was charged to
operations in the year ended December 31, 1996 as in-process research and
development. The results of operations of Neptune have been included in the
accompanying Consolidated Financial Statements since the date of acquisition.
On March 11, 1997, the Company issued 435,000 shares of its Series D
redeemable convertible preferred stock for 100% of the outstanding capital
stock of Auda Pharmaceuticals ApS ("Auda"). These shares were valued at $7.50
per share which represented the fair market value based upon comparable sales
of Series D redeemable convertible preferred stock. The acquisition was
accounted for as a purchase in accordance with APB No. 16. The assets of Auda
consisted primarily of $1,662,990 of cash and intellectual property which, at
the date of acquisition, had not established technological feasibility and has
no alternative future uses. The intellectual property consisted of rights to
three patents licensed from the University of Copenhagen which may have use in
the Company's combinational chemistry programs. In order for the intellectual
property acquired from Auda to be commercialized and generate cash flows the
Company needs to expend a substantial amount on additional research and
development, preclinical testing and clinical trials, regulatory clearances,
and manufacturing, distribution and marketing arrangements the outcome of which
is uncertain. The cost and time required to complete the development of the
intellectual property is significant and difficult to estimate given the
uncertainties of research and development and the regulatory process.
Accordingly, the net realizable value of the intellectual property is
uncertain. The portion of the purchase price allocated to intellectual
property, totaling $1,611,728, was charged to operations in the year ended
December 31, 1997 as in-process research and development. The results of Auda's
operations have been included in the accompanying Consolidated Financial
Statements since the date of acquisition.
The following unaudited pro forma summary information presents the combined
results of operations of the Company, Neptune and Auda as if the acquisitions
had occurred at the beginning of 1996 and 1997, respectively. This unaudited
pro forma financial information is presented for informational purposes only
and
F-7
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes to Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
may not be indicative of the results of operations as they would have been if
the Company, Neptune and Auda had been a single entity, nor is it necessarily
indicative of the results of operations that may occur in the future.
<TABLE>
<CAPTION>
Years Ended December Nine Months
31, Ended
------------------------ September 30,
1996 1997 1997
----------- ----------- -------------
<S> <C> <C> <C>
Collaborative revenues........... $ 267,200 $ 1,052,657 $ 730,311
Net loss......................... (8,758,011) (9,854,791) (7,763,146)
Basic and diluted net loss per
share........................... (21.07) (19.72) (15.78)
</TABLE>
(3) Significant Accounting Policies
The accompanying Consolidated Financial Statements reflect the application of
certain significant accounting policies as described in this note and elsewhere
in the notes to Consolidated Financial Statements.
(a) Summary of Certain Differences Between US GAAP, Danish generally accepted
accounting principles ("Danish GAAP") and International Accounting
Standards ("IAS")
In preparing its Consolidated Financial Statements for each of the years
ended December 31, 1995, 1996 and 1997 and nine-month periods ended
September 30, 1997 and 1998, the Company has applied accounting principles
which are in accordance with US GAAP. These accounting principles differ in
some respects from Danish GAAP and IAS. The more significant differences
have been summarized below. The following sections list only the material
differences in accounting principles and related presentation and
disclosure items which apply to the Company.
IAS and Danish GAAP differ in certain respects from US GAAP in such
regards as the classification and presentation of items in the balance
sheet and income statement as well as disclosure in the notes. The
explanatory notes to the income statement do differ both in terms of extent
and content. US GAAP require specific disclosures to be made related to the
consolidated statements of operations, consolidated balance sheets, and
accompanying notes. However, IAS tend to be less specific regarding the
form of presentation and structure of such disclosure.
In the balance sheet, US GAAP requires assets and liabilities to be
classified in ascending order, starting with current assets and current
liabilities, whereas the Danish GAAP requires a mandatory line by line
presentation, based on the European Union fourth directive. This structure
lists fixed assets and equity first and current assets and current
liabilities last (in descending order). Further differences relate to the
classification of assets on a line by line basis. US GAAP statements
usually display fixed assets at historical cost and total accumulated
depreciation as a separate line in the balance sheet. Danish GAAP
statements show fixed assets at net book value in the balance sheet with an
accompanying note explaining the "difference" between historical cost and
accumulated depreciation. Furthermore, Danish GAAP classifies current
assets differently on a line by line basis on the balance sheet. US GAAP
classifies leasehold improvements as tangible fixed assets, whereas these
are included in intangible fixed assets according to Danish GAAP. Similarly
the grouping and classification of debt and payables can vary under US GAAP
and Danish GAAP presentation rules.
US GAAP requires research and development costs to be charged to the
profit and loss account as incurred. IAS recognize development costs as an
asset provided that certain conditions are met. Phytera has not recognized
any such assets under IAS, and the development costs are expensed as
incurred in the same way as research costs.
Under US GAAP, a company such as Phytera and subsidiaries is deemed to be
a "development stage company", which requires very strict reporting forms,
including certain aggregate amounts from its inception until the most
recent reporting period to be reported in the consolidated statements of
operations and consolidated statements of cash flows and consolidated
statement of stockholders' equity (deficit). Accounting policy footnotes
require special disclosure explaining accounting for development stage
companies. IAS is less specific regarding the form of presentation and
structure of such disclosure.
F-8
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes to Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
(b) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
(c) Consolidation
The accompanying Consolidated Financial Statements include the accounts
of the Company and its wholly owned subsidiaries, Phytera Ltd., Phytera A/S
and Phytera Symbion ApS. All material intercompany accounts and
transactions have been eliminated in consolidation.
(d) Unaudited Pro Forma Presentation
The unaudited Pro Forma Consolidated Balance Sheet as of September 30,
1998 reflects the automatic conversion of all outstanding shares of
redeemable convertible preferred stock into 4,949,056 shares of common
stock which will occur upon the closing of the Company's proposed initial
public offering (assuming the Series E Convertible Preferred Stock converts
into an aggregate of 722,746 shares of common stock and the closing of the
proposed initial public offering on or before February 8, 1999 at an
offering price of $13.00 per share (the mid-point of the expected range)).
(e) Interim Financial Statements
The accompanying Consolidated Financial Statements as of September 30,
1998 and for the nine-month periods ended September 30, 1997 and 1998 are
unaudited, but in the opinion of management, include all adjustments
consisting of normal recurring adjustments necessary for a fair
presentation of results for the interim periods. Certain information and
footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been omitted,
although the Company believes that the disclosures included are adequate to
make the information presented not misleading. Results for the nine months
ended September 30, 1998 are not necessarily indicative of the results that
may be expected for the year ending December 31, 1998.
(f) Revenue Recognition
Substantially all of the Company's revenues have been derived from
research and development partnerships (see note 9). Research funding, which
is not subject to achieving development milestones, is recognized as
revenue over the life of the research agreement as the required services
are provided and costs are incurred. Revenues derived from providing
extracts are recognized upon shipment of the extracts. Milestone payments
will be recognized as revenue upon achievement of the milestone and receipt
of payment. License fees will be recognized as revenue upon receipt and
fulfillment of all performance obligations. Deferred revenue represents
amounts received prior to recognition as revenue.
(g) Cash and Cash Equivalents
Cash and cash equivalents are stated at cost, which approximates market.
The Company considers highly liquid investments with maturities of 90 days
or less at the time of acquisition to be cash equivalents. Cash and cash
equivalents include money market accounts that are readily convertible to
cash and commercial paper purchased with a maturity of 90 days or less.
(h) Marketable Securities
The Company accounts for marketable securities under Statement of
Financial Accounting Standards ("SFAS") No. 115, Accounting for Certain
Investments in Debt and Equity Securities. The Company has classified its
marketable securities as held-to-maturity and they are recorded at
amortized cost, which approximates fair market value.
At December 31, 1996, 1997 and September 30, 1998, the Company's
marketable securities consist of corporate bonds that mature within one
year of the balance sheet date.
F-9
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes to Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
(i) Depreciation and Amortization
The Company provides for depreciation and amortization by charges to
operations in amounts estimated to allocate the cost of equipment and
improvements over their estimated useful lives on a straight-line basis as
follows:
<TABLE>
<CAPTION>
Asset Classification Estimated Useful Life
-------------------- ---------------------
<S> <C>
Laboratory equipment... 5 years
Leasehold
improvements.......... Life of lease
Office equipment....... 3-7 years
</TABLE>
(j) Research and Development Expenses
The Company charges research and development expenses to operations as
incurred.
(k) Foreign Currency Translation
The financial statements of the Company's non US subsidiaries are
translated in accordance with SFAS No. 52, Foreign Currency Translation.
The functional currency of the Company's foreign subsidiaries is the US
dollar, accordingly, all assets and liabilities of the foreign subsidiaries
are translated using the exchange rate at the balance sheet date, except
for prepaid expenses, equipment and improvements and stockholders' equity
(deficit), which are translated at historical rates. Revenues and expenses
are translated at average rates during the period, except for depreciation
and amortization, which are translated at historical rates. Translation
gains and losses arising from the translations are included in the
consolidated statements of operations, since the functional currency is the
US dollar for all operations.
(l) Financial Instruments
SFAS No. 107, Disclosures About Fair Value of Financial Instruments,
requires disclosure about fair value of financial instruments. Financial
instruments consist of cash equivalents, marketable securities, accounts
payable and debt. The estimated fair value of these financial instruments
approximates their carrying value.
(m) Concentration of Credit Risk
SFAS No. 105, Disclosure of Information About Financial Instruments with
Off-Balance-Sheet Risk and Financial Instruments with Concentrations of
Credit Risk, requires disclosure of any significant off-balance-sheet and
credit risk concentration. The Company has no significant off-balance-sheet
concentration of credit risk such as foreign exchange contracts or other
hedging arrangements. Financial instruments that subject the Company to
credit risk consist of cash and cash equivalents and marketable securities.
The Company's collaborative revenue for the years ended December 31, 1996
and 1997 and for the nine months ended September 30, 1997 was derived
entirely from Tsumura & Co. Approximately 55%, 31% and 14% of the Company's
collaborative revenue for the nine months ended September 30, 1998 was
derived from Tsumura & Co., Chiron Corporation and Eli Lilly and Company,
respectively. See note 9.
(n) Net Loss per Share
Basic and diluted net loss per common share was determined by dividing
net loss attributable to common shareholders, which reflects the accretion
of preferred stock to redemption value, by the weighted average vested
common shares outstanding during the period. The computation of basic and
diluted net loss per share reflects adjustments to net loss of $15,332,
$401,575, $423,920, $317,940 and $819,401 for the accretion of preferred
stock to its redemption value for the years ended December 31, 1995, 1996,
1997 and the nine months ended September 30, 1997 and 1998, respectively.
Basic and diluted net loss per share are the same, as outstanding common
stock options and warrants and convertible preferred stock are considered
antidilutive as the Company has recorded a net loss for all periods
presented. Options and warrants to purchase a total of 258,081, 645,576,
747,753, 723,098, and 1,029,437 common shares have been excluded from the
computation of diluted weighted average shares outstanding for the years
ended December 31, 1995, 1996, 1997, and for the nine months ended
September 30, 1997 and 1998, respectively. Shares of common stock issuable
upon the conversion of outstanding redeemable convertible preferred stock
have also been excluded for all periods presented.
F-10
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes To Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
The calculation of pro forma net loss per common share assumes that all
series of redeemable convertible preferred stock had been converted to
common stock as of the original issuance dates. The calculation also
assumes that the Series E redeemable convertible preferred stock converts
into an aggregate of 722,746 shares of common stock which is based upon a
closing of the Company's proposed initial public offering on or before
February 8, 1999 at a public offering price of $13.00 per share (the mid-
point of the expected range).
(o) New Accounting Standards
In June 1997, the Financial Accounting Standards Board ("FASB") issued
SFAS No. 130, Reporting Comprehensive Income. SFAS No. 130 requires
disclosure of all components of comprehensive income on an annual and
interim basis. Comprehensive income is defined as the change in equity of a
business enterprise during a period from transactions and other events and
circumstance from non-operating sources. SFAS No. 130 is effective for
fiscal years beginning after December 15, 1997. The Company has adopted
this statement, however as of September 30, 1998, the Company does not have
any material components of comprehensive income.
In July 1997, the FASB issued SFAS No. 131, Disclosures About Segments of
an Enterprise and Related Information. SFAS No. 131 requires certain
financial and supplementary information to be disclosed on an annual and
interim basis for each reportable segment of an enterprise. SFAS No. 131 is
effective for fiscal years beginning after December 15, 1997. The Company
will adopt this statement in their 1998 year end financial statements.
(4) Long-Term Debt
Long-term debt obligations consist of the following as of December 31, 1996
and 1997 and September 30, 1998:
<TABLE>
<CAPTION>
December 31,
--------------------- September 30,
1996 1997 1998
---------- ---------- -------------
<S> <C> <C> <C>
Note payable to University of
Sheffield........................... $ 822,000 $ 792,384 $ 816,000
Note payable to a Danish
organization........................ 67,073 685,257 1,510,656
Note payable to a United States
bank................................ 550,000 275,000 68,750
Note payable to an unrelated third
party............................... 100,691 73,990 64,656
Note payable to a Danish bank........ 34,755 22,741 18,296
---------- ---------- ----------
1,574,519 1,849,372 2,478,358
Less--Current portion................ 300,993 299,536 289,278
---------- ---------- ----------
$1,273,526 $1,549,836 $2,189,080
========== ========== ==========
</TABLE>
Long-term debt includes a (Pounds)480,000 (approximately $816,000 at the
September 30, 1998 exchange rate) note payable to the University of Sheffield,
bearing interest at 10% per annum, issued in connection with the acquisition of
Phytera Ltd. The note is payable on the closing of a qualified initial public
offering of the Company's common stock, as defined, but may be accelerated upon
the sale or transfer of all or substantially all of the Company's assets or
upon a voluntary petition of bankruptcy. Interest on the unpaid principal
balance is due each October 1.
In 1996, the Company established a credit facility with a Danish organization
to fund the Company's Danish operations. The maximum loan is DKK 13,232,700
($2,086,797 at the September 30, 1998 exchange rate), and is disbursed to the
Company quarterly, based on a percentage of the operating expenses incurred by
the Company's operations in Denmark through December 31, 1998. Interest accrues
from the time of disbursement at a rate of 7.98% per annum. The note and
interest accrued are payable quarterly beginning April 1, 1999. The loan
balance outstanding, including accrued but unpaid interest, at December 31,
1996, 1997 and September 30, 1998, was DKK 397,350, DKK 4,693,541 and DKK
9,564,726, respectively ($67,073, $685,257 and $1,510,656 at the December 31,
1996, and 1997 and September 30, 1998 exchange rates, respectively).
F-11
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes To Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
In July 1994, the Company entered into a $1,100,000 equipment line of credit
with a US bank. The Company borrowed the maximum amount through December 31,
1994, at which time the amount outstanding under the equipment line of credit
was converted into a promissory note. The note is payable in 48 equal monthly
installments, beginning in January 1995 and bearing interest at the bank's
prime rate (8.5% at September 30, 1998) plus 2%. Borrowings under the note are
secured by substantially all of the Company's assets. The note contains certain
covenants, including minimum levels of liquidity and net worth. The Company was
in compliance with all covenants at December 31, 1997 and September 30, 1998.
In October 1996, the Company entered into a DKK 619,580 ($97,708 at the
September 30, 1998 exchange rate) note payable with a third party for the
purpose of funding leasehold improvements. During 1997, additional leasehold
improvements for the amount of DKK 13,750 ($2,168 at September 30, 1998) were
completed and the amount was added to the existing note balance without any
change in payment terms. The note is payable quarterly over five years
beginning October 1996. The note bears interest at 6% plus a discount rate,
which was 3.25% at September 30, 1998.
In September 1996, the Company entered into a DKK 217,700 ($34,331 at the
September 30, 1998 exchange rate) note payable with a Danish bank for the
purchase of a vehicle. The note is payable in 48 equal monthly installments,
beginning in October 1996 and bearing interest at 6.75%. The note is secured by
the vehicle.
In September 1998, the Company entered into a $1,000,000 equipment line of
credit with a United States finance company. This agreement provides for the
funding of equipment purchases made by the Company through July 15, 1999.
Separate loans are created each time funding is provided, and each loan is to
be repaid over 48 months from the date of the funding with a final payment of
12.5% of the initial principal amount. The repayment amount is based on a
percentage of the outstanding principal of the loan. The percentage rate can
vary prior to each funding, but is then fixed for the term of the specific loan
created by the specific funding event. The line is secured by all equipment
purchased under this agreement. There was no outstanding balance under this
line of credit at September 30, 1998.
(5) Convertible Debt
During 1995, the Company borrowed $1,762,236 from existing investors and
affiliates under convertible promissory notes bearing interest at 7% per annum.
On January 31, 1996, these notes plus accrued interest were converted into
287,846 shares of the Company's Series C convertible preferred stock in
conjunction with the financing discussed in note 6(c).
(6) Stockholders' Equity (Deficit)
(a) Recapitalization
On December 23, 1998, the Company's Board of Directors approved a 0.654-
for-one reverse stock split of the Company's common stock. The reverse
stock split will be effective prior to the consummation of the proposed
initial public offering of common stock. All share and per share amounts of
common stock for all periods have been retroactively adjusted to reflect
the reverse stock split. Upon the closing of the Company's proposed initial
public offering, the Company's certificate of incorporation will be amended
and restated to, among other things, change its authorized capital stock to
25,000,000 shares of $0.01 par value common stock and 1,000,000 shares of
$0.01 par value preferred stock.
(b) Common Stock
As of September 30, 1998, the Company had authorized 13,000,000 shares of
common stock, $0.01 par value and had issued 709,949 of such shares.
F-12
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes To Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
The Company has authorized the issuance of up to 434,372 shares of common
stock pursuant to restricted stock agreements, of which 429,467 have been
issued at September 30, 1998. A portion of these shares vested immediately,
and the remaining shares vest ratably through 2003. All unvested stock, as
defined, is subject to repurchase at its original issuance price by the
Company upon the employee leaving the Company. In January 1996, the Company
exercised its repurchase right to purchase 10,628 shares of common stock.
As of December 31, 1997 and September 30, 1998, 48,069, and 57,552 shares
of restricted common stock, respectively, were unvested and subject to
repurchase right.
F-13
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes to Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
(c) Redeemable Convertible Preferred Stock
Redeemable convertible preferred stock activity since inception is as
follows:
<TABLE>
<CAPTION>
Series A Series B Series C Series D Series E
-------------------- --------------------- -------------------- --------------------- --------------------
Number Carrying Number Carrying Number Carrying Number Carrying Number Carrying
of Shares Value of Shares Value of Shares Value of Shares Value of Shares Value
--------- ---------- --------- ----------- --------- ---------- --------- ----------- --------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Sale of Series A
redeemable
convertible
preferred
stock........... 908,602 $1,697,381 -- $ -- -- $ -- -- $ -- -- $ --
Accretion of
preferred
stock.......... -- 6,093 -- -- -- -- -- -- -- --
------- ---------- --------- ----------- --------- ---------- --------- ----------- ------- ----------
Balance December
31, 1992........ 908,602 1,703,474 -- -- -- -- -- -- -- --
Sale of Series B
redeemable
convertible
preferred
stock.......... -- -- 1,857,884 10,144,445 -- -- -- -- -- --
Accretion of
preferred
stock.......... -- 6,093 -- 9,239 -- -- -- -- -- --
------- ---------- --------- ----------- --------- ---------- --------- ----------- ------- ----------
Balance December
31, 1993........ 908,602 1,709,567 1,857,884 10,153,684 -- -- -- -- -- --
Accretion of
preferred
stock.......... -- 6,093 -- 9,239 -- -- -- -- -- --
------- ---------- --------- ----------- --------- ---------- --------- ----------- ------- ----------
Balance, December
31, 1994........ 908,602 1,715,660 1,857,884 10,162,923 -- -- -- -- -- --
Accretion of
preferred
stock.......... -- 6,093 -- 9,239 -- -- -- -- -- --
------- ---------- --------- ----------- --------- ---------- --------- ----------- ------- ----------
Balance, December
31, 1995........ 908,602 1,721,753 1,857,884 10,172,162 -- -- -- -- -- --
Conversion of
bridge
financing loan
and interest
into preferred
stock.......... -- -- -- -- 287,846 1,799,038 -- -- -- --
Sale of Series C
redeemable
convertible
preferred
stock.......... -- -- -- -- 784,913 4,011,900 -- -- -- --
Issuance of
Series B
redeemable
convertible
preferred stock
in connection
with Neptune
Pharmaceuticals,
Inc.
acquisition.... -- -- 246,050 1,353,275 -- -- -- -- -- --
Sale of Series D
redeemable
convertible
preferred
stock.......... -- -- -- -- -- -- 1,900,000 11,233,666 -- --
Exercise of
warrants to
purchase Series
C redeemable
convertible
preferred stock
(note 6(f)).... -- -- -- -- 40,296 251,850 -- -- -- --
Accretion of
preferred
stock.......... -- 6,093 -- 9,239 -- 162,976 -- 223,267 -- --
------- ---------- --------- ----------- --------- ---------- --------- ----------- ------- ----------
Balance, December
31, 1996........ 908,602 1,727,846 2,103,934 11,534,676 1,113,055 6,225,764 1,900,000 11,456,933 -- --
Issuance of
Series D
redeemable
convertible
preferred stock
in connection
with Auda
Pharmaceuticals
ApS
acquisition.... -- -- -- -- -- -- 435,000 2,817,045 -- --
Accretion of
preferred
stock.......... -- 6,093 -- 9,239 -- 182,707 -- 225,881 -- --
------- ---------- --------- ----------- --------- ---------- --------- ----------- ------- ----------
Balance, December
31, 1997........ 908,602 1,733,939 2,103,934 11,543,915 1,113,055 6,408,471 2,335,000 14,499,859 -- --
Sale of Series E
redeemable
convertible
preferred
stock.......... -- -- -- -- -- -- -- -- 812,586 6,122,629
Amortization of
discount
ascribed to the
guaranteed rate
of return on
Series E
redeemable
convertible
preferred stock
............... -- -- -- -- -- -- -- -- -- 406,293
Exercise of
warrants to
purchase Series
C redeemable
convertible
preferred stock
(note 6(f)).... -- -- -- -- 1,656 10,350 -- -- -- --
Accretion of
preferred
stock.......... -- 4,569 -- 6,929 -- 137,030 -- 170,064 -- 94,515
------- ---------- --------- ----------- --------- ---------- --------- ----------- ------- ----------
Balance,
September 30,
1998 ........... 908,602 $1,738,508 2,103,934 $11,550,844 1,114,711 $6,555,851 2,335,000 $14,669,923 812,586 $6,623,437
======= ========== ========= =========== ========= ========== ========= =========== ======= ==========
</TABLE>
As of September 30, 1998, the Company had authorized the issuance of up
to 14,446,382 shares of preferred stock, $0.01 par value. The authorized
shares have been designated as follows: 908,602 shares of Series A
redeemable convertible preferred stock ("Series A"), 2,194,843 shares each
of Series B and Series BB redeemable convertible preferred stock ("Series
B"), 1,239,047 shares each of Series C and Series CC redeemable convertible
preferred stock ("Series C"), 2,335,000 shares each of Series D and Series
DD redeemable convertible preferred stock ("Series D") and 1,000,000 shares
of Series E and Series EE redeemable convertible preferred stock ("Series
E"), in the aggregate ("the Preferred Stock").
F-14
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes to Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
The Company has recorded outstanding redeemable convertible preferred
stock outside the equity section of the balance sheet as a liability. The
redeemable convertible preferred stock is recorded at its net sales price
and the carrying value is accreted (increased) over time such that at the
earliest date of potential redemption the redeemable convertible preferred
stock is carried as a liability at its redemption value. The periodic
accretion recorded to increase the carrying value is charged directly to
deficit accumulated during the development stage.
In January 1996, the Company issued 838,359 shares of Series C and
warrants to purchase 115,694 shares of Series C at $0.01 per share in
exchange for cash of $3,440,706 and the conversion of bridge notes payable
of $1,762,236 and accrued interest thereon of $36,802. The Company has
recorded the value attributed to the warrants as additional paid in
capital. The total value attributed to these warrants of approximately
$635,000 will be accreted to the redemption value of the Series C over the
period to its earliest redemption date. In addition, the Company granted
warrants to purchase 18,247 shares of Series C at $5.50 per share in
exchange for a guarantee commitment from certain stockholders. During the
year ended December 31, 1996, certain stockholders exercised warrants to
purchase 40,296 shares of Series C at $0.01 per share.
In July 1996, the Company issued 234,400 shares of Series C and warrants
to purchase 32,347 shares of Series C at $0.01 per share for $1,465,000.
Total net proceeds for the issuance of Series C totaled $6,623,683. The
Company has recorded the value attributed to the warrants as additional
paid in capital. The total value attributed to these warrants of
approximately $177,600 will be accreted to the redemption value of the
Series C over the period to its earliest redemption date. During the nine
months ended September 30, 1998, certain stockholders exercised warrants to
purchase 1,656 shares of Series C at $0.01 per share.
In October 1996, the Company issued 1,900,000 shares of Series D at a
price of $6.50 per share for total net proceeds of $11,233,666.
In March 1997, the Company issued 435,000 shares of its Series D for 100%
of the outstanding capital stock of Auda. The Company recorded these shares
at a value of $7.50 per share pursuant to this transaction.
On May 26, 1998, June 25, 1998, and September 18, 1998, the Company
issued 580,086, 182,500, and 50,000 shares, respectively, of Series E at a
price of $10.00 per share for total net proceeds of $7,747,576.
The rights and privileges of the Preferred Stock are listed below:
Conversion
The Preferred Stock is convertible into common stock at the rate of 0.654
of a share of common stock for each share of Preferred Stock, adjustable
for certain dilutive events except as discussed below for the Series E.
Conversion is at the option of the preferred stockholder but is mandatory
upon the closing of an initial public offering ("IPO") of the Company's
common stock at a per share price of at least $9.65, with gross proceeds to
the Company in excess of $10,000,000.
The Series E is entitled to a contingent conversion price adjustment
under certain circumstances. In the event the Company closes an IPO on or
prior to June 25, 1999, but at a price per share to the public less than a
value reflecting a 25% annualized return above the per share of $10.00, the
conversion price shall be automatically adjusted so that the Series E will
be converted into a number of common shares that would equal a 25%
annualized return. In the event that an IPO is not closed prior to June 25,
1999, the conversion rate of the Series E into common shares will be
adjusted to a rate of one and one half shares of common stock for each
share of Series E. In the event that an IPO is not closed prior to November
25, 1999, the conversion rate of Series E to common shares will be adjusted
to a rate of two shares common stock for each share of Series E. In the
event that an IPO is not closed prior to April 25, 2000, the
F-15
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes To Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
conversion rate of Series E to common shares will be adjusted to a rate of
two-and-one-half shares of common stock for each share of Series E. The
terms of this contingent conversion price adjustment are applicable when
the Series E converts to common stock under any circumstances.
The Company has recorded the value attributed to the contingent
conversion price adjustment of the Series E as additional paid in capital.
This amount was determined to be equal to $2.00 per share which will be
accreted to the redemption value of the Series E over the estimated
outstanding period of one year. The Company has determined that $2.00
represents the estimate of the value of the guaranteed return as it
anticipates conversion within one year.
Voting Rights
The holders of Preferred Stock are entitled to vote on all matters and
are entitled to the number of votes equal to the number of shares of common
stock into which the Preferred Stock is convertible.
Dividends
The holders of the Series A shall be entitled to receive, when and if
declared by the Board of Directors, cumulative cash dividends at the annual
rate of $0.1544 per share. Such dividends shall accrue after the first
calendar quarter when the Company's net after-tax income exceeds $100,360.
The holders of the Series B, C, D and E Preferred stock shall be entitled
to receive, when and if declared by the Board of Directors, cumulative cash
dividends at the annual rate of $0.44, $0.50, $0.52 and $0.80 per share,
respectively. Such dividends shall accrue after the first calendar quarter
when the Company's net after-tax income exceeds $500,000. In addition, the
holders of the Preferred Stock shall be entitled to receive a dividend
equal to any dividend paid on common stock.
Liquidation Preference
The holders of the Preferred Stock have preference in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Company. The holders of the Series A are entitled to a preference of $1.93
per share, plus any accrued but unpaid dividends. The holders of the Series
B are entitled to a preference of $5.50 per share plus any accrued but
unpaid dividends. The holders of the Series C are entitled to a preference
of $6.25 per share, plus any accrued but unpaid dividends. The holders of
the Series D are entitled to a preference of $6.50 per share, plus any
accrued but unpaid dividends. The holders of the Series E are entitled to a
preference of $10.00 per share, plus any accrued but unpaid dividends.
Redemption
Preferred Stock is redeemable at the option of the holder over a three-
year period commencing on January 1, 2001. On January 1, 2001, 2002 and
2003, the Company shall offer to each holder of the Preferred Stock,
redemption of a maximum of 33 1/3%, 50% and 100%, respectively, of the
total number of shares of Preferred Stock held by such holder on such
redemption date. The redemption price per share shall be equal to $1.93,
$5.50, $6.25, $6.50 and $10.00 for each share of Series A, B, C, D and E,
respectively, plus all accrued and unpaid dividends.
(d) Stock Option Plans
The Company's 1992 Stock Option Plan ("the Plan") provides for the grant
of incentive stock options ("ISOs") and nonqualified options to purchase up
to 915,600 shares of common stock to key employees and consultants. Under
terms of the Plan, the exercise price of options granted shall be
determined by the Compensation Committee and for ISOs, shall not be less
than the fair market value of the stock on the date of grant. The term of
each stock option shall be determined by the Board of Directors but shall
not exceed ten years from the date of grant.
The Company's 1998 Equity Incentive Plan ("the 1998 Plan"), which amends
and restates the Company's 1992 Stock Option Plan, authorizes the grant of
incentive stock options, nonqualified stock
F-16
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes to Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
options, stock grants and other stock-based awards for the purchase of an
additional 654,000 shares of Common Stock to employees, consultants and
directors of the Company or any affiliate capable of contributing to the
Company's performance. Grants of Awards under the 1998 Equity Incentive
Plan and all questions of interpretations with respect to the 1998 Plan are
determined by the Board of Directors of the Company. The Board of Directors
has appointed the Compensation Committee to administer the 1998 Plan. This
plan has been adopted by the Board of Directors subject to shareholder
approval.
A summary of option activity under the Plan for the years ended December
31, 1996, 1997 and the nine-months ended September 30, 1998 is as follows:
<TABLE>
<CAPTION>
Weighted
Exercise Average
Price per Exercise
Shares Share Price
------- ---------- --------
<S> <C> <C> <C>
Outstanding, December 31, 1995................ 172,443 $0.02-0.84 $0.49
Granted...................................... 418,429 0.84-0.99 0.92
Exercised.................................... (23,904) 0.02-0.84 0.03
Forfeited.................................... (7,030) 0.02-0.84 0.78
------- ---------- -----
Outstanding, December 31, 1996................ 559,938 $0.02-0.99 $0.83
Granted...................................... 118,485 0.99-1.15 1.13
Exercised.................................... (36,362) 0.02-0.99 0.69
Forfeited.................................... (43,034) 0.02-1.15 0.54
------- ---------- -----
Outstanding, December 31, 1997................ 599,027 $0.02-1.15 $0.92
Granted...................................... 304,437 1.15-7.65 1.56
Exercised.................................... (85,816) 0.02-1.15 0.87
Forfeited.................................... (19,810) 0.02-1.15 0.95
------- ---------- -----
Outstanding, September 30, 1998............... 797,838 $0.02-7.65 $1.16
======= ========== =====
Exercisable, September 30, 1998............... 222,096 $0.02-1.53 $1.01
======= ========== =====
</TABLE>
The range of exercise prices for options outstanding and options
exercisable at September 30, 1998 is as follows:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
-----------------------------------------------------------------------
Weighted
Average Weighted Weighted
Remaining Average Average
Range of Options Contractual Exercise Options Exercise
Exercise Prices Outstanding Life Price Exercisable Price
--------------- ----------- ----------- -------- ----------- --------
<S> <C> <C> <C> <C> <C>
$0.02 21,566 5.06 years $0.02 17,004 $0.02
$0.84--$1.53 773,983 8.26 years 1.18 205,092 1.09
$7.65 2,289 9.96 years 7.65 -- --
------- ---------- ----- ------- -----
797,838 7.89 years $1.16 222,096 $1.01
======= ========== ===== ======= =====
</TABLE>
In connection with certain stock option grants during the nine months
ended September 30, 1998, the Company recorded deferred compensation of
$2,115,350, which represents the aggregate difference between the exercise
price and the fair market value of the common stock determined for
accounting purposes. The deferred compensation will be recognized as an
expense over the vesting period of the underlying stock options. The
Company recorded compensation expense of $304,466 in the nine months ended
September 30, 1998 related to these options.
In October 1995, the FASB issued SFAS No. 123, Accounting for Stock-Based
Compensation, which requires the measurement of the fair value of stock
options or warrants to be included in the statement of income or disclosed
in the notes to the financial statements. The Company has determined that
it will
F-17
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes to Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
continue to account for stock-based compensation for employees under APB
No. 25 and elected the disclosure-only alternative under SFAS No. 123 for
options granted in 1995, 1996, 1997 and the nine
months ended September 30, 1998 using the Black-Scholes option pricing
model prescribed by SFAS No. 123. The assumptions used are as follows:
<TABLE>
<CAPTION>
Years Ended Nine Months
December 31, Ended
----------------------------- September 30,
1995 1996 1997 1998
--------- --------- --------- -------------
<S> <C> <C> <C> <C>
Risk-free interest rate...... 5.7%-7.8% 5.7%-6.9% 5.8%-6.9% 4.6%-5.7%
Expected dividend yield...... -- -- -- --
Expected lives............... 10 years 10 years 10 years 3-10 years
Expected volatility.......... 60% 60% 60% 60%
Weighted average fair value
per share of options
granted..................... $0.55 $0.61 $0.75 $6.71
Weighted average remaining
contractual life of options
outstanding................. 8.52 8.49 8.21 7.89
</TABLE>
Had compensation cost for the Company's stock plan been determined based
on the fair value at the grant dates, as prescribed in SFAS No. 123, the
Company's net loss and net loss per share would have been as follows:
<TABLE>
<CAPTION>
Years Ended Nine Months Ended
December 31, September 30,
--------------------------------- ---------------------
1995 1996 1997 1997 1998
---------- ---------- ----------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Net loss
As reported............ $5,438,528 $8,288,880 $ 9,754,012 $7,662,366 $6,584,713
Pro forma.............. 5,457,616 8,744,691 10,266,151 8,046,471 7,566,982
Basic and diluted net
loss per common share
As reported............ $ 15.43 $ 19.99 $ 19.53 $ 15.59 $ 12.47
Pro forma.............. 15.44 20.11 19.70 15.72 12.64
</TABLE>
The Black-Scholes option pricing model was developed for use in
estimating the fair value of traded options which have no vesting
restrictions and are fully transferable. In addition, option pricing models
require the input of highly subject assumptions, including expected stock
price volatility. Because the Company's employee stock options have
characteristics significantly different from those of traded options, and
because changes in the subjective input assumptions can materially affect
the fair value estimate, in management's opinion, the existing models do
not necessarily provide a reliable single measure of the fair value of its
employee stock options.
(e) Employee Stock Purchase Plan
In December 1997, the Company established an Employee Share Ownership
Program ("ESOP") for the Company's employees based in Denmark. This plan
authorizes the Company to issue and sell up to an aggregate of 6,474 shares
of common stock, of which 5,693 shares of common stock were purchased at
fair market value as of December 31, 1997.
The Company has also adopted an Employee Stock Purchase Plan ("the
Purchase Plan") under which employees may purchase shares of common stock
at a discount from fair market value. There are 163,500 shares of common
stock reserved for issuance under the Purchase Plan. To date, no shares of
common stock have been issued under the Purchase Plan. The Purchase Plan is
intended to qualify as an employee stock purchase plan within the meaning
of Section 423 of the Internal Revenue Code. Rights to purchase common
stock under the Purchase Plan are granted at the discretion of the
Compensation Committee, which determines the frequency and duration of
individual offerings under the Purchase Plan and the dates when stock may
be purchased. Eligible employees participate voluntarily and may withdraw
from any offering at
F-18
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes to Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
any time before stock is purchased. Participation terminates automatically
upon termination of employment. The purchase price per share of common
stock in an offering is 85% of the lesser of its fair market value at the
beginning of the offering period or on the applicable exercise date and may
be paid through payroll deductions, periodic lump-sum payments or a
combination of both. The Purchase Plan terminates on September 17, 2008.
This plan has been adopted by the Board of Directors subject to shareholder
approval.
(f) Warrants
In connection with certain promissory notes, the Company issued warrants
to purchase 85,637 shares of common stock. These warrants are exercisable
for shares of common stock at an exercise price of $8.41 per share. The
warrants shall be exercisable prior to the earlier of January 31, 1999 or
the effective date of an initial public offering.
As of September 30, 1998 the Company has outstanding 106,089 and 18,247
warrants for the purchase of Series C at $0.01 and $5.50 per share,
respectively, which were issued in connection with the issuance of
convertible debt, as discussed in Note 5.
In December 1997, the Company granted warrants to purchase 39,793 shares
of common stock to selected employees and directors in Denmark. Such
warrants have an exercise price of $1.15 per share, and vest over a three
to five year period beginning on January 1, 1999.
On December 9, 1997 warrants to purchase 22,890 shares of common stock
were granted to a consultant of the Company in Denmark. These warrants have
an exercise price of $0.99 per share and become fully exercisable as of
January 1, 2000.
(7) Income Taxes
The Company follows SFAS No. 109, Accounting for Income Taxes, by providing
for income taxes under the liability method. Deferred taxes are determined
based on the difference between the financial statement and tax bases of assets
and liabilities, as measured by the current tax rates. The principal
differences between assets and liabilities for financial reporting and tax
return purposes result primarily from start-up costs and of purchased research
and development costs that have been capitalized for income tax purposes.
The components of the net deferred tax asset with the approximate income tax
effect of each type of temporary difference are as follows:
<TABLE>
<CAPTION>
1996 1997
----------- ------------
<S> <C> <C>
Net operating loss carryforwards.............. $ 7,398,000 $ 10,096,000
Research and development tax credit
carryforwards................................ 270,000 330,000
Purchased research and development............ 600,000 640,000
Temporary differences......................... 74,000 (238,000)
----------- ------------
8,342,000 10,828,000
Valuation allowance........................... (8,342,000) (10,828,000)
----------- ------------
Net deferred tax asset........................ $ -- $ --
=========== ============
</TABLE>
The Company has recorded a full valuation allowance against its deferred tax
assets due to uncertainties surrounding the realization of these assets.
The Company has available net operating loss carryforwards for the period
from inception to December 31, 1996 and 1997 on an aggregate basis, of
approximately $18,495,000 and $25,200,000, respectively, for US federal income
tax purposes, which expire at various dates beginning in 2009. The Company also
has available US federal tax credits of approximately $270,000 and $330,000 at
December 31, 1996 and 1997, respectively, expiring through the year 2010. The
Company's foreign subsidiaries have approximately $690,000 of available
F-19
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes to Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
net operating loss carryforwards for foreign income tax reporting purposes as
of December 31, 1997. These carryforwards expire on various dates beginning in
2001.
The US Internal Revenue Code of 1986, as amended (the "Code"), contains
provisions that may limit the US net operating loss and tax credit
carryforwards available to be used in any given year upon the occurrence of
certain events, including changes in the ownership interests of significant
stockholders. In the event of a cumulative change in ownership in excess of 50%
over a three year period, the amount of the US net operating loss carryforwards
and tax credit carryforwards that the Company can utilize in any one year may
be limited. In the event of a change in ownership, as defined, the annual
limitation on the use of the existing net operating loss carryforwards is equal
to an amount determined by multiplying the value of the Company at the time of
the ownership change by the US federal applicable rate of interest as
determined by the US Internal Revenue Service.
(8) Commitments
The Company leases certain equipment and conducts its operations in leased
facilities under noncancelable operating leases that expire through 2004. Rent
expense was approximately $694,000, $957,000 and $1,132,000, during the years
ended December 31, 1995, 1996 and 1997, respectively. Rent expense for the nine
months ended September 30, 1997 and September 30, 1998 amounted to
approximately $842,000 and $915,000, respectively. The minimum rental payments
under these lease agreements are approximately as follows:
<TABLE>
<CAPTION>
Amount
----------
<S> <C>
1998.............................. $1,219,000
1999.............................. 1,161,000
2000.............................. 963,000
2001.............................. 885,000
2002.............................. 865,000
Thereafter........................ 1,354,000
----------
$6,447,000
==========
</TABLE>
(9) Partnership Agreements
(a) Tsumura & Co.
In June 1996, the Company entered into a partnership with Tsumura & Co.
("Tsumura") focused on the discovery of novel agents for the treatment of
inflammation and allergies. The Company received nonrefundable payments of
$780,000, $1,002,500 and $652,125 during the years ended December 31, 1996
and 1997 and the nine months ended September 30, 1998, respectively, in
consideration of the Company's agreement to provide certain extracts and
perform research activities for Tsumura. The Company recognizes revenue
under this agreement as it provides the extracts to Tsumura and performs
the required research. The Company recognized $247,000 and $1,052,657 of
revenue for the years ended December 31, 1996 and 1997 and $730,311 and
$605,737 for the nine-month periods ended September 30, 1997 and 1998,
respectively.
(b) Chiron Corporation
In May 1998, the Company entered into a collaboration agreement with
Chiron Corporation ("Chiron"), whereby the Company provides certain
extracts to Chiron in order to facilitate the research and development of
certain pharmaceutical products. For the nine months ended September 30,
1998, the Company received a nonrefundable payment of $150,000 from Chiron.
This payment was related to the shipment of a specified number of extracts
and was recorded as revenue upon shipment.
(c) Eli Lilly and Company
In July 1998, the Company entered into a research collaboration agreement
with Eli Lilly and Company ("Lilly") pursuant to which the Company will
collaborate with Lilly on the discovery of novel
F-20
<PAGE>
PHYTERA, INC. AND SUBSIDIARIES
(A Development Stage Company)
Notes to Consolidated Financial Statements, Continued
(Including Data Applicable to Unaudited Periods)
agents for the diagnosis, treatment and prevention of infectious fungal
disease in humans and animals. Under the terms of this two-year agreement,
the Company will receive research funding, an equity investment, and
potential future milestone and royalty payments. In September, 1998 Lilly
purchased 50,000 shares of Series E for $500,000 which represented the fair
value of the Series E on the date of purchase. The Company receives
research funding from Lilly based upon the number of full time equivalent
researchers dedicated to the agreement. The Company recognizes the payments
as revenue as the services are provided. As of September 30, 1998, the
Company received research funding of $428,028 of which $344,520 had been
recognized as revenue. Milestone payments will be recognized as revenue
upon achievement of the specified milestones. No milestone payments have
been received as of September 30, 1998.
(10) Accrued Expenses
Accrued expenses at December 31, 1996 and 1997 and September 30, 1998 consist
of the following:
<TABLE>
<CAPTION>
December 31,
----------------- September 30,
1996 1997 1998
-------- -------- -------------
<S> <C> <C> <C>
Accrued payroll and payroll related
expenses............................... $ 70,248 $181,074 $296,204
Other accrued expenses.................. 269,612 182,266 566,429
-------- -------- --------
$339,860 $363,340 $862,633
======== ======== ========
</TABLE>
(11) Geographic Information
Revenues, net loss and identifiable assets for the Company's U.S. and
European operations are summarized as follows:
<TABLE>
<CAPTION>
European
United States Subsidiaries Eliminations Consolidated
------------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Year ended December
31, 1996
Revenues from unaffili-
ated customers......... $ 247,000 $ -- $ -- $ 247,000
Transfers between geo-
graphic regions........ -- -- -- --
----------- ---------- ----------- -----------
Total Revenue....... $ 247,000 $ -- $ -- $ 247,000
=========== ========== =========== ===========
Net Income (Loss)....... $(8,474,359) $ 185,479 $ -- $(8,288,880)
=========== ========== =========== ===========
Identifiable assets..... $11,644,970 $1,389,281 $ (638,739) $12,395,512
=========== ========== =========== ===========
Year ended December
31, 1997
Revenues from unaffili-
ated customers......... $ 1,052,657 $ -- $ -- $ 1,052,657
Transfers between geo-
graphic regions........ -- -- -- --
----------- ---------- ----------- -----------
Total Revenue....... $ 1,052,657 $ -- $ -- $ 1,052,657
=========== ========== =========== ===========
Net Loss................ $ 7,717,176 $2,036,836 $ -- $ 9,754,012
=========== ========== =========== ===========
Identifiable assets..... $ 6,147,071 $4,166,991 ($4,025,048) $ 6,289,014
=========== ========== =========== ===========
Nine months ended Sep-
tember 30, 1998
Revenues from unaffili-
ated customers......... $ 1,100,257 $ -- $ -- $ 1,100,257
Transfers between geo-
graphic regions........ -- -- -- --
----------- ---------- ----------- -----------
Total Revenue....... $ 1,100,257 $ -- $ -- $ 1,100,257
=========== ========== =========== ===========
Net Loss................ $ 3,883,837 $2,700,876 $ -- $ 6,584,713
=========== ========== =========== ===========
Identifiable assets..... $10,182,807 $5,280,802 ($6,148,955) $ 9,314,654
=========== ========== =========== ===========
</TABLE>
F-21
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
You should rely only on the information contained in this document or that we
have referred you to. We have not authorized anyone to provide you with
information that is different. This Prospectus relates only to the common
stock and is not an offer to sell or the solicitation of an offer to buy
securities in any unlawful circumstances. The delivery of this Prospectus and
the sale of the common stock does not mean that the affairs of the Company
have not changed since the date of this Prospectus or that this Prospectus
would not be revised if issued on a date later than the date below.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Experts.................................................................. 4
Additional Information................................................... 4
Prospectus Summary....................................................... 5
Risk Factors............................................................. 8
Use of Proceeds.......................................................... 14
Dividend Policy.......................................................... 14
Capitalization........................................................... 15
Dilution................................................................. 16
Selected Consolidated Financial Data..................................... 17
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 18
Business................................................................. 22
Management............................................................... 42
Certain Transactions..................................................... 48
Principal Stockholders................................................... 49
Description of Capital Stock............................................. 51
Shares Eligible for Future Sale.......................................... 56
Settlement and Clearance................................................. 58
Tax Considerations....................................................... 59
Underwriting............................................................. 65
Subscription and Sale.................................................... 67
Legal Matters............................................................ 69
Index to Financial Statements............................................ F-1
</TABLE>
------------------
Until , 1999, all dealers that effect transactions in these securities,
whether or not participating in this offering, may be required to deliver a
prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
2,500,000 Shares
Common Stock
------------------
US PROSPECTUS
------------------
SG COWEN
CARNEGIE INC.
BANCBOSTON
ROBERTSON STEPHENS
, 1999
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this Prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is declared effective. This Prospectus is +
+not an offer to sell these securities and we are not soliciting an offer to +
+buy these securities in any jurisdiction where the offer or sale is not +
+permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
[ALTERNATE PAGES FOR EUROPEAN PROSPECTUS]
SUBJECT TO COMPLETION, DATED JANUARY 14, 1999
EUROPEAN PROSPECTUS
2,500,000 Shares
[LOGO OF PHYTERA, INC.]
Common Stock
This is an initial public offering of the shares of common stock of Phytera,
Inc. The shares of common stock will be offered to the public in Denmark.
Additionally, shares of common stock will be offered in private placements in
other European countries. The offering in the United States, Canada and Belgium
will be limited to institutional investors. There is currently no public market
for the shares. Phytera expects that the public offering price will be between
$12.00 and $14.00 per share.
In Europe, we are offering 1,750,000 shares of common stock. In the United
States and Canada, we are offering 750,000 shares of common stock.
We have applied for admission to trading and quotation of the common stock on
the European Association of Securities Dealers Automated Quotation system,
called EASDAQ, and for listing on the Copenhagen Stock Exchange, called the
CSE. Our trading symbol on EASDAQ and our short name on the CSE will be PHYT.
We expect that these listings will become effective and that trading in the
shares of common stock will begin promptly after the initial public offering
price is determined through negotiations between the Company and the
Underwriters.
Our business involves significant risks. These risks are described under the
caption "Risk Factors" beginning on page 8.
None of EASDAQ, the CSE, the US Securities and Exchange Commission nor any
state securities commission has approved or disapproved of these securities or
determined if this Prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
------------
<TABLE>
<CAPTION>
Per
Share Total
<S> <C> <C>
Public offering price............................................... $ $
Underwriting discounts and commissions.............................. $ $
Proceeds, before expenses, to Phytera............................... $ $
</TABLE>
------------
The European Managers may also purchase up to an additional 262,500 shares of
common stock and the US Underwriters may also purchase up to an additional
112,500 shares of common stock, an aggregate of 375,000 shares, at the public
offering price, less the underwriting discounts and commissions, within 30 days
from the date of this Prospectus to cover over-allotments.
In the distribution of the offering, the European Managers will purchase the
offered shares of common stock from the Company and resell such shares to
investors.
SG COWEN INTERNATIONAL
CARNEGIE BANK A/S
BANCBOSTON ROBERTSON STEPHENS
INTERNATIONAL LTD
, 1999
X-1
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
You should rely only on the information contained in this document or that we
have referred you to. We have not authorized anyone to provide you with
information that is different. This Prospectus relates only to the common stock
and is not an offer to sell or the solicitation of an offer to buy securities
in any unlawful circumstances. The delivery of this Prospectus and the sale of
the common stock does not mean that the affairs of the Company have not changed
since the date of this Prospectus or that this Prospectus would not be revised
if issued on a date later than the date below.
-----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Experts.................................................................. 4
Additional Information................................................... 4
Prospectus Summary....................................................... 5
Risk Factors............................................................. 8
Use of Proceeds.......................................................... 14
Dividend Policy.......................................................... 14
Capitalization........................................................... 15
Dilution................................................................. 16
Selected Consolidated Financial Data..................................... 17
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 18
Business................................................................. 22
Management............................................................... 42
Certain Transactions..................................................... 48
Principal Stockholders................................................... 49
Description of Capital Stock............................................. 51
Shares Eligible for Future Sale.......................................... 56
Settlement and Clearance................................................. 58
Tax Considerations....................................................... 59
Underwriting............................................................. 65
Subscription and Sale.................................................... 67
Legal Matters............................................................ 69
Index to Financial Statements............................................ F-1
</TABLE>
-----------------
Until , 1999, all dealers that effect transactions in these securities,
whether or not participating in this offering, may be required to deliver a
prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2,500,000 Shares
Common Stock
---------------------
EUROPEAN PROSPECTUS
---------------------
SG COWEN INTERNATIONAL
CARNEGIE BANK A/S
BANCBOSTON
ROBERTSON STEPHENS
INTERNATIONAL LTD
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
X-2
<PAGE>
Danish Application
Form Phytera, Inc
Securities codes Existing shares Temporary
Subscription period , 1999 to the date of determination of the
initial public offering price
Offer price Announced , 1999
interval
Initial Public To be announced
Offering price
Selling agents SG Cowen International L.P., Carnegie Bank A/S and
BancBoston Robertson Stephens International Ltd
Payment date The third day following the determination of the initial
public offering price (fourth day, if the determination
is made after 4:30 p.m. New York time)
Listing [The day following the determination of the initial
public offering price]
The offer price will be determined through bookbuilding,
see "Underwriting" in the prospectus dated ,
1999. Applications for subscription for amounts of up to
and including DKK 2 million can be submitted using this
form. Applications for subscription for amounts of more
than DKK 2 million can be made by contacting the
account-holding institution. If the total number of
applications for shares exceeds the number of shares
offered, an allocation will be made among the
applications received as detailed in the offering
circular.
Pursuant to the prospectus dated I/We hereby
apply for subscription of the number of shares of Common
Stock of Phytera, Inc., $0.01 par value, as indicated
below.
Up to and including the value of DKK 2 million.
Submitted as an irrevocable application.
Maximum price per share:
---------------------------------------------------------
DKK value:
---------------------------------------------------------
No. of shares:
---------------------------------------------------------
If no maximum price is indicated the application is
considered to be made at the initial public offer price,
i.e. without limitation.
Investor declares
This application is made pursuant to the conditions
detailed in the prospectus dated , 1999.
This application is irrevocable.
I/We am/are obligated to pay an amount corresponding to
the value of the allocated shares at the offer price.
Payment will take place on , 1999 subsequent to
invoice that is to be sent to me/us, against
registration of the allocated shares in the Danish
Securities Centre, "Vaerdipapircentralen". If the
applications exceed the number of shares offered, an
allocation of the shares will take place as detailed in
the prospectus.
Information and signature
Name VP-account
---------------------------------------------------------
Address Account for settlement
---------------------------------------------------------
Postal code and city Account-holding institution
---------------------------------------------------------
Date To be registered by name in
the company's stock register
[_] (check)
---------------------------------------------------------
Telephone The application has been
submitted through
---------------------------------------------------------
Signature Registration no.
---------------------------------------------------------
CD-ident.
------------------------------
Date
------------------------------
Company stamp
Telephone
---------------------------------------------------------
The application form must be submitted to the account-
holding institution on , 1999 at 4.00 p.m. at the
latest.
<TABLE>
<S> <C> <C>
SG Cowen International Carnegie Bank A/S BancBoston Robertson Stephens International Ltd
</TABLE>
X-3
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses and costs (other than
underwriting discounts and commissions) expected to be incurred by the Company
in connection with the issuance and distribution of the securities being
registered under this registration statement. Except for the SEC registration
fee and the NASD filing fees, all expenses have been estimated and are subject
to future contingencies:
<TABLE>
<S> <C>
SEC registration fee............................................. $ 9,591
EASDAQ listing fee............................................... 93,800
Copenhagen Stock Exchange filing fee............................. 5,434
CBF filing fee................................................... 15,000
NASD filing fees................................................. 3,980
Printing and engraving expenses.................................. 175,000
Accounting fees and expenses..................................... 175,000
Legal fees and expenses.......................................... 300,000
Transfer agent and registrar fees................................ 5,000
Miscellaneous expenses........................................... 82,195
--------
Total.......................................................... $865,000
========
</TABLE>
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits the Company to
indemnify any present or former Director, officer, employee and agent of the
Company against actual and reasonable expenses (including attorneys' fees)
incurred by such person in connection with any action, suit or proceeding
brought against such person by reason of such person's status or service as a
Director, officer, employee or agent by or on behalf of the Company, and, in
the case of a present or former Director or officer of the Company, against
expenses (including attorneys' fees), judgments, fines and settlements actually
and reasonably incurred by such person in connection with any such action, suit
or proceeding, if (i) the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
Company, and (ii) in the case of a criminal proceeding, the person had no
reasonable cause to believe such person's conduct was unlawful. Except as
ordered by a court, no indemnification shall be made in connection with any
proceeding brought by or in the right of the corporation where the person
involved is adjudged to be liable to the Company.
Article TENTH of the Company's Certificate of Incorporation as proposed to be
amended and restated effective immediately prior to the closing of this
offering (the "Restated Certificate") provides that the Company shall, to the
fullest extent permitted by the General Corporation Law of the State of
Delaware, as amended from time to time, indemnify each 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 whether civil, criminal, administrative or
investigative by reason of the fact that he is or was, or has agreed to become
a Director or officer of the Company or is or was serving, or has agreed to
serve, at the request of the Company, as a Director, officer or trustee of, or
in a similar capacity with, another corporation, partnership, joint venture,
trust or other enterprise. The indemnification provided for in Article TENTH is
expressly not exclusive of any other rights to which those seeking
indemnification may be entitled under any law, agreement or vote of
shareholders or Directors or otherwise, and shall inure to the benefit of the
heirs, executors and administrators of such persons. Article TENTH also permits
the Board of Directors to authorize the grant of indemnification rights to
other employees and agents of the Company and such rights may be equivalent to,
or greater or less than, those set forth in Article TENTH.
Article V, Section 2 of the Company's By-laws provides that the Company shall
have the power to purchase and maintain insurance on behalf of its officers,
Directors, employees and agents, against any liability asserted against and
incurred by such persons in any such capacity.
The Company has entered into indemnification agreements with each of its
Directors and executive officers and has obtained insurance covering the
officers and Directors of the Company against certain losses and insuring the
Company against certain of its obligations to indemnify its Directors and
officers.
II-1
<PAGE>
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a corporation may eliminate or limit the personal liability of a
Director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a Director, provided that such provisions shall not
eliminate or limit the liability of a Director (i) for any breach of the
Director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
Director derived an improper personal benefit. No such provision shall
eliminate or limit the liability of a Director for any act or omission
occurring prior to the date when such provision becomes effective.
Pursuant to the Delaware General Corporation Law, Article NINTH of the
Restated Certificate eliminates a Director's personal liability for monetary
damages to the Company and its shareholders for breach of fiduciary duty as a
Director, except in circumstances involving a breach of the Director's duty of
loyalty to the Company or shareholders, acts or omissions not in good faith,
intentional misconduct, knowing violations of the law, self-dealing or the
unlawful payment of dividends or repurchase of stock.
The Company believes that courts in Europe and the US may have jurisdiction
in an action against the Company, its Directors or officers. Such jurisdiction
will be delivered by the laws of the jurisdiction in effect at that time.
Item 15. Recent Sales of Unregistered Securities
Since September 1995, the Company has issued and sold the following
securities, in each case in reliance on an exemption from required registration
pursuant to the Securities Act of 1933, as amended (the "Securities Act"):
1995 Bridge Financing
From September through December 1995, the Company issued certain Convertible
Term Notes (the "Bridge Notes"), for an aggregate principal amount of
$1,762,236 bearing interest on unpaid principal at a rate of 7% per annum and
convertible into Series C Convertible Preferred Stock $0.01 par value per share
("Series C Stock") at the conversion price of $6.25 ($9.56 on an as converted
basis) per share, and certain warrants to purchase 85,637 shares of common
stock (the "Bridge Warrants"), exercisable at the price of $8.41 per share, to
certain current stockholders of the Company (collectively, the "Bridge
Financing").
Series C Private Placement
In January and July 1996, and the Company sold an aggregate of 1,113,055
shares of Series C Stock at a price of $6.25 ($9.56 on an as converted basis)
per share, and issued warrants to purchase an aggregate of 148,041 shares of
Series C Stock at an exercise price of $0.01 per share, such shares of Series C
Stock are convertible into 727,938 and 96,819 shares of common stock,
respectively. In addition, warrants for an aggregate of 18,247 shares of Series
C Stock, convertible into 11,934 shares of common stock, were issued in
consideration of certain financing guaranties by principal stockholders at an
exercise price of $5.50 ($8.41 on an as converted basis) per share
(collectively, the "Series C Private Placement").
Both the 1995 Bridge Financing and the Series C Private Placement were exempt
from the registration requirements of the Securities Act pursuant to the
private offering exemption under Section 4(2) thereof. In determining the
availability of this exemption, the Company relied on representations made by
the purchasers in the stock purchase agreement pursuant to which the Series C
Stock was purchased.
Neptune Acquisition
On July 31, 1996, as consideration for the acquisition by the Company of
Neptune Pharmaceuticals, Inc. ("Neptune"), a US pharmaceutical company, the
Company issued 246,050 shares of Series B Convertible Preferred Stock, $0.01
par value per share ("Series B Stock"), convertible into 160,917 shares of
common stock, to the stockholders of Neptune. Shares of Series B Stock were
valued at $5.50 ($8.41 on an as converted basis) per share.
The shares issued in connection with the Neptune acquisition were exempt from
the registration requirements of the Securities Act pursuant to the private
offering exemption under Section 4(2) thereof. In determining the availability
of this exemption, the Company relied on representations made by the
stockholders of Neptune in the acquisition agreement.
II-2
<PAGE>
Series D Private Placement
In separate closings as of each of October 30 and November 29, 1996, the
Company issued an aggregate of 1,900,000 shares of its Series D Convertible
Preferred Stock, $0.01 par value per share ("Series D Stock"), convertible into
1,242,600 shares of common stock, to a large number of institutional and
individual investors. All purchasers of Series D Stock were "Non-US Persons" as
defined by Rule 902 under Regulation S under the Securities Act, primarily
resident in Scandinavia. In determining the availability of this exemption, the
Company relied on representations made by investors in subscription agreements
pursuant to which the Series D Stock was purchased, as well as certain
representations from the placement agent in the placement agreement. Shares of
Series D Stock were purchased for $6.50 per share, which represents the initial
conversion price at which shares of Series D Stock convert into common stock.
Carnegie Bank A/S, ("Carnegie") acted as placement agent for the sale of the
Series D Stock and, pursuant to the terms of a placement agreement between
Carnegie and the Company dated as of October 5, 1996, received a placement fee
equal to 7% of the aggregate proceeds raised, plus accountable expenses.
Auda Acquisition
On March 11, 1997, as consideration for the acquisition by the Company of
Auda Pharmaceuticals ApS ("Auda"), a Danish pharmaceutical company, the Company
issued additional shares of Series D Stock to the selling stockholders of Auda.
The Company issued 402,000 shares to Danish Venture Finance A/S (previously
known as Danish Development Finance Corporation) and 33,000 shares to GJK
Holding ApS, a Danish corporation. Such shares are convertible into 262,908 and
21,582 shares of common stock, respectively. Shares of Series D Stock were
valued at $7.50 per share.
The private placement of the Series D Stock and the shares issued in
connection with the Auda acquisition were exempt from the registration
requirements of the Securities Act pursuant to Regulation S. In determining the
availability of this exemption, the Company relied on representations made by
Danish Development Finance Corporation and GJK Holding ApS in the Auda
acquisition agreement.
Series E Private Placement
In separate closings as of each of May 26 and June 25, 1998, the Company
issued an aggregate of 762,586 shares of its Series E Convertible Preferred
Stock, $0.01 par value per share ("Series E Stock") to certain "accredited
investors" as defined by Rule 501 under Regulation D promulgated under the
Securities Act. Shares of Series E Stock were purchased for $10.00 per share.
Carnegie acted as placement agent for the sale of the Series E Stock and,
pursuant to the terms of a placement agreement between Carnegie and the Company
dated March 23, 1998, received a placement fee equal to 7% of the gross
proceeds from the subscription of Series E Stock by new investors and 2% of the
gross proceeds from the subscription of Series E Stock by existing investors of
the Company.
An additional 50,000 shares of Series E Stock was purchased by Eli Lilly and
Company ("Lilly") on September 18, 1998 at a price of $10.00 per share. The
issuance to Lilly did not involve any compensation to Carnegie.
The total 812,586 of Series E Stock outstanding are convertible into an
aggregate of 722,746 shares of common stock, assuming the closing of this
offering on February 8, 1999 at a public offering price of $13.00 per share
(the mid-point of the expected range).
The sale of the Series E Stock and the sale to Lilly were exempt from the
Securities Act pursuant to Regulation D. In determining the availability of
this exemption, the Company relied on representations made by Series E
investors in subscription agreements for the Series E Stock, as well as selling
restrictions contained in the agreement with the placement agent.
Employee, Director and Consultant Issuances
The following securities have been sold in reliance on an exemption from
registration pursuant to Section 4(2) of the Securities Act:
Since inception, the Company has granted employees and consultants options
under its Amended and Restated 1992 Stock Option Plan which have a ten-year
term and are exercisable at a price equal to the fair
II-3
<PAGE>
market value of the common stock at the date of grant, as determined in good
faith by the Compensation Committee of the Board of Directors. As of November
30, 1998, options for 792,802 shares of the Company's common stock were
outstanding. As of such date, options for 187,775 shares of common stock had
been exercised at an average price of $0.55 per share.
In December 1997, the Company issued warrants to purchase an aggregate of
39,793 shares of its common stock to its Danish employees and certain members
of the Board of Directors based in Denmark which vest over a three to five year
period beginning on January 1, 1999 and are exercisable at $1.15 per share,
being a price equal to the fair market value of the common stock at the date of
grant, as determined in good faith by the Compensation Committee of the Board
of Directors. The Company also issued warrants to DACC ApS to purchase an
aggregate of 22,890 shares of common stock at an exercise price of $0.99 per
share. Such warrants vest over a two-year period beginning on January 1, 1999.
In addition, from inception through November 30, 1998, the Company made
grants of an aggregate of 434,372 shares of common stock to certain employees,
Directors and consultants to the Company. Such shares were sold at fair market
value and are subject to repurchase rights held by the Company.
II-4
<PAGE>
Item 16. Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1 Form of European Underwriting Agreement.(1)
1.2 Form of US Underwriting Agreement.(1)
3.1 Amended and Restated Certificate of Incorporation of Phytera,
Inc., as amended through
May 26, 1998.(1)
3.2 Form of Certificate of Amendment of Restated Certificate of
Incorporation of Phytera, Inc. to be filed immediately prior to
the effectiveness of this offering.(1)
3.3 Form of Amended and Restated Certificate of Incorporation of
Phytera, Inc. to be filed immediately prior to the closing of
this offering.(1)
3.4 By-laws of Phytera, Inc.(1)
3.5 Form of Amended and Restated By-laws to become effective
immediately prior to the closing of this offering.(1)
4.1 Specimen Common Stock Purchase Warrant, together with a list of
holders.(1)
4.2 Specimen Common Stock Purchase Warrant, together with a list of
holders.(1)
4.3 Agreement with VaekstFonden dated April 11, 1996. Filed
herewith.
4.4 Note payable to Silicon Valley Bank dated July 15, 1994. This
exhibit has been omitted in reliance on Item 601(b)(4)(iii) of
Regulation S-K. The registrant undertakes to furnish a copy of
the debt instrument on request of the Commission.
4.5 Note payable to Danish Technology Institute dated July 26, 1996.
This exhibit has been omitted in reliance on Item 601(b)(4)(iii)
of Regulation S-K. The registrant undertakes to furnish a copy
of the debt instrument on request of the Commission.
4.6 Note payable to Unibank for the purchase of a vehicle dated
September 24, 1996. This exhibit has been omitted in reliance on
Item 601(b)(4)(iii) of Regulation S-K. The registrant undertakes
to furnish a copy of the debt instrument on request of the
Commission.
5.1 Opinion of Palmer & Dodge LLP as to the legality of the shares
being registered.(1)
10.1* 1998 Equity Incentive Plan.(1)
10.2* 1998 Employee Stock Purchase Plan.(1)
10.3* Employment Agreement between Phytera, Inc. and Malcolm Morville
dated as of June 5, 1996.(1)
10.4 Form of Indemnification Agreement between Phytera, Inc. and its
Directors and executive officers.(1) Such agreements are
materially different only as to the signing Directors and
executive officers and the dates of execution.
10.5 Amended and Restated Investors' Rights Agreement among Phytera,
Inc. and certain stockholders of the Company dated May 26,
1998.(1)
10.6 Confidentiality Agreement between Phytera, Inc. and Malcolm
Morville dated March 1, 1998.(1)
10.7 Confidentiality Agreement between Phytera, Inc. and Stephen
DiPalma dated November 11, 1997.(1)
10.8 Confidentiality Agreement between Phytera, Inc. and Christopher
Pazoles dated May 24, 1994.(1)
10.9 Noncompetition Agreement between Phytera, Inc. and Malcolm
Morville dated October 28, 1993.(1)
10.10 Noncompetition Agreement between Phytera, Inc. and Stephen
DiPalma dated November 7, 1997.(1)
10.11 Noncompetition Agreement between Phytera, Inc. and Christopher
Pazoles dated May 24, 1994.(1)
10.12 Lease Agreement, dated November 1, 1993, between Phytera, Inc.
and Worcester Business Development Corporation.(1)
10.13 Lease Agreement, dated October 31, 1994, between Phytera, Inc.
and the University of Sheffield.(1)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
10.14 Lease Agreement, dated July 26, 1996, between Phytera, Inc. and
Dansk Teknologisk Institut.(1)
10.15 Lease Agreement, dated April 1, 1997, between Phytera, Inc. and
Auda Pharmaceuticals ApS and Symbion A/S.(1)
10.16+ Research Collaboration Agreement between Phytera, Inc. and
Tsumura & Co., dated June 28, 1996, as amended on July 11,
1998.(1)
10.17+ Research Collaboration and License Agreement between Phytera,
Inc. and Galileo Laboratories, Inc., dated April 21, 1998.(1)
10.18+ Research Collaboration and License Agreement between Phytera,
Inc. and NeuroSearch A/S, dated May 1, 1998.(1)
10.19+ Research Collaboration Agreement between Phytera, Inc. and
Chiron Corporation, dated May 20, 1998. Filed herewith.(1)
10.20+ Research Collaboration Agreement between Phytera, Inc. and Eli
Lilly and Company, dated July 21, 1998.(1)
10.21+ Research Collaboration Agreement between Phytera, Inc. and
Nycomed Amersham plc, dated July 30, 1993.(1)
10.22 Amendment to Research Collaboration Agreement between Phytera,
Inc. and Nycomed Amersham plc dated October 29, 1998.(1)
10.23+ License Agreement between Phytera, Inc. and University of
Maryland dated July 1, 1998. Filed herewith.
23.1 Consent of Arthur Andersen LLP. Filed herewith.
23.2 Consent of Palmer & Dodge LLP. Included in the opinion filed as
Exhibit 5.1
24 Power of attorney. Included on the signature page of the
original Registration Statement.
27 Financial Data Schedule.(1)
</TABLE>
- --------
* Indicates a management contract or compensatory plan.
+ Certain confidential material contained in the document has been omitted and
filed separately with the Securities and Exchange Commission pursuant to
Rule 406 of the Securities Act.
(1)Previously filed.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes to provide to the
Underwriters at the closing specified in the underwriting agreements (filed
herewith as Exhibits 1.1 and 1.2), certificates in such denominations and
registered in such names as required by the Underwriters to permit prompt
delivery to each purchaser.
(b) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to Directors, officers and controlling persons of the
Registrant pursuant to the provisions described under "Item 14--Indemnification
of Directors and Officers" above, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a Director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such Director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has duly caused this Amendment No. 2 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Worcester,
Commonwealth of Massachusetts, on January 14, 1999.
Phytera, Inc.
/s/ Malcolm Morville, Ph.D.
By: _________________________________
Malcolm Morville, Ph.D.
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/ Malcolm Morville, Ph.D. President, Chief Executive January 14, 1999
______________________________________ Officer and Director
Malcolm Morville, Ph.D. (Principal Executive
Officer)
* Vice President, Finance January 14, 1999
______________________________________ (Principal Financial and
Stephen DiPalma Accounting Officer)
* Director January 14, 1999
______________________________________
Steven J. Roth
* Director January 14, 1999
______________________________________
Uffe Bundgaard-Jorgensen, Ph.D.
* Director January 14, 1999
______________________________________
Poul Schluter
* Director January 14, 1999
______________________________________
Robert G. Foster
* Director January 14, 1999
______________________________________
Graham K. Crooke, M.D.
* Director January 14, 1999
______________________________________
Gustav A. Christensen
</TABLE>
/s/ Malcolm Morville, Ph.D.
By: _______________________________
Malcolm Morville, Ph.D.
Attorney-in-Fact
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1 Form of European Underwriting Agreement.(1)
1.2 Form of US Underwriting Agreement.(1)
3.1 Amended and Restated Certificate of Incorporation of Phytera,
Inc., as amended through
May 26, 1998.(1)
3.2 Form of Certificate of Amendment of Restated Certificate of
Incorporation of Phytera, Inc. to be filed immediately prior to
the effectiveness of this offering.(1)
3.3 Form of Amended and Restated Certificate of Incorporation of
Phytera, Inc. to be filed immediately prior to the closing of
this offering.(1)
3.4 By-laws of Phytera, Inc.(1)
3.5 Form of Amended and Restated By-laws to become effective
immediately prior to the closing of this offering.(1)
4.1 Specimen Common Stock Purchase Warrant, together with a list of
holders.(1)
4.2 Specimen Common Stock Purchase Warrant, together with a list of
holders.(1)
4.3 Agreement with VaekstFonden dated April 11, 1996. Filed
herewith.
4.4 Note payable to Silicon Valley Bank dated July 15, 1994. This
exhibit has been omitted in reliance on Item 601(b)(4)(iii) of
Regulation S-K. The registrant undertakes to furnish a copy of
the debt instrument on request of the Commission.
4.5 Note payable to Danish Technology Institute dated July 26, 1996.
This exhibit has been omitted in reliance on Item 601(b)(4)(iii)
of Regulation S-K. The registrant undertakes to furnish a copy
of the debt instrument on request of the Commission.
4.6 Note payable to Unibank for the purchase of a vehicle dated
September 24, 1996. This exhibit has been omitted in reliance on
Item 601(b)(4)(iii) of Regulation S-K. The registrant undertakes
to furnish a copy of the debt instrument on request of the
Commission.
5.1 Opinion of Palmer & Dodge LLP as to the legality of the shares
being registered.(1)
10.1* 1998 Equity Incentive Plan.(1)
10.2* 1998 Employee Stock Purchase Plan.(1)
10.3* Employment Agreement between Phytera, Inc. and Malcolm Morville
dated as of June 5, 1996.(1)
10.4 Form of Indemnification Agreement between Phytera, Inc. and its
Directors and executive officers.(1) Such agreements are
materially different only as to the signing Directors and
executive officers and the dates of execution.
10.5 Amended and Restated Investors' Rights Agreement among Phytera,
Inc. and certain stockholders of the Company dated May 26,
1998.(1)
10.6 Confidentiality Agreement between Phytera, Inc. and Malcolm
Morville dated March 1, 1998.(1)
10.7 Confidentiality Agreement between Phytera, Inc. and Stephen
DiPalma dated November 11, 1997.(1)
10.8 Confidentiality Agreement between Phytera, Inc. and Christopher
Pazoles dated May 24, 1994.(1)
10.9 Noncompetition Agreement between Phytera, Inc. and Malcolm
Morville dated October 28, 1993.(1)
10.10 Noncompetition Agreement between Phytera, Inc. and Stephen
DiPalma dated November 7, 1997.(1)
10.11 Noncompetition Agreement between Phytera, Inc. and Christopher
Pazoles dated May 24, 1994.(1)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
10.12 Lease Agreement, dated November 1, 1993, between Phytera, Inc.
and Worcester Business Development Corporation.(1)
10.13 Lease Agreement, dated October 31, 1994, between Phytera, Inc.
and the University of Sheffield.(1)
10.14 Lease Agreement, dated July 26, 1996, between Phytera, Inc. and
Dansk Teknologisk Institut.(1)
10.15 Lease Agreement, dated April 1, 1997, between Phytera, Inc. and
Auda Pharmaceuticals ApS and Symbion A/S.(1)
10.16+ Research Collaboration Agreement between Phytera, Inc. and
Tsumura & Co., dated June 28, 1996, as amended on July 11,
1998.(1)
10.17+ Research Collaboration and License Agreement between Phytera,
Inc. and Galileo Laboratories, Inc., dated April 21, 1998.(1)
10.18+ Research Collaboration and License Agreement between Phytera,
Inc. and NeuroSearch A/S, dated May 1, 1998.(1)
10.19+ Research Collaboration Agreement between Phytera, Inc. and
Chiron Corporation, dated May 20, 1998.(1)
10.20+ Research Collaboration Agreement between Phytera, Inc. and Eli
Lilly and Company, dated July 21, 1998.(1)
10.21+ Research Collaboration Agreement between Phytera, Inc. and
Nycomed Amersham plc, dated July 30, 1993.(1)
10.22 Amendment to Research Collaboration Agreement between Phytera,
Inc. and Nycomed Amersham plc dated October 29, 1998.(1)
10.23+ License Agreement between Phytera, Inc. and University of
Maryland dated July 1, 1998. Filed herewith.
23.1 Consent of Arthur Andersen LLP. Filed herewith.
23.2 Consent of Palmer & Dodge LLP. Included in the opinion filed as
Exhibit 5.1
24 Power of attorney. Included on the signature page of the
original Registration Statement.
27 Financial Data Schedule.(1)
</TABLE>
- --------
*Indicates a management contract or compensatory plan.
+Certain confidential material contained in the document has been omitted and
filed separately with the Securities and Exchange Commission pursuant to
Rule 406 of the Securities Act.
(1)Previously filed.
<PAGE>
Exhibit 4.3
VAEKSTFONDEN
Tagensvej 137
DK-2200 Kobenhavn N
Telefon: 35 86 86 35
Telefax: 35 86 86 36
Laneaftale
Debitor Phytera A/S under stiftelse
c/o Dragsted & Helmer Nielsen
Advokat Mogens Bach
Radhuspladsen 4
1550 Kobenhavn V
A/S-reg.nr.
SE-nr.
erkender herved at skylde
Kreditor VaekstFonden, Tagensvej 137, 2200 Kobenhavn N
Projekt nr. og betegnelse 1211 Phytera
- ---------------------------- --------------------------------------------------
Lanetype FU-lan
- ---------------------------- --------------------------------------------------
Lanebelob, kr. 13.232.7000
- ---------------------------- --------------------------------------------------
Projektnr. 1211
- ---------------------------- --------------------------------------------------
Udbetaling Lanet udbetales I 3-maneders rater forud
- ---------------------------- --------------------------------------------------
Projektbudget, kr. 29.406.000
- ---------------------------- --------------------------------------------------
Finansieringsprocent 45
- ---------------------------- --------------------------------------------------
Projektperiode, start* 01.11.1995
- ---------------------------- --------------------------------------------------
Projektperiode, slut 31.12.1998
- ---------------------------- --------------------------------------------------
- ---------------------------- --------------------------------------------------
Rente** p.a., fast 7,98%
- ---------------------------- --------------------------------------------------
Rente** p.a., variabel 7,98%. Renten fastsaettes den forste bankdag I
hver maned
- ---------------------------- --------------------------------------------------
Forrentning sker fra Udbetaling
- ---------------------------- --------------------------------------------------
Morarente 14% p.a.
