As filed with the Securities and Exchange Commission on July 6, 2001.
REGISTRATION STATEMENT NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
AVANT IMMUNOTHERAPEUTICS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3191702
(State of Incorporation) (I.R.S. Employer Identification Number)
119 FOURTH AVENUE
NEEDHAM, MASSACHUSETTS 02494
(781) 433-0771
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
-------------------------------
UNA S. RYAN, PH.D., PRESIDENT AND CHIEF EXECUTIVE OFFICER
AVANT IMMUNOTHERAPEUTICS, INC.
119 FOURTH AVENUE
NEEDHAM, MASSACHUSETTS 02494
(781) 433-0771
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
----------------------------
COPIES TO:
STUART M. CABLE, P.C.
ETTORE A. SANTUCCI, P.C.
GOODWIN PROCTER LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective, as determined by the
Registrant.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.|_|
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. |X|
If this form is used 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
- --------------------------------------------------------------------------------------------------------------------
Title of Securities Being Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Per Aggregate Offering Registration Fee
Unit (1) Price (1)
- --------------------------------------------------------------------------------------------------------------------
Common Stock, par value 11,000,000 $6.09 $66,990,000 $16,748
$.001(2)
- --------------------------------------------------------------------------------------------------------------------
Warrants to Purchase
Common Stock(3) 1,000,000 -- -- --
- --------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) based on the average of the
high and low prices per share of the Registrant's common stock on the
Nasdaq National Market on July 5, 2001.
(2) This registration statement also relates to rights to purchase shares of
Series C-1 Junior Participating Cumulative Preferred Stock of the
Registrant which are attached to all shares of common stock issued,
pursuant to the terms of the Registrant's Shareholder Rights Agreement
dated November 10, 1994. Until the occurrence of certain prescribed
events, the rights are not exercisable, are evidenced by the
certificates for the common stock and will be transferred with and only
with such stock. Because no separate consideration is paid for the
rights, the registration fee therefor is included in the fee for the
common stock.
(3) Pursuant to Rule 457(g), because the shares of common stock issuable
upon exercise of the warrants are also being registered in this
registration statement, no additional registration fee is payable with
respect to the warrants.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
Subject to Completion, dated July 6, 2001
PROSPECTUS
AVANT IMMUNOTHERAPEUTICS, INC.
10,000,000 SHARES OF COMMON STOCK
WARRANTS TO PURCHASE 1,000,000 SHARES OF COMMON STOCK
----------------
This prospectus will allow us to issue, from time to time in one or more
offerings, (1) up to 10,000,000 shares of our common stock, (2) warrants to
purchase up to 1,000,000 shares of our common stock, and (3) the rights to
acquire our series C-1 junior participating cumulative preferred stock that are
attached to, and trade with, the common stock. The common stock and warrants may
be offered and sold separately or together in one or more series of issuances.
In this prospectus, we refer to the common stock and the warrants collectively
as the "securities." Each time we sell securities we will provide a prospectus
supplement that will contain specific information about the terms of that sale
and may add, update or change the information contained in this prospectus. You
should read this prospectus and any prospectus supplement carefully before you
invest in our securities.
Our common stock is listed on the Nasdaq National Market under the symbol
"AVAN."
SEE "RISK FACTORS" BEGINNING ON PAGE 1 FOR A DISCUSSION OF MATERIAL RISKS
THAT YOU SHOULD CONSIDER BEFORE YOU INVEST IN OUR SECURITIES.
----------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
We have not authorized any dealer, salesperson or other person to give any
information or to make any representation other than those contained or
incorporated by reference in this prospectus and any accompanying prospectus
supplement. You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or any accompanying
prospectus supplement as if we had authorized it. This prospectus and any
accompanying prospectus supplement do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor does this prospectus and any accompanying
prospectus supplement constitute an offer to sell or the solicitation of an
offer to buy securities in any jurisdiction to any person to whom it is unlawful
to make such offer or solicitation in such jurisdiction. You should not assume
that the information contained in this prospectus and any accompanying
prospectus supplement is correct on any date after their respective dates, even
though this prospectus or any prospectus supplement is delivered or securities
are sold on a later date.
