<PAGE>
As filed with the Securities and Exchange Commission on October 13, 2000
Registration No. 333-38668
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM SB-2
ON FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEUROBIOLOGICAL TECHNOLOGIES, INC.
(Name of Small Business Issuer as specified in its charter)
DELAWARE 94-3049219
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
3260 BLUME DRIVE SUITE 500, RICHMOND, CALIFORNIA 94806, (510) 262-1730
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
-------------------------------
PAUL E. FREIMAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
NEUROBIOLOGICAL TECHNOLOGIES, INC.
3260 BLUME DRIVE SUITE 500
RICHMOND, CALIFORNIA 94806
(510) 262-1730
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------------------------
Copies to:
STEPHEN C. FERRUOLO
HELLER EHRMAN WHITE & MCAULIFFE LLP
4250 EXECUTIVE SQUARE, 8TH FLOOR
SAN DIEGO, CA 92037-9103
TELEPHONE: (858) 450-8400
FACSIMILE: (858) 450-8499
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities on this form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. / /
<PAGE>
If this form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. / /
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO BE AGGREGATE PRICE PER AGGREGATE OFFERING REGISTRATION FEE
BE REGISTERED REGISTERED SECURITY PRICE
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001 1,200,000(1) $6.46875(2) $7,762,500(2) $2,049.30(3)
=======================================================================================================================
</TABLE>
(1) Pursuant to Rule 429 under the Securities Act of 1933, this Registration
Statement also relates to an aggregate of 8,039,580 shares of the
Registrant's common stock included in Registration Statement No. 333-93859,
as to which a filing fee of $6,431.00 previously was paid.
(2) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based
on the average of the bid and ask price reported of the Registrant's common
stock on the OTC Bulletin Board on June 2, 2000.
(3) Previously paid.
THIS POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT 333-38668
SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(c) OF THE
SECURITIES ACT OF 1933 ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO
SAID SECTION 8(c), MAY DETERMINE.
EXPLANATORY NOTES
Pursuant to Rule 401(e) of the Securities Act of 1933, the Registrant is
filing this post-effective amendment to Form SB-2 on Form S-3 to update the
information contained in the Prospectus included in the Registrant's
Registration Statement on Form SB-2, as amended (Registration Statement No.
333-38668).
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
included in this Registration Statement also relates to 8,039,580 shares of
the Registrant's common stock previously registered under Registration
Statement No. 333-93859 and not sold. In the event any such previously
registered shares of common stock are sold prior to the effective date of
this Post-Effective Amendment, they will not be included in the prospectus
contained in this Registration Statement.
<PAGE>
PRELIMINARY PROSPECTUS
NEUROBIOLOGICAL TECHNOLOGIES, INC.
9,239,580 SHARES OF COMMON STOCK
-------------
These shares may be offered and sold from time to time by the
stockholders of the Company identified in this prospectus. See "Selling
Stockholders." Of the shares offered by this prospectus, 1,200,000 of the
shares were acquired by the selling stockholders in our April 2000 financing,
5,434,700 of the shares were acquired by the selling stockholders in our
November 1999 financing, and 2,173,880 of the shares are issued or issuable
upon exercise of warrants to purchase common stock issued to the selling
stockholders in the November 1999 financing. In addition, 431,000 shares are
issuable upon exercise of warrants to purchase common stock issued to the
placement agent in connection with our November 1999 financing.
The selling stockholders will receive all of the proceeds from the sale
of the shares and will pay all underwriting discounts and selling commissions,
if any, applicable to the sale of the shares. We will pay the expenses of
registration of the sale of the shares.
On October 2, 2000, Neurobiological Technologies, Inc. had
16,311,278 shares of common stock issued and outstanding. Our common stock
trades on the Nasdaq SmallCap Market under the symbol "NTII". On October 2,
2000, the closing price for the common stock on the Nasdaq SmallCap Market
was $7.88 per share.
Our principal offices are located at 3260 Blume Drive Suite 500,
Richmond, California, and our telephone number is (510) 262-1730.
------------
Beginning on page 4, we have listed several "Risk Factors" which you
should consider. You should read the entire prospectus carefully before you make
your investment decision.
------------
Neither the Securities and Exchange Commission nor state regulatory
authorities 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.
------------
The date of this prospectus is October __, 2000
<PAGE>
Subject to Completion
Dated October 12, 2000
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 effective. This prospectus is not an
offer to sell these securities and is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
About Neurobiological Technologies, Inc.................................................................1
Where You Can Find More Information.....................................................................2
Incorporation of Certain Documents by Reference.........................................................3
Special Note Regarding Forward-Looking Statements.......................................................3
Risk Factors............................................................................................4
Use of Proceeds.........................................................................................6
Selling Stockholders....................................................................................7
Plan of Distribution....................................................................................8
Legal Matters..........................................................................................10
Experts................................................................................................10
</TABLE>
---------------------------------------------
ABOUT NEUROBIOLOGICAL TECHNOLOGIES, INC.
Neurobiological Technologies, Inc.-Registered Trademark- ("NTI" or
"we") is an emerging drug development company focused on the clinical
development and regulatory approval of neuroscience drugs. NTI is developing
neuroprotective and neuromodulatory agents to treat progressive neurological
impairments characteristic of various nervous system disorders, including
diabetic neuropathy, brain cancer and AIDS Dementia Complex. Our strategy is
to in-license and develop early-stage drug candidates that target major
medical needs and that may be rapidly commercialized.
We currently have two product candidates that have completed or are
in Phase II human clinical testing. One of these, the orally-dosed compound
Memantine, appears to restore the function of impaired neurons by modulating
the NMDA receptor, integral to the membranes of such cells. In fiscal 2000,
we completed a 421 patient placebo-controlled Phase IIB human clinical trial
to evaluate the ability of Memantine to relieve chronic pain due to painful
diabetic neuropathy. The 8-week trial compared two dosage levels of
Memantine, 20mg and 40mg, with placebo. In the 40mg group, 44% of the
patients experienced a 50% pain reduction, compared to 29% in the placebo
group. There was no significant difference between the 20mg dose and the
placebo. The results of the study were presented at the annual meeting of the
American Academy of Neurology in May 2000.
In April 2000, our marketing partner, Merz + Co. GmbH & Co. of
Frankfurt, Germany, announced promising results in patients suffering from
mild to moderate vascular dementia. Of a total of 900 patients investigated in
two Phase III clinical trial studies, the Memantine treated patients showed
significant improvements in cognitive abilities compared to the patients who
received a placebo as demonstrated by two independent performance-based
assessments.
In February 2000, we announced that Merz had reported significant
positive results from a U.S. Phase III trial of Memantine in patients with
advanced Alzheimer's disease. This randomized, 6-month placebo-controlled,
double-blind multicenter trial aimed at functional improvement of patients
with moderate to severe Alzheimer's disease, enrolled 252 patients in the
United States and was jointly managed by Quintiles CNS Therapeutics. These
clinical trial results confirmed the findings of the Phase III clinical
studies Merz conducted for registration requirements in Europe and the United
States.
The ability of Memantine to reduce symptoms of dementia and
neuropathic pain in AIDS patients is currently being evaluated in a Phase II
human clinical trial sponsored by the AIDS Clinical Trials Group of the
National Institutes of Health. NTI is supplying Memantine for the trial and
will have the right to use the resulting data to further the commercial
development of Memantine for that indication.
In April 1998, we entered into a strategic research and marketing
cooperation agreement with Merz and a new revenue sharing partnership with
Children's Medical Center Corporation to further the clinical development and
commercialization of Memantine. NTI and Merz share scientific, clinical and
regulatory information about Memantine, particularly safety data, to
facilitate regulatory review and marketing approval by the FDA and foreign
regulatory authorities. Pursuant to the agreement with Merz, NTI will share
in future revenues from sales of Memantine for all indications.
In June 2000, Merz entered into an agreement with Forest
Laboratories, Inc. for the development and marketing of Memantine in the
United States for the treatment of Alzheimer's disease, neuropathic pain and
AIDS-related dementia. Under our agreement with Merz, we expect to receive a
share of the payments Forest Laboratories will be providing Merz.
<PAGE>
In August 2000, Merz entered into a strategic license and
cooperation agreement with H. Lundbeck A/S, of Copenhagen, Denmark for the
further development and marketing of Memantine for the treatment of
Alzheimer's disease, neuropathic pain and AIDS-related dementia. Lundbeck
will acquire exclusive rights to certain European markets and in Canada,
Australia and South Africa and semi-exclusive rights to co-market with Merz
in other markets worldwide, not including the United States and Japan. Japan
is being developed by Merz's collaborative partner, Suntory Ltd. Under our
agreement with Merz, we expect to receive a share of the payments Lundbeck
will be providing Merz.
We are also developing a second product, XERECEPT-TM-, a synthetic
preparation of the natural human peptide Corticotropin-releasing factor
(hCRF). NTI sponsored and completed a Phase II human clinical trial to
evaluate the efficacy of XERECEPT to stabilize or improve neurological
symptoms caused by peritumoral brain edema (PBE). The results of this trial
were presented at the annual meeting of the American Academy of Neurology in
May 2000. In a randomized, double-blind, positive controlled, triple dummy,
dose-ranging study in which two different doses of hCRF and a dexamethasone
control group were compared, responders were found in the higher dose, 1mg
hCRF group, compared to the dexamethasone control. No major safety concerns
were identified in either of the hCRF groups. Since the number of patients
enrolled was small (a total of 33 patients), no rigorous statistical analysis
could be performed. The clinical study should be regarded as confirmatory but
not definitive with regard to neurologic improvements that may be attained
with XERECEPT in symptomatic brain tumor patients. We are currently having a
new batch of XERECEPT made to initiate a Phase II trial.
Since 1987 when NTI was founded, we have applied a majority of our
resources to our research and development programs. We are a development
stage company, we have not received any revenue from the sale of products,
and we do not anticipate receiving any revenue from the sales of products in
the near future. NTI has incurred losses since its inception and expects to
incur substantial, increasing losses due to ongoing and planned research and
development efforts.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements, and
other documents with the Securities and Exchange Commission. You may read and
copy any document we file at the SEC's public reference room at Judiciary Plaza
Building, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549. You should
call 1-800-SEC-0330 for more information on the public reference room. The SEC
maintains an internet site at http://www.sec.gov where certain information
regarding issuers (including Neurobiological Technologies, Inc.) may be found.
You should rely only on the information contained in this prospectus
or incorporated by reference into this prospectus. We have not authorized
anyone to provide you with information different from that contained in this
prospectus. The selling stockholders are offering to sell, and seeking offers
to buy, shares of Neurobiological Technologies, Inc. common stock only in
jurisdictions where offers and sales are permitted. The information contained
in this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or of any sale of the
shares.
2
<PAGE>
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we
file with it, which means that we can disclose important information to you
by referring to that information. The information incorporated by reference
is an important part of this prospectus, and information that we file later
with the SEC will automatically update and supersede the information in this
prospectus. We incorporate by reference the documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until the selling stockholders sell all
of the shares:
- Annual Report on Form 10-KSB for the year ended June 30, 2000.
- Description of our capital stock contained in our Registration
Statement on Form 8-A, filed on January 14, 1994 (file no. 0-23280).
This prospectus is part of a registration statement we filed with
the SEC. You may request a copy of the above information incorporated by
reference, at no cost, by writing to or calling:
Alice Byrd, Controller
Neurobiological Technologies, Inc.
3260 Blume Drive, Suite 500
Richmond, California 94806
(510) 262-1730
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Statements made in this prospectus or in the documents incorporated by
reference herein that are not statements of historical fact are forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. A number of risks and
uncertainties, including those discussed under the caption "Risk Factors"
beginning on page 4 could affect such forward-looking statements and could cause
actual results to differ materially from the statements made in this prospectus.
3
<PAGE>
RISK FACTORS
YOU SHOULD CONSIDER CAREFULLY THE FOLLOWING RISK FACTORS, ALONG WITH
THE OTHER INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS, IN DECIDING WHETHER TO INVEST IN OUR SECURITIES. THESE FACTORS,
AMONG OTHERS, MAY CAUSE ACTUAL RESULTS, EVENTS OR PERFORMANCE TO DIFFER
MATERIALLY FROM THOSE EXPRESSED IN ANY FORWARD-LOOKING STATEMENTS WE MAKE IN
THIS PROSPECTUS.
BECAUSE ALL OUR POTENTIAL PRODUCTS ARE IN CLINICAL DEVELOPMENT, WE MAY NOT
DEVELOP A CANDIDATE PRODUCT THAT WILL RECEIVE REQUIRED REGULATORY APPROVAL OR BE
SUCCESSFULLY COMMERCIALIZED.
We are still in the development stage and have no marketable products.
As a result, we have no revenues from product sales, and most of our resources
are dedicated to the development of selected candidate pharmaceutical products.
The results of our preclinical studies and early stage clinical trials are not
necessarily indicative of those that will be obtained upon further clinical
testing in later stage clinical trials. It is possible that none of our
candidate products will receive regulatory approval or be successfully
commercialized.
OUR POTENTIAL PRODUCTS ARE SUBJECT TO THE RISKS OF FAILURE INHERENT IN THE
DEVELOPMENT OF PRODUCTS BASED ON NEW TECHNOLOGIES.
Our potential products are subject to the risks of failure inherent in
the development of products based on new technologies. These risks include the
possibility that the potential products may:
- be found to be unsafe, ineffective or toxic;
- fail to receive necessary regulatory clearances;
- if approved, be difficult to manufacture on a large scale or
uneconomical to market;
- be precluded from marketing by us due to the proprietary rights of
third parties; and
- not be successful because third parties market or may market superior
or equivalent products.
Further, our development activities may not result in any commercially
viable products. We do not expect to be able to commercialize any products for a
number of years, if at all.
WE ARE DEPENDENT ON MERZ AND ITS MARKETING PARTNERS, FOREST LABORATORIES,
INC. AND H. LUNDBECK A/S, FOR THE SUCCESSFUL COMMERCIALIZATION OF MEMANTINE.
The only revenues that we will receive in the future for Memantine
are royalties on product sales by Merz or its marketing partners and our
share of front-end and milestone payments received by Merz from its partners,
Forest Laboratories, Inc. and H. Lundbeck A/S. Under certain circumstances,
Merz can terminate its agreement with us upon six months notice. The
termination of our agreement with Merz or any failure by Merz or its partners
to successfully commercialize Memantine after its development would have a
material adverse effect on our business, financial conditions and results of
operations.
WE HAVE RELIED AND WILL CONTINUE TO RELY ON OTHERS FOR RESEARCH, DEVELOPMENT,
MANUFACTURE AND COMMERCIALIZATION OF OUR POTENTIAL PRODUCTS.
We have entered into various contractual arrangements (many of which
are non-exclusive) with consultants, academic collaborators, licensors,
licensees and others, and we are dependent upon the level of commitment and
subsequent success of these outside parties in performing their
responsibilities. Certain of these agreements place significant responsibility
for preclinical testing and human clinical trials and for preparing and
submitting submissions for regulatory approval for potential products on the
4
<PAGE>
collaborator, licensor or contractor. If the collaborator, licensor or
contractor fails to perform, our business, financial conditions and results may
be adversely affected.
We have also relied on scientific, mechanical, clinical, commercial and
other data supplied and disclosed by others in entering into these agreements.
We have relied on this data in support of applications for human clinical trials
for our potential products. Although we have no reason to believe that this
information contains errors or omissions of fact, it is possible that there are
errors or omissions of fact that would change materially to our view of the
future likelihood of FDA approval or commercial viability of these potential
products.
We have agreements and licenses with third parties that require us to
pay royalties and make other payments to such parties. Our failure to make such
payments could cause us to lose rights to technology or data under these
agreements.
CLINICAL TRIALS OR MARKETING OF ANY OF OUR POTENTIAL PRODUCTS MAY EXPOSE US TO
LIABILITY CLAIMS FROM THE USE OF SUCH PRODUCTS WHICH OUR INSURANCE MAY NOT
COVER.
We currently have a limited amount of product liability insurance only
to cover liabilities arising from clinical trials. It is possible that our
current insurance may not be adequate to cover liabilities arising from our
clinical trials.
Our current product liability insurance does not cover commercial sales
of products. We can not be sure that we will be able to obtain product liability
insurance covering commercial sales or, if such insurance is obtained, that
sufficient coverage can be acquired at a reasonable cost. An inability to obtain
insurance at acceptable cost or otherwise protect against potential product
liability claims could prevent or inhibit commercialization of any products we
develop.
FURTHER REDUCTIONS IN OUR STAFF MIGHT DELAY THE ACHIEVEMENT OF PLANNED
DEVELOPMENT OBJECTIVES.
Each person currently employed by us serves an essential function. We
currently employ five persons full-time and five persons part-time. Any further
reduction in force could impair our ability to manage ongoing clinical trials
and may have a material adverse effect on our operations.
THE MARKET PRICE OF THE SHARES OF OUR COMMON STOCK HAS BEEN, AND IS LIKELY TO
CONTINUE TO BE, HIGHLY VOLATILE.
The average daily trading volume of our common stock during fiscal 2000
has been low compared to that of other biopharmaceutical companies. Our common
stock was delisted from The Nasdaq Stock Market in February 1998 because we
failed to meet the financial conditions necessary to remain listed. In July 2000
we were approved for listing on The Nasdaq SmallCap Market. However, there can
be no assurance that we will continue to qualify for listing on that market.
Factors that may cause volatility in our stock price include:
- the results of preclinical studies and clinical trials by
NTI, Merz or its marketing partners or our competitors;
- other evidence of the safety or efficacy of products of
NTI, Merz or its marketing partners or our competitors;
5
<PAGE>
- announcements of technological innovations or new therapeutic
products by us or our competitors;
- developments in patent or other proprietary rights of
NTI or our competitors, including litigation;
- fluctuations in our operating results;
- government regulation and health care legislation; and
- market conditions for life science companies' stocks in
general.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of
common stock by the selling stockholders.
6
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth certain information regarding
beneficial ownership of NTI's common stock by the selling stockholders
as of October 2, 2000.
<TABLE>
<CAPTION>
Common Stock Common Stock
Beneficially Owned Beneficially Owned
Prior to Offering(1) After Offering(1)
------------------------------------- -----------------------
Number of
Shares Issuable
Number of within 60
Outstanding Days of October 2, Shares Offered
Holder Shares 2000(2) Percent in Offering Number Percent
------------------------------ ----------- ----------------- ------- -------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
Active Site Partners........... 62,500 25,000 * 87,500 -- *
Apollo Medical Partners........ 124,500 -- * 87,500 37,000 *
Aries Domestic Fund, LP........ 355,872 141,100 3.0 493,850 3,122 *
Aries Domestic Fund II, LP..... 28,348 11,000 * 38,500 848 *
Aries Master Fund.............. 875,280 347,900 7.3 1,217,650 5,530 *
Larry R. Baer.................. 25,000 10,000 * 35,000 -- *
CAM Co......................... 25,000 -- * 25,000 -- *
Christopher H. Berg Revocable
Trust dated 3/28/95............ 98,498 -- * 98,498 -- *
Mark Berger.................... 100,000 40,000 * 140,000 -- *
Bestley Holdings, Ltd.......... 125,000 50,000 1.1 175,000 -- *
Donald L. Blumenthal 1983
Revocable Trust................ 8,000 -- * 8,000 -- *
Donald S. Brown................ 75,000 30,000 * 105,000 -- *
Alan R. Brudos................. 16,395 16,500 * 8,750 24,145 *
James Buckley Jr............... 93,982 62,500 * 43,750 112,732 *
Edna Caden Budde Trust U/A
dated 4/30/86.................. 62,500 25,000 * 87,500 -- *
Cape 1998 Trust................ 75,990 96,071 1.1 87,500 84,561 *
John M. de Castro, Ph.D........ 59,700 23,880 * 83,580 -- *
Clarion Capital Corporation.... 187,500 75,000 1.6 262,500 -- *
Clarion Offshore Fund Ltd...... 67,500 27,000 * 94,500 -- *
Clarion Partners, LP........... 182,500 73,000 1.6 255,500 -- *
Clipperbay & Co................ 900,000 -- 5.5 900,000 -- *
Abraham E. Cohen IRA(3)........ 269,837 406,554 4.1 175,000 501,391 3.0
The Eliot Trust dated
2/27/87(4) .................... 27,544 59,116 * 8,750 77,910 *
Charles B. Engelberg, M.D...... -- 431,000 2.6 431,000 -- *
Claire Engelberg............... 62,500 25,000 * 87,500 -- *
Hyman Fein..................... 35,000 -- * 35,000 -- *
Joseph and Bonnie Fein......... 5,000 -- * 5,000 -- *
Herbert C.V. Feinstein......... 31,250 12,500 * 43,750 -- *
Jacob and Gloria Feinstein
Trust dated 9/18/92............ 62,500 25,000 * 87,500 -- *
Joseph Feinstein............... 62,500 25,000 * 87,500 -- *
Allan Fishbein, M.D............ 125,000 50,000 1.1 175,000 -- *
Richard J. Gaston.............. 62,500 25,000 * 87,500 -- *
Michael M. Goldberg............ 15,000 -- * 15,000 -- *
Kenneth Greif.................. 100,000 -- * 100,000 -- *
John R. Hillsman............... 62,500 25,000 * 87,500 -- *
Jupiter Partners............... 306,715 172,500 2.9 113,750 365,465 2.2
Leon Kaplan.................... 37,500 15,000 * 52,500 -- *
Daniel S. Katz IRA............. 163,415 -- 1.0 163,415 -- *
Robert L. Koch & Cori L. Pace
U/A dated 6/4/93............... 62,500 25,000 * 87,500 -- *
Robert W. Ledoux............... 15,011 21,500 * 8,750 27,761 *
Victor S. Lee.................. 312,500 125,000 2.7 437,500 -- *
Martin Markovits............... 20,000 -- * 20,000 -- *
Marksman Partners, LP.......... 120,000 40,000 * 140,000 20,000 *
Joyce McDermott................ 250,000 100,000 2.1 350,000 -- *
Molumphy Capitol Management
Profit Sharing Plan............ 37,593 53,000 * 17,500 73,093 *
Leonard O. Oppenheim & Dena G.
Oppenheim...................... 97,349 -- * 97,349 -- *
William A. Van Orsdel 1998
Trust.......................... 50,000 -- * 50,000 -- *
Jeffrey R. Parker.............. 5,000 -- * 5,000 -- *
Patriot Group, LP.............. 75,000 30,000 * 105,000 -- *
Prudent Bear Fund, Inc......... 437,500 175,000 3.7 612,500 -- *
Qureishi 1998 Family Trust..... 225,251 -- 1.4 225,251 -- *
Arthur Rock.................... 749,926 936,071 10.1 350,000 1,335,997 8.2
Dr. Henri van de Sand.......... 30,000 12,000 * 42,000 -- *
Charles L. Shreves............. 42,500 33,000 * 17,500 58,000 *
Abraham D. Sofaer & Marian
Scheurer Sofaer(5)............. 277,927 391,504 4.1 175,000 494,431 3.0
Frank J. Soriano............... 14,018 4,000 * 14,000 4,018 *
John B. & Jane K. Stuppin
Trust dated 3/11/91(6)......... 659,181 106,250 4.7 140,000 625,431 3.8
Robert R. Tufts & Joyce A.
Tufts, Trustees U/A dated
9/18/97 ....................... 297,143 50,000 2.1 49,000 298,143 1.8
Robert M. Winokur.............. 31,250 152,500 1.1 43,750 140,000 *
Ashford D. Wood................ 89,458 94,000 1.1 35,000 148,458 *
Phelps M. Wood................. 87,055 12,500 * 43,750 55,805 *
</TABLE>
----------------------------------------------------------------------
* Less than 1%.
(1) Applicable percentage of ownership is based on 16,311,278 shares of common
stock outstanding as of October 2, 2000.
(2) Includes number of shares issuable upon exercise of common stock purchase
warrants exercisable within 60 days of October 2, 2000 and assumes that no
other person has exercised any outstanding warrants or options nor converted
any Series A Preferred Stock.
(3) Mr. Cohen is a director of NTI.
(4) Theodore L. Eliot Jr., Trustee of the Eliot Trust 2/27/87, is a director
of NTI and may be deemed to have a beneficial interest in the shares held by
the Eliot Trust.
(5) Mr. Sofaer is a director of NTI.
(6) John B. Stuppin, Trustee of John B. Stuppin and Jane K. Stuppin UTD dated
March 11, 1991, is a director of NTI and may be deemed to have a beneficial
interest in the shares held by the trust. In addition, Mr. Stuppin directly
holds 1,000 shares of NTI and his wife, Jane K. Stuppin, holds 500 shares
in which Mr. Stuppin may be deemed to have a beneficial interest.
7
<PAGE>
PLAN OF DISTRIBUTION
The selling stockholders and their successors, which includes their
transferees, pledgees or donees or their successors, may offer their shares
from time to time in one or more of the following transactions:
- on the Nasdaq SmallCap Market or any other exchange or quotation
service on which the shares may be listed or quoted in the future;
- in the over-the-counter market;
- in negotiated transactions; or
- a combination of such methods of sale.
The selling stockholders may sell the shares at the following prices:
- at market prices prevailing at the time of sale;
- at prices related to such prevailing prices; or
- at negotiated prices,
and may use the shares to cover short positions previously established. The
selling stockholders may use broker-dealers to sell the shares. The
broker-dealers will either receive discounts or commissions from the selling
stockholders, or they will receive commissions from purchasers of shares.
8
<PAGE>
Selling holders may enter into hedging transactions with
broker-dealers or other financial institutions which may in turn engage in
short sales of shares of common stock and deliver shares of common stock
shares to close out such short positions, or loan or pledge the shares of
common stock to broker-dealers that in turn may sell these shares.
The aggregate proceeds to the selling stockholders from the sale of
the shares will be the purchase price of the shares received by the selling
stockholders less any discounts and commissions. The selling stockholders
reserve the right to accept and, together with their agents, to reject, any
proposed purchase of shares to be made directly or through agents. NTI will
not receive any of the proceeds from this offering.
The shares may be sold in some states only through registered or
licensed brokers or dealers. In addition, in some states the shares may not
be sold unless they have been registered or qualified for sale or an
exemption from registration.
Under certain circumstances, the selling stockholders and any
broker-dealers that participate in the distribution may be "underwriters"
within the meaning of the Securities Act of 1933. Any discounts or
commissions received by these broker-dealers and any profits realized on the
resale of shares by them may be underwriting discounts and commissions under
the Securities Act of 1933. The selling stockholders may agree to indemnify
these broker-dealers against certain liabilities, including liabilities under
the Securities Act of 1933. Broker-dealers may agree with the selling
stockholders to sell a specified number of shares at a stipulated price per
share, and may purchase as principal any unsold shares at the price required
to fulfill the broker-dealer commitment. Broker-dealers who acquire shares as
principal may resell the shares from time to time in the manner described
above, and may pay to, or receive from, the purchasers' commissions computed
as described above.
Under the rules and regulations of the SEC, any person engaged in the
distribution or the resale of shares may not simultaneously engage in market
making activities with respect to NTI common stock for a period of two business
days prior to the commencement of such distribution. The selling stockholders
will also be subject to applicable provisions of the Securities Exchange Act of
1934 and the rules and regulations under that Act which may limit the timing of
purchases and sales of shares of NTI's common stock by the selling stockholders.
The selling stockholders will pay all commissions, transfer taxes, and other
expenses associated with the sale of securities by them. We are registering the
shares offered in this prospectus in accordance with our contractual
obligations, and we have paid the expenses of the preparation of this
prospectus. We have not made any underwriting arrangements with respect to the
sale of shares offered by this prospectus.
If required, the specific shares of common stock to be sold, the
names of the selling stockholders, the respective purchase prices and public
offering prices, the names of any agent, dealer or underwriter, and any
applicable commissions or discounts with respect to a particular offer will
be set forth in an accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the registation statement of which this
prospectus is a part.
9
<PAGE>
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for NTI
by Heller Ehrman White & McAuliffe LLP, San Diego, California.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our financial
statements included in our annual report on Form 10-KSB for the year ended
June 30, 2000, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst &
Young LLP's report, given on their authority as experts in accounting and
auditing.
10
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with
the sale and distribution of the securities being registered. All of the amounts
shown are estimates except the Securities and Exchange Commission registration
fee. All expenses will be paid by NTI.
<TABLE>
<S> <C>
Securities and Exchange Commission
Registration Fee................................ $ 2,049
Legal fees and expenses............................ $ 25,000
Printing and engraving expenses.................... $ 10,000
Accounting fees and expenses....................... $ 20,000
Miscellaneous ..................................... $ 2,951
TOTAL: ................................... $ 60,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The registrant has the power to indemnify its officers and directors
against liability for certain acts pursuant to Section 145 of the General
Corporation Law of the State of Delaware. Article VIII, Sections A, B and C of
the registrant's Restated Certificate of Incorporation provide as follows:
"A. NO PERSONAL LIABILITY. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as director, except for liability (a) for any
breach of the director's duty to loyalty to the Corporation and its
stockholders; (b) for act or omissions not in good faith or which involve
intentional misconduct or knowing violations of law; (c) under Section 174 of
the Delaware General Corporation Law; or (d) for any transaction from which the
director derived an improper personal benefit.
