As filed with the Securities and Exchange Commission on April 5, 2004
Registration No. 333-106048
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Alteon Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation of Organization)
13-3304550
(I.R.S. Employer Identification No.)
6 Campus Drive
Parsippany, New Jersey 07054
(201) 934-5000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Kenneth I. Moch
President and Chief Executive Officer
Alteon Inc.
6 Campus Drive
Parsippany, New Jersey 07054
(201) 934-5000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
------------------------
Copy to:
Marsha E. Novick, Esq.
Stevens & Lee, P.C.
600 College Road East
Princeton, New Jersey 08540
(609) 243-9111
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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 of the Securities
Act of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
EXPLANATORY NOTE
Alteon Inc. is filing this Post-Effective Amendment No. 1 to the
Registration Statement solely for the purpose of adding the following paragraph
after the first paragraph of the section of the prospectus captioned "Plan of
Distribution."
"We may engage BNY Capital Markets, Inc. to act as an underwriter or
agent in an at-the-market offering of our common stock."
In addition, the prospectus contained in this Post-Effective Amendment
No. 1 has been updated to reflect the information incorporated by reference
herein from the Registrant's Annual Report on Form 10-K for the year ended
December 31, 2003.
ALTEON INC.
COMMON STOCK
$100,000,000
This prospectus will allow us to issue our common stock from time to
time. This means we will provide a prospectus supplement each time we issue
securities; the prospectus supplement will inform you about the specific terms
of that offering and also may add, update or change information contained in
this document. You should read this document and any prospectus supplement
carefully before you invest.
Our common stock is traded on The American Stock Exchange under the
symbol "ALT." On March 31, 2004 the last reported sale price of the common stock
was $1.80 per share.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is April 5, 2004.
TABLE OF CONTENTS
Page No.
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Alteon Inc.............................................. 3
Risk Factors............................................ 4
Forward-Looking Statements.............................. 11
Use of Proceeds......................................... 11
Plan of Distribution.................................... 12
Dividend Policy......................................... 12
Legal Matters........................................... 12
Experts................................................. 12
Where You Can Find More Information..................... 12
Incorporation of Certain Documents by Reference......... 13
2
ALTEON INC.
We are a product-based biopharmaceutical company engaged in the
discovery and development of small molecule drugs to reverse or slow down
diseases of aging and complications of diabetes. Our product candidates
represent novel approaches to some of the largest pharmaceutical markets. Our
lead compound is in clinical development; several others are in earlier
development stages. These pharmaceutical candidates were developed as a result
of our research on the Advanced Glycation End-Products ("A.G.E.") pathway, a
fundamental pathological process and inevitable consequence of aging that causes
or contributes to many medical disorders, including cardiovascular, kidney and
eye diseases.
A.G.E.s are glucose/protein complexes that form as a result of
circulating blood glucose reacting with proteins. These A.G.E. complexes
subsequently interact and bond (crosslink) with other proteins, resulting in
"hardened" (stiffened) arteries, toughened tissues and impaired flexibility and
function of many body organs. In healthy individuals, this pathological
A.G.E.-formation process occurs slowly as the body ages. In diabetic patients,
the rate of A.G.E. accumulation and the extent of protein crosslinking are
accelerated because of high glucose levels.
Our research and drug development activities targeting the A.G.E.
pathway have taken three directions: the breaking of A.G.E. crosslinks between
proteins in order to reverse damage ("A.G.E. Crosslink Breakers"); the
prevention or inhibition of A.G.E. formation ("A.G.E.-Formation Inhibitors") and
the reduction of the A.G.E. burden through a novel class of anti-hyperglycemic
agents, Glucose Lowering Agents ("GLA"). We believe that we were the first
company to focus on the development of compounds to treat diseases caused by
A.G.E. formation and crosslinking. Since our inception, we have created an
extensive library of novel compounds targeting the A.G.E. pathway, and have
actively pursued patent protection for these discoveries.
The primary focus of our research and development activities is
alagebrium chloride (formerly ALT-71l), which is our lead product candidate and
we believe the only A.G.E. Crosslink Breaker in advanced clinical development.
In February, 2004, the United States Adopted Name (USAN) Council approved
alagebrium chloride as the generic name of the chemical compound formerly known
as ALT-711. Alagebrium offers the possibility of the first therapeutic approach
to "breaking" A.G.E. crosslinks, the benefit of which may be to reverse tissue
damage caused by aging and diabetes, thereby restoring flexibility and function
to tissues, blood vessels and organs of the body. Alagebrium has demonstrated
safety and efficacy in three Phase 2 trials and several Phase 1 studies in which
over 800 patients received alagebrium in clinical trials. We are actively
developing the compound for the treatment of cardiovascular diseases including
systolic hypertension and heart failure. In July 2003, we announced initial
results from the Phase 2b SAPPHIRE (Systolic And Pulse Pressure Hemodynamic
Improvement by Restoring Elasticity) and SILVER (Systolic Hypertension
Interaction with Left VEntricular Remodeling) trial that focused on patients
with systolic hypertension. Alagebrium was safe and well tolerated at all doses
tested. Results from this 768 patient, six-month, placebo-controlled,
dose-ranging study showed that although the pre-specified primary endpoint of
reduction of systolic blood pressure by office cuff pressure measurement did not
demonstrate statistical significance, as compared to placebo, pre-specified
secondary analyses of ambulatory blood pressure measurements ("ABPM") in all
patients who completed the study demonstrated a blood pressure lowering effect
at lower doses of approximately 4 mm Hg net of placebo. In February 2004, we
announced the partial results of a post hoc analysis which showed that
alagebrium treatment resulted in significant lowering of systolic blood
pressures in patients with a baseline systolic ABPM of > or = 140 mm Hg, with
little concurrent effect on diastolic blood pressure readings. The treatment
effects were greatest in patients with higher starting systolic blood pressure
readings.
The DIAMOND (Distensibility Improvement And ReMOdeliNg in Diastolic
Heart Failure) open-label, single dose trial of alagebrium was conducted in 23
patients with diastolic heart failure ("DHF"). Treatment with alagebrium over 16
weeks demonstrated a statistically significant reduction in left ventricular
mass and a marked improvement in left ventricular diastolic filling. The trial
also showed statistically significant improvements in multiple quality of life
measurements. Pre-specified primary endpoint data was not evaluable. Patients
with Class III heart failure at baseline, the sickest patients in the study,
appeared to benefit the most from alagebrium treatment. Side effects were as
expected for a similar patient population of this size and severity. In 2001, we
conducted a Phase 2a clinical trial, in which 93 patients received alagebrium or
placebo tablets once daily for eight weeks. Study results showed that alagebrium
patients experienced a statistically significant and clinically meaningful
reduction in pulse pressure (p<0.02), defined as the difference between systolic
and diastolic blood pressures. Results also showed a statistically significant
increase in large artery compliance (p<0.03), an indicator of greater vascular
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flexibility and volume capacity. Additionally, the drug was well tolerated. This
Phase 2a data was published as "breakthrough information" in the September 26,
2001 issue of the peer-reviewed journal, Circulation: Journal of the American
Heart Association.
In March 2004, we initiated SPECTRA (Systolic Pressure Efficacy and
Safety Trial of Alagebrium), a Phase 2b trial in patients with systolic
hypertension. An additional Phase 2 trial in diastolic dysfunction in heart
failure is expected to be initiated in the first half of 2004.
We continue to evaluate potential pre-clinical studies and clinical
trials in other cardiovascular and therapeutic indications where A.G.E.
Crosslink Breaker compounds may address significant unmet needs. In addition, we
plan to continue to explore the use of topical A.G.E. Crosslink Breakers in skin
and photoaging, following our recent evaluation of ALT-744. We intend to
identify other crosslink breaker compounds in our research and development
portfolio with more attractive characteristics than those of ALT-744 to further
explore the pharmaceutical applications of our compounds for skin and
photoaging.
We were incorporated in Delaware in October 1986 under the name
Geritech Inc. Our name was changed to Alteon Inc. in August 1991. We recently
moved our headquarters to 6 Campus Drive, Parsippany, New Jersey 07054. Our web
address is www.alteon.com, and our telephone number is (201) 934-5000. We make
available free of charge through our internet website our annual reports on Form
10-K, our quarterly reports on Form 10-Q, our current reports on Form 8-K and
amendments to these reports filed or furnished pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 as soon as reasonably practicable
after we electronically file such material with the United States Securities and
Exchange Commission ("SEC").
RISK FACTORS
Investment in our common stock involves substantial risks, including
those described below. You should purchase our common stock only if you can
afford to lose your entire investment. You should carefully consider all of the
information included in this prospectus to evaluate us and our business. You
should make this evaluation before deciding whether to purchase our common
stock. You should understand that additional risks which we cannot predict at
this time may have negative impact on us in the future. You should also
understand that the risks discussed below might affect us more than or in a
different manner than we now predict.
IF WE DO NOT OBTAIN SUFFICIENT ADDITIONAL FUNDING TO MEET OUR NEEDS, WE MAY HAVE
TO CURTAIL OR DISCONTINUE THE RESEARCH, PRODUCT DEVELOPMENT, PRE-CLINICAL
TESTING AND CLINICAL TRIALS OF SOME OR ALL OF OUR PRODUCT CANDIDATES.
As of December 31, 2003, we had working capital of $15,033,000,
including $16,679,000 of cash and cash equivalents. Our cash used in operations
for the year ended December 31, 2003 was $15,906,000.
We believe that our lead compound, alagebrium, is the only A.G.E.
Crosslink Breaker in advanced human testing. Several Phase 2 clinical trials
have been completed: the DIAMOND, the SAPPHIRE and SILVER trial in systolic
hypertension and a trial in cardiovascular compliance. Based on evidence of
alagebrium's demonstrated efficacy and biological activity in these Phase 2
trials, as well as a strong and consistent safety profile, we are proceeding
with Phase 2 development of alagebrium in two major cardiovascular indications,
systolic hypertension and heart failure. We continue to work with our external
advisors to determine the appropriate clinical development strategy and
timeline.
We expect to utilize cash to fund our operations and to initiate new
Phase 2 trials in systolic hypertension and diastolic dysfunction in heart
failure during the first half of 2004. The first of the Phase 2 trials was
initiated in March 2004, SPECTRA, a Phase 2b trial in patients with systolic
hypertension. Based on our projected spending levels, including these trials,
which are expected to continue into 2005, we do not currently have adequate cash
and cash equivalents to complete the trials or complete the 2004 fiscal year and
therefore will require additional funding during 2004. As a result, throughout
2004 and 2005, we will monitor our liquidity position and the status of our
clinical trials. If we are unsuccessful in our efforts to raise additional funds
through the sale of additional equity securities, we will be required to
significantly reduce or curtail our research and product development activities,
including the number of patients enrolled in our trials, and other operations if
our level of cash and cash equivalents fall below pre-determined levels. We have
the intent and ability to quickly and significantly reduce the cash burn
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rate, if necessary, as we have limited fixed commitments. We believe that such
curtailment actions, if needed, will enable us to fund our operations into early
2005.
The amount and timing of our future capital requirements will depend on
numerous factors, including the progress of our research and development
programs, the conduct of pre-clinical tests and clinical trials, the development
of regulatory submissions, the costs associated with protecting patents and
other proprietary rights, the development of marketing and sales capabilities
and the availability of third-party funding.
We will require, over the long-term, substantial new funding to pursue
development and commercialization of alagebrium and our other product candidates
to continue our operations. We believe that satisfying these capital
requirements over the long-term will require successful commercialization of our
product candidates, particularly alagebrium. However, it is uncertain whether
any products will be approved or will be commercially successful.
Because of our near-term and long-term capital requirements, we will
seek access to the public or private equity markets whenever conditions are
favorable. This may have the effect of materially diluting the current holders
of our outstanding stock. We may also seek additional funding through corporate
collaborations and other financing vehicles, potentially including off-balance
sheet financing through limited partnerships or corporations. There can be no
assurance that such funding will be available at all or on terms acceptable to
us. If adequate funds are not available, we may be required to curtail
significantly one or more of our research or development programs. If we obtain
funds through arrangements with collaborative partners or others, we may be
required to relinquish rights to certain of our technologies or product
candidates. If we are unable to obtain the necessary funding, we may need to
cease operations.
IF WE DO NOT SUCCESSFULLY DEVELOP ANY PRODUCTS, WE MAY NOT DERIVE ANY REVENUES.
We have not yet requested or received regulatory approval for any
product from the FDA or any other regulatory body. All of our product
candidates, including our lead candidate, alagebrium, are still in research or
clinical development. We may not succeed in the development and marketing of any
therapeutic or diagnostic product. We do not have any product other than
alagebrium in active clinical development, and there can be no assurance that we
will be able to bring any other compound into clinical development. To achieve
profitable operations, we must, alone or with others, successfully identify,
develop, introduce and market proprietary products. Such products will require
significant additional investment, development and pre-clinical and clinical
testing prior to potential regulatory approval and commercialization.
The development of new pharmaceutical products is highly uncertain and
subject to a number of significant risks. Potential products that appear to be
promising at early stages of development may not reach the market for a number
of reasons. Potential products may be found ineffective or cause harmful side
effects during pre-clinical testing or clinical trials, fail to receive
necessary regulatory approvals, be difficult to manufacture on a large scale, be
uneconomical, fail to achieve market acceptance or be precluded from
commercialization by proprietary rights of third parties. We may not be able to
undertake additional clinical trials. In addition, our product development
efforts may not be successfully completed, we may not obtain regulatory
approvals, and our products, if introduced, may not be successfully marketed or
achieve customer acceptance. We do not expect any of our products, including
alagebrium, to be commercially available for a number of years, if at all.
CLINICAL TRIALS REQUIRED FOR OUR PRODUCT CANDIDATES ARE TIME-CONSUMING, AND
THEIR OUTCOME IS UNCERTAIN.
Before obtaining regulatory approvals for the commercial sale of any of
our products under development, we must demonstrate through pre-clinical studies
and clinical trials that the product is safe and effective for use in each
target indication. The length of time necessary to complete clinical trials
varies significantly and may be difficult to predict. Factors which can cause
delay or termination of our clinical trials include: (i) slower than expected
patient enrollment due to the nature of the protocol, the proximity of patients
to clinical sites, the eligibility criteria for the study, competition with
clinical trials for other drug candidates or other factors; (ii) lower than
expected retention rates of patients in a clinical trial; (iii) inadequately
trained or insufficient personnel at the study site to assist in overseeing and
monitoring clinical trials; (iv) delays in approvals from a study site's review
board; (v) longer treatment time required to demonstrate effectiveness or
determine the appropriate product dose; (vi) lack
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of sufficient supplies of the product candidate; (vii) adverse medical events or
side effects in treated patients; (viii) lack of effectiveness of the product
candidate being tested, and (ix) regulatory changes.
Even if we obtain positive results from pre-clinical or clinical trials
for a particular product, we may not achieve the same success in future trials
of that product. In addition, some or all of the clinical trials we undertake
may not demonstrate sufficient safety and efficacy to obtain the requisite
regulatory approvals, which could prevent the creation of marketable products.
Our product development costs will increase if we have delays in testing or
approvals, if we need to perform more or larger clinical trials than planned or
if our trials are not successful. Delays in our clinical trials may harm our
financial results and the commercial prospects for our products.
IF WE ARE UNABLE TO DERIVE REVENUES FROM PRODUCT SALES, WE MAY NEVER BE
PROFITABLE.
All of our revenues to date have been generated from collaborative
research agreements and financing activities or interest income earned on these
funds. We have not received any revenues from product sales. We may not realize
product revenues on a timely basis, if at all.
At December 31, 2003, we had an accumulated deficit of $187,619,000. We
anticipate that we will incur substantial, potentially greater, losses in the
future. Our products under development may not be successfully developed and our
products, if successfully developed, may not generate revenues sufficient to
enable us to earn a profit. We expect to incur substantial additional operating
expenses over the next several years as our research, development and clinical
trial activities continue. We do not expect to generate revenues from the sale
of products, if any, for a number of years. Our ability to achieve profitability
depends, in part, on our ability to enter into agreements for product
development, obtain regulatory approval for our products and develop the
capacity, or enter into agreements, for the manufacture, marketing and sale of
any products. We may not obtain required regulatory approvals, or successfully
develop, manufacture, commercialize and market product candidates, and we may
never achieve product revenues or profitability.
PRIOR STOCK OPTION REPRICING MAY HAVE AN ADVERSE EFFECT ON OUR FUTURE FINANCIAL
PERFORMANCE.
Based on the performance of our stock and in order to bolster employee
retention, we repriced certain employee stock options on February 2, 1999. As a
result of this repricing, options to purchase 1.06 million shares of stock were
repriced and certain vesting periods related to these options were modified or
extended. This repricing may have a material adverse impact on future financial
performance based on the Financial Accounting Standards Board ("FASB")
Interpretation No. 44 ("FIN 44"), "Accounting for Certain Transactions Involving
Stock Compensation, An Interpretation of APB Opinion No. 25." This
interpretation requires us to record compensation expense or benefit, which is
adjusted every quarter, for increases or decreases in the fair value of the
repriced options based on changes in our stock price from the value at July 1,
2000, until the repriced options are exercised, forfeited or expire. The options
expire at various dates through January 2008.
IF WE ARE UNABLE TO FORM THE COLLABORATIVE RELATIONSHIPS THAT OUR BUSINESS
STRATEGY REQUIRES, THEN OUR PROGRAMS WILL SUFFER AND WE MAY NOT BE ABLE TO
DEVELOP PRODUCTS.
Our strategy for developing and deriving revenues from our products
depends, in large part, upon entering into arrangements with research
collaborators, corporate partners and others. We are seeking to establish these
relationships to provide the funding necessary for continuation of our product
development, but if such efforts may not be successful, our programs may suffer
and we may be unable to develop products.
IF WE ARE ABLE TO FORM OUR COLLABORATIVE RELATIONSHIPS, BUT ARE UNABLE TO
MAINTAIN THEM, OUR PRODUCT DEVELOPMENT MAY BE DELAYED AND DISPUTES OVER RIGHTS
TO TECHNOLOGY MAY RESULT.
We may form collaborative relationships that will, in some cases, make
us dependent upon outside partners to conduct pre-clinical testing and clinical
trials and to provide adequate funding for our development programs. Such
corporate partners, if any, may have all or a significant portion of the
development and regulatory approval responsibilities. Failure of the corporate
partners to develop marketable products or to gain the appropriate regulatory
approvals on a timely basis, if at all, would have a material adverse effect on
our business, financial condition and results of operations.
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In most cases, we will not be able to control the amount and timing of
resources that our corporate partners devote to our programs or potential
products. If any of our corporate partners breached or terminated its agreement
with us or otherwise failed to conduct its collaborative activities in a timely
manner, the pre-clinical or clinical development or commercialization of product
candidates or research programs could be delayed, and we would be required to
devote additional resources to product development and commercialization or
terminate certain development programs.
Disputes may arise in the future with respect to the ownership of
rights to any technology we develop with third parties. These and other possible
disagreements between us and collaborators could lead to delays in the
collaborative research, development or commercialization of product candidates,
or could require or result in litigation or arbitration, which would be
time-consuming and expensive and would have a material adverse effect on our
business, financial condition and results of operations.
Any corporate partners we have may develop, either alone or with
others, products that compete with the development and marketing of our
products. Competing products, either developed by the corporate partners or to
which the corporate partners have rights, may result in their withdrawal of
support with respect to all or a portion of our technology, which would have a
material adverse effect on our business, financial condition and results of
operations.
IF WE CANNOT SUCCESSFULLY DEVELOP A MARKETING AND SALES FORCE OR MAINTAIN
SUITABLE ARRANGEMENTS WITH THIRD PARTIES TO MARKET AND SELL OUR PRODUCTS, OUR
ABILITY TO DELIVER PRODUCTS MAY BE IMPAIRED.
We currently have no experience in marketing or selling pharmaceutical
products. In order to achieve commercial success for any approved product, we
must either develop a marketing and sales force or, where appropriate or
permissible, enter into arrangements with third parties to market and sell our
products. We might not be successful in developing marketing and sales
capabilities. Further, we may not be able to enter into marketing and sales
agreements with others on acceptable terms, and any such arrangements, if
entered into, may be terminated. If we develop our own marketing and sales
capability, it will compete with other companies that currently have
experienced, well funded and larger marketing and sales operations. To the
extent that we enter into co-promotion or other sales and marketing arrangements
with other companies, revenues will depend on the efforts of others, which may
not be successful.
IF WE CANNOT SUCCESSFULLY FORM AND MAINTAIN SUITABLE ARRANGEMENTS WITH THIRD
PARTIES FOR THE MANUFACTURING OF THE PRODUCTS WE MAY DEVELOP, OUR ABILITY TO
DEVELOP OR DELIVER PRODUCTS MAY BE IMPAIRED.
We have no experience in manufacturing products and do not have
manufacturing facilities. Consequently, we are dependent on contract
manufacturers for the production of products for development and commercial
purposes. The manufacture of our products for clinical trials and commercial
purposes is subject to cGMP regulations promulgated by the FDA. In the event
that we are unable to obtain or retain third-party manufacturing for our
products, we will not be able to commercialize such products as planned. We may
not be able to enter into agreements for the manufacture of future products with
manufacturers whose facilities and procedures comply with cGMP and other
regulatory requirements. Our current dependence upon others for the manufacture
of our products may adversely affect our profit margin, if any, on the sale of
future products and our ability to develop and deliver such products on a timely
and competitive basis.
IF WE ARE NOT ABLE TO PROTECT THE PROPRIETARY RIGHTS THAT ARE CRITICAL TO OUR
SUCCESS, THE DEVELOPMENT AND ANY POSSIBLE SALES OF OUR PRODUCT CANDIDATES COULD
SUFFER AND COMPETITORS COULD FORCE OUR PRODUCTS COMPLETELY OUT OF THE MARKET.
Our success will depend on our ability to obtain patent protection for
our products, preserve our trade secrets, prevent third parties from infringing
upon our proprietary rights and operate without infringing upon the proprietary
rights of others, both in the United States and abroad.
The degree of patent protection afforded to pharmaceutical inventions
is uncertain and our potential products are subject to this uncertainty.
Competitors may develop competitive products outside the protection that may be
afforded by the claims of our patents. We are aware that other parties have been
issued patents and have
7
filed patent applications in the United States and foreign countries with
respect to other agents that have an effect on A.G.E.s. or the formation of
A.G.E. crosslinks. In addition, although we have several patent applications
pending to protect proprietary technology and potential products, these patents
may not be issued, and the claims of any patents, which do issue, may not
provide significant protection of our technology or products. In addition, we
may not enjoy any patent protection beyond the expiration dates of our currently
issued patents.
We also rely upon unpatented trade secrets and improvements, unpatented
know-how and continuing technological innovation to maintain, develop and expand
our competitive position, which we seek to protect, in part, by confidentiality
agreements with our corporate partners, collaborators, employees and
consultants. We also have invention or patent assignment agreements with our
employees and certain, but not all, corporate partners and consultants. Relevant
inventions may be developed by a person not bound by an invention assignment
agreement. Binding agreements may be breached, and we may not have adequate
remedies for such breach. In addition, our trade secrets may become known to or
be independently discovered by competitors.
IF WE FAIL TO OBTAIN REGULATORY APPROVALS FOR OUR PRODUCTS, THE COMMERCIAL USE
OF OUR PRODUCTS WILL BE LIMITED.
Our research, pre-clinical testing and clinical trials of our product
candidates are, and the manufacturing and marketing of our products will be,
subject to extensive and rigorous regulation by numerous governmental
authorities in the United States and in other countries where we intend to test
and market our product candidates.
Prior to marketing, any product we develop must undergo an extensive
regulatory approval process. This regulatory process, which includes
pre-clinical testing and clinical trials and may include post-marketing
surveillance of each compound to establish its safety and efficacy, can take
many years and can require the expenditure of substantial resources. Data
obtained from pre-clinical and clinical activities is susceptible to varying
interpretations that could delay, limit or prevent regulatory approval. In
addition, we may encounter delays or rejections based upon changes in FDA policy
for drug approval during the period of product development and FDA regulatory
review of each submitted NDA. We may encounter similar delays in foreign
countries. We may not obtain regulatory approval for the drugs we develop.
Moreover, regulatory approval may entail limitations on the indicated uses of
the drug. Further, even if we obtain regulatory approval, a marketed drug and
its manufacturer are subject to continuing review and discovery of previously
unknown problems with a product or manufacturer which may have adverse effects
on our business, financial condition and results of operations, including
withdrawal of the product from the market. Violations of regulatory requirements
at any stage, including pre-clinical testing, clinical trials, the approval
process or post-approval, may result in various adverse consequences, including
the FDA's delay in approving, or its refusal to approve a product, withdrawal of
an approved product from the market and the imposition of criminal penalties
against the manufacturer and NDA holder. None of our products has been approved
for commercialization in the United States or elsewhere. We may not be able to
obtain FDA approval for any products. Failure to obtain requisite governmental
approvals or failure to obtain approvals of the scope requested will delay or
preclude our licensees or marketing partners from marketing our products or
limit the commercial use of such products and will have a material adverse
effect on our business, financial condition and results of operations.
IF WE ARE NOT ABLE TO COMPETE SUCCESSFULLY WITH OTHER COMPANIES IN THE
DEVELOPMENT AND MARKETING OF CURES AND THERAPIES FOR CARDIOVASCULAR DISEASES,
DIABETES AND THE OTHER CONDITIONS FOR WHICH WE SEEK TO DEVELOP PRODUCTS, WE MAY
NOT BE ABLE TO CONTINUE OUR OPERATIONS.
We are engaged in pharmaceutical fields characterized by extensive
research efforts and rapid technological progress. Many established
pharmaceutical and biotechnology companies with resources greater than ours are
attempting to develop products that would be competitive with our products.
Other companies may succeed in developing products that are safer, more
efficacious or less costly than any we may develop and may also be more
successful than us in production and marketing. Rapid technological development
by others may result in our products becoming obsolete before we recover a
significant portion of the research, development or commercialization expenses
incurred with respect to those products.
Certain technologies under development by other pharmaceutical
companies could result in better treatments for cardiovascular disease, or
diabetes and its related complications. Several large companies have initiated
or expanded research, development and licensing efforts to build pharmaceutical
franchises focusing on
8
these medical conditions. It is possible that one or more of these initiatives
may reduce or eliminate the market for some of our products. In addition, other
companies have initiated research in the inhibition or crosslink breaking of
A.G.E.s.
IF GOVERNMENTS AND THIRD-PARTY PAYERS CONTINUE THEIR EFFORTS TO CONTAIN OR
DECREASE THE COSTS OF HEALTHCARE, WE MAY NOT BE ABLE TO COMMERCIALIZE OUR
PRODUCTS SUCCESSFULLY.
In certain foreign markets, pricing and/or profitability of
prescription pharmaceuticals are subject to government control. In the United
States, we expect that there will continue to be federal and state initiatives
to control and/or reduce pharmaceutical expenditures. In addition, increasing
emphasis on managed care in the United States will continue to put pressure on
pharmaceutical pricing. Cost control initiatives could decrease the price that
we receive for any products we may develop and sell in the future and have a
material adverse effect on our business, financial condition and results of
operations. Further, to the extent that cost control initiatives have a material
adverse effect on our corporate partners, our ability to commercialize our
products may be adversely affected.
Our ability to commercialize pharmaceutical products may depend, in
part, on the extent to which reimbursement for the products will be available
from government health administration authorities, private health insurers and
other third-party payers. Significant uncertainty exists as to the reimbursement
status of newly approved healthcare products, and third-party payers, including
Medicare, are increasingly challenging the prices charged for medical products
and services. Third-party insurance coverage may not be available to patients
for any products developed by us. Government and other third-party payers are
attempting to contain healthcare costs by limiting both coverage and the level
of reimbursement for new therapeutic products and by refusing in some cases to
provide coverage for uses of approved products for disease indications for which
the FDA has not granted labeling approval. If adequate coverage and
reimbursement levels are not provided by government and other third-party payers
for our products, the market acceptance of these products would be adversely
affected.
IF THE USERS OF THE PRODUCTS WE DEVELOP CLAIM THAT OUR PRODUCTS HAVE HARMED
THEM, WE MAY BE SUBJECT TO COSTLY AND DAMAGING PRODUCT LIABILITY LITIGATION,
WHICH COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR BUSINESS, FINANCIAL CONDITIONS
AND RESULTS OF OPERATIONS.
The use of any of our potential products in clinical trials and the
sale of any approved products, including the testing and commercialization of
alagebrium or other compounds, expose us to liability claims resulting from the
use of products or product candidates. Claims could be made directly by
participants in our clinical trials, consumers, pharmaceutical companies or
others. We maintain product liability insurance coverage for claims arising from
the use of our products in clinical trials. However, coverage is becoming
increasingly expensive, and we may not be able to maintain or acquire insurance
at a reasonable cost or in sufficient amounts to protect us against losses due
to liability that could have a material adverse effect on our business,
financial conditions and results of operations. We may not be able to obtain
commercially reasonable product liability insurance for any product approved for
marketing in the future and insurance coverage, and our resources may not be
sufficient to satisfy any liability resulting from product liability claims. A
successful product liability claim or series of claims brought against us could
have a material adverse effect on our business, financial condition and results
of operations.
IF WE ARE UNABLE TO ATTRACT AND RETAIN THE KEY PERSONNEL ON WHOM OUR SUCCESS
DEPENDS, OUR PRODUCT DEVELOPMENT, MARKETING AND COMMERCIALIZATION PLANS COULD
SUFFER.
We are highly dependent on the principal members of our management and
scientific staff. The loss of services of any of these personnel could impede
the achievement of our development objectives. Furthermore, recruiting and
retaining qualified scientific personnel to perform research and development
work in the future will also be critical to our success. We may not be able to
attract and retain personnel on acceptable terms given the competition between
pharmaceutical and healthcare companies, universities and non-profit research
institutions for experienced scientists. In addition, we rely on consultants to
assist us in formulating our research and development strategy. All of our
consultants are employed outside of us and may have commitments to or consulting
or advisory contracts with other entities that may limit their availability to
us.
9
RISKS RELATED TO THIS OFFERING
THE COMMON STOCK BEING OFFERED BY THIS PROSPECTUS RANKS JUNIOR TO OUR
OUTSTANDING SHARES OF PREFERRED STOCK.
In addition to our authorized but unissued shares of preferred stock,
as of March 15, 2004, we had outstanding 1,174 shares of Series G and 3,525
shares of Series H Convertible Preferred Stock. In the event of a liquidation,
dissolution or winding-up of our company, the holders of these shares of
preferred stock will have the right to receive distributions of our assets prior
to distributions to the holders of our common stock. This right could adversely
affect the voting power of common stockholders; make it more difficult for a
third party to gain control of us; discourage bids for our common stock at a
premium; or otherwise adversely affect the market price of the common stock.
THE CONVERSION OF OUR SERIES G AND SERIES H PREFERRED STOCK MAY ADVERSELY AFFECT
OUR STOCKHOLDERS.
The exact number of shares of common stock issuable upon conversion of
our Series G and Series H Preferred Stock will vary inversely with the market
price of the common stock. The holders of common stock may be materially diluted
by conversion of the Series G and Series H Preferred Stock depending on the
future market price of the common stock. The conversion price of the Series G
and Series H Preferred Stock depends on the average price of the common stock on
the American Stock Exchange for the twenty (20) business days immediately
preceding the conversion. On March 15, 2004, the conversion price was $2.086. If
this price were used to determine the number of shares of common stock issuable
upon conversion of the Series G and Series H Preferred Stock, we would issue a
total of approximately 22,527,517 shares of common stock if all shares of the
Series G and Series H Preferred Stock were converted on such date. To the extent
the average price of the common stock during the 20 business days immediately
preceding any date on which shares of the Series G and Series H Preferred Stock
are converted is higher or lower than $2.086, we would issue more or fewer
shares of common stock than reflected in this estimate, and this difference
could be material.
The number of shares of common stock to be issued upon conversion of
the Series G and Series H Preferred Stock will also depend on the number of
shares of Series G and Series H Preferred Stock issued as dividends on the
Series G and Series H Preferred Stock.
THERE MAY BE RISKS RELATED TO HAVING USED ARTHUR ANDERSEN AS OUR INDEPENDENT
AUDITOR.
Until May 30, 2002, Arthur Andersen, LLP served as our independent
auditors. Arthur Andersen is not able to consent to the use of its report on the
2001 and earlier financial statements and will not be in a position to perform
any post-audit review procedures. Should an event have occurred between the date
of Arthur Andersen's report and the date of this prospectus that could serve to
make inaccurate the statement in Arthur Andersen's report that our financial
statements present fairly, in all material respects, the financial position,
results of operations and cash flows for the periods covered by such financial
statements, in conformity with accounting principles generally accepted in the
United States, an investor might be precluded from bringing a claim against
Arthur Andersen.
FUTURE SALES BY OUR CURRENT STOCKHOLDERS MAY ADVERSELY AFFECT OUR STOCK PRICE.
As of December 31, 2003, 40,467,148 shares of our common stock, 1,174
shares of Series G Preferred Stock and 3,525 shares of Series H Preferred Stock
were issued and outstanding. In addition, options to purchase 5,979,318 shares
of common stock and warrants to purchase 1,106,174 shares of common stock were
outstanding. The sale of common stock issued upon the exercise of stock options,
the exercise of warrants, and the conversion of Series G and Series H Preferred
Stock, as well as future sales of common stock by us or by existing
stockholders, or the perception that sales could occur, could adversely affect
the market price of the common stock.
FUTURE SALES OF COMMON STOCK MAY DILUTE OUR STOCKHOLDERS.
We may sell the common stock covered by this prospectus in one or more
transactions at prices and in a manner we determine from time to time. If we
sell the common stock in more than one transaction, stockholders who purchase
stock covered by this prospectus may be materially diluted by subsequent sales
that are also covered by this prospectus. In addition, we may sell common stock
from time to time in the future in transactions not
10
covered by this prospectus. Such sales may also result in material dilution to
our stockholders.
THE PRICE OF OUR COMMON STOCK IS VOLATILE AND THE MARKET VALUE OF YOUR
INVESTMENT MAY DECREASE.
The market prices for securities of biotechnology and pharmaceutical
companies, including ours, have historically been highly volatile, and the
market has from time to time experienced significant price and volume
fluctuations that are unrelated to the operating performance of particular
companies. Factors such as fluctuations in our operating results, announcement
of technological innovations or new therapeutic products by us or others,
clinical trial results, developments concerning agreements with collaborators,
governmental regulation, developments in patent or other proprietary rights,
public concern as to the safety of drugs developed by us or others, future sales
of substantial amounts of common stock by existing stockholders and general
market conditions can have an adverse effect on the market price of the common
stock. The realization of any of the risks described in these "Risk Factors"
could have a dramatic and adverse impact on the market price of the common
stock.
ANTI-TAKEOVER PROVISIONS COULD MAKE A THIRD-PARTY ACQUISITION OF US, WHICH MAY
BE BENEFICIAL TO OUR STOCKHOLDERS, MORE DIFFICULT.
Our Certificate of Incorporation provides for staggered terms for the
members of the Board of Directors and includes a provision (the "Fair Price
Provision") that requires the approval of the holders of 80 percent of our
voting stock as a condition to a merger or certain other business transactions
with, or proposed by, a holder of 10 percent or more of our voting stock, except
in cases where certain directors approve the transaction or certain minimum
price criteria and other procedural requirements are met. We have entered into a
Stockholders' Rights Agreement pursuant to which each holder of a share of
common stock is granted a Right to purchase our Series F Preferred Stock under
certain circumstances if a person or group acquires or commences a tender offer
for 20 percent of our outstanding common stock. We have also adopted a Change in
Control Severance Benefits Plan which provides for severance benefits to
employees upon certain events of termination of employment after or in
connection with a change in control as defined in the Plan. In addition, the
Board of Directors has the authority, without further action by the
stockholders, to fix the rights and preferences of, and issue shares of,
Preferred Stock. The staggered board terms, Fair Price Provision, Stockholders'
Rights Agreement, Change in Control Severance Benefits Plan, Preferred Stock
provision and other provisions of our charter and Delaware corporate law may
discourage certain types of transactions involving an actual or potential change
in control.
FORWARD-LOOKING STATEMENTS
Statements in this prospectus that are not statements or descriptions
of historical facts are "forward-looking" statements under Section 21E of the
Securities Exchange Act of 1934, as amended, and the Private Securities
Litigation Reform Act of 1995 and are subject to numerous risks and
uncertainties. These forward-looking statements and other forward-looking
statements made by us or our representatives are based on a number of
assumptions. The words "believe," "expect," "anticipate," "intend," "estimate"
or other expressions, which are predictions of or indicate future events and
trends and which do not relate to historical matters identify forward-looking
statements. You are cautioned not to place undue reliance on these
forward-looking statements as they involve risks and uncertainties, and actual
results could differ materially from those currently anticipated due to a number
of factors, including those set forth above under Risk Factors and elsewhere in
this prospectus. The forward-looking statements represent our judgment and
expectations as of the date of this prospectus. We assume no obligation to
update any such forward-looking statements.
USE OF PROCEEDS
Each time we issue our common stock, we will provide a prospectus
supplement that will contain information about how we intend to use the net
proceeds from each offering. Unless otherwise indicated in the applicable
prospectus supplement, we intend to use the net proceeds from the sale of our
common stock for working capital and general corporate purposes.
11
PLAN OF DISTRIBUTION
We may sell the common stock covered by this prospectus in one or more
transactions, including block transactions, at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at prices determined on a negotiated
or competitive bid basis. We may sell the common stock to underwriters for
public offering, directly to investors, through agents designated from time to
time, or by such other means as may be specified in the supplement to this
prospectus. If we sell shares of the common stock to a broker-dealer acting as
principal, the broker-dealer may then resell such shares of common stock to the
public at varying prices to be determined by the broker-dealer at the time of
resale.
We may engage BNY Capital Markets, Inc. to act as an underwriter or
agent in an at-the-market offering of our common stock.
Participating agents or broker-dealers in the distribution of any of
the shares of common stock may be deemed to be "underwriters" within the meaning
of the Securities Act of 1933, as amended. Any discount or commission received
by any underwriter and any participating agents or broker-dealers, and any
profit on the resale of shares of common stock purchased by any of them may be
deemed to be underwriting discounts or commissions under the Securities Act.
To the extent required, the number of shares of common stock to be
sold, information relating to the underwriters, the purchase price, the public
offering price, if applicable, the name of any underwriter, agent or
broker-dealer, and any applicable commissions, discounts or other items
constituting compensation to such underwriters, agents or broker-dealers with
respect to a particular offering will be set forth in a supplement to this
prospectus.
DIVIDEND POLICY
We have not paid any dividends since our inception and do not
anticipate paying any dividends in the foreseeable future.
LEGAL MATTERS
The validity of the issuance of the common stock being offered hereby
has been passed upon by Smith, Stratton, Wise, Heher & Brennan, LLP. A member of
Smith, Stratton, Wise, Heher & Brennan, LLP owned 13,250 shares of our common
stock at the time it issued its opinion.
EXPERTS
The financial statements of Alteon Inc. as of December 31, 2003 and
2002, and for each of the years then ended, have been incorporated by reference
herein and in the registration statement in reliance upon the report of KPMG
LLP, independent accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is a part of a registration statement on Form S-3,
which we filed with the Securities and Exchange Commission ("SEC") under the
Securities Act. It omits some of the information set forth in the registration
statement. You can find additional information about us in the registration
statement. Copies of the registration statement are on file at the offices of
the SEC. You may obtain them by paying the prescribed fee, or you may examine
them without charge at the SEC's public reference facilities described below. We
are subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and as required by the Exchange Act, we
file reports, proxy statements and other information with the SEC. You may
inspect these reports, proxy statements and other information without charge and
copy them at the Public Reference Room maintained by the SEC at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on
the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
The information we file with the SEC is also available through the SEC's Web
Site (http://www.sec.gov) and our Web Site
12
(http://www.alteon.com).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which we have filed with the SEC, are
incorporated herein by reference:
(a) Our Annual Report on Form 10-K for the fiscal year
ended December 31, 2003.
(b) Our Current Reports on Form 8-K, filed March 15, 2004
and March 12, 2004.
(c) The description of our common stock, $.01 par value,
which is contained in our Registration Statement on Form 8-A, filed November 1,
1991, including any amendments or reports filed for the purpose of updating such
description.
(d) The description of our Rights to Purchase Series F
Preferred Stock, which is contained in our Registration Statement on Form 8-A,
filed August 4, 1995, including any amendments or reports filed for the purpose
of updating such description.
All documents, which we file under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this prospectus and prior to termination
of the offering shall be deemed to be incorporated by reference herein and to be
a part of this prospectus from the date of the filing of such documents. Any
statement contained herein or in a document incorporated by reference or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that the statement is
modified or superseded by any other subsequently filed document which is
incorporated or is deemed to be incorporated by reference herein. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
This prospectus incorporates documents by reference which are not
presented herein or delivered herewith. We will provide without charge to each
person, including any beneficial owner, to whom this prospectus is delivered, on
the written or oral request of such person, a copy of any or all of the
documents referred to above which have been or may be incorporated into this
prospectus and deemed to be a part of this prospectus, other than exhibits to
the documents unless such exhibits are specifically incorporated by reference in
the documents. These documents are available upon request from Elizabeth A.
O'Dell, Vice President, Finance, Alteon Inc., 6 Campus Drive, Parsippany, New
Jersey 07054, (201) 934-5000.
13
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
The exhibits required to be filed are listed on the "Exhibit Index"
attached hereto, which is incorporated herein by reference.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Township of Parsippany, State of New Jersey,
on April 5, 2004.
ALTEON INC.
By: /s/ Kenneth I. Moch
-------------------------------------
Kenneth I. Moch
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Kenneth I. Moch Chairman of the Board, President
---------------------------- and Chief Executive Officer April 5, 2004
Kenneth I. Moch (principal executive officer)
/s/ Elizabeth O'Dell Vice President, Finance April 5, 2004
---------------------------- Treasurer and Secretary
Elizabeth A. O'Dell (principal accounting officer)
* Director April 5, 2004
----------------------------
Edwin D. Bransome, Jr., M.D.
* Director April 5, 2004
----------------------------
Marilyn Breslow
* Director April 5, 2004
----------------------------
Alan J. Dalby
* Director April 5, 2004
----------------------------
David K. McCurdy
* Director April 5, 2004
----------------------------
Thomas A. Moore
* Director April 5, 2004
----------------------------
George M. Naimark, Ph.D.
* Director April 5, 2004
----------------------------
Mark Novitch, M.D.
* By his signature set forth below, the undersigned, pursuant to duly authorized
powers of attorney filed with the Securities and Exchange Commission, has signed
this Post-Effective Amendment No. 1 to the Registration Statement on behalf of
the persons indicated.
By: /s/ Kenneth I. Moch
-------------------------------------
Kenneth I. Moch, Attorney-in-fact
EXHIBIT INDEX
Exhibit
No. Description of Exhibit
------- -------------------------------------------------------------------------------------
4.1* Restated Certificate of Incorporation. (Incorporated by reference to Exhibit 3.1 to
the Company's Report on Form 10-Q filed on November 10, 1999, S.E.C. file Number
000-19529.)
4.2* Certificate of the Voting Powers, Designations, Preference and Relative
Participating, Optional and Other Special Qualifications, Limitations or
Restrictions of Series F Preferred Stock of the Company. (Incorporated by reference
to Exhibit 3.2 to the Company's Annual Report on Form 10-K for the year ended
December 31, 2000, S.E.C. File Number 001-16043.)
4.3* Certificate of Retirement of Stock of Alteon Inc. dated September 10, 1999.
(Incorporated by reference to Exhibit 3.1 to the Company's Report on Form 10-Q filed
on November 10, 1999, S.E.C. File Number 000-19529.)
4.4* Certificate of Designations of Series G Preferred Stock of Alteon Inc. (Incorporated
by reference to Exhibit 3.4 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1997, S.E. C. File Number 000-19529.)
4.5* Certificate of Amendment of Certificate of Designations of Series G Preferred Stock
of Alteon Inc. (Incorporated by reference to Exhibit 3.4 of the Company's Report on
Form 10-Q filed on August 14, 1998, S.E. C. File Number 000-19529.)
4.6* Certificate of Designations of Series H Preferred Stock of Alteon Inc. (Incorporated
by reference to Exhibit 3.5 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1997, S.E. C. File Number 000-19529.)
4.7* Amended Certificate of Designations of Series H Preferred Stock of Alteon Inc.
(Incorporated by reference to Exhibit 3.6 to the Company's Report on Form 10-Q filed
on August 14, 1998, S.E. C. File Number 000-19529.)
4.8* Certificate of Retirement of Stock of Alteon Inc. dated November 20, 2000.
(Incorporated by reference to Exhibit 3.8 to the Company's Annual Report on Form
10-K for the year ended December 31, 2000, S.E. C. File Number 001-16043.)
4.9* Certificate of Amendment to Restated Certificate of Incorporation of Alteon Inc.
dated June 7, 2001. (Incorporated by reference to Exhibit 3.8 to the Company's
Report on Form 10-Q filed on August 14, 2001, S.E.C. File Number 001-16043.)
4.10* Stockholders' Rights Agreement dated as of July 27, 1995, between Alteon Inc. and
Registrar and Transfer Company, as Rights Agent. (Incorporated by reference to
Exhibit 4.1 to the Company's Annual Report on Form 10-K for the year ended December
31, 2000, S.E. C. File Number 001-16043.)
4.11* Amendment to Stockholders' Rights Agreement between Alteon Inc. and Registrar and
Transfer Company, as Rights Agent. (Incorporated by reference to Exhibit 4.4 to the
Company's Current Report on Form 8-K filed on May 9, 1997, S.E. C. File Number
000-19529.)
4.12* Amendment to Stockholders' Rights Agreement between Alteon Inc. and Registrar and
Transfer Company, as Rights Agent. (Incorporated by reference to Exhibit 4.1 to the
Company's Current Report on Form 8-K filed on December 10, 1997, S.E.C. File Number
000-19529.)
4.13* Notice of Appointment, dated August 29, 2002, of The American Stock Transfer & Trust
Company as successor Rights Agent, pursuant to Stockholders' Rights Agreement dated
as of July 27, 1995. (Incorporated by reference to Exhibit 4.4 of the Company's
Report on Form 10-Q filed on November 13, 2002, S.E.C. File Number 001-16043.)
4.14* Bylaws, as amended. (Incorporated by reference to Exhibit 3.10 to the Company's
Annual Report on Form 10-K for the year ended December 31, 2002, S.E. C. File Number
001-16043.)
5.1* Opinion of Smith, Stratton, Wise, Heher & Brennan, LLP.
23.1 Consent of KPMG LLP, independent public accountants.
23.2* Consent of Smith, Stratton, Wise, Heher & Brennan, LLP. (Contained in Exhibit 5.1.)
24.1* Power of Attorney. (See "Power of Attorney" on signature page.)
* Previously filed.