----------------
The date of this prospectus is _______________, 2001
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS....................................................... 1
RISK FACTORS................................................................ 1
ABOUT AVANT................................................................. 1
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS........................... 2
USE OF PROCEEDS............................................................. 2
DESCRIPTION OF COMMON STOCK................................................. 3
DESCRIPTION OF WARRANTS..................................................... 3
PLAN OF DISTRIBUTION........................................................ 4
EXPERTS..................................................................... 6
LEGAL MATTERS............................................................... 6
WHERE YOU CAN FIND MORE INFORMATION......................................... 7
INCORPORATION OF DOCUMENTS BY REFERENCE..................................... 7
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or the SEC, utilizing a "shelf"
registration process. Under this shelf registration process, we may offer from
time to time up to 10,000,000 shares of our common stock and warrants to
purchase up to 1,000,000 shares of our common stock, either separately or in
units. This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described under the
heading "Where You Can Find More Information."
RISK FACTORS
Before you decide whether to purchase any of our securities, in
addition to the other information in this prospectus, you should carefully
consider the risk factors set forth under the heading "Risk Factors" in the
section entitled "Business" in our most recent Annual Report on Form 10-K,
which is incorporated by reference into this prospectus, as the same may be
updated from time to time by our future filings under the Securities Exchange
Act. Additional risks and uncertainties that are not yet identified or that
we think are immaterial may also materially harm our business, operating
results and financial condition and could result in a complete loss of your
investment. For more information, see the section entitled "Incorporation of
Documents by Reference."
ABOUT AVANT
We are a biopharmaceutical company that uses novel applications of
immunology to prevent and treat diseases that arise internally, including
autoimmune diseases, cardiovascular diseases, cancer and inflammation, as well
as those diseases that are triggered by external conditions, including
infectious diseases and organ transplant rejection. Our products address large
market opportunities for which current therapies are inadequate or non-existent.
We are developing our products using a broad set of technologies
that work together to regulate the body's complement system, regulate T and B
cell activity, and enable us and others to create and deliver vaccines that
prevent and treat some diseases. We are using these technologies to develop
both vaccines and immunotherapeutics that prevent or treat disease caused by
infectious organisms and drugs and vaccines that modify undesirable activity
of the body's own proteins or cells. Our products are in various stages of
research and development.
Our common stock has been quoted on the Nasdaq National Market under
the symbol "AVAN" since August 24, 1998. Prior to that time, our common stock
traded on the Nasdaq National Market, beginning May 15, 1986, under the symbol
"TCS."
Our executive offices are located at 119 Fourth Avenue, Needham,
Massachusetts 02494-2725 and our telephone number is (781) 433-0771. Additional
information regarding our company, including our audited financial statements
and descriptions of our business, is contained in the documents incorporated by
reference in this prospectus. See "Where You Can Find More Information" on page
7 and "Incorporation of Documents by Reference" on page 7.
1
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes or incorporates by reference "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of 1934, as amended.
When we use the words "may," "will," "should," "anticipate," "assume,"
"believe," "estimate," "expect," "intend" and other similar expressions, they
generally identify forward-looking statements. Forward-looking statements
include, for example, statements relating to development activities, business
strategy and prospects, future capital expenditures, sources and availability of
capital, governmental regulations and their effect on us and our competition.
You should exercise caution in interpreting and relying on
forward-looking statements since they involve known and unknown risks,
uncertainties and other factors which are, in some cases, beyond our control
and could materially affect our actual results, performance or achievements.
Important factors that could cause our actual results, performance or
achievements to differ materially from the forward-looking statements we make
or incorporate by reference in this prospectus are set forth under the
heading "Risk Factors" in the section entitled "Business" in our most recent
Annual Report on Form 10-K, as may be updated from time to time by our future
filings under the Securities Exchange Act, and elsewhere in the documents
incorporated by reference in this prospectus.
We caution you that, while forward looking statements reflect our good
faith beliefs, they are not guarantees of future performance. In addition, we
disclaim any obligation to publicly update or revise any forward-looking
statement, whether as a result of new information, future events or otherwise.
USE OF PROCEEDS
Unless we provide otherwise in a supplement to this prospectus, we
intend to use the net proceeds from the sale of our securities for one or more
of the following:
o research and clinical development activities;
o working capital;
o capital expenditures;
o potential future acquisitions; and
o other general corporate purposes.