B. INDEMNIFICATION. Each person who is or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that, except
as provided in the second paragraph hereof, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this section shall be a contract right and shall
include the right to be paid by the Corporation any expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this section or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
If a claim under the first paragraph of this section is not paid in
full by the Corporation within thirty (30) days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel,
II-1
<PAGE>
or its stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant had
not met the applicable standard of conduct.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
section shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Restated Certificate of
Incorporation, bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
C. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law."
In addition, Article V of the registrant's Bylaws provides as follows:
"Section 1. ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION.
Subject to Section 4 of this Article V, the corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceedings, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. Subject to
Section 4 of this Article V, the corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery of the State of Delaware or such other court shall deem proper.
Section 3. SUCCESS ON THE MERITS. To the extent that any person
described in Section 1 or 2 of this Article V has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in said
Sections, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
II-2
<PAGE>
Section 4. SPECIFIC AUTHORIZATION. Any indemnification under Section 1
or 2 of this Article V (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 1 or 2, as the case may be, of this Article V. Such determination shall
be made (1) by the board of directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders of the corporation.
Section 5. ADVANCE PAYMENT. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding as authorized by the
board of directors in the manner provided for in Section 4 of this Article V
upon receipt of an undertaking by or on behalf of any person described in said
Section to repay such amount unless it shall ultimately be determined that he is
entitled to indemnification by the corporation as authorized in this Article V.
Section 6. NON-EXCLUSIVITY. The indemnification and advancement of
expenses provided by this Article V shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be director, officer, employee or agent of the
corporation and shall inure to the benefit of the heirs, executors and
administrators of such a person; provided, however, that any repeal or amendment
of any of the provisions of this Article V shall not adversely affect any right
or protection of any indemnitee existing at the time of such repeal or
amendment.
Section 7. INSURANCE. The board of directors may authorize, by a vote
of the majority of the full board, the corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article V.
Section 8. SEVERABILITY. If any word, clause or provision of this
Article V or any award made hereunder shall for any reason be determined to be
invalid, the provisions hereof shall not otherwise be affected thereby but shall
remain in full force and effect.
Section 9. INTENT OF ARTICLE. The intent of this Article V is to
provide for indemnification to the fullest extent not prohibited by section 145
of the General Corporation Law of Delaware. To the extent that such Section or
any successor section may be amended or supplemented from time to time, this
Article V shall be amended automatically and construed so as to permit
indemnification to the fullest extent from time to time not prohibited by law."
II-3
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------------- ------------------------------------------------------------------
<S> <C>
3.1 Certificate of Incorporation*
3.2 By-Laws*
5 Opinion of Heller, Ehrman, White & McAuliffe LLP*
10 Form of Subscription Agreement*
23.1 Consent of Heller, Ehrman, White & McAuliffe LLP (filed as part of
Exhibit 5)*
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Powers of Attorney*
</TABLE>
-------------------
* Previously filed.
ITEM 17. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs A(1)(i) and A(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against
public policy as expressed in the 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 Act and will be governed by the
final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Richmond, State of California, on
this 12th day of October, 2000.
NEUROBIOLOGICAL TECHNOLOGIES, INC.
By: /s/ Paul E. Freiman
-------------------------------------
Paul E. Freiman
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Paul E. Freiman President, Chief Executive Officer (Principal October 12, 2000
----------------------------------------- Executive and Principal Financial Officer and
Paul E. Freiman Principal Accounting Officer) and Director
* Chairman of the Board October 12, 2000
-----------------------------------------
Abraham E. Cohen
* Director October 12, 2000
-----------------------------------------
Enoch Callaway
* Director October 12, 2000
-----------------------------------------
Theodore L. Eliot, Jr.
* Director October 12, 2000
-----------------------------------------
Abraham D. Sofaer
* Director October 12, 2000
-----------------------------------------
John B. Stuppin
* By /s/ Paul E. Freiman
-----------------------------------------
Paul E. Freiman, Attorney-in-fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------------- ------------------------------------------------------------------
<S> <C>
3.1 Certificate of Incorporation*
3.2 By-Laws*
5 Opinion of Heller, Ehrman, White & McAuliffe LLP*
10 Form of Subscription Agreement*
23.1 Consent of Heller, Ehrman, White & McAuliffe LLP (filed as part of
Exhibit 5)*
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Powers of Attorney*
</TABLE>
-------------------
* Previously filed.