- ---------------------------- --------------------------------------------------
Stempelafgift, lan, kr. 39.698
- ---------------------------- --------------------------------------------------
Losoreejerpantebrev, kr. 150, forudsat vaerdipategning 10,000
- ---------------------------- --------------------------------------------------
Retsafgift, kr. 700
- ---------------------------- --------------------------------------------------
- ---------------------------- --------------------------------------------------
Terminsdatoer, kr. 01.04, 01.07, 01.10, 01.01
- ---------------------------- --------------------------------------------------
1. ydelse 01.04.1999
- ---------------------------- --------------------------------------------------
Ydelse pr. termin*** Se tilbagebetalingsoversigt af 12.12.1955
- ---------------------------- --------------------------------------------------
Royaltyprocent**** 12,23
- ---------------------------- --------------------------------------------------
<PAGE>
- ---------------------------- --------------------------------------------------
Projektrapporteringsdatoer 01.04, 01.07, 01.10, 01.01
- ---------------------------- --------------------------------------------------
1. gang den 01.04.1996 for perioden indtil 31.12.1996
- ---------------------------- --------------------------------------------------
Indsendelsesfrist 3 uger
- ---------------------------- --------------------------------------------------
Sikkerhed Pant I projektet
- ---------------------------- --------------------------------------------------
*) Omkost for arbejde udfort for projektets startdata medfinansieres ikke.
**) Renten tilskrives kvartalsvis bagud.
***) Afdragenes storrelse fremglr af vedlagte tilbagebetalingsoversigt.
****) Se under afonittet oen tilbagetetaling pa side 2.
Forudsaetning Lanet gives under forudsaetning af, at
. projektet udfores som specificeret I det
ansogningsmateriale, VaekstFonden har lagt til
grund for bevillingen,
. projektets budget f0lges, jf. VaekstFonden
budgetskema,
. royalty beregnes af Phytera Inc.'s samlede
koncernomsaetning.
. lanet tilbagebetales over maks. 5 ar efter
projektafslutning. Erlagt royalty tilbagebetales
ikke i forbindelse med en evt.
gaeldsnedskrivning.
. DUF skal have en repraesentant i Phytera Inc.'s
bestyrelse indtil en evt. b0rsintroduktion af
Phytera Inc.
. semest 1/2 ar efter udbetaling af 1. rate skal
det danske selskab have ansat en fuldtidsdirekt0r
. lanet forfalder til betaling uden ret til
gaeldsnedskrivning, hvis antal let af
udviklingspersonale i Phytera A/S falder til
under 8 personer, inden lanet er tilbagebetalt.
. VaekstFonden vil lade foretage en evaluering af
projektet, der afsluttes senest den 30. marts
1997. Indtil evalueringen er gennemf0rt med et
efter VaekstFondens sk0n positivt resltat, kan
der h0jst ud betales 4 mio. kr. pa lanet.
Projektets forl0b, Phytera Inc.'s finansielle
situation samt forventningerne til det danske
selskabs kommercialiseringsmuligheder indgar i
evalueringen.
Betingelser 1. rate udbetales, nar VaekstFonden har modtaget
for udbetaling denne aftale i underskrevet stand sammen med de
0vrige oplysninger og dokumenter, angivet i
f0lgebrevet, og nar f0lgende betingelser er
opfyldt:
. Phytera A/S skal vaere etableret med en kontant
indbetalt aktiekapital pa 500.000 kr.
. kautionserklaering fra Phytera Inc. er modtaget.
. Phytera Inc. skal tilf0res 6,0 mio. USD i ny
aktiekapital, heraf milnimum 1,8 mio. USD fra
DUF (Series C Preferred Shares).
Inden 2 rate udbetales skal VaekstFonden endvidere
modtage
. anmaerkningsfrit tinglyst l0s0reejerpantebrev.
2
<PAGE>
Sikkerhed L0s0reejerpantebrev 13.232.700 kr. med pant i
projektrettighederne.
Tilbagebetaling Lanet afvikles som anf0rt i laneaftalen og
tilbagebetalingsoversigten. Ydelserne opkraeves via PBS.
Tilbagebetalingsaftalen kan ikke aendres.
Afviklingen er fastsat ud fra en beregnet royalty af Phytera
Inc.'s forventede omsaetning. Royaltyprocenten er anf0rt pa
side l i denne laneaftale.
Hvis der resterer en restgaeld den sidste terminsdato,
fortsaetter afvikllingen af lanet med samme terminsdatoer som
anf0rt i laneaftalen og med samme ydelse som den, der
forfalder den sidste termin, jf. tilbagebetalingsoversigten.
Royaltyen beregnes af:
Phytera Inc.'s samlede koncernomsaetning.
Anvendes projektets/projekternes resultater belt eller
delvist i andre produkter, markeder, ydelser eller projekter,
skal omsaetningen herfra medregnes fuldt ud i den omsaetning,
hvoraf royaltyen beregnes. Saelges eller overdrages
rettigheder eller know-how til projektet eller dele heraf,
hereunder aftaler om licens, betales en royalty til
VaekstFonden pa 25% af bruttoindtaegten.
Gaeldsnedskrivning Lantager kan til enhver tid forlange nedskrivning af
restgaelden mod overdragelse af samtlige projektrettigheder,
herunder samtlige salgsrettigheder jf. afsnittet om
tilbagebetaling. Lantager haeter dog stadig for et bel0b
svarende til royaltyen af enhver omsaetning, projektet bar
skabt. Royaltyprocenten er anf0rt pa side 1. Royaltybel0bet
reguleres med betalte ydelser, erlagte ydelser tilbage
betales ikke.
Rettigheder Lantager indestar for, at rettighederne til
udviklingsprojektet alene tilh0rer lantager.
Erklaering Lantager erklaerer ikke at have ans0gt eller modtaget anden
offentlig st0tte til dette eller til graensende projekter,
uden at VaekstFonden skriftligt har faet meddelelse herom.
0vrige betingelser Lantager har modtaget:
. tilbagebetalingsoversigt, dateret 12 december 1995,
. VaekstFondens budgetskema og
. VaekstFondens almindelige betingelser
for lan, august 1995, som uden
yderligere underskrift gaelder for
lanet.
3
<PAGE>
Valg af rente Lanet 0nskes med: [x] fast rente [_] variabel rente
Valget galder for hele lanets labetid.
Laneaftalen underskrives i 2 eksemplarer.
Dato 11/4/96 Dato 11 april 1996
----------------------------- ---------------------------
Phytera A/S under stiftelse VaekstFonden
/s/ Bent Kiemer
/s/ Gustav A. Christensen /s/ Otto Kjaegaard
----------------------------------- ---------------------------------
(Navnene skrives tillige med Bent Kiemer Otto Kjaegaard
Til vitterlighed for sa vidt angar lantager:
(bedes udfyldt med maskinskrift og underskrevet):
Navn: [illegible] Navn:
---------------------------- ----------------------------
Stilling: Stilling:
------------------------ ------------------------
Adresse: Adresse:
------------------------- -------------------------
Postnr/by: Postnr/by:
----------------------- -----------------------
Radhuspladeen 4 - 1550 K0benhavn V
Telefon 33 14 66 66 - Telefax 33 14 66 67
--------------------------------- ---------------------------------
Underskrift Underskrift
4
<PAGE>
<TABLE>
<S> <C> <C> <C>
Stempel 150 kr.
Tingl.afgift 700 kr.
I alt 850 kr.
ANMELDER:
VaekstFonden
Tagensvej 137
2200 K0benhavn N
Tlf. 35 86 86 35
Vaedipategning
Det erklaeres pa tro og love, at vaedien
af pantet ikke overstiger 10.000 kr
Ejerpantebrev (L0s0re)
Debitors navn og adresse: Phytera A/S
c/o Advokatfirmaet Dragsted & Helmer Nielsen
Advokat Mogen Bach
Radhuspladsen 4
1550 Kobenhavn V
SE nr.
erkender herved at skylde
Kreditor Samme, eller den til hvem naevaerende
pantebrev matte blive overdraget, vaere sig
til pant eller pa anden made, uden
personligt gaeldsansvar.
Bel0bets st0rrelse: 13.232.700 kr.
skriver kr.
trettenmillionertohundrededetretitotusindesyvhunrede
Rente - og betalingsvilkar: Pantebrevet forrentes med 16% p.a. fra
overdragelsen at regne Renten erlaegges
hver 11. juni og 11. december termin.
halvarligt bagud, f0rste gang i den
f0rste termin efter overdragelsen.
Pantegenstanden: Samtige de ophavsrettigheder, der knytter
sig til pantsaetters udvikling af
plantekulturer med projektnummer 1211,
herunder alt materiale,softwarebeskrivelser,
kildetekster og alle resultater af enhver
art, der klart fremstar som h0rende til og
vaerende en del af projektet, herunder alle
tegninger, beskrivelser, diagrammer,
prototyper og det udviklede produckt og
eventuelle andre produkter, der er resultat
af ovennaevnte udviklingsarbejde.Panteretten
omfatter endvidere den af projektete
omfattede fond af teknisk know-how.
</TABLE>
5
<PAGE>
<TABLE>
<S> <C>
Yderligere omfatter pantet samtlige
indtaegter af pantet, herunder leje-,
licens- og forpagtningsafgift samt
forsikringssummer.
Foranstaende haeftelser: Ingen
Fuldmagtshaver: VaekstFonden bemyndiges til pa mine vegne at
underskrive pategninger af enhver art pa
dette pantebrev, herunder kvitterings-,
transport-, moderations-og
relaksationshpategninger.
Adressat for Meddelelser i henhold til Retsplejelovens
kap. 50 og ovrige meddelesler, der efter
eventuel meddelelse lovens bestemmelser skal senders til
om pantekreditor, bedes sendt til:
retsforf0lgning m.v.:
VaestFonden
Tagensvej 137
2200 K0benhavn N
0vrige kredit-
oplysninger Er pantebrevet omfattet af lov om
kreditaftaler JA [_] NEJ [x]
Opsigelse: Pantebrevet kan til enhver tid opsiges af
kreditor eller af debitor uden varsel.
NB. Adresseaendring skal meddeles til kreditor.
Ved forsinket betaling af renter og afdrafg
kan kreditor forlange kapitalen indfriet, se
sidste side, punkt 7a.
I 0rigt gaelder Justitsministeriets nedenstaende pantebrevsformular L0S0RE
(sidste side)
For sa vidt pantebrevet alene underskrives
af debitor, erklaerer denne samtidig at
vaere ugift eller at pantet ikke omfattes af
lov om aegteskabets retsvirkninger ss. 19.
Dato: [illegible] , den Aug. 8, 96
-------------------- ------------------
Phytera A/S
Debitors
underskrift /s/ Gustav A. Christensen /s/ Malcolm Morville
--------------------------------------------------
Navnet bedes tillige anfort med maskinskrift
/blokbogstaver
For sa vidt debitor er gift, erklaerer
medunderskrevne aegtefaelle samtykke i
pantsaetningen. Er aegtaellen medejer,
underskrives som debitor og pantsaeter.
</TABLE>
6
<PAGE>
<TABLE>
<S> <C>
Aegtefaelle: ___________________________________________
Til vitterlighed om underskriftens aethed,
dateringens rigtighed samt underskriverens
myndighed (bedes udfuldt med maskinskrift:
Navn:_________________________ Navn:___________________________
Stilling:_____________________ Stilling:_______________________
Bopael:_______________________ Bopael:_________________________
- ----------------------------- --------------------------------
Underskrift Underskrift
</TABLE>
7
<PAGE>
<TABLE>
<S> <C>
Pantsaetter Phytera A/S
c/o Advokatfirmaet
Dragsted & Helmer Nielsen
Advokat Mogens Bach
Radhuspladsen 4
1550 K0benhavn V
Panthaver VaekstFonden, Tagensvej, 137, 2200 K0benhavn N
Pant Til sikkerhed for patnsaetters gaeld til panthaver i
henhold til laneaftale nr 1211 handpantsaettes 13.232.700
kr. l0s0reejerpantebrev med 1. priortets pant i projekt til
udvikling af plantekulturer.
L0s0reejerpantet tjener til sikkerhed for tilbagebetaling af
lan, renter og omkostninger.
Panteretten if0lge pantebrevet udvides ud over den i
pantebrevet angivne hovedstol med den pal0bne rente i indtil
5 ar. Udvidelsen beregnes af den oprindelige hovedstol med
den i pantebrevet anf0rte rentesats. Udvidelsen pantsaetning
ved pantebrevets pantsaetning til VaekstFonden og vedvarer
indtil det pantsattes eventuelle realisering, dog maks. 5
ar.
Betingelser VaekstFondens almindelige betingelser for lan, august 1995.
Dato 8-8-1996
Som pantsaetter Phytera A/S
Underskift /s/ Gustav A Christensen /s/ Malcolm Morville
----------------------------------------------------
Navnet anfores tillige med maskinskrift
Til vitterlighed for sa vidt angar lamtager: (bedes udfyldt
med maskinskrift og underskrevet):
Navn:_____________________ Navn:___________________
Stilling:_________________ Stilling:_______________
Adresse:__________________ Adresse:________________
Postnr/by:________________ Postnr/by:______________
-------------------------- ------------------------
Underskrift Underskrift
</TABLE>
8
<PAGE>
<TABLE>
<S> <C>
Kautionserklaering
Debitor Phytera A/S under stiftelse
c/o Advokafirmaet Dragsted & Helmer Nielsen
Advokat Mogens Bach
Radhuspladsen 4
1550 K0benhavn V
Kreditor VaekstFonden
Tagensvej 137
2200 K0benhavn N
Kautionist Phytera Inc. indestar som
selvskyldnerkautionist for betaling af
ethvert bel0b, som pahviler Phytera A/S
(under stifelse) i benhold til projekt 1211,
lan 13.232.700 kr. med tilh0rende
almindelige betingelser for lan dateret
august 1995.
Renterne tilskrives lanet.
Saerlige forudsaetninger Der gaelder saelige viklar fpr lanets
udbetaling og afvikling, jf. laneaftalen
med debitor. Saerligt skal kautionisten
vaere opmaerksom pa forudsaetningerne for
lanet jf. laneaftalen, hvor det bl.a.
fremgar, at
. Phytera Inc. skal acceptere, at det danske selskab selvstaendigt kan
kommercialisere egne udviklingsprojekter i det omfang disse retter sig mod
andet end den farmaceutiske industri.
. Royalty beregnes af Phytera Inc.'s samlede omsaetning.
. Lanet tilbagebetales over maks. 5 ar efter projektafslutning. Eriagt
royalty tilbagebetales ikke i forbindelse med en evt. gaeldsnedskrivning.
. DUF far en plads i Phytera Inc.'s bestyrelse indtil en evt.
b0rsintroduktion af Phytera Inc.
. Senest 1/2 ar efter udbetaling af 1. rate skal det danske selskab have
ansat en fuldtidsdirekt0r.
. Lanet forfalder til betaling uden ret til gaeldsnedskrivning, hvis antallet
af udviklingspersonale i Phytera A/S falder til under 8 personer, inden
lanet er tilbagebetalt.
. Senest nar den udbetalte del af naervaerende lan overstiger 4 mio. kr.,
vurderer VaekstFonden, om projektet forl0ber planmaessigt, samt om Phytera
Inc.'s finansielle situation fortsat kan sikre projektets gennemf0relse.
. VaelstFonden vil lade foretage en ekstern evaluering af projektet 12-15
maneder inde i udviklingsperioden med henblik pa Fondens fortsatte
medvirken. I denne evaluering vil
</TABLE>
9
<PAGE>
<TABLE>
<S> <C>
ogsa indga forventningerne til det danske
selskabs egne kommercialiseringsmuligheder.
Kaution Phytera Inc. indestar som selvskyldnerkautioinist. Lanet
tilbagebetales med en royalty af Phytera Inc.'s samlede
omsaetning, og Phytera Inc. er forpligtet til at udlevere
revisorattesterede omsaetningtal til VaelstFonden.
Betingelser I 0vrigt gaelder VaekstFondens almindelige
betingelser for lan, dateret august 1995.
Vaerneting og Lovvalg For alle krav som udspringer af eller er relateret til
naervaerende kautionsforpligtelse accepterer Phytera Inc.
at tvister afg0res efter dansk ret ved danske domstole.
Phytera Inc. accepterer, at en endelig dansk
domstolsafg0relse kan eksekveres over for selskabet i USA.
Den 4/11/96
Phytera Inc.
/s/ Christopher J. Pazoles
----------------------------------
Christopher J. Pazoles
</TABLE>
10
<PAGE>
English Translation
(Logo)
VAEKSTFONDEN
Loan Agreement
The Debtor: Phytera A/S under formation
c/o Dragsted & Helmer Nielsen, Law Office
Mr. Mogens Bach, attorney-at-law
No. 4 Radhuspladsen
DK-1550 Copenhagen V
Corporate Registration No.
SE-No.
hereby admits indebtedness to
The Creditor: VaekstFonden, No.137 Tagensvej, DK-2200 Copenhagen N.
Project No. and Name: 1211 Phytera
- --------------------------------------------------------------------------------
Type of loan R&D Loan
- --------------------------------------------------------------------------------
Amount of loan, DKK 13,232,700
- --------------------------------------------------------------------------------
Project No. 1211
- --------------------------------------------------------------------------------
Disbursement By 3-month installments in advance
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Project budget, DKK 29,406,000
- --------------------------------------------------------------------------------
Financing share (%) 45
- --------------------------------------------------------------------------------
Project period, start* November 1, 1995
- --------------------------------------------------------------------------------
Project period, end December 31, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Interest** p.a., fixed 7.98%
- --------------------------------------------------------------------------------
Interest** p.a., variable 7.98%. To be fixed on the 1st banking day each
month.
- --------------------------------------------------------------------------------
Interest accrues as from Disbursement
- --------------------------------------------------------------------------------
Late interest 14% per annum
- --------------------------------------------------------------------------------
Stamp duty, loan, DKK 39,698
- --------------------------------------------------------------------------------
Bill of sale reg. to owner DKK 150.00 - assuming value endorsement of 10,000
- --------------------------------------------------------------------------------
Court fee, DKK 700
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Payment due dates April 1; July 1; October 1; January 1
- --------------------------------------------------------------------------------
1st payment April 1, 1999
- --------------------------------------------------------------------------------
Payment per due date*** See repayment schedule dated December 12, 1995.
- --------------------------------------------------------------------------------
royalty percentage**** 12.23
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Project reporting dates April 1; July 1; October 1; January 1.
- --------------------------------------------------------------------------------
1st reporting date April 1, 1996, for the time until
December 31, 1996.
- --------------------------------------------------------------------------------
Respite for submission Three (3) weeks
- --------------------------------------------------------------------------------
Security Pledge on the Project
- --------------------------------------------------------------------------------
*) Costs of work carried out prior to the Project's starting date are not
included in the financing.
**) Interest is added quarterly in arrears.
***) The amount of the installments appears from the enclosed repayment
schedule.
11
<PAGE>
****) See under the paragraph on repayment on page 2.
Preconditions The loan is being granted under the following
conditions:
. The Project is carried out as specified in the
application material on which
VaekstFonden has based the grant;
. The budget for the Project is adhered to, cf.
VaekstFonden's budget form;
. Royalty is calculated on the basis of Phytera
Inc.'s total consolidated sales;
. The loan is repaid over a period of not more than
five (5) years from the end of
the Project. Any royalty paid is not reimbursed
in connection with a possible
write-down of the debt;
. DUF must have a representative on the Board of
Phytera Inc. until any
stock-exchange introduction of Phytera Inc.;
./1/The Danish Company must have employed a full-time
manager within six (6) months of
start of the Project.
. The loan becomes payable without any right to
write down the debt if the number of development
staff in Phytera A/S becomes less than 8 persons
before the loan has been repaid;
. VaekstFonden will arrange for an evaluation of
the Project to be completed not later than march
30, 1997. Until the evaluation has been completed
with a result that VaekstFonden deems favourable,
a maximum of DKK 4,000,000 may be disbursed on
the loan. The progress of the Project, the
financial situation of Phytera Inc., and the
expected commercialization prospects of the
Danish Company will be factors in the evaluation.
Conditions for The 1st installment will be disbursed when
disbursement VaekstFonden has received this Agreement,duly
signed, together with the other details and
documents indicated in the covering letter, and
when the following conditions have been met:
. Phytera A/S must have been established with a
share capital of DKK 500,000.00 paid up in cash;
. The bail bond from Phytera Inc. has been
received; and
. Phytera Inc. must be established with a share
capital of USD 6,000,000, including at least USD
1,800,000 from Dansk Udviklingsfinansiering A/S
("Danish Development Financing Ltd."); ("Series
C Preferred Shares")
Before the 2nd installment is disbursed VaekstFonden
must, furthermore, receive:
. Bill of sale registered to owner and with clean
registration of title
Security Bill of sale registered to owner for DKK 13,232,700
secured on the Project rights.
Repayment The loan shall be repaid as specified in the Loan
Agreement and the repayment schedule. The payments
are collected via standing order payments service.
The repayment agreement is not subject to change.
The repayment is determined on the basis of a
calculated royalty on Phytera Inc.'s anticipated
sales. The royalty percentage is stated on p. 1 of
this Loan Agreement.
- --------------------
/1/ Preconditions, bullet no. 6: "The Danish Company must have employed a
full-time manager within six (6) months of start of the project" was changed to
"The Danish Company must have employed a full-time manager within six (6) months
from receipt of the first payment from VaekstFonden".
12
<PAGE>
<TABLE>
<S> <C>
If a balance remains on the debt on the last due
date, the repayment of the loan shall continue with
the same due dates as stated in the Loan Agreement
and with the same payment as that which becomes
payable on the last due date, cf. the repayment
schedule.
The royalty shall be calculated on the basis of:
Phytera Inc.'s total consolidated sales.
If the results of the Project(s) are used, wholly or
in part, in other products, markets, services or
projects, any sales therefrom shall be fully included
in the sales on which the royalty is computed. If
rights or know-how in the Project, or parts thereof,
are sold or transferred (including licensing
agreements), a royalty shall be paid to VaekstFonden
at the rate of 25% of the gross receipts.
Write-down of debt The borrower may at any time demand a
write-down of the outstanding debt against transfer
of all Project rights, including all selling rights,
cf. the paragraph on repayment. However, the borrower
shall remain liable for a sum corresponding to the
royalty on any sale generated by the project. The
royalty percentage is stated on p.1 hereof. The
amount of royalty shall be adjusted to reflect
services paid; services paid are not subject to
reimbursement.
Rights The borrower warrants and guarantees that all rights
in the development project are the exclusive property
of the borrower.
Declaration The borrower declares that it has not applied for or
received other public subsidy of this Project or
adjacent projects without having duly notified
VaekstFonden thereof in writing.
Other conditions The borrower has received:
. Repayment schedule dated December 12, 1995;
. The budget form of VaekstFonden; and
. VaekstFonden's general terms and conditions for
loans, August 1995, which shall apply to the loan
without any further signature.
Choice of Interest The rate of interest selected for the loan shall be:
Fixed [x]
Variable [_]
This Loan Agreement shall be signed in two (2)
copies.
Date: 11/4/96 Date: April 11, 1996.
Phytera A/S under formation VaekstFonden
/s/ Bent Kiemer
/s/ Gustav A. Christensen /s/ Otto Kjaergard
------------------------- ----------------------------
(Please also type names) Bent Kiemer Otto Kjaergaard
IN WITNESS of the Borrower's signature:
(please complete in typing, and sign)
Name: [illegible] Name:
---------------------- ---------------------
Title: Title:
--------------------- --------------------
Address: Address:
------------------- ------------------
ZIP code/town: ZIP code/town:
------------- ------------
Radhuspladeen 4-1550- K0benhavn V
Tel. 33 14 66 66 Fax 33 14 66 67
</TABLE>
13
<PAGE>
<TABLE>
<S> <C>
----------------------- ------------------------
Signature Signature
</TABLE>
14
<PAGE>
<TABLE>
<S> <C> <C>
Stamp duty: DKK 150 Translation
Registration fee: DKK 700 -----------
Total DKK 850
APPLICANT:
VaekstFonden
No. 137 Tagensvej
DK - 2200 Copenhagen N.
Tel: +45 3586 8635
Value Endorsement:
- -----------------
We hereby solemnly declare that the value of the mortgaged property does not
exceed DKK 10,000.00.
Bill of Sale Registered to Owner
(Chattel Mortgage)
Name and address Phytera A/S
of Debtor c/o Dragsted & Helmer Nielsen, Law Office
Mr. Mogens Bach, attorney-at-law
No. 4 Radhuspladsen
DK - 1550 Copenhagen V.
SE No.
hereby admits indebtedness to
The Creditor: Same, or whomever this Bill of Sale may be assigned
to, be it by mortgage or otherwise, without personal
liability.
Amount: DKK 13,232,700
(in letters: thirteen million two hundred and thirty
two thousand and seven hundred Danish Kroner only).
Terms of interest The Bill of Sale shall be subject to interest at the
and payment: rate of sixteen percent (16%) as from the time of
transfer. Interest shall be payable on every
June 11 and December 11 due date semi-annually in
arrear, the first time being the first due date
following the transfer.
The property mortgaged: All of those copyrights which attach to the
mortgagor's development of plant cultures with
Project No. 1211, including all such material,
software descriptions, source code, and results of
any kind as clearly appear as belonging to and being
a part of the Project, including all drawings,
descriptions, diagrams, prototypes, and the developed
product and any other products which are the result
of the above development work. The mortgage shall
also include the fund of technical know-how covered
by the Project.
Furthermore, the mortgage shall include all income
from the mortgage, such as but not limited to
payments of rent, license fees and leases, as well as
insurance sums.
Prior mortgages: None.
Principal: VaekstFonden is hereby authorized to sign on my
behalf endorsements of any kind to this
Bill of Sale, including endorsements of receipt,
assignment, reduction, and release.
Addressee for any Notices in pursuance of Part 50 of the Administration
notices of legal of Justice Act and such other notices as shall by
law be sent to the mortgagee, should be addressed to:
</TABLE>
15
<PAGE>
proceedings, etc.
VaekstFonden
No. 137 Tagensvej
DK - 2200 Copenhagen N.
Other credit details: Is this Bill of Sale covered by the Credit Contracts
Act?
Yes [_] No [x]
Termination: This Bill of Sale may at any time be terminated by
the Creditor or the Debtor without notice.
NOTE: Any change of address must be notified to the
Creditor. In the event of delay with the payment of
interest and installments the Creditor shall have the
right to demand a redemption of the capital, cf. item
7a on the last page.
This Bill of Sale shall otherwise be governed by the provisions of the Chattel
Mortgage form issued by the Ministry of Justice (last page).
If the Bill of Sale is signed by the Debtor alone,
the Debtor also declares that he is single or that
the mortgage is not covered by sect. 19 of the
Marriages (Legal Effects) Act.
Place & Date: [illegible] , this 8 day of Aug. 1996.
Phytera A/S under formation
Debtor's signature: /s/ Gustav A. Christensen /s/ Malcolm Morville
-----------------------------------------------------
Please also type name or use block letters
If the Debtor is married, the Debtor's spouse
signifies her consent to the mortgage by her
signature. If the spouse is co-owner, the signature
is that of a debtor and mortgagor.
Spouse: _________________________________
IN WITNESS of the authenticity of the signature(s),
the correctness of the date, and the full legal age
of the signatory/ies (please type):
Name: _____________________________ Name: _____________________________
Title: _____________________________ Title: _____________________________
Address: _____________________________ Address:_____________________________
_____________________________ _____________________________
- --------------------------------------- -------------------------------
Signature Signature
16
<PAGE>
<TABLE>
<S> <C>
(Logo)
VAEKSTFONDEN
Instrument of Pledge
Pledgor: Phytera A/S
c/o Dragsted & Helmer Nielsen, Law Office
Mr. Mogens Bach, attorney-at-law
No. 4 Radhuspladsen
DK - 1550 Copenhagen V
Pledgee: VaekstFonden, No. 137 Tagensvej, DK - 2200 Copenhagen N.
Pledge: By way of security for the Pledgor's debt to the
Pledgee in pursuance of Loan Agreement No. 1211, a
bill of sale registered to owner for DKK 13,232,700
is hereby pledged as 1st Pledge on a project
regarding development of plant cultures.
The Bill of Sale shall serve as security for the
repayment of loan, interest and costs.
The mortgage under the Bill of Sale is extended
beyond the principal (?) stated in the Bill of Sale
by up to five (5) years. The extension is calculated
on the original principal at the rate of interest
stated in the Bill of Sale. The extension shall
commence upon the pledging of the Bill of Sale to
VaekstFonden and shall continue until any realization
of the property pledged, subject to a maximum of five
(5) years.
Conditions: VaekstFonden's General Terms and Conditions for
Loans, August 1995.
Date: 8-8-1996
-------------------
As Pledgor: Phytera A/S under formation
Signature:/s/Gustav A. Christensen /s/Malcolm Morville
-----------------------------------------------
(Please also type name)
IN WITNESS of the Borrower's signature:
(please complete in typing, and sign)
Name:__________________ Name:___________________
Title:_________________ Title:__________________
Address:_______________ Address:________________
ZIP code/town:_________ ZIP code/town:__________
_______________________ ________________________
Signature Signature
</TABLE>
17
<PAGE>
Translation
Surety Commitment ------------
Debtor: Phytera A/S
c/o Dragsted & Helmer Nielsen, Law Office
Mr. Mogens Bach, attorney-at-law
No. 4 Radhuspladsen
DK - 1550 Copenhagen V
Creditor: VaekstFonden
No. 137 Tagensvej
DK - 2200 Copenhagen N.
Surety: Phytera Inc. guarantees as surety for the payment of
all and any amount owing by Phytera A/S (under
formation) in pursuance of Project 1211, Loan DKK
13,232,700 with associated General Terms & Conditions
for Loans dated August 1995.
Interest will be added to the Loan.
Special Conditions: The disbursement and repayment of the Loan are
subject to special conditions, cf. the Loan Agreement
with the Debtor. The surety should take particular
note of the preconditions for the Loan, cf. the Loan
Agreement, from which appears, i.a., that:
. Phytera A/S must accept that the Danish Company
may independently commercialize own development
projects to the extent that these projects
address industries other than the pharmaceutical
one;
. Royalty is calculated on the basis of Phytera
Inc.'s total sales;
. The Loan is repaid over a period of not more than
five (5) years from the end of the Project. Any
royalty paid is not reimbursed in connection with
a possible write-down of the debt;
. DUF must be given a seat on the Board of Phytera
Inc. until any stock-exchange introduction of
Phytera Inc.:
./2/The Danish Company must have employed a full-time
manager within six (6) months of start of the
project.
. The Loan becomes payable without any right to
write down the debt if the number of development
staff in Phytera A/S becomes less than 8 persons
before the Loan has been repaid;
. VaekstFonden will evaluate if the Project is
progressing according to plan and if the
financial situation of Phytera Inc. continues to
be capable of securing the completion of the
Project. This will occur when the disbursed
portion of this Loan exceeds DKK 4,000,000, at
the latest;
. VaekstFonden will arrange for an external
evaluation of the Project some 12 to 15 months
into the Project period with a view to
considering the continued cooperation of
VaekstFonden. Expectations as to the Danish
Company's own commercialization prospects will
also be included in this evaluation.
- --------------------
/2/Special conditions, bullet No. 5: "The Danish Company must have employed a
full-time manager within six (6) months of start of the project" was changed to
"The Danish Company must have employed a full-time manager within six (6) months
from receipt of the first payment from VaekstFonden"
18
<PAGE>
Suretyship: Phytera Inc. guarantees as surety. The Loan is
repaid with a royalty on Phytera Inc.'s total sales,
and Phytera Inc. is obligated to deliver sales
figures attested by a CPA to VaekstFonden.
Conditions: VaekstFonden's General Terms & Conditions for Loans
dated August 1995 shall otherwise apply.
Venue and Phytera Inc. accepts that, for all claims arising out
applicable law of our incidental to this Surety Commitment, any
dispute shall be settled according to Danish law
before Danish courts of law.
Phytera Inc. accepts that a final decision by a
Danish court of law may be enforced against the
Company in the U.S.A.
This 11 day of April 1996.
Phytera Inc.
/s/ Christopher J. Pazoles
-----------------------------------
Christopher J. Pazoles
18
<PAGE>
Exhibit 10.23
LICENSE AGREEMENT
dated July 1, 1998
------ -
between
UNIVERSITY OF MARYLAND, BALTIMORE
and PHYTERA, INC.
<PAGE>
LICENSE AGREEMENT
-----------------
This Agreement made as of the -- day of ______, 1998 (the "Effective
Date") by and between the University System of Maryland, an agency of the State
of Maryland, acting through its constituent institution, University of Maryland,
Baltimore, having an address at 515 West Lombard Street, Baltimore, Maryland
21201-1602 (hereinafter "UM"), and Phytera, Inc., a corporation of the State of
Delaware, U.S.A., with its principal place of business at 377 Plantation Street,
Worcester, MA 06105 (hereinafter "Phytera"),
WITNESSETH:
WHEREAS, as a public research and education institution, UM is
interested in licensing Patent Rights (as hereinafter defined) in a manner that
will benefit the public by facilitating the distribution of useful products and
the utilization of new methods, and lacks capacity to commercially develop,
manufacture, and distribute such products or methods; and
WHEREAS, valuable inventions, comprised of Patent Rights, for the use
and development of human and animal veterinary therapeutics and agrochemicals
have been jointly developed at UM by UM employee Kim Lewis, Ph.D., and by
Phytera employee Scott A. Siegel, Ph.D. (the "Inventors `); and
WHEREAS, under UM policy UM owns all rights, title, and interest in and
to its joint interest in the inventions, which has been confirmed by the
execution of an assignment from Dr. Lewis to UM; and
WHEREAS, Phytera desires to obtain a worldwide, exclusive,
royalty-bearing license, with right to sublicense, to UM's joint interest in the
aforementioned inventions, to make, use, sell, have made, and have used products
produced through the use of the inventions.
NOW, THEREFORE, in consideration of the foregoing premises and the
following mutual agreements, and other good and valuable consideration, the
parties hereto agree as follows:
Article 1
DEFINITIONS
For the purpose of this Agreement, the following words and phrases
shall have the following meanings:
1.01 "Affiliate" means (a) any business entity which controls at least
fifty percent (50%) of the equity or voting stock of Phytera or (b) any business
entity fifty percent (50%) of whose equity or voting stock is owned or
controlled by Phytera or any entity defined in (a).
1.02 "Confidential Information" means information relating to the
subject matter of the Patent Rights and which is not generally known in the
industry and includes, without limitation, any documents, drawings, sketches,
models, designs, data, memoranda, tapes, records, formulae and algorithms which
Phytera receives from UM or UM receives from Phytera.
<PAGE>
1.03 "Equity Transaction(s)" means the transfer of Phytera's stock to
a Partner (as defined in Section 1.09) in exchange for cash.
1.04 "FDA" means the United States Food and Drug Administration.
1.05 "First Commercial Sale" means the initial transfer of Identified
Products for compensation by Phytera, a Sublicensee, or a Partner to any Third
Party for the purpose of commercial use or resale and not for research,
development or testing purposes. Transfer of Identified Product for beta and
field testing occurring prior to the issuance of any required regulatory
approval for sale shall not constitute the First Commercial Sale.
1.06 "Identified Product" means any product or derivative thereof
sold, used, manufactured or distributed by Phytera or a Sublicensee or Partner
which product or derivative was identified, selected, or determined to have
utility in whole or in part through the use of Patent Rights.
1.07 "Licensed Field" means assays for the identification of human and
animal veterinary therapeutics and agrochemicals.
1.08 "Net Sales" means the gross sales revenues and fees billed by
Phytera or a Sublicensee or Partner for the sale of any Identified Products,
less the sum of the following:
(a) customary trade, quantity and cash discounts actually
allowed and taken;
(b) sales or use taxes, excise taxes and customs duties included
in the invoiced amount;
(c) outbound transportation prepared or allowed if separately
itemized on the invoice to the customer; and
(d) amounts actually allowed or credited on returns of
Identified Products.
"Net Sales" does not include any further downstream sales of an Identified
Product after the first sale thereof by Phytera or a Sublicensee or Partner to a
Third Party purchaser. No deductions will be made for commissions paid to
individuals, whether they be with independent sales agencies or regularly
employed by Phytera and on its payroll, or for cost of collections. Identified
Products will be considered sold when billed out or invoiced, whichever is
first.
1.09 "Partner" means a person or entity that executes a contract with
Phytera to work with Phytera to commercially exploit the technologies covered by
Patent Rights or compounds discovered by Phytera or by Phytera and the Partner
using the Patent Rights.
1.10 "Partnership Contract" means a written agreement between Phytera
and a Partner, involving Patent Rights or an Identified Product, which
explicitly sets forth, among other details, Phytera's proprietary drug discovery
technologies and capabilities to which the Partner is gaining access and the
consideration paid by the Partner for access to the technologies and
capabilities.
2
<PAGE>
1.11 "Patent Rights" means the United States Patent Application Serial
No. 08/724,540, titled "Identification and Use of Mutant Multidrug-Resistant
Cells" (Attachment A), which was filed on September 30, 1996; all corresponding
foreign patents and patent applications and Letters Patent issuing from any of
the above; and all continuations, continuations-in-part, divisionals, reissues,
reexaminations, and extensions of the foregoing.
1.12 "Sublicensee" means a sublicensee, including an Affiliate, of all
or some of the Patent Rights through a sublicense from Phytera.
1.13 "Third Party" means any entity or person other than Phytera, UM, a
Sublicensee, or a Partner.
Article 2
GRANT OF LICENSE AND TECHNOLOGY TRANSFER
2.01 Subject to the rights of the United States under its earlier grant
to UM and pursuant to 35 U.S.C. (S)2.01 et seq. and all implementing
-------
regulations, UM grants to Phytera, and Phytera accepts, a sole and exclusive
worldwide license under Patent Rights to make and use for internal research and
product identification and development purposes only, but not sell or otherwise
transfer except as specified below, Patent Rights within the Licensed Field.
This grant is royalty- free, subject to the payment by Phytera to UM of all
consideration as provided in this Agreement. Phytera may not sell Patent Rights,
but may make, use, have made and have used Identified Products, subject to
payment of the consideration set forth in Paragraphs 4.01 through 4.06. The
parties mutually agree that the form of consideration set forth in Paragraphs
4.01 through 4.06 is for convenience of accounting and expressly acknowledge
that such consideration is not to be deemed royalties payable for the Patent
Rights but is for access to and use of Patent Rights for purposes of research,
drug discovery, development, identification, testing, and marketing and to make,
use, have made and have used Identified Products within the Licensed Field.
2.02 UM specifically reserves the right:
(a) to practice under the Patent Rights to make and use the
Identified Products on a royalty-free basis solely for research and education;
(b) to license the Patent Rights to universities, colleges and
other research or educational institutions, but only for research and
educational purposes and uses and not for any commercial purposes or uses; and
(c) to publish the general scientific findings from research
related to Patent Rights, provided that Phytera has had the opportunity to
review copies of all drafts prior to submission for publication in accordance
with and subject to the other conditions in Section 5.05 below.
2.03 Phytera may sublicense to an Affiliate only if such Affiliate
consents to be bound by this Agreement to the same extent as Phytera.