Our management will have broad discretion in the allocation of the net
proceeds of any offering. Pending such uses, we intend to invest the net
proceeds in short-term, investment grade, interest-bearing securities.
2
DESCRIPTION OF COMMON STOCK
As of the date of the prospectus, we are authorized to issue up to
100,000,000 shares of common stock, $.001 par value per share. As of July 1,
2001, 57,364,579 shares of common stock were outstanding.
DIVIDENDS
The Board of Directors may, out of funds legally available, at any
regular or special meeting, declare dividends to the holders of shares of our
common stock as and when they deem expedient, subject to the rights of holders
of the preferred stock.
VOTING
Each share of common stock entitles the holders to one vote per share
on all matters requiring a vote of the stockholders, including the election of
directors. No holders of shares of common stock shall have the right to vote
such shares cumulatively in any election for the Board of Directors.
RIGHTS UPON LIQUIDATION
In the event of our voluntary or involuntary liquidation, dissolution,
or winding up, the holders of our common stock will be entitled to share equally
in our assets available for distribution after payment in full of all debts and
after the holders of preferred stock have received their liquidation preferences
in full.
MISCELLANEOUS
No holders of shares of our common stock shall have any preemptive
rights to subscribe for, purchase or receive any shares of any class, whether
now or hereafter authorized, or any options or warrants to purchase any such
shares, or any securities convertible into or exchanged for any such shares,
which may at any time be issued, sold or offered for sale by us.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of our common stock. Warrants
may be issued independently or together with our common stock and may be
attached to or separate from any offered securities. Each series of warrants
will be issued under a separate warrant agreement to be entered into between us
and a bank or trust company, as warrant agent. The warrant agent will act solely
as our agent in connection with the warrants and will not have any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
warrants. This summary of some provisions of the warrants is not complete. You
should refer to the warrant agreement, including the forms of warrant
certificate representing the warrants, relating to the specific warrants being
offered for the complete terms of the warrant agreement and the warrants. Such
warrant agreement, together with the terms of warrant certificate and warrants,
will be filed with the SEC in connection with the offering of the specific
warrants.
The prospectus supplement relating to a particular issue of warrants to
issue common stock will describe the terms of the warrants, including the
following:
o the title of the warrants;
o the offering price for the warrants, if any;
o the aggregate number of the warrants;
o the designation and terms of the common stock that may be purchased
upon exercise of the warrants;
3
o if applicable, the designation and terms of the securities that the
warrants are issued with and the number of warrants issued with each
security;
o if applicable, the date from and after which the warrants and any
securities issued with the warrants will be separately transferable;
o the number of shares of common stock that may be purchased upon
exercise of a warrant and the price at which the shares may be
purchased upon exercise;
o the dates on which the right to exercise the warrants commence and
expire;
o if applicable, the minimum or maximum amount of the warrants that may
be exercised at any one time;
o the currency or currency units in which the offering price, if any, and
the exercise price are payable;
o if applicable, a discussion of material United States federal income
tax considerations;
o anti-dilution provisions of the warrants, if any;
o redemption or call provisions, if any, applicable to the warrants;
o any additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants; and
o any other information we think is important about the warrants.
Each warrant will entitle the holder of the warrant to purchase the
number of shares of common stock at the exercise price as shall in each case be
set forth in, or be determinable as set forth in, the prospectus supplement
relating to the warrants offered. Warrants may be exercised at any time up to
the close of business on the expiration date set forth in the applicable
prospectus supplement. After the close of business on the expiration date,
unexercised warrants will become void. Prior to the exercise of any warrants to
purchase common stock, holders of the warrants will not have any of the rights
of holders of common stock purchasable upon exercise of the warrants, including
the right to vote on the common stock.
PLAN OF DISTRIBUTION
We may sell our securities in any one or more of the following ways:
o directly to investors;
o to investors through agents;
o to dealers;
o through underwriting syndicates led by one or more managing
underwriters; and
o through one or more underwriters acting alone.
Any underwritten offering may be on a best efforts or a firm commitment
basis. We may also make direct sales through subscription rights distributed to
our stockholders on a pro rata basis, which may or may not be transferable. In
any distribution of subscription rights to stockholders, if all of the
underlying securities are not subscribed for, we may then sell the unsubscribed
securities directly to third parties or may engage the services of one or more
underwriters, dealers or agents, including standby underