As filed with the Securities and Exchange Commission on August 27, 2003
Registration Statement No. 333-(_______)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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IMMTECH INTERNATIONAL, INC.
(Exact name of registrant as specified in charter)
Delaware 39-1523370
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
150 Fairway Drive, Suite 150
Vernon Hills, Illinois 60061
(847) 573-0033
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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T. Stephen Thompson, President
150 Fairway Drive, Suite 150
Vernon Hills, Illinois 60061
(847) 573-0033
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Copy to:
John F. Fritts, Esq.
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038-4892
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(Approximate date of commencement of proposed sale to the public)
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [_]
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, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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Proposed
maximum Proposed
offering maximum
Title of each price aggregate Amount of
class of securities Amount to be per offering registration
to be registered registered(1) share(2) price(2) fee
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Common Stock,
par value $0.01
per share 3,748,998 $15.12 $56,684,849.76 $4,585.80(2)
================================================================================
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(1) In the event of a stock split, stock dividend or similar transaction
involving our common stock the number of shares registered shall
automatically be adjusted to cover the additional shares issuable in such
event in accordance with Rule 416(a) under the Securities Act of 1933, as
amended (the "Securities Act").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act. Price is based on the
average of the high and low reported sales prices of the common stock on
the American Stock Exchange LLC ("AMEX") on August 21, 2003. The maximum
price per share will be determined from time to time in connection with
the issuance by the Registrant or resale by the Selling Stockholders of
the shares registered under this Registration Statement.
================================================================================
The registrant amends this registration statement on such date or dates as may
be necessary to delay its effective date until the Registrant files a further
amendment, which specifically states that this Registration Statement will
thereafter become effective in accordance with Section 8(a) of the Securities
Act or until this Registration Statement becomes effective on such date as the
Securities and Exchange Commission, acting pursuant to Section 8(a) of the
Securities Act, may determine.
The information in this Prospectus is not complete and may be changed. Neither
Immtech nor the Selling Stockholders may sell these securities until the
Registration Statement filed with the Securities and Exchange Commission (the
"SEC") 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.
Subject to Completion, dated August 27, 2003.
PROSPECTUS
3,748,998 Shares
[LOGO] IMMTECH INTERNATIONAL, INC.
Common Stock
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This is a public offering of 3,748,998 shares ("Shares") of our Common
Stock. We may from time to time offer, subject to American Stock Exchange LLC
("AMEX") rules, 1,500,000 Shares for our own account and the stockholders named
under the caption "Selling Stockholders" may from time to time offer and sell up
to an additional 2,248,998 shares of the Company's Common Stock ("Shares"). The
Shares may be sold in transactions occurring either on or off the AMEX at
prevailing market prices or at negotiated prices. Sales may be made through
brokers or through dealers, who are expected to receive customary commissions or
discounts. We will receive no proceeds from the sale of Shares sold by Selling
Stockholders under this Prospectus. No period of time has been fixed within
which the Shares registered under this Prospectus may be offered or sold. Our
obligation to keep the Registration Statement of which this Prospectus is a part
effective expires as to 60,000 of the Selling Stockholders' Shares on January 6,
2004, 770,000 Shares on March 20, 2004, 667,144 Shares on June 6, 2003, 41,854
Shares on June 9, 2003, 610,000 Shares on July 16, 2004 and 100,000 Shares on
July 25, 2003 or sooner if all Selling Stockholders' Shares are sold. As used in
this Prospectus, the terms "we," "us," "our," the "Company" and "Immtech" mean
Immtech International, Inc. and the term "Common Stock" means the common stock
of Immtech, $0.01 par value per share.
Our Common Stock is traded on the AMEX under the symbol "IMM". The last
reported sale price of our Common Stock on August 25, 2003 was $18.01. The
address of our principal executive offices is 150 Fairway Drive, Suite 150,
Vernon Hills, Illinois 60061, and our telephone numbers are (847) 573-0033 or
toll free (877) 898-8038.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD
CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE S-1 OF THIS PROSPECTUS
BEFORE PURCHASING ANY OF THE COMMON STOCK OFFERED.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS,
INCORPORATED BY REFERENCE HEREIN OR PROVIDED BY SUPPLEMENT. WE HAVE NOT
AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. THIS
PROSPECTUS IS NOT AN OFFER TO SELL NOR IS IT SEEKING AN OFFER TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED. THE
INFORMATION CONTAINED IN THIS PROSPECTUS IS CORRECT ONLY AS OF THE DATE OF THIS
PROSPECTUS, REGARDLESS OF THE TIME OF THE DELIVERY OF THIS PROSPECTUS OR ANY
SALE OF THESE SECURITIES.
TABLE OF CONTENTS
RISK FACTORS.................................................................S-1
ABOUT THIS PROSPECTUS.......................................................S-10
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION OF DOCUMENTS
BY REFERENCE................................................................S-11
FORWARD-LOOKING STATEMENTS..................................................S-12
THE COMPANY.................................................................S-13
USE OF PROCEEDS.............................................................S-14
SELLING STOCKHOLDERS........................................................S-14
DESCRIPTION OF CAPITAL STOCK................................................S-17
PLAN OF DISTRIBUTION........................................................S-19
LEGAL MATTERS...............................................................S-21
EXPERTS.....................................................................S-21
INTERESTS OF NAMED EXPERTS AND COUNSEL......................................S-21
GLOSSARY....................................................................S-22
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RISK FACTORS
An investment in the Shares offered by this Prospectus involves a high
degree of risk. In addition to the other information contained in this
Prospectus, the following risk factors should be considered carefully in
evaluating our business before purchasing the Shares.
There is no assurance that we will successfully develop a commercially viable
product.
We are at an early stage of human, clinical and in some cases pre-clinical
development activities required for drug approval and commercialization. Since
our formation in October 1984, we have engaged in research and development
programs, expanding our network of scientists and scientific advisors, licensing
technology agreements and advancing the commercialization of the dication
technology platform. We have generated no revenue from product sales and do not
have any products currently available for sale, and none are expected to be
commercially available for sale until after March 31, 2004, if at all. There can
be no assurance that the research we fund and manage will lead to commercially
viable products.
We have a history of losses and an accumulated deficit; our future profitability
is uncertain.
We have experienced significant operating losses since our inception and
we expect to incur additional operating losses as we continue research,
development, clinical trial and commercialization efforts. As of June 30, 2003,
we had an accumulated deficit of approximately $44,491,000.
We will need substantial additional funds in future years.
Our operations to date have consumed substantial amounts of cash. Negative
cash flow from operations is expected to continue in the foreseeable future. Our
cash requirements may vary materially from those now planned because of results
of research and development, results of pre-clinical and clinical testing,
responses to our grant requests, relationships with strategic partners, changes
in the focus and direction of our research and development programs, competitive
and technological advances, the FDA and foreign regulatory process and other
factors. In any of these circumstances, we may require substantially more funds
than we currently have available or currently intend to raise to continue our
business. We may seek to satisfy future funding requirements through public or
private offerings of securities, by collaborative or other arrangements with
pharmaceutical or biotechnology companies or from other sources. Additional
financing may not be available when needed or may not be available on acceptable
terms. If adequate financing is not available, we may not be able to continue as
a going concern or may be required to delay, scale back or eliminate certain
research and development programs, relinquish rights to certain technologies or
product candidates, forego desired opportunities or license third parties to
commercialize our products or technologies that we would otherwise seek to
develop internally. To the extent we raise additional capital by issuing equity
securities, ownership dilution to existing stockholders will result.
Our dependence on key personnel could adversely affect our business.
Our business depends to a significant degree on the continuing
contributions of our key management, scientific and technical personnel, as well
as on the continued discoveries of scientists, researchers and specialists at
The University of North Carolina at Chapel Hill ("UNC"), Georgia State
University, Duke University and Auburn University (collectively, the "Scientific
Consortium") who have entered into a Consortium Agreement, dated January 15,
1997, and a License Agreement, dated as of January 28, 2002, with us by which
the Scientific Consortium has given us exclusive world-wide rights to
commercialize certain pharmaceutical product candidates developed in the
Scientific Consortium members' laboratories related to the dication technology.
There can be no assurance that the loss of certain members of management or the
scientists, researchers and technicians from the Scientific Consortium
universities would not materially adversely affect our business. We do not have
"key-man" life insurance policies on any of our executives.
Additional research grants may not be available.
We will continue to apply for new grants to support continuing research
and development of our dication platform technology and other product
candidates. The process of obtaining grants is extremely competitive and there
can be no assurance that any of our grant applications will be acted upon
favorably.
Our product candidates are in early stage clinical trials.
All of our product candidates, including DB289 and DB075, require
additional clinical testing, regulatory approval and development of marketing
and distribution channels, all of which are expected to require substantial
additional investment prior to commercialization. There can be no assurance that
any of our product candidates will be successfully developed, prove to be safe
and effective in human clinical trials, meet applicable regulatory standards, be
capable of being produced in commercial quantities at acceptable costs, be
eligible for third party reimbursement from governmental or private insurers, be
successfully marketed or achieve market acceptance.
There are substantial uncertainties related to clinical trials.
In order to obtain required regulatory approvals for the commercial sale
of our product candidates, we must demonstrate through human clinical trials
that such product candidates are safe and effective for their intended uses.
We may find, at any stage of our research and development, that product
candidates that appeared promising in earlier clinical trials do not demonstrate
safety or effectiveness in later clinical trials and therefore do not receive
regulatory approvals. The results of our pre-clinical testing and early human
clinical trials may not be predictive of results obtained in later clinical
trials and large-scale testing. Companies in the pharmaceutical and
biotechnology industries have suffered significant setbacks in various stages of
clinical trials, even after promising results had been obtained in early stage
human clinical trials. Completion of the clinical trials may be delayed by many
factors, including slower than anticipated patient enrollment, difficulty in
securing sufficient supplies of clinical trial materials or adverse events
occurring during clinical
S-2
trials. Completion of testing, studies and trials may take several years, and
the length of time varies substantially with the type, complexity, novelty and
intended use of the product. Delays or rejections may be based upon many
factors, including changes in regulatory policy during the period of product
development. No assurance can be given that any of our development programs will
be successfully completed, that any Investigational New Drug application ("IND")
filed with the FDA (or any foreign equivalent filed with the appropriate foreign
authorities) will become effective, that additional clinical trials will be
allowed by the FDA or other regulatory authorities, or that clinical trials will
commence as planned. There have been delays in our testing and development
schedules to date and there can be no assurance that our future testing and
development schedules will be met.
We do not have manufacturing capability, which could impair our ability to
develop commercially viable products at reasonable costs.
Our ability to conduct clinical trials and to commercialize product
candidates will depend in part upon our ability to have manufactured the product
candidates, either directly or through third parties, at a competitive cost and
in accordance with FDA and other regulatory requirements. We currently lack
facilities and personnel to manufacture our product candidates. There can be no
assurance that we will be able to acquire such resources, either directly or
through third parties, at reasonable costs, if we develop commercially viable
products.
Construction and operation of a pharmaceutical manufacturing plant with
Immtech Hong Kong Limited in the People's Republic of China ("PRC") is subject
to various governmental approvals, which may be difficult or impossible to
obtain. There can be no guarantee that products manufactured at this facility,
if built, will be accepted in the countries where we desire to sell our future
products.
We are dependent on third-party relationships for critical aspects of our
business.
We use the expertise and resources of strategic partners and third parties
in a number of key areas, including (i) research and development, (ii)
pre-clinical and human clinical trials and (iii) manufacture of pharmaceutical
drugs. We have licensing and exclusive commercialization rights to a dicationic
pharmaceutical platform and are developing drugs intended for commercial use
based on that platform. This strategy creates risks by placing critical aspects
of our business in the hands of third parties, whom we may not be able to
control. If these third parties do not perform in a timely and satisfactory
manner, we may incur costs and delays as we seek alternate sources of such
products and services, if available. Such costs and delays may have a material
adverse effect on our business.
We may seek additional third-party relationships in certain areas,
particularly in clinical testing, marketing, manufacturing and other areas where
pharmaceutical and biotechnology company collaborators will enable us to develop
particular products or geographic markets that are otherwise beyond our
resources and/or capabilities. There is no assurance that we will be able to
obtain any such collaboration or any other research and development,
manufacturing or clinical trial arrangements. Our inability to obtain and
maintain satisfactory relationships with third parties may have a material
adverse effect on our business.
S-3
We are uncertain about the ability to protect or obtain necessary patents and
protect our proprietary information.
There can be no assurance that any particular patent will be granted or
that issued patents will provide us, directly or through licenses, with the
intellectual property protection contemplated. Patents and licenses of patents
can be challenged, invalidated or circumvented. It is also possible that
competitors will develop similar products simultaneously. Our breach of any
license agreement or the failure to obtain a license to any technology or
process which may be required to develop or commercialize one or more of our
product candidates may have a material adverse effect on our business.
The pharmaceutical and biotechnology fields are characterized by a large
number of patent filings, and a substantial number of patents have already been
issued to other pharmaceutical and biotechnology companies. Third parties may
have filed applications for, or may have been issued, certain patents and may
obtain additional patents and proprietary rights related to products or
processes competitive with or similar to those that we are attempting to develop
and commercialize. We may not be aware of all of the patents potentially adverse
to our interests that may have been issued to others. No assurance can be given
that patents do not exist, have not been filed or could not be filed or issued,
which contain claims relating to or competitive with our technology, product
candidates or processes. If patents have been or are issued to others containing
preclusive or conflicting claims, then we may be required to obtain licenses to
one or more of such patents or to develop or obtain alternative technology.
There can be no assurance that the licenses or alternative technology that might
be required for such alternative processes or products would be available on
commercially acceptable terms, or at all.
Because of the substantial length of time and expense associated with
bringing new drug products to market through the development and regulatory
approval process, the pharmaceutical and biotechnology industries place
considerable importance on patent and trade secret protection for new
technologies, products and processes. Since patent applications in the United
States are confidential until patents are issued and since publication of
discoveries in the scientific or patent literature often lag behind actual
discoveries, we cannot be certain that we (or our licensors) were the first to
make the inventions covered by pending patent applications or that we (or our
licensors) were the first to file patent applications for such inventions. The
patent positions of pharmaceutical and biotechnology companies can be highly
uncertain and involve complex legal and factual questions and, therefore, the
breadth of claims allowed in pharmaceutical and biotechnology patents, or their
enforceability, cannot be predicted. There can be no assurance that any patents
under pending patent applications or any further patent applications will be
issued. Furthermore, there can be no assurance that the scope of any patent
protection will exclude competitors or provide us competitive advantages, that
any of our (or our licensors') patents that have been issued or may be issued
will be held valid if subsequently challenged, or that others, including
competitors or current or former employers of our employees, advisors and
consultants, will not claim rights in, or ownership to, our (or our licensors')
patents and other proprietary rights. There can be no assurance that others will
not independently develop substantially equivalent proprietary information or
otherwise obtain access to our proprietary information, or that others may not
be issued patents that may require us to obtain a license for, and pay
significant fees or royalties for, such proprietary information.
S-4
The pharmaceutical and biotechnology industries have experienced extensive
litigation regarding patent and other intellectual property rights. We could
incur substantial costs in defending suits that may be brought against us (or
our licensors) claiming infringement of the rights of others or in asserting our
(or our licensors') patent rights in a suit against another party. We may also
be required to participate in interference proceedings declared by the U.S.
Patent and Trademark Office or similar foreign agency for the purpose of
determining the priority of inventions in connection with our (or our
licensors') patent applications.
Adverse determinations in litigation or interference proceedings could
require us to seek licenses (which may not be available on commercially
reasonable terms) or subject us to significant liabilities to third parties, and
could therefore have a material adverse effect on our business. Even if we
prevail in an interference proceeding or a lawsuit, substantial resources,
including the time and attention of our officers, will be required.
We also rely on trade secrets, know-how and technological advancement to
maintain our competitive position. Although we use confidentiality agreements
and employee proprietary information and invention assignment agreements to
protect our trade secrets and other unpatented know-how, these agreements may be
breached by the other party thereto or may otherwise be of limited effectiveness
or enforceability.
Our business has significant competition; our product candidates may become
obsolete prior to commercialization due to alternative technologies.
The pharmaceutical and biotechnology fields are characterized by extensive
research efforts and rapid technological progress. Competition from other
pharmaceutical and biotechnology companies and research and academic
institutions is intense and other companies are engaged in research and product
development for treatment of the same diseases as we are. New developments in
molecular cell biology, molecular pharmacology, recombinant DNA technology and
other pharmaceutical and biological processes are expected to continue at a
rapid pace in both industry and academia. There can be no assurance that
research and discoveries by others will not render some or all of our programs
or products non-competitive or obsolete.
We are aware of other companies and institutions dedicated to the
development of therapeutics similar to those we are developing, including Eli
Lilly and Company, Hoffman-LaRoche Ltd., Chiron Corporation, Cubist
Pharmaceuticals, Inc., Schering-Plough Corporation and Abbott Laboratories. Many
of our existing or potential competitors have substantially greater financial
and technical resources than we do and therefore may be in a better position to
develop, manufacture and market pharmaceutical drugs and biologics. Many of
these competitors are also more experienced with regard to pre-clinical testing,
human clinical trials and obtaining regulatory approvals. The current or future
existence of competitive products may also adversely affect the marketability of
our product candidates.
There is no assurance that we will receive FDA or corollary foreign approval for
any of our product candidates; government regulation may impede, delay or
prevent the commercialization of our product candidates.
All new pharmaceutical drugs and biologics, including our product
candidates, are subject to extensive and rigorous regulation by the federal
government, principally the FDA
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under the Federal Food, Drug and Cosmetic Act ("FDCA") and other laws including,
in the case of biologics, the Public Health Services Act, and by state, local
and foreign governments. Such regulations govern, among other things, the
development, testing, manufacture, labeling, storage, pre-market clearance or
approval, advertising, promotion, sale and distribution of pharmaceutical drugs
and biologics. If drug products or biologics are marketed abroad, they are
subject to extensive regulation by foreign governments. Failure to comply with
applicable regulatory requirements may subject us to administrative or
judicially imposed sanctions such as civil penalties, criminal prosecution,
injunctions, product seizure or detention, product recalls, total or partial
suspension of production and FDA refusal to approve pending applications.
We have not received regulatory approval in the United States or any foreign
jurisdiction for the commercial sale of any of our product candidates.
The process of obtaining FDA and other required regulatory approvals,
including foreign approvals, often takes many years and varies substantially
based upon the type, complexity and novelty of the products involved and the
indications being studied. Furthermore, the approval process is extremely
expensive and uncertain. There can be no assurance that our product candidates
will be cleared for commercial sale in the United States by the FDA or
regulatory agencies in foreign countries. The regulatory review process can take
many years and we will need to raise additional funds prior to completing the
regulatory review process for our current and future product candidates. Failure
to receive FDA approval for our product candidates would preclude us from
marketing and selling such products in the United States. Therefore, the failure
to receive FDA approval would have a material adverse effect on our business.
Even if regulatory approval of a product is granted, there can be no assurance
that we will be able to obtain the labeling claims (a labeling claim is a
product's description and its FDA permitted uses) necessary or desirable for the
promotion of such product. FDA regulations prohibit the marketing or promotion
of a drug for unapproved indications. Furthermore, regulatory marketing approval
may entail ongoing requirements for post-marketing studies if regulatory
approval is obtained; we will then be subject to ongoing FDA obligations and
continued regulatory review. In particular, we, or our third party
manufacturers, will be required to adhere to regulations setting forth Good
Manufacturing Practices ("GMP"), which require us (or our third party
manufacturers) to manufacture products and maintain records in a prescribed
manner with respect to manufacturing, testing and quality control activities.
Further, we (or our third party manufacturers) must pass a manufacturing
facilities pre-approval inspection by the FDA before obtaining marketing
approval. Failure to comply with applicable regulatory requirements may result
in penalties, such as restrictions on a product's marketing or withdrawal of the
product from the market. In addition, identification of certain side effects
after a drug is on the market or the occurrence of manufacturing problems could
cause subsequent withdrawal of approval, reformulation of the drug, additional
pre-clinical testing or clinical trials and changes in labeling of the product.
Prior to the submission of an application for FDA approval, our product
candidates must undergo rigorous pre-clinical and clinical testing, which may
take several years and the expenditure of substantial financial and other
resources. Before commencing clinical trials in humans, we must submit to the
FDA and receive clearance of an IND. There can be no assurance that submission
of an IND for future clinical testing of any of our product candidates under
development or other future product candidates would result in FDA permission to
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commence clinical trials or that we will be able to obtain the necessary
approvals for future clinical testing in any foreign jurisdiction. Further,
there can be no assurance that if such testing of product candidates under
development is completed, any such drug compounds will be accepted for formal
review by the FDA or any foreign regulatory body or approved by the FDA for
marketing in the United States or by any such foreign regulatory bodies for
marketing in foreign jurisdictions. Future federal, state, local or foreign
legislation or administrative acts could also prevent or delay regulatory
approval of our product candidates.
Prior to the submission of an application for FDA approval, our
pharmaceutical drugs and biologics must undergo rigorous pre-clinical and
clinical testing, which may take several years and the expenditure of
substantial resources. Before commencing clinical trials in humans in the United
States, we must submit to the FDA and receive clearance of an IND. If clinical
trials of a new product are completed successfully, then we may seek FDA
marketing approval. If the product is regulated as a biologic, the FDA will
require the submission and approval of both a Product License Application
("PLA") and an Establishment License Application ("ELA") before commercial
marketing can commence. The PLA must include detailed information about the
biologic, its manufacture and the results of product development, pre-clinical
studies and clinical trials. The FDA's time to review PLAs and ELAs averages two
to five years. The FDA may ultimately decide that the PLA and ELA do not satisfy
the regulatory criteria for approval and deny approval or require additional
clinical studies. Future federal, state, local or foreign legislation or
administrative acts could also prevent or delay regulatory approval of our
pharmaceutical drug and biologic candidates.
There is uncertainty regarding the availability of health care reimbursement for
purchasers of our anticipated products; health care reform may negatively impact
the ability of prospective purchasers of our anticipated products to pay for
such products.
Our ability to commercialize any of our product candidates will depend in
part on the extent to which reimbursement for the costs of the resulting drug or
biologic will be available from government health administration authorities,
private health insurers and others. Significant uncertainty exists as to the
reimbursement status of newly approved health care products. There can be no
assurance of the availability of third-party insurance reimbursement coverage
enabling us to establish and maintain price levels sufficient for realization of
a profit on our investment in developing pharmaceutical drugs and biologics.
Government and other third-party payers are increasingly attempting to contain
health care costs by limiting both coverage and the level of reimbursement for
new drug or biologic products approved for marketing by the FDA and by refusing,
in some cases, to provide any coverage for uses of approved products for disease
indications for which the FDA has not granted marketing approval. If adequate
coverage and reimbursement levels are not provided by government and third-party
payers for uses of our anticipated products, the market acceptance of these
products would be adversely affected.
Health care reform proposals have previously been introduced in Congress
and in various state legislatures and there is no guarantee that such proposals
will not be introduced in the future. We cannot predict when any proposed
reforms will be implemented, if ever, or the effect of any implemented reforms
on our business. There can be no assurance that any implemented reforms will not
have a material adverse effect on our business. Such reforms, if enacted, may
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affect the availability of third-party reimbursement for our anticipated
products as well as the price levels at which we are able to sell such products.
In addition, if we are able to commercialize products in overseas markets, then
our ability to achieve success in such markets may depend, in part, on the
health care financing and reimbursement policies of such countries.
Confidentiality agreements may not adequately protect our intellectual property.
We require our employees and consultants to execute confidentiality
agreements upon the commencement of their relationship with us. The agreements
generally provide that trade secrets and all inventions conceived by the
individual and all confidential information developed or made known to the
individual during the term of the relationship will be our exclusive property
and will be kept confidential and not disclosed to third parties except in
specified circumstances. There can be no assurance, however, that these
agreements will provide meaningful protection for our proprietary information in
the event of unauthorized use or disclosure of such information.
Potential adverse effect of shares eligible for future sale.
Sales of our Common Stock (including the issuance of shares upon
conversion of preferred stock and the exercise of outstanding options and
warrants at prices substantially below our current market price) in the public
market could materially and adversely affect the market price of shares of our
Common Stock. Such sales also might make it more difficult for us to sell equity
securities or equity-related securities in the future at a time and price that
we deem appropriate.
As of August 22, 2003, we had 8,780,374 shares of Common Stock outstanding
(not including 575,791 shares of Common Stock reserved for conversion of Series
A Convertible Preferred Stock, 197,031 shares of Common Stock reserved for
conversion of Series B Convertible Preferred Stock, 708,998 shares of Common
Stock reserved for conversion of Series C Convertible Preferred Stock, 720,474
shares of Common Stock reserved for exercise of outstanding options and
3,047,862 shares of Common Stock reserved for exercise of outstanding warrants
held by certain investors). Of the shares outstanding, 5,751,040 shares of
Common Stock are freely tradable without restriction. All of the remaining
3,029,334 shares are restricted from resale, except pursuant to certain
exceptions under the Securities Act of 1933, as amended (the "Securities Act").
Potential adverse effect of outstanding Common Stock options and warrants.
We have outstanding options and warrants for the purchase of shares of our
Common Stock, which may adversely affect our ability to consummate future equity
financings. Further, the holders of such warrants and options may exercise them
at a time when we would otherwise be able to obtain additional equity capital on
more favorable terms. To the extent any such options and warrants are exercised,
the outstanding shares of our Common Stock will be diluted.
The market price of our Common Stock may experience significant volatility.
The securities markets from time to time experience significant price and
volume fluctuations unrelated to the operating performance of particular
companies. In addition, the
S-8
market prices of the common stock of many publicly traded pharmaceutical and
biotechnology companies have been and can be expected to be especially volatile.
Announcements of technological innovations or new products by us or our
competitors, developments or disputes concerning patents or proprietary rights,
publicity regarding actual or potential clinical trial results relating to
products under development by us or our competitors, regulatory developments in
both the United States and foreign countries, delays in our testing and
development schedules, public concern as to the safety of pharmaceutical drugs
or biologics and economic and other external factors, as well as
period-to-period fluctuations in our financial results, may have a significant
impact on the market price of our Common Stock. The realization of any of the
risks described in these "Risk Factors" may have a significant adverse impact on
such market prices.
We do not pay dividends on our Common Stock.
We have never declared or paid dividends on our Common Stock and we do not
intend to pay any Common Stock dividends in the foreseeable future. Our Series A
Convertible Preferred Stock, Series B Convertible Preferred Stock and Series C
Convertible Preferred Stock earn dividends of 6%, 8% and 8% per annum,
respectively, each payable semi-annually on each April 15 and October 15 while
outstanding, and which, at our option, may be paid in cash or in shares of our
Common Stock. On April 15, 2002, October 15, 2002 and April 15, 2003, we paid
dividends to the holders of our Series A Convertible Preferred Stock and on
October 15, 2002 and April 15, 2003, we paid dividends to the holders of our
Series B Convertible Preferred Stock in shares of Common Stock, with fractional
shares paid in cash.
There are limitations on the liability of our directors, and we may have to
indemnify our officers and directors in certain instances.
Our Certificate of Incorporation limits, to the maximum extent permitted
by Delaware law, the personal liability of our directors for monetary damages
for breach of their fiduciary duties as directors. Our Bylaws provide that we
will indemnify our officers and directors and may indemnify our employees and
other agents to the fullest extent permitted by law. We have entered into
indemnification agreements with our officers and directors containing provisions
that are in some respects broader than the specific indemnification provisions
under Delaware law. The indemnification agreements may require us, among other
things, to indemnify such officers and directors against certain liabilities
that may arise by reason of their status or service as directors or officers
(other than liabilities arising from willful misconduct of a culpable nature),
to advance their expenses incurred as a result of any proceeding against them as
to which they could be indemnified and to obtain directors' and officers'
insurance, if available on reasonable terms. Section 145 of the Delaware General
Corporation Law provides that a corporation may indemnify a director, officer,
employee or agent made or threatened to be made a party to an action by reason
of the fact that he or she was a director, officer, employee or agent of the
corporation or was serving at the request of the corporation, against expenses
actually and reasonably incurred in connection with such action if he or she
acted in good faith and in a manner he or she 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 no reasonable cause to believe his or her
conduct was unlawful. Delaware law does not permit a corporation to eliminate a
director's duty of care and the provisions of our Certificate of Incorporation
have no
S-9
effect on the availability of equitable remedies, such as injunction or
rescission, for a director's breach of the duty of care.
Product liability exposure may expose us to significant liability.
We face an inherent business risk of exposure to product liability and
other claims and lawsuits in the event that the development or use of our
technology or prospective products is alleged to have resulted in adverse
effects. We may not be able to avoid significant liability exposure. We may not
have sufficient insurance coverage and we may not be able to obtain sufficient
coverage at a reasonable cost. An inability to obtain product liability
insurance at acceptable cost or to otherwise protect against potential product
liability claims could prevent or inhibit the commercialization of our products.
A product liability claim could hurt our financial performance. Even if we avoid
liability exposure, significant costs could be incurred that could hurt our
financial performance.
Changes to financial accounting standards may affect our reported results of
operations.
We prepare our financial statements in conformity with U.S. accounting
principles generally accepted in the United States, or GAAP. GAAP are subject to
interpretation by the American Institute of Certified Public Accountants, the
SEC and various bodies formed to interpret and create appropriate accounting
policies. A change in those policies can have a significant effect on our
reported results and may even affect our reporting of transactions completed
before a change is announced. Accounting policies affecting many other aspects
of our business, including rules relating to the carrying value of long-lived
assets, employee stock option grants and revenue recognition have recently been
revised or are under review. Changes to those rules or the questioning of
current practices may adversely affect our reported financial results or the way
we conduct our business. In addition, our preparation of financial statements in
accordance with GAAP requires that we make estimates and assumptions that affect
the recorded amounts of assets and liabilities, disclosure of those assets and
liabilities at the date of the financial statements and the recorded amounts of
expenses during the reporting period. A change in the facts and circumstances
surrounding those estimates could result in a change to our estimates and could
impact our future operating results. Additionally, certain provisions of the
Sarbanes-Oxley Act of 2002 will impact our business. In particular, the creation
by the SEC of an independent accounting oversight board to oversee and regulate
audits will affect us and all public companies.
About this prospectus
This document is called a Prospectus and is part of a registration
statement on Form S-3 (the "Registration Statement") that we filed with the SEC
using a "shelf" registration or continuous offering process. Under this shelf
Prospectus, we may from time to time sell any combination of the securities
described in this Prospectus in one or more offerings. Together, the Company's
offerings may total up to 1,500,000 Shares. In addition, under this shelf
process, the Selling Stockholders also may from time to time collectively offer
up to 2,248,998 Shares of our Common Stock. This Prospectus provides you with a
general description of the securities we and the Selling Stockholders may offer.
We may file a prospectus supplement with the SEC via its Electronic Data
Gathering, Analysis, and Retrieval ("EDGAR") which may include a discussion of
any risk factors or other special considerations applicable to those securities.
A
S-10
prospectus supplement may also add, update or change information in this
Prospectus. If there is any inconsistency between the information in this
Prospectus and any prospectus supplement, you should rely on the information in
the prospectus supplement. You should read both this Prospectus and any
prospectus supplement together with the additional information described under
the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION;
INCORPORATION OF DOCUMENTS BY REFERENCE
We file annual, quarterly and current reports, proxy statements and other
documents with the Securities and Exchange Commission (the "SEC"), under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). You may read
and copy any materials that we file with the SEC at the SEC's Public Reference
Room at 450 Fifth Street, N.W., Washington, D.C. 20549, at 233 Broadway, 16th
Floor, New York, New York 10279 and at Northwest Atrium Center, 5000 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. You may obtain
information on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. Our reports, proxy statements and other documents filed
electronically with the SEC are available at the website maintained by the SEC
at http://www.sec.gov. We also make available free of charge on or through our
Internet website, http://www.immtech-international.com, our annual, quarterly
and current reports, and, if applicable, amendments to those reports, filed or
furnished pursuant to Section 13(a) of the Exchange Act, as soon as reasonably
practicable after we electronically file such reports with the SEC. Information
on our website is not a part of this report.
We have filed with the SEC a registration statement on Form S-3 (the
"Registration Statement") under the Securities Act with respect to the Shares.
This Prospectus, which constitutes a part of that Registration Statement, does
not contain all the information contained in that Registration Statement and its
exhibits. For further information with respect to the Company and the Shares,
you should consult the Registration Statement and its exhibits. The Registration
Statement and any of its amendments, including exhibits filed as a part of the
Registration Statement or an amendment to the Registration Statement, are
available for inspection and copying through the SEC's public reference rooms
listed above.
The SEC allows us to "incorporate by reference" in this Prospectus the
information that we file with them, which means we can disclose important
information to you by referring you to other documents that contain that
information. The information we incorporate by reference is considered to be
part of this Prospectus and information we later file with the SEC will
automatically update and supersede the information in this Prospectus. The
following documents filed by us with the SEC pursuant to Section 13 of the
Exchange Act (File No. 000-25669) and any future filings under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act made before the termination of the
offering are incorporated by reference herein:
(i) our Annual Report on Form 10-K for the fiscal year ended March 31,
2003 and Form 10-Q for the quarter ended June 30, 2003;
(ii) the description of our Common Stock contained in our registration
statement filed with the SEC via Edgar under Section 12 of the
Exchange Act on April 29, 1999, including any amendments or reports
filed for the purpose of updating such description;
S-11
(iii) our definitive Proxy Statement pursuant to Section 14(A) of the
Exchange Act for our 2002 Annual Meeting of the Shareholders; and
(iv) all other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual
Report referenced in (i) above.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment indicating that
all securities offered hereby have been sold or deregistering all securities
then remaining unsold are expressly incorporated by reference into this
Prospectus and to be a part of this Prospectus from the date of filing of such
documents.
Statements made in this Prospectus, in any prospectus supplement or in any
document incorporated by reference in this Prospectus as to the contents of any
contract or other document are not necessarily complete, and in each instance we
refer you to the copy of the contract or other document filed as an exhibit to
the Registration Statement of which this Prospectus is a part or as an exhibit
to the documents incorporated by reference. Each statement about the contents of
any contract or other document is qualified in all material respects by
reference to such contract or other document.
We will provide to you a copy of any document incorporated by reference in
this Prospectus and any exhibits specifically incorporated by reference in those
documents at no cost. You may request copies by contacting us at the following
address or telephone numbers: Corporate Secretary, Immtech International, Inc.,
150 Fairway Drive, Suite 150, Vernon Hills, Illinois, 60061, Telephone No.:
(847) 573-0033 or toll free (877) 898-8038.
Any statement incorporated or deemed incorporated herein by reference will
be deemed to be modified or superseded for the purpose of the Registration
Statement and this Prospectus to the extent that a statement contained in this
Prospectus or in any subsequently filed document modifies or supersedes such
statement. Any such statement so modified or superseded will not be deemed,
except as so modified or superseded, to constitute a part of the Registration
Statement or this Prospectus.
FORWARD-LOOKING STATEMENTS
Certain statements contained in this Prospectus and in the documents
incorporated by reference in this Prospectus constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. All statements other than statements of historical fact may be deemed
to be forward-looking statements. Forward-looking statements frequently, but not
always, use the words "intends," "plans," "believes," "anticipates" or "expects"
or similar words and may include statements concerning our strategies, goals and
plans. Forward-looking statements involve a number of significant risks and
uncertainties that could cause our actual results or achievements or other
events to differ materially from those reflected in such forward-looking
statements. Such factors include, among others described in the Prospectus, the
following: (i) we are in an early stage of product development, (ii) our
technology is in the research and development stage and therefore its potential
benefits for human therapy are unproven, (iii) the possibility that favorable
relationships with collaborators cannot be established or, if established, will
be abandoned by the collaborators before
S-12
completion of product development, (iv) the possibility that we or our
collaborators will not successfully develop any marketable products, (v) the
possibility that advances by competitors will cause our product candidates not
to be viable, (vi) uncertainties as to the requirement that a drug product may
not be found to be safe and effective after extensive clinical trials and the
possibility that the results of such trials, if completed, will not establish
the safety or efficacy of our drug product candidates, (vii) risks relating to
requirements for approvals by governmental agencies, such as the Food and Drug
Administration, before products can be marketed and the possibility that such
approvals will not be obtained in a timely manner or at all or will be
conditioned in a manner that would impair our ability to market our product
candidates successfully, (viii) the risk that our patents could be invalidated
or narrowed in scope by judicial actions or that our technology could infringe
upon the patent or other intellectual property rights of third parties, (ix) the
possibility that we will not be able to raise adequate capital to fund our
operations through the process of commercializing a successful product or that
future financing will be completed on unfavorable terms, (x) the possibility
that any products successfully developed by us will not achieve market
acceptance and (xi) other risks and uncertainties that may not be described
herein. We undertake no obligation except as required by securities law to
update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise in this Prospectus.
THE COMPANY
AN INVESTMENT IN THE SECURITIES OFFERED BY THIS PROSPECTUS INVOLVES A HIGH
DEGREE OF RISK. PROSPECTIVE INVESTORS SHOULD CONSIDER CAREFULLY THE INFORMATION
PROVIDED UNDER "RISK FACTORS" BEGINNING ON PAGE S-1. A GLOSSARY WHICH DEFINES
VARIOUS TERMS USED IN THIS PROSPECTUS BEGINS ON PAGE S-22.
We are a pharmaceutical company focused on the development and
commercialization of oral drugs to treat infectious diseases. The Company has
development programs that include fungal infections, Malaria, Tuberculosis,
Diabetes, Hepatitis C, Pneumocystis carinii pneumonia ("PCP") and tropical
medicine diseases, including African sleeping sickness (a parasitic disease also
known as Trypanosomiasis) and Leishmaniasis (a parasitic disease that destroys
the liver). We hold worldwide patents, patent applications, licenses and rights
to license worldwide patents, patent applications and technologies from a
scientific consortium and exclusive rights to commercialize products from those
patents and licenses that are integral to our business.
Since our formation in October 1984, we have engaged in research and
development programs, expanding our network of scientists and scientific
advisors, licensing technology agreements and advancing the commercialization of
the dication technology platform. We use the expertise and resources of
strategic partners and third parties in a number of areas, including (i)
research and development, (ii) pre-clinical and human clinical trials and (iii)
manufacture of pharmaceutical drugs. We have licensing and exclusive
commercialization rights to a dicationic pharmaceutical platform and are
developing drugs intended for commercial use based on that platform. Dication
pharmaceutical drugs work by blocking life-sustaining enzymes from binding to
key sites in the "minor groove" of an organism's deoxyribonucleic acid ("DNA"),
killing the infectious organisms that cause fungal, parasitic, bacterial and
viral diseases. The key site on an organism's DNA is an area where enzymes
interact with the infectious organism's DNA as part
S-13
of their normal life cycle. Structurally, dications are chemical molecules that
have two positively charged ends held together by a chemical linker. The
composition of the dications, with positive charges on both ends (shaped like
molecular barbells), allows dications to bind (similar to a band-aid) to the
negatively charged key sites of an infectious organism's DNA. The bound
dications block life sustaining enzymes from attaching to the DNA's key sites,
thereby killing the infectious organism.
The dication technology is the result of a research program developed by
scientists at UNC, Georgia State University, Duke University and Auburn
University (collectively, the "Scientific Consortium"). We entered into an
agreement with the Scientific Consortium, dated January 15, 1997, as amended,
and a License Agreement, dated as of January 28, 2002 (collectively, the
"Consortium Agreement"), to commercialize product candidates resulting from the
Scientific Consortium's research, including the dication technology.
USE OF PROCEEDS
We intend to use the proceeds of the sale of Shares under this Prospectus
by the Company for general corporate purposes, including for research,
development and commercialization efforts. We will not receive any of the
proceeds from the sale of the Shares offered by the Selling Stockholders under
this Prospectus.
SELLING STOCKHOLDERS
The Selling Stockholders other than Pacific Dragons Group Limited
("Pacific"), Champion Traders Investments Limited ("Champion"), Wyndham
Associates Ltd. ("Wyndham"), Gladden Consultants Ltd. ("Gladden"), Fulcrum
Holdings of Australia, Inc. ("Fulcrum"), China Harvest Limited ("China Harvest")
and Mr. David Tat-Koon Shu ("Mr. Shu") listed below acquired our Series C Stock
in private placements between June 6-9, 2003. Such Selling Stockholders have the
right to acquire Shares (i) upon conversion of the Series C Stock or (ii) upon
issuance of Common Stock as stock dividends to holders of Series C Stock,
granted to them in connection with their participation in the private
placements.
Between June 6-9, 2003, the Selling Stockholders purchased in the
aggregate 125,352 shares of our Series C Stock for gross proceeds to us of
$3,133,800. Subject to adjustment for dilution protection, each share of Series
C Stock is convertible into 5.6561 shares of Common Stock, 708,998 shares in the
aggregate. The Series C Stock earns an 8% per annum dividend payable
semi-annually each April 15th and October 15th, in cash or Common Stock at the
Company's option for so long as any Series C Stock remains outstanding. If
Common Stock is to be used to pay the Series C Stock dividend, such Common Stock
is to be valued at the 10-day volume-weighted average closing-bid price
immediately prior to the date of payment. We agreed to use reasonable efforts to
register the resale by the Selling Stockholders of the Shares of Common Stock
issuable upon conversion of the Series C Stock within 180 days after the date of
purchase of the Series C Stock, and to keep such registration effective for the
lesser of one year or until all of such Shares are sold.
In connection with the formation of Immtech Hong Kong Limited on January
13, 2003, we issued 30,000 shares of Common Stock to each of Pacific and
Champion, respectively, for
S-14
their assistance with the agreement. We have agreed to register the resale by
Pacific and Champion of the Common Stock and to keep the registration effective
for the lesser of one year or until all of such shares of Common Stock are sold.
On March 21, 2003, we entered into an agreement with Wyndham for
assistance to be provided to identify potential strategic partners and to assist
us to raise up to $20 million in equity financing. For its services, Wyndham's
compensation included 220,000 shares of our Common Stock.
On March 21, 2003, we entered into media production agreements with
"winmaxmedia," an operating division of Winmax Trading Group, Inc., to produce
digital and video media materials to be used in connection with our fundraising
efforts. In connection with the services rendered we issued 100,000 shares of
our Common Stock to Gladden, one of the vendors providing services under the
media production agreement.
On March 21, 2003 we entered into an agreement with Fulcrum to provide to
us services and products including website design, multimedia content, custom
customer relations software and increased media and investor exposure. In
connection with the services rendered we issued to Fulcrum (i) 100,000 shares of
our common stock, (ii) a warrant to purchase 100,000 shares of our Common Stock
exercisable at $6.00 per share, to vest ratably over 12 months and to expire at
the latest in two years, (iii) a warrant to purchase 125,000 shares of Common
Stock exercisable at $10.00 per share with all other terms the same as (ii)
above and (iv) a warrant to purchase 125,000 shares of our Common Stock
exercisable at $15.00 per share with all other terms the same as (ii) above.
On July 16, 2003, we entered into a consulting arrangement with China
Harvest for services to be provided to assist the Company and its subsidiaries
to obtain regulatory approval to conduct human clinical trials with the
Company's product candidates in the People's Republic of China. For its
services, China Harvest was granted a warrant to purchase 600,000 shares of our
Common Stock exercisable at $6.08, with a five year exercise period.
On July 16, 2003, we entered into a Consulting Agreement with Mr. Shu for
services to be provided to assist the Company in the formation of a subsidiary
and to gain regulatory approvals to enter into human clinical trials of our lead
compound, DB289, for treatment of various diseases in the People's Republic of
China. For his services, Mr. Shu was granted 10,000 shares of our Common Stock.
On July 25, 2003, we entered into a second consulting arrangement with
Fulcrum for services to be provided to assist the Company to list its Common
Sock on a recognized securities exchange. For its services, Fulcrum was granted
100,000 shares of Common Stock upon such listing.
The following table sets forth for each Selling Stockholder the number of
Shares being registered by this Prospectus. No Selling Stockholder has been an
officer, director or employee of Immtech for the past three years. Because the
Selling Stockholders may offer all, some or none of their Shares, we cannot
provide a definitive estimate of the number of Shares they will hold after such
registration. This Prospectus is filed at our expense.
S-15
Underlying
Shares of Shares
Series C Common Beneficially Shares Percent
Name Stock Warrants Stock Owned Registered of Class(1)
------------------------------------- -------- -------- ---------- ------------ ---------- -----------
China Harvest Limited 0 600,000 600,000 600,000 600,000 6.40%
Fulcrum Holdings of Australia Limited 0 350,000 550,000 550,000 550,000 5.92%
Wyndham Associates Ltd. 0 220,000 220,000 220,000 2.51%
Gladden Consultants Ltd 0 100,000 100,000 100,000 1.14%
Vivienne Lee 9,200 52,036 132,658 52,036 1.50%
Ma Fa On 6,400 36,199 36,199 36,199 * %
Tao Wai Ling 5,800 32,805 32,805 32,805 * %
Cheung Ming Tak 5,800 32,805 34,970 32,805 * %
Pacific Dragons Group Limited 0 30,000 330,000 30,000 3.63%
Champion Traders Investments Limited 0 30,000 30,000 30,000 * %
Cheung Shuk Kwan 4,800 27,149 27,149 27,149 * %
Monet Capital Fund I, LP 4,800 27,149 27,149 27,149 * %
Tsang Wai Ping Alfred 4,400 24,887 58,214 24,887 * %
Sanford Goldfarb 4,000 22,624 22,624 22,624 * %
Lau Chu 4,000 22,624 41,846 22,624 * %
Cheung Yuk Chor Dickie 4,000 22,624 125,184 22,624 1.41%
Donald H. Wong 3,400 19,231 33,001 19,231 * %
Chan Chee Wing 3,200 18,100 68,338 18,100 * %
Tefa Capital, Inc. 3,200 18,100 18,100 18,100 * %
Liu Yuk Tong and Wong Gum Wing
Caroline 3,000 16,968 16,968 16,968 * %
Val Busler 2,800 15,837 21,749 15,837 * %
Li Lo Kwong 2,600 14,706 17,706 14,706 * %
Jerry Sorkin 2,600 14,706 17,731 14,706 * %
Lau Kin Yip 2,400 13,575 13,575 13,575 * %
Ho Siu Man 2,120 11,991 11,991 11,991 * %
Lau Mei Yin Amy 2,080 11,765 22,098 11,765 * %
Shum Kit Ching 2,080 11,765 11,765 11,765 * %
Fukoku Asset Management Ltd. 2,000 11,312 89,263 11,312 1.02%
John R. Harrington and John R
Harrington, Jr. Trust 3,800 21,493 107,013 21,493 1.21%
Hui Chin Ki 2,000 11,312 28,934 11,312 * %
Mao Frank Tsao Yu 2,000 11,312 11,312 11,312 * %
Richard M. Schaeffer 2,000 11,312 11,312 11,312 * %
Wingpearl Investments Ltd. 2,000 11,312 111,512 11,312 1.27%
Mak Wah 1,920 10,860 10,860 10,860 * %
John J. Orlando 1,800 10,181 22,181 10,181 * %
Target Profits Securities Limited 1,768 10,000 10,000 10,000 * %
Chan Yu Ching 1,768 10,000 10,000 10,000 * %
Wong Hon Fai Jones 1,768 10,000 18,156 10,000 * %
John Neal 1,768 10,000 10,000 10,000 * %
David Tat-Koon Shu 0 10,000 10,000 10,000 * %
Lee Hon Kit Raymond 1,600 9,050 12,550 9,050 * %
S-16
Underlying
Shares of Shares
Series C Common Beneficially Shares Percent
Name Stock Warrants Stock Owned Registered of Class(1)
------------------------------------- -------- -------- ---------- ------------ ---------- -----------
Ho Cho Chuen 1,600 9,050 9,050 9,050 * %
Li Wai Yin 1,600 9,050 9,050 9,050 * %
Thomas J. Krupp II 1,200 6,787 6,787 6,787 * %
Raymond Carbone 1,000 5,656 13,656 5,656 * %
Richard H. Harrington 1,000 5,656 12,656 5,656 * %
Scott Hess 1,000 5,656 11,050 5,656 * %
John Ketcham 1,000 5,656 10,656 5,656 * %
Michael Strada 1,000 5,656 10,397 5,656 * %
Chan Pui Ling Juliana 800 4,525 6,625 4,525 * %
Dwight B. Crane 800 4,525 28,192 4,525 * %
James M. Florsheim Trust Account #1 800 4,525 15,117 4,525 * %
Sum Lan Hing 480 2,715 2,715 2,715 * %
John J. Coonan 400 2,262 8,704 2,262 * %
Yeung Lai 400 2,262 2,262 2,262 * %
Stephen Carter 400 2,262 2,262 2,262 * %
Ho Mei Yee 400 2,262 2,262 2,262 * %
Lam Yuk Ying 400 2,262 2,262 2,262 * %
Michael Dundas 400 2,262 2,262 2,262 * %
Lau Wai Wah Richard 400 2,262 2,262 2,262 * %
Lo Mo On 400 2,262 2,262 2,262 * %
Salvatore Picciallo 400 2,262 2,262 2,262 * %
Michael Volpe 400 2,262 7,524 2,262 * %
Martin Boyle 200 1,131 8,018 1,131 * %
-------- -------- ---------- ------------ ----------
Totals 125,352 950,000 2,248,998 2,248,998
(1) The corresponding percentages are the quotient of (x) the number of shares
beneficially owned and (y) the sum of the 8,780,374 shares of Common Stock
outstanding, the number shares of Common Stock issuable upon conversion of
Series A Stock, Series B Stock and Series C Stock and such holder's
options and warrants exercisable within 60 days of the date of
calculation.
* Less than 1.00%.
DESCRIPTION OF CAPITAL STOCK
General
The following descriptions are summaries of the material terms of our
capital stock. You should refer to the applicable provisions of Delaware law,
our Amended and Restated Certificate of Incorporation, our Certificate of
Designation Series A Convertible Preferred Stock, our Certificate of Designation
Series B Convertible Preferred Stock, our Certificate of Designation Series C
Convertible Preferred Stock, our Bylaws and, if applicable, any prospectus
supplement filed with the SEC via EDGAR, for additional information about our
capital stock. See "Where You Can Find More Information."
S-17
Under our Certificate of Incorporation, as amended, our authorized capital
stock consists of:
30,000,000 shares of Common Stock; and
5,000,000 shares of preferred stock, par value $0.01 per share.
As of August 22, 2003, we had 8,780,374 shares of Common Stock outstanding
(not including 575,791 shares of Common Stock reserved for conversion of Series
A Stock, 197,031 Shares of Common Stock reserved for conversion of Series B
Stock, 708,998 Shares of Common Stock reserved for conversion of Series C Stock,
720,474 shares of Common Stock reserved for exercise of outstanding options and
3,047,862 shares of Common Stock reserved for exercise of outstanding warrants
held by certain investors). Of the shares of Common Stock outstanding, 5,751,040
shares of Common Stock are freely tradable without restriction. All of the
remaining 3,029,334 shares are restricted from resale except pursuant to certain
exceptions under the Securities Act. All of the Common Stock underlying the
outstanding Series C Stock is registered by this Prospectus.
Common Stock
Our Common Stock is traded on the American Stock Exchange LLC ("AMEX")
under the symbol "IMM." Each share of our Common Stock entitles the holder to
one vote on all matters on which holders are permitted to vote. There is no
cumulative voting for election of directors. Accordingly, the holders of a
majority of the shares voted can elect all of the nominees for director.
Subject to preferences that may be applicable to any outstanding series of
preferred stock, the holders of our Common Stock are entitled to dividends when,
as and if declared by the Board of Directors out of funds legally available for
that purpose. Upon liquidation, dissolution or winding up, subject to
preferences that may be applicable to any outstanding series of preferred stock,
the holders of our Common Stock are entitled to a pro rata share in any
distribution to stockholders. Our Common Stock has no preemptive or conversion
rights or other subscription rights. There are no redemption or sinking fund
provisions applicable to our Common Stock. All outstanding shares of our Common
Stock are fully paid and non-assessable.
Series A Stock
Our Series A Stock is not registered under the Securities Act. Each share
of Series A Stock has a stated value of $25.00 and an initial conversion rate of
$4.42, subject to adjustment for dilution protection, which initially equals
5.6561 shares of Common Stock per share of Series A Stock. Our Series A Stock
earns a 6% per annum dividend payable in cash or shares of Common Stock, at the
Company's option, on each April 15th and October 15th so long as any Series A
Stock remains outstanding. The Company has the right (i) to redeem some or all
of the Series A Stock any time after 30 days' notice at the stated value plus
accrued and unpaid dividends or (ii) to convert some or all of the Series A
Stock into Common Stock upon 30 days' notice any time after February 14, 2003
(x) at the stated value plus accrued and unpaid dividends if the closing bid
price for our Common Stock exceeds $9.00 for 20 consecutive "trading days" (days
the principal exchange on which the Common Stock is listed or traded is open for
business
S-18
or, if the Common Stock is no longer listed or traded on an exchange, business
days) within 180 days prior to notice of conversion or (y), if the requirements
of (x) are not met, at 110% of the stated value plus accrued and unpaid
dividends. Holders of Series A Stock have the right to convert their Series A
Stock to Common Stock during the above-mentioned 30-day notice periods.
Series B Stock
Our Series B Convertible Preferred Stock is not registered under the
Securities Act. Each share of Series B Convertible Preferred Stock has a stated
value of $25.00 and an initial conversion rate of $4.00, subject to adjustment
for dilution protection, which initially equals 6.25 shares of Common Stock per
share of Series B Stock. Our Series B Stock earns an 8% per annum dividend
payable in cash or shares of Common Stock, at the Company's option, on each
April 15th and October 15th so long as any Series B Stock remains outstanding.
The Company has the right (i) to redeem some or all of the Series B Stock any
time after 30 days' notice at the stated value plus accrued and unpaid dividends
or (ii) to convert some or all of the Series B Stock into Common Stock upon 30
days' notice any time after September 25, 2003 (x) at the stated value plus
accrued and unpaid dividends if the closing bid price for our Common Stock
exceeds $9.00 for 20 consecutive "trading days" (defined above) within 180 days
prior to notice of conversion or (y), if the requirements of (x) are not met, at
110% of the stated value plus accrued and unpaid dividends. Holders of Series B
Stock have the right to convert their Series B Stock to Common Stock during the
above-mentioned 30-day notice periods.
Series C Stock
Our Series C Convertible Preferred Stock is not registered under the
Securities Act. Each share of Series C Convertible Preferred Stock has a stated
value of $25.00 and an initial conversion rate of $4.42, subject to adjustment
for dilution protection, which initially equals 5.6561 shares of Common Stock
per share of Series C Stock. Our Series C Stock earns an 8% per annum dividend
payable in cash or shares of Common Stock, at the Company's option, on each
April 15th and October 15th so long as any Series C Stock remains outstanding.
The Company has the right (i) to redeem some or all of the Series C Stock any
time after 30 days' notice at the stated value plus accrued and unpaid dividends
or (ii) to convert some or all of the Series C Stock into Common Stock upon 30
days' notice any time after May 31, 2004 (x) at the stated value plus accrued
and unpaid dividends if the closing bid price for our Common Stock exceeds $9.00
for 20 consecutive "trading days" (defined above) within 180 days prior to
notice of conversion or (y), if the requirements of (x) are not met, at 110% of
the stated value plus accrued and unpaid dividends. Holders of Series C Stock
have the right to convert their Series C Stock to Common Stock during the
above-mentioned 30-day notice periods.
PLAN OF DISTRIBUTION
The distribution of the Shares described in this Prospectus may be
effected from time to time in one or more transactions either (a) at a fixed
price or prices, which may be changed, (b) at market prices prevailing at the
time of sale, (c) at prices relating to the prevailing market prices or (d) at
negotiated prices. We, and any Selling Stockholders may offer and sell the
Shares described in this Prospectus (i) through agents, (ii) through one or more
underwriters or
S-19
dealers, (iii) through a block trade in which the broker or dealer engaged to
handle the block trade will attempt to sell the securities as agent, but may
position and resell a portion of the block as principal to facilitate the
transaction, (iv) directly to one or more purchasers (through a specific bidding
or auction process or otherwise), (v) in "at the market offerings," within the
meaning of Rule 415(a)(4) of the Securities Act, (vi) through a combination of
any of these methods of sale, or (vii) at a fixed exchange ratio in return for
other of our securities.
To our knowledge, the Selling Stockholders have not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of the Shares, nor is there an underwriter or
coordinating broker acting in connection with the proposed sales of Shares by
the Selling Stockholders. Any Shares covered by this Prospectus that qualify for
sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144
rather than pursuant to this Prospectus. We will pay all costs and expenses
incurred in connection with the registration of the Shares offered by this
Prospectus. Any brokerage commissions and similar selling expenses attributable
to the sale of Shares by the Selling Stockholders will be borne by the Selling
Stockholders.
We have agreed to indemnify the Selling Stockholders and the Selling
Stockholders' respective officers, directors, employees and agents, and each
person who controls such Selling Stockholders, in certain circumstances against
certain liabilities, including liabilities arising under the Securities Act, and
the Selling Stockholders have agreed to indemnify us and our directors and
officers in certain circumstances against certain liabilities, including
liabilities arising under the Securities Act, in each case in connection with
this offering.
We or the Selling Stockholders may solicit offers to purchase the Shares
directly and we or the Selling Stockholders may sell the Shares directly to
institutional or other investors. We or the Selling Stockholders may enter into
agreements with agents, underwriters and dealers under which we or the Selling
Stockholders may agree to indemnify the agents, underwriters and dealers against
certain liabilities, including liabilities under the Securities Act, or to
contribute to payments they may be required to make with respect to these
liabilities. Some of the agents, underwriters or dealers, or their affiliates
may be customers of, engage in transactions with or perform services for us or
the Selling Stockholders in the ordinary course of business.
If we or any Selling Stockholders offer and sell Shares through an
underwriter or underwriters, then we or the Selling Stockholders will execute an
underwriting agreement with the underwriter or underwriters. The names of the
specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transactions, including compensation of the
underwriters and dealers, which may be in the form of discounts, concessions or
commissions, if any, will be described in a prospectus supplement, if
applicable, which will be used by the underwriters to make resales of the
Shares. If the Selling Stockholders offer and sell the Shares through a dealer,
then the Selling Stockholders or an underwriter will sell the Shares to the
dealer, as principal. The dealer may then resell the Shares to the public at
varying prices to be determined by the dealer at the time of resale.
We or the Selling Stockholders may grant underwriters who participate in
the distribution of the Shares an option to purchase additional Shares to cover
over-allotments, if any, in connection with the distribution.
S-20
The Selling Stockholders, dealers acting in connection with the offering
and brokers executing sell orders on behalf of one or more Selling Stockholders
may be deemed to be "underwriters" within the meaning of the Securities Act. In
addition, any such broker or dealer may be required to deliver a copy of this
Prospectus to any person who purchases any of the Shares from or through such
broker or dealer.
LEGAL MATTERS
Legal matters in connection with the validity of the Shares offered by
this Prospectus will be passed upon for the Company by Cadwalader, Wickersham &
Taft, New York, New York.
EXPERTS
The financial statements incorporated in this Prospectus by reference from
the Company's Annual Report on Form 10-K have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR
SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, the Company has been advised that
in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
S-21
GLOSSARY
As used in this Prospectus, the following terms have the meanings set
forth below.
AIDS Acquired immune deficiency syndrome, a disease caused by a
virus.
DB289 The designation given to our lead dication.
Dication A chemical molecule with two positively charged ends that are
held together by a chemical linker. Dications bind to the DNA
of infectious organisms.
DNA A type of molecule made up of polymerized deoxyribonucleotides
linked together by phosphate bonds.
ELA Establishment License Application
FDA U.S. Food and Drug Administration.
FDCA Federal Food, Drug, and Cosmetic Act as Amended
HCV Hepatitis C virus, or HCV, is one of the viruses that causes
acute and chronic hepatitis. Persons who are chronically
infected with Hepatitis C are at an increased risk for the
development of cirrhosis and liver cancer.
HIV HIV is the human immunodeficiency virus most researchers
believe causes AIDS.
IND Investigational New Drug Application, or IND, is a document
required to be filed with the FDA prior to performing clinical
studies on human subjects in the United States.
Leishmaniasis An infection caused by a protozoal parasite that affects the
skin and abdominal organs, causing ulcers or skin disorders
that resemble leprosy.
PCP Pneumocystis carinii pneumonia ("PCP") is a protozoal
infection of the lungs, and most common of the AIDS-associated
diseases.
Phase I Clinical testing in which the safety and pharmacological
profile of a new drug is established in humans.
Phase II Clinical testing in which the effectiveness of a new drug is
established in humans. This includes establishing the dose
amount and frequency required to achieve a therapeutic effect,
the metabolic rate of the administered drug and the toxicity
profile in specific patient populations.
PLA Product License Application
TB A disease caused by bacteria, Mycobacterium tuberculosis, that
is transmitted by breathing in or eating infected droplets,
usually affecting the lungs, although infection of other organ
systems can occur.
Trypanosomiasis An infection caused by a protozoal parasite and transmitted
usually by insect bites. Also known as African sleeping
sickness.
S-22
==================================== ====================================
TABLE OF CONTENTS IMMTECH INTERNATIONAL, INC.
RISK FACTORS.....................S-1 3,748,998 Shares
ABOUT THIS PROSPECTUS...........S-10 Common Stock
WHERE YOU CAN FIND MORE
INFORMATION; INCORPORATION OF ------------------------------------
DOCUMENTS BY REFERENCE..........S-11 PROSPECTUS
FORWARD-LOOKING STATEMENTS......S-12 ------------------------------------
THE COMPANY.....................S-13
USE OF PROCEEDS.................S-14 August 27, 2003
SELLING STOCKHOLDERS............S-14
DESCRIPTION OF CAPITAL STOCK....S-17
PLAN OF DISTRIBUTION............S-19
LEGAL MATTERS...................S-21
EXPERTS.........................S-21
INTERESTS OF NAMED EXPERTS AND
COUNSEL.........................S-21
GLOSSARY........................S-22
UNTIL OCTOBER 6, 2003, ALL DEALERS
THAT EFFECT TRANSACTIONS IN THESE
SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS OFFERING, MAY
BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE DEALERS'
OBLIGATION TO DELIVER A PROSPECTUS
WHEN ACTING AS UNDERWRITERS AND WITH
RESPECT TO THEIR UNSOLD ALLOTMENTS
OR SUBSCRIPTIONS.
==================================== ====================================
S-23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth our estimates of the expenses to be
incurred in connection with the offering of the Shares of Common Stock being
offered hereby:
SEC registration fee: $ 4,585.80
Printing expenses:* $ 2,000.00
Legal fees and expenses:* $25,000.00
Accounting fees and expenses:* $10,000.00
Miscellaneous expenses:* $ 5,000.00
----------
TOTAL: $46,585.80
==========
----------
* Estimated.
We will pay all costs and expenses incurred in connection with the
registration of the Shares. Any brokerage commissions and similar selling
expenses attributable to the sale of Shares by the Selling Stockholders will be
borne by the Selling Stockholders.
Item 15. Indemnification of Directors and Officers.
Limitation of Director's Liability
Our Bylaws reduce the liability of directors to the fullest extent
permissible under Delaware law. Delaware law permits a corporation to limit the
personal liability of a director to the corporation or its shareholders for
monetary damages for breach of certain fiduciary duties as a director, provided
that the director's liability may not be eliminated or limited for: (a) breaches
of the director's duty of loyalty to the corporation or its shareholders; (b)
acts or omissions not in good faith or involving intentional misconduct or
knowing violations of law; (c) the payment of unlawful dividends or unlawful
stock repurchases or redemptions; or (d) transactions in which the director
received an improper personal benefit. A director's liability may also not be
limited for violation of, or otherwise relieve the corporation or its directors
from the necessity of complying with, federal or state securities laws or affect
the availability of non-monetary remedies such as injunctive relief or
rescission.
Indemnification of Officers and Directors
The provisions of our Bylaws relating to indemnification require that we
indemnify our directors and executive officers to the fullest extent permitted
under Delaware law, provided that we may modify the extent of such
indemnification by individual contracts with our directors and executive
officers, and provided, further, that we will not be required to indemnify any
director or executive officer in connection with a proceeding initiated by such
person, with certain
S-24
exceptions. Delaware law, our Bylaws, and any indemnity agreements may also
permit indemnification for liabilities arising under the Securities Act or the
Exchange Act.
Item 16. Exhibits and Financial Statement Schedules.
See the Exhibit Index immediately following the Signature Page to this
Registration Statement.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described in Item 15 above, or otherwise, the
Company has been advised that in the opinion of the SEC 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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.
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 this registration statement (or the most recent
post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering price may be reflected in the form of
prospectus filed with the Commission under Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement.
S-25
Provided, however, that paragraphs (1)(i) and (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 us pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered by this Registration
Statement, 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.
(4) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's Annual Report under Section 13(a) or 15(d) of the Exchange Act that
is incorporated by reference into this Registration Statement shall be deemed to
be a new Registration Statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
S-26
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as
amended, the Company certifies that it has reasonable grounds to believe that it
meets all of the requirements of filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, hereunto
duly authorized, in the City of Vernon Hills, State of Illinois, on August 27,
2003.
IMMTECH INTERNATIONAL, INC.
By: /s/ T. Stephen Thompson
------------------------------------
T. Stephen Thompson
President, Chief Executive Officer
and Director
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints T. Stephen Thompson his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and the documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, as
amended, this Registration Statement was signed by the following persons in the
capacities and on the dates stated.
Signatures Title Date
------------------------------ ----------------------------- ---------------
/s/ T. Stephen Thompson President, Chief Executive
-------------------------- Officer and Director
T. Stephen Thompson (Principal Executive Officer) August 27, 2003
/s/ Gary C. Parks Chief Financial Officer,
-------------------------- Treasurer and Secretary
Gary C. Parks (Principal Financial August 27, 2003
and Accounting Officer)
/s/ Cecilia Chan
-------------------------- Executive Vice President
Cecilia Chan and Director August 27, 2003
/s/ Harvey R. Colten, M.D.
--------------------------
Harvey R. Colten, M.D. Director August 27, 2003
/s/ Eric L. Sorkin
--------------------------
Eric L. Sorkin Director August 27, 2003
/s/ Frederick W. Wackerle
--------------------------
Frederick W. Wackerle Director August 27, 2003
By: /s/ T. Stephen Thompson
--------------------------
T. Stephen Thompson
Attorney-In-Fact
Index to Exhibits
Exhibit Description
------- -----------
4.1(1) Form of Common Stock Certificate
4.2(2) Certificate of Designation, Series A Convertible Preferred Stock
4.3(3) Certificate of Designation, Series B Convertible Preferred Stock
4.4(4) Certificate of Designation, Series C Convertible Preferred Stock
4.5(4) Form of Regulation D Subscription Agreement for June 6-9, 2003
Private Placements
4.6(4) Form of Regulation S Subscription Agreement for June 6-9, 2003
Private Placements
5.1(5) Opinion of Cadwalader, Wickersham & Taft
23.1(5) Consent of Deloitte & Touche LLP dated August 25, 2003
23.2(5) Consent of Cadwalader, Wickersham & Taft (included in Exhibit 5.1)
24.1(5) Powers of Attorney (included on Signature Page to this Registration
Statement)
(1) Incorporated by reference to Amendment No. 2 to the Company's Registration
Statement on Form SB-2 (Registration Statement No. 333-64393), as filed
with the Securities and Exchange Commission on March 30, 1999.
(2) Incorporated by reference to the Company's Current Report on Form 8-K, as
filed with the Securities and Exchange Commission on February 14, 2002.
(3) Incorporated by reference to the Company's Current Report on Form 8-K, as
filed with the Securities and Exchange Commission on September 25, 2002.
(4) Incorporated by reference to the Company's Current Report on Form 8-K, as
filed with the Securities and Exchange Commission on June 10, 2003.
(5) Filed herewith.