3
<PAGE>
2.04 Phytera may grant sublicenses consistent with this Agreement or
enter into Partnership Contracts consistent with this Agreement, provided
Phytera shall be responsible for the operation of its Sublicensees and Partners
relevant to this Agreement as if such operations were carried out by Phytera,
including all required payments, whether or not paid to Phytera by a Sublicensee
or Partner.
2.05 Phytera agrees to identify its Sublicensees hereunder to UM by
name, address and field of sublicense (both as to geography and subject matter),
and further agrees to forward to UM a copy of each report received by Phytera
from a Sublicensee in accordance with Sections 7.01 and 7.02 promptly upon
receipt of such report. In no event will Sublicensee reports be due to Phytera
less often than quarterly.
2.06 Phytera agrees to identify its Partners to UM by name, address
and scope of responsibility and to provide UM a copy of any Partnership Contract
within 30 days after its execution.
2.07 The license granted hereunder shall not be construed to confer
any rights upon Phytera by implication, estoppel, or otherwise as to any
technology not specifically encompassed by the term "Patent Rights."
2.08 Phytera shall not receive from Sublicensees or Partners anything
of value in lieu of cash payments for any sublicense or Partnership Contract
under this Agreement, unless such is with the prior written permission of UM. UM
shall not withhold permission if Phytera proposes, in consideration for the
permission, a reasonable payment to UM in lieu of the royalty it would receive
were the transaction in question one involving a cash payment to Phytera.
Article 3
DUE DILIGENCE
3.01 Phytera must use commercially reasonable efforts to bring one or
more Identified Products to market in each country in which Patent Rights are
licensed hereunder through a thorough, vigorous and diligent program for
exploitation of the Patent Rights. In addition, Phytera must deliver to UM on or
before one hundred eighty (180) days after the Effective Date of this Agreement
a detailed business plan (the "Plan"), showing its plans to conduct a thorough
and diligent program to exploit Patent Rights. Further, Phytera shall provide
annual written reports to UM on progress against the Plan and must notify UM of
any changes in the Plan within one month after the occurrence of or recognition
of the need for such changes.
Article 4
PAYMENTS AND ROYALTIES
In consideration of rights regarding Patent Rights granted by UM to
Phytera under this Agreement, Phytera agrees to pay UM the following:
4.01 Milestone Payments
Phytera agrees to make milestone payments as described in this Section
4.01:
4
<PAGE>
(a) [
]*
(b) [
]*
(c) [
]*
(d) [
]*
(e) [
]*
4.02 Phytera will pay UM [
]*. Running royalty payments hereunder
must be made within 60 days after the close of each calendar quarter, along with
a statement as set forth in Paragraph 7.02 hereof. If no royalties are due for
any quarter, Phytera must send a statement to such effect to UM.
4.03 Phytera will pay UM [
]*.
4.04 Phytera will pay UM [
]*. The following examples are
intended to illustrate how payments will be calculated under this section:
- ------------------------
* This portion of the Exhibit has been omitted pursuant to a Request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as amended.
The complete Exhibit, including the portions for which confidential treatment
has been requested, has been filed separately with the Securities and Exchange
Commission.
5
<PAGE>
(a) Phytera signs a Partnership Contract whereby Phytera
screens the Partner's chemistry library for antibacterial activity using the
Patent Rights. Worldwide rights to drugs discovered by this collaboration rest
with the Partner. [
]* are payable to UM.
(b) Phytera signs a Partnership Contract whereby Phytera
screens its ExPAND(R) and uMARINE(R) extract libraries and the Partner's
extract and chemistry libraries for antifungal activity using the Patent Rights.
Phytera is responsible for carrying out natural product chemistry work on some
or all of the extracts to identify lead compounds. The Partner has worldwide
rights to drugs discovered by the collaboration. [
] * are payable to UM.
(c) Phytera signs a partnership contract whereby Phytera
screens its ExPAND(R) extract libraries for antibacterial activity using the
Patent Rights. Phytera is responsible for carrying out natural product chemistry
work on the extracts to identify lead compounds. Lead compounds are to be
optimized using Phytera's combinatorial chemistry technology to produce
candidates. Phytera retains North American marketing rights for the products and
the Partner markets in the rest of the world. [
] * are payable to UM.
In addition, UM will receive [
] *.
4.05 For Equity Transactions between Phytera and a Partner arising out
of a Partnership Contract involving Patent Rights or any Identified Product, UM
will receive [
] *. As used in this Section
4.05, "market price" is defined as the last recorded private transaction of
Phytera's preferred stock, or if Phytera is public, the average closing price of
Phytera' s stock over the last thirty (30) trading days on any securities
exchange prior to the date of the equity transaction being closed. The following
examples are intended to illustrate how payments are to be calculated under this
Section:
(a) Phytera signs a Partnership Contract whereby Phytera
screens the Partner's chemistry library for antifungal activity using the Patent
Rights. Rights to drugs discovered by this collaboration rest with the Partner.
In connection with the signing of the
- ------------------------
* This portion of the Exhibit has been omitted pursuant to a Request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as amended.
The complete Exhibit, including the portions for which confidential treatment
has been requested, has been filed separately with the Securities and Exchange
Commission.
6
<PAGE>
Partnership, the Partner purchases equity in Phytera at a fifty percent (50%)
premium to the "market price" for Phytera's stock. [
]* is payable to UM.
(b) Phytera signs a Partnership Contract whereby Phytera screens
its ExPAND(R) and uMARINE(R) extract libraries for antifungal activity using the
Patent Rights. Phytera is responsible for carrying out natural product chemistry
work on some or all of the extracts to identify lead compounds. The partner has
worldwide right to drugs discovered by the collaboration. In connection with the
signing of this Partnership, two Equity Transactions are agreed:
(i) At signing the Partner purchases equity in Phytera at
the price of the last recorded private transaction involving
purchase of Phytera's preferred stock (the "market price").
(ii) On the attainment of a certain future milestone, the
Partner will purchase equity in Phytera at the
"market price."
[
] *.
[
] *.
(c) Phytera signs a Partnership contract whereby Phytera
screens its ExPAND(R) extract libraries for antibacterial activity using the
Patent Rights. Phytera is responsible for carrying out natural product chemistry
work on extracts to identify lead compounds. Lead compounds are to be optimized
using Phytera's combinatorial chemistry technology to produce drug candidates.
Phytera retains North American rights and the Partner markets in the rest of the
world. In connection with the signing of this Partnership, two Equity
Transactions are agreed:
(i) At signing the Partner purchases equity in Phytera at
a fifty percent (50%) premium to the price of the last
recorded private transaction involving purchase of Phytera's
preferred stock (the "market price").
(ii) On the attainment of a certain future milestone, the
Partner will purchase equity in Phytera at either a twenty-
five percent (25%) premium to the last recorded private
transaction price, or if Phytera's stock is publicly listed
at that time, at a ten percent (10%) premium to the thirty
- ----------------------------
* This portion of the Exhibit has been omitted pursuant to a Request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as amended.
The complete Exhibit, including the portions for which confidential treatment
has been requested, has been filed separately with the Securities and Exchange
Commission.
7
<PAGE>
(30) day average trading closing price.
[
]*.
4.06 Phytera will pay UM [
] *
- --------------------------------------------------------------------------------
[ ] * [ ] *
- --------------------------------------------------------------------------------
[ ] * [ ] *
- --------------------------------------------------------------------------------
[ ] * [ ] *
- --------------------------------------------------------------------------------
[ ] * [ ] *
- --------------------------------------------------------------------------------
[ ] * [ ] *
- --------------------------------------------------------------------------------
If applicable, Phytera will pay [ ]* within 100 days
after the end of each year. The amount payable by Phytera to UM under this
Section 4.06 [
] *.
4.07 (a) Royalties are payable from the country in which they are
earned and are subject to foreign exchange regulations then prevailing in such
country. Royalty payments must be paid to UM in United States Dollars by check
or checks drawn to the order of UM or by electronic funds transfers to an
account designated by UM. To the extent sales may have been made by Phytera in a
foreign country, royalties will be first determined in the currency of the
country in which the royalties are earned and then converted to their equivalent
in United States Dollars. To determine the conversion, the buying rates of
exchange quoted by the Morgan Guaranty Trust of New York, New York, averaged on
the last business day of each of three (3) consecutive calendar months
constituting the calendar quarter in which the royalties were earned, will be
used.
(b) To the extent that statutes, laws, codes, or government
regulations (including currency exchange regulations) prevent or limit royalty
payments by Phytera, Phytera
- -----------------------------
* This portion of the Exhibit has been omitted pursuant to a Request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as amended.
The complete Exhibit, including the portions for which confidential treatment
has been requested, has been filed separately with the Securities and Exchange
Commission.
8
<PAGE>
will render to UM annual reports of sales of the Identified Product in such
country. All monies due and owing UM as provided in the annual reports at UM's
option (1) may promptly be deposited by Phytera, or its Sublicensees, or
Partners, as the case may be, in a local bank in such country in an account to
be designated by UM in writing or (2) may promptly be paid to UM or deposited in
its account, as directed in writing by UM in any other country where the payment
or deposit is lawful under the currency restrictions.
4.08 Interest will be due on any payments to UM required by any
Section of this Agreement that are more than thirty (30) days late. The interest
rate is [ ]* simple interest per annum.
Article 5
PATENT PROSECUTION AND PUBLICATIONS
5.01 Phytera is responsible for the prosecution and maintenance of the
Patent Rights, including all costs associated with the preparation, filing,
prosecution, issuance, reissuance, reexamination, interference, and maintenance
of all United States applications, patents, divisionals, etc., included in
Patent Rights and those corresponding foreign applications and patents filed in
countries designated by Phytera as set forth below. Phytera shall designate
foreign countries in which patent applications are to be filed. These filings
will be made by Phytera and Phytera's choice of patent counsel, which must be
reasonably acceptable to UM. Phytera will bear all costs of filings and fees and
expenses of counsel. If UM desires to file at its own expense applications in
foreign countries not designated by Phytera, UM will give Phytera sixty (60)
days prior written notice of its intention to make any such filing. Within such
sixty (60) day period, Phytera may elect to file patent applications pursuant to
this Section 5.01 in any countries identified in UM's notice. If Phytera
indicates in writing that it does not intend to file patent applications in one
or more countries identified in UM's notice, or if the sixty (60) day period
expires without a response from Phytera, then UM may file patent applications in
those foreign countries where Phytera elects not to file, or where it fails to
elect to file, and Phytera's exclusive license of UM's Patent Rights shall not
extend to such countries unless agreed to separately. In any event, Phytera
shall retain non-exclusive Patent Rights under its joint ownership of the Patent
Rights.
5.02 Phytera and UM will cooperate to limit the expenditures described
in Section 5.01 while ensuring that the Patent Rights cover all items of
commercial interest and importance. Both Parties will use reasonable efforts to
ensure that the Inventors employed by the respective parties fully cooperate
with Phytera's prosecution and maintenance of the Patent Rights; provided,
however, that each party acknowledges that the other party cannot guarantee such
cooperation. Phytera is solely responsible for making decisions regarding scope,
content, and prosecution of applications to be filed under Patent Rights. UM
will cooperate with Phytera in the prosecution, filing, and maintenance of
patent applications and will have a reasonable
- -----------------------------
* This portion of the Exhibit has been omitted pursuant to a Request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as amended.
The complete Exhibit, including the portions for which confidential treatment
has been requested, has been filed separately with the Securities and Exchange
Commission.
9
<PAGE>
opportunity to advise Phytera regarding the scope of patent coverage within
Patent Rights. Phytera will reasonably consider UM's advice. UM may, from time
to time, reasonably request opinions and other documents from Phytera's patent
counsel, which material will be supplied to UM without cost to UM. Phytera will
promptly advise UM as to all developments with respect to such applications and
prosecution and copies of all papers received and filed in connection with the
prosecution will be provided promptly to enable UM to advise Phytera thereon.
5.03 In no event may the scope of patent coverage within Patent Rights
be significantly modified by Phytera without prior review by UM. Any such
modification will not, however, require the approval of UM, and UM will not
control the prosecution of Patent Rights. If Phytera wishes to relieve itself of
any obligation to pay for the future expenses of preparation, filing,
prosecution, issuance, reissuance, reexamination, interferences, or maintenance
of any Patent Rights in any country, Phytera may notify UM and UM may assume the
future costs. If UM assumes the future costs, Phytera's exclusive license will
terminate with respect to those Patent Rights in each country which Phytera has
elected not to support. Phytera is responsible for all expenses incurred prior
to, or as a result of irrevocable action taken prior to, its notification to UM.
5.04 All patent applications filed under Patent Rights and all patents
granted thereon will be owned jointly by Phytera and UM, subject to the license
herein granted to Phytera.
5.05 In order to safeguard Patent Rights, UM will not publish any
results or otherwise publicly disclose the results of its research relating to
the Patent Rights unless any materials containing such results are first
submitted to Phytera for review, comment, and consideration of appropriate
patent action. UM will submit such materials relating to a planned written
publication or other public disclosure to Phytera for review at least sixty (60)
days prior to the date of the planned submission for written publication.
Phytera will notify UM within thirty (30) days of receipt of the materials
whether it appears that any patent applications may need to be filed in
connection with obtaining or maintaining Patent Rights. Written publication or
public disclosure by UM will be deferred to permit Phytera to file any necessary
patent applications, but the deferral must not exceed ninety (90) days from the
date of receipt by Phytera of the materials.
5.06 Except as provided in Section 9.01, if a claim of any patent
comprising the Patent Rights is invalidated by a court of competent jurisdiction
from which no appeal is taken, or from which no further appeal can be taken,
notwithstanding any other provisions of this Agreement to the contrary, Phytera
may not terminate this Agreement, but may terminate all future obligations of
Phytera under Article 4 to pay royalties to UM with respect to the Identified
Product identified, selected, or determined to have utility in whole or in part,
through use of the invalidated claim(s) and without reference to other claims of
the Patent Rights.
Article 6
Confidentiality
6.01 (a) It is contemplated that it may be necessary for either party
to disclose to the other certain Confidential Information. Confidential
Information may be disclosed subject to the following provisions:
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Except as specifically authorized in writing by the other party hereto,
a party shall not, for a period of [ ]* from the date of receipt of
Confidential Information, disclose or use such Confidential Information. These
obligations of non-disclosure and nonuse shall not apply to any Confidential
Information which is:
(i) in the possession of the receiving party prior to receipt
thereof from the disclosing party, as shown by the receiving
party's written records, other than pursuant to a confidential
disclosure agreement with the disclosing party;
(ii) already available, or becomes available, to the public
through no fault of the receiving party;
(iii) received by or for the receiving party from a third party
having a right to disclose it; or
(iv) developed by or for the receiving party independent of any
disclosure hereunder, as shown by the receiving party's business
records.
(b) Each party will use that level of care to prevent the use or
disclosure of the other party's Confidential Information as it exercises in
protecting its own Confidential Information.
(c) All Confidential Information must be clearly marked as
confidential by the disclosing party and if not in written or tangible form when
disclosed, must be summarized in writing and so marked within thirty (30) days
of disclosure to the receiving party.
(d) Notwithstanding the foregoing, Phytera, Sublicensees, and
Partners are permitted to disclose and use such Confidential Information to the
extent reasonably necessary to exercise Phytera's license and/or sublicenses
and/or Partnership Contracts hereunder, provided that any disclosure is made
subject to confidentiality restrictions consistent with those accepted by
Phytera in this Agreement.
(e) Phytera recognizes that UM is an educational institution with
standards and practices for protection of Confidential Information which differ
from Phytera's commercial standards and practices. By this agreement UM
undertakes to use reasonable efforts to protect the confidentiality of Phytera's
Confidential Information. Phytera agrees that, provided such efforts are made,
it will not seek to hold UM or its personnel liable in the event of inadvertent
disclosure of Phytera's Confidential Information notwithstanding reasonable
efforts to prevent such occurrences.
(f) Phytera recognizes that the records of UM are subject to the
Maryland Access to Public Records Law. Phytera asserts that any Confidential
Information of Phytera and any annual reports of sales provided to UM under this
Agreement are confidential, proprietary,
- -----------------------------
* This portion of the Exhibit has been omitted pursuant to a Request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as amended.
The complete Exhibit, including the portions for which confidential treatment
has been requested, has been filed separately with the Securities and Exchange
Commission.
11
<PAGE>
and trade secret information, not subject to disclosure under Maryland's Access
to Public Records Law. UM agrees to assert this position in response to any
request for public information applicable to such materials, and to promptly
notify Phytera upon receipt of any such request. The Maryland Access to Public
Records Law is at Title 10, Subtitle 6, Part II, State Government Article,
Annotated Code of Maryland.
(g) Upon termination of this Agreement for any reason other
than a material breach by UM, Phytera shall return to UM all material provided
to Phytera which is Confidential Information, together with all copies and other
forms of reproduction, except that a single archive copy may be kept in the
Phytera's legal files.
(h) Upon termination of this Agreement for any reason other
than a material breach by Phytera, UM shall return to Phytera all material
provided to UM which is Confidential Information, together with all copies and
other forms of reproduction, except that a single archive copy may be kept in
the UM's legal files.
(i) Each party agrees that a termination of this Agreement
shall not alter the five (5) year obligation of confidentiality set forth in
Paragraph 6.0 1(a).
Article 7
REPORTS AND ACCOUNTING
7.01 During the term of this Agreement and for five (5) years
thereafter, Phytera must keep, and require each Sublicensee or Partner to keep,
complete, true, and accurate records containing all the particulars that may be
necessary to enable royalties payable to Phytera and thereby to UM under the
Agreement to be determined. Phytera shall permit its relevant records to be
inspected at any time during regular business hours, upon reasonable notice, no
more frequently than once per calendar year by an independent auditor appointed
by UM for this purpose and acceptable to Phytera, who shall report to UM only
the amount of royalty payable hereunder. This audit will be at UM's expense
unless the audit shows an underpayment in amounts due to UM in relation to
amounts paid to UM by 5% or more for any three-month royalty period in the
periods subject to audit, in which case the audit expense will be borne by
Phytera.
Phytera must further require that each Sublicensee or Partner permit
its relevant records to be inspected by an independent auditor appointed by
Phytera as may be necessary to verify the accuracy and adequacy of said records
for purposes of calculating royalty amounts payable to Phytera and thereby to
UM. If UM requests that Phytera conduct such an audit (a joint audit), then
Phytera will select an auditor mutually acceptable to both UM and Phytera, who
will conduct the audit during normal business hours and upon reasonable notice
to the Sublicensee or Partner. The auditor will be required to report to UM only
the royalty amounts payable to UM and the audit will be at UM's expense, unless
the audit shows an underpayment in amounts due to UM in relation to amounts paid
to UM of 5% or more for any three-month royalty period in periods subject to
audit, in which case the audit expense will be borne by Phytera. A maximum audit
frequency of one Phytera-initiated or one jointly-initiated (UM/Phytera) audit
per calendar year will be allowed.
7.02 Beginning with the First Commercial Sale of an Identified
Product, within 60 days from each March 31, June 30, September 30 and December
31, Phytera must deliver to UM
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<PAGE>
a true and accurate report, giving such particulars of the business conducted by
Phytera, Sublicensees, and Partners, if any, in the preceding three-month period
as are pertinent to any accounting for royalty payments hereunder. Such reports
will include at least the following information for the three- month royalty
period:
(a) number of each Identified Product manufactured and sold by
Phytera and by each Sublicensee or Partner;
(b) total billings for each Identified Product sold by Phytera
and by each Sublicensee or Partner;
(c) accounting for each Identified Product used or sold;
(d) deductions applicable as provided in paragraph 1.08; and
(e) names and addresses of all Sublicensees or Partners of
Phytera.
7.03 With each report submitted, Phytera will pay to UM the amounts
due and payable under this Agreement for the royalty period covered by the
report. If no amounts are due, Phytera will so report.
7.04 Any tax required to be withheld on royalties payable to UM by
Phytera or its Sublicensees or Partners under the laws of any country under this
Agreement will be promptly paid by Phytera or its Sublicensees or Partners for
and on behalf of UM to the appropriate governmental authority, and Phytera will
furnish UM with proof of payment of such tax together with official or other
appropriate evidence issued by the competent governmental authority sufficient
to enable UM to support a claim for tax credit with respect to any sum so
withheld. Any tax required to be withheld on payments by Phytera to UM shall be
an expense of and be borne solely by UM, and Phytera's royalty payment(s) to UM
following the withholding of such tax shall be decreased by the amount of such
tax withholding. Phytera will cooperate with UM in the event UM elects to
assert, at its own expense, exemption from any such tax.
7.05 During the product development phase described in Section 3.01,
Phytera will furnish to UM, upon UM's written request, copies of all of
Phytera's correspondence relating to an Identified Product to and from the FDA,
any other U.S. regulatory agency involved in the product development phase, and
any foreign equivalent promptly upon receipt thereof.
7.06 Upon the request of UM but not more than once per calendar year,
Phytera will deliver to UM a written report as to Phytera' s efforts and
accomplishments during the preceding year in the identification, selection, or
testing of agents through the use of Patent Rights in various parts of the world
and its commercialization plans for any Identified Products for the upcoming
year. This report will include (a) the approximate number of agents tested using
Patent Rights during the preceding year; (b) the approximate numbers of
compounds identified, selected or found to have utility through the application
of Patent Rights during the preceding year; and (c) whether an application to
market or investigate a compound or to obtain a patent or other marketing or
distribution exclusivity has been submitted to an appropriate agency.
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<PAGE>
Article 8
ABATEMENT OF INFRINGEMENT
8.01 Phytera will enforce any patent within Patent Rights against any
infringement or alleged infringement, and will at all times keep UM informed as
to the status thereof. Phytera may, in its sole judgment and at its own expense,
institute suit against any infringer or alleged infringer and control, settle,
and defend the suit in a manner consistent with the terms and provisions of this
Agreement and recover any damages, awards, or settlements resulting from the
suit, subject to Section 8.03. This right to sue for infringement will not be
used in an arbitrary or capricious manner. UM will reasonably cooperate in an
infringement suit, at Phytera's expense.
8.02 Phytera will advise UM of any patent infringement of which it is
aware. If within ninety (90) days after providing such notice to UM Phytera does
not commence to enforce the patent within Patent Rights, UM in its sole judgment
and at its own expense may do so, and may control, settle, and defend the suit
in a manner consistent with the terms and provisions of this Agreement and
recover, for its own account, any damages, awards, or settlements resulting from
the suit. But, UM agrees to inform Phytera of the terms of any proposed
settlement prior to entering into the settlement. Phytera will reasonably
cooperate in the infringement suit.
8.03 [
]*.
8.04 Phytera will defend, indemnify and hold harmless UM with respect
to costs of defense and any and all liabilities resulting from any suits,
countersuits, or legal actions of any nature that may be asserted against UM in
response to or as a result of the filing of an action by Phytera in accordance
with Section 8.01.
Article 9
TERM AND TERMINATION
9.01 The term of this Agreement will extend to [ ]* after the date of
the First Commercial Sale of any Identified Product. The parties expressly agree
that the term is not an extension of Patent Rights beyond their term, but
represents the parties' desire to compensate UM from revenues Phytera may have
in the future derived indirectly from Patent Rights and for convenience of
accounting.
- --------------------
* This portion of the Exhibit has been omitted pursuant to a Request for
Confidential Treatment under Rule 406 of the Securities Act of 1933, as amended.
The complete Exhibit, including the portions for which confidential treatment
has been requested, has been filed separately with the Securities and Exchange
Commission.
14
<PAGE>
9.02 Except as otherwise set forth herein, if Phytera fails to pay UM
any undisputed sum due and payable hereunder, UM has the right to terminate this
Agreement on ninety (90) days written notice, unless Phytera pays UM within the
ninety (90) day period all delinquent sums together with interest determined as
provided in Section 4.08. Upon expiration of the ninety (90) day period, if
Phytera has not paid all undisputed sums and interest due and payable, the
rights, privileges, and license granted under this Agreement will terminate.
Notwithstanding the foregoing, if Phytera's failure to pay UM any sum payable
hereunder arises from the failure of any Sublicensee or Partner to make payments
required pursuant to the terms of its Sublicense or Partnership Agreement
from/with Phytera, UM shall not be entitled to terminate the rights, privileges
and license granted to Phytera under this Agreement, or any rights, privileges
or licenses granted to other Sublicensees/Partners not in breach. Instead, UM
may require Phytera to notify the breaching Sublicensee/Partner that unless such
beach is cured within forty-five (45) days the Sublicense/Partnership Agreement
from Phytera to the breaching Sublicensee/Partner shall be terminated. Upon
expiration of such forty-five (45) day period, if the breaching
Sublicensee/Partner has not paid all sums due and payable under the terms of its
Sublicense/Partnership Agreement, thereby enabling Phytera to pay all sums due
and payable to UM pursuant to this Agreement, Phytera shall immediately
terminate the Sublicense/Partnership Agreement to the breaching
Sublicensee/Partner.
9.03 Prior to the First Commercial Sale of an Identified Product to a
Third Party, Phytera will be considered diligent with regard to development of
the Identified Product so long as Phytera updates and reports progress against
the Plan described in Section 3.01 and so long as Phytera:
(a) Continues to provide the necessary financial and other
resources required to maintain progress in accomplishing the Plan, as it relates
to Identified Products; and,
(b) Conducts or enables others to conduct the activities required
to maintain scheduled progress in accomplishing the Plan, as it relates to
Identified Products.
9.04 For the first five years after the First Commercial Sale of an
Identified Product to a Third Party, Phytera will be considered diligent so long
as sufficient numbers of Identified Products are sold so that earned royalties
meet or exceed the applicable minimum payment set forth in Section 4.06. If
Phytera fails to meet this requirement, then UM may declare Phytera not
diligent.
9.05 If UM declares that Phytera is not diligent in development or
sales of and Identified Product based upon the criteria set forth in Sections
9.03 and 9.04 for any reason other than the withholding by a regulatory agency
of marketing approval in spite of Phytera's diligent effort to obtain such
approval, then UM may terminate this Agreement in accordance with Section 9.06;
provided, however, that any existing Sublicenses/Partnerships shall be subject
to continuation pursuant to Section 9.08 below.
9.06 Except as set forth in Section 9.02, and as qualified by Section
9.08, if any provision of this Agreement is breached by Phytera, UM, upon ninety
(90) days written notice to Phytera, may terminate this Agreement. But, if the
breach is corrected within the ninety (90) day period and UM is reimbursed for
all damages directly resulting from the breach, the Agreement and sublicenses
will continue in full force and effect and UM will so notify Phytera in writing.
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<PAGE>
Phytera may terminate this Agreement at any time by giving UM ninety (90) days
written notice of termination and by paying UM all amounts owed through the
effective date of the termination.
9.07 Termination does not relieve either party of any obligation which
arises hereunder before termination including obligations under ARTICLE 4,
ARTICLE 5, ARTICLE 6, ARTICLE 7, ARTICLE 8, and ARTICLE 14. If this Agreement is
terminated at a time of the year other than the anniversary date, these
obligations are deemed to arise before termination and any payment obligations
must be paid upon termination in the amounts set forth in this Agreement.
9.08 In the event that any Sublicensee/Partner shall default on any
material term of its Sublicense/Partnership Agreement or engage in conduct that
would constitute a material breach under the terms of this Agreement, Phytera
shall notify such Sublicensee/Partner in writing of such breach and, if the
Sublicensee/Partner fails to cure such breach within forty-five (45) days after
receipt of written notice from Phytera, Phytera shall terminate the
Sublicensee/Partnership Agreement. Notwithstanding any other provisions of this
Article 9, in the event of any termination of this Agreement by UM, including
without limitation a termination due to breach by Phytera pursuant to Section
9.06, UM shall immediately furnish written notice of such termination to each
Sublicensee/Partner. Each Sublicensee/Partner shall have the right to elect to
continue the terms of its Sublicense/Partnership Agreement directly with UM.
Each Sublicensee/Partner may exercise such right by advising UM in writing,
within ninety (90) days after such Sublicensee's/Partner's receipt of UM's
termination notice, of such election and of its agreement to assume with respect
to UM all of the obligations (including all payment obligations) contained in
its Sublicense/Partnership Agreement with Phytera.
Article 10
ASSIGNABILITY
10.01 This Agreement cannot be assigned or transferred, in whole or in
part by Phytera without the prior written consent of UM, which will not be
unreasonably withheld.
10.02 This Agreement cannot be assigned or transferred in whole or in
part by UM without the prior written consent of Phytera, which will not be
unreasonably withheld.
Article 11
APPLICABLE LAW; SEVERABILITY
11.01 This Agreement is made and construed in accordance with the laws
of the State of Maryland without regard to choice of law issues, except that all
questions concerning the construction or effect of patents will be decided in
accordance with the laws of the country in which the particular patent was
granted.
11.02 Phytera submits itself to the jurisdiction of the State courts of
the State of Maryland and Federal courts within the State of Maryland for
purposes of any suit relating to this Agreement and agrees that the State and
Federal courts located in Baltimore City, Maryland provide a proper venue for
determining any legal action relating to this Agreement.
11.03 In the event that any condition or provision in any Article of
this Agreement shall be held by a court of competent jurisdiction from which
there is no appeal to be invalid or illegal
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<PAGE>
or contrary to public policy, this Agreement shall be construed as though such
provision or condition did not appear therein and the remaining provisions of
this Agreement shall continue in full force and effect.
Article 12
INTEGRATION
12.01 This Agreement embodies the entire understanding between Phytera
and UM. There are no contracts, understandings, conditions, warranties or
representations, oral or written, express or implied, with reference to the
subject matter hereof which are not merged herein. Except as otherwise
specifically stated, no modification hereto shall be of any force or effect
unless (1) reduced to writing and signed by both parties hereto, and (2)
expressly referred to as being a modification of this Agreement.
Article 13
WARRANTY
13.01 UM hereby warrants and represents that to the best of its
knowledge, as of the Effective Date, (a) it has full right, title, and interest
in and to its joint interest in the Patent Rights (subject to the rights of the
United States under its earlier contract with UM and pursuant to 35 U.S.C.
(S)2.0 1 et seq. and all implementing regulations; (b) that the Patent Rights do
------
not constitute the subject matter of any currently pending litigation and UM is
not aware, as of the execution of this Agreement, of any related litigation
contemplated either by UM or any third party; and (c) UM is empowered to enter
into this Agreement without burdens, encumbrances, restraints, or limitations of
any kind which could adversely affect the rights of Phytera under this
Agreement.
UM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY. FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT, AND PATENT VALIDITY.
13.02 Phytera represents and warrants to UM that: (a) Phytera has full
legal right, power and authority to execute, deliver and perform its obligations
under this Agreement; (b) the execution, delivery and performance by Phytera of
this Agreement do not contravene or constitute a default under any provision of
applicable law or of any agreement, judgment, injunction, order, decree, or
other instrument binding upon Phytera.
Article 14
INDEMNIFICATION
14.01 Phytera will indemnify, defend and hold harmless UM, the
University System of Maryland, the State of Maryland, and the officers, agents,
servants and employees of the foregoing (collectively, the "Indemnitees")
against any and all claims of or liabilities to Sublicensees, Partners or Third
Parties, including expenses and costs of claims and suits for any such
Sublicensee's, Partner's or Third Party's loss, damage, injury, or loss of life,
if such claims
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<PAGE>
or liabilities (a) arise from the testing or commercial sale or other
distribution by Phytera, of any Identified Products manufactured by Phytera or
through a license or sublicense from Phytera; (b) arise from actions of Phytera
or its officers, servants or agents, or Sublicensees, Partners or Third Parties
acting on behalf of or under authorization from Phytera in the performance of
this Agreement; or (c) arise out of use by Phytera or its officers, servants or
agents or by any Sublicensee, Partner or Third Party acting on behalf of or
under authorization from Phytera of products or processes licensed under the
Patent Rights or developed or made by Phytera as a result of information or
materials received from UM.
14.02 UM will promptly notify Phytera in writing upon UM's receipt or
notification of any claims or liabilities described herein and will cooperate
fully with Phytera, at Phytera's expense, in the defense of such claims. In
defending the Indemnitees, Phytera may assert on behalf of the Indemnitees any
and all defenses available to such Indemnitees, including the defenses of
governmental, sovereign, and statutory immunity. Phytera will consult with UM
and the Office of the Maryland Attorney General prior to raising any such
defenses.
14.03 Paragraph 14.01 does not apply to: (i) claims or liabilities that
are attributable to the fault or negligence of UM or another Indemnitee; or (ii)
claims or liabilities arising from the use of Patent Rights or Technology Rights
by a licensee of UM pursuant to a license reserved by and permitted under
Section 2.03 above.
14.04 In no event, however, will Phytera be liable for damages caused
by UM's failure to perform UM's responsibilities under this Agreement unless
such failure is caused by Phytera.
Article 15
CONSENT FOR ADVERTISING
15.01 Neither Phytera nor UM will use the name of the other or any of
its employees, or any adaptation thereof, in any advertising, promotional, or
sales literature without prior written consent obtained from the other party in
each such case, except that either party may publicize the fact that the parties
have made this Agreement and the general nature of the project work. Any such
publicity by either party will be subject to the review and consent of the other
party, such consent not to be unreasonably withheld.
Article 16
TECHNOLOGY GRANTBACK
16.01 Phytera grants to UM a royalty-free, non-exclusive, worldwide
license to practice any invention or discovery of Phytera which constitutes an
improvement of the Patent Rights solely for research and educational purposes.
An improvement means any composition, reagent, device or method which practices,
is practiced with or modifies any invention or discovery covered by Patent
Rights, provided the improvement is both conceived and reduced to practice after
the Effective Date of this Agreement.
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Article 17
MISCELLANEOUS
17.01 The use and disclosure of technical information acquired pursuant
to this Agreement and the exercise of Patent Rights granted by this Agreement
are subject to the export, assets, and financial control regulations of the
United States of America, including, but without limitation, restrictions under
regulations of the United States that may be applicable to direct or indirect
reexportation of the technical information or of equipment, products, or
services directly produced by use of the technical information. Phytera is
responsible for taking any steps necessary to comply with such regulations.
17.02 No license or right is granted by implication or otherwise with
respect to any patent application or patent owned by either party except as
specifically set forth in this Agreement.
17.03 Phytera will not employ or compensate, directly or indirectly,
any person working in the Licensed Field while the person is employed by UM or
for two (2) years thereafter, unless UM provides Phytera with prior written
consent of the UM President to the employment or compensation by Phytera.
Compensation includes but is not limited to: stock option or stock purchase
agreements, consulting agreements, or any other form of agreement executed
between a UM employee and Phytera, and cash payments. Any approvals are subject
to the Maryland Public/Private Partnership Act.
17.04 Phytera will provide written notice to UM at least ninety (90)
days prior to the filing of a petition in bankruptcy of Phytera's intention to
file a voluntary petition in bankruptcy or, if known by Phytera through
statements or letters from a creditor or otherwise, of a Third Party's intention
to file an involuntary petition in bankruptcy against Phytera. Phytera's failure
to perform this obligation is deemed to be a material pre-petition incurable
default and breach under this Agreement.
17.05 Neither party is liable for failure or delay in performing any of
its obligations under this Agreement if the failure or delay is required in
order to comply with any governmental regulation, request or order, or
necessitated by other circumstances beyond the reasonable control of the party
so failing or delaying, including but not limited to Acts of God, war (declared
or undeclared), insurrection, fire, flood, accident, labor strikes, work
stoppage or slowdown (whether or not the labor event is within the reasonable
control of the parties), or inability to obtain raw materials, supplies, power
or equipment necessary to enable the party to perform its obligations hereunder.
Each party will: (a) promptly notify the other party in writing of any event of
force majeure, the expected duration and its anticipated effect on the ability
of the party to perform its obligations; and (b) make reasonable efforts to
remedy any event of force majeure.
17.06 All notices, consents and other communications required or which
may be given under this Agreement must be in writing and are effective upon
receipt: (a) when delivered by hand; or (b) when received by the addressee after
being mailed by registered or certified mail (air mail if mailed overseas),
return receipt requested; or (c) when received by the addressee from an express
delivery service (return receipt requested). The notice, consent, or other
communication
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will be addressed to the party at its address set forth below (or to another
address as the designates by notice to the other party hereto):
If to UM: Associate Vice President, Research and Development
University of Maryland, Baltimore
515 West Lombard Street, Fifth Floor
Baltimore, Maryland 21201-1691
Copy to: University Counsel
University of Maryland, Baltimore
520 West Lombard Street, Second Floor
Baltimore, Maryland 21201-1627
If to Phytera: Malcolm Morville. Ph.D. or Company President
Phytera, Inc.
377 Plantation Street
Worcester, Massachusetts .01605
Copy to: Lynnette Fallon, Esq.
Palmer & Dodge
One Beacon Street
Boston, Massachusetts 02108
17.07 This Agreement may not be amended or modified, nor may any right
or remedy of either party be waived, unless the amendment, modification or
waiver is in writing and signed by a duly authorized representative of each
party. A waiver of the breach of any term or provision of this Agreement is not
a waiver of any other or subsequent breach.
17.08 No failure or delay by a party in exercising any of its rights or
remedies under this Agreement will operate as a waiver, nor will any single or
partial exercise of a right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy. The rights and remedies of
the parties provided in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.
17.09 UM and Phytera are not (and nothing in this Agreement may be
construed to constitute them as) partners, joint venturers, agents,
representatives or employees of the other, nor is there any status or
relationship between them other than that of independent contractors. Neither
party has any responsibility or liability for the actions of the other party
except as specifically provided in this Agreement. Neither party has any right
or authority to bind or obligate the other party in any manner or make any
representation or warranty on behalf of the other party.
17.10 Unless otherwise provided, all costs and expenses incurred in
connection with this Agreement will be paid by the party incurring the cost or
expense, and the other party has no liability relating thereto.
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17.11 This Agreement is signed in duplicate originals. The headings
used in this Agreement are for convenience of reference only and do not affect
the meaning or construction of this Agreement.
17.12 The parties recognize that a bona fide dispute as to certain
matters may arise from time to time during the term of this Agreement which
relates to either party's rights or obligations hereunder. If a dispute occurs,
either party may, by notice to the other party, attempt to resolve the dispute
by good faith negotiations between the parties' respective officers designated
below or their successors within thirty (30) days after the notice is received.
The designated officers are as follows:
For Phytera: President, Phytera, Inc.
For UM: Vice President, Academic Affairs
If the designated officers are not able to resolve the dispute within the thirty
(30) day period, or any agreed upon extension, then each of the parties is free
to exercise any potential remedies for the resolution of the dispute as the
party deems appropriate.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date set forth
above.
University of Maryland Baltimore Phytera, Inc.
By: /s/ David J. Ramsay By: /s/ Malcolm Morville
---------------------------------- ---------------------------------
David J. Ramsay, D.M., D.Phil. Malcolm Morville, Ph.D.
President President
Date: 6/19/98 Date: July 1, 1998
-------------------------------- -------------------------------
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
(and to all references to our firm) included in or made a part of this
registration statement.
/s/ Arthur Andersen LLP
Boston, Massachusetts
January 14, 1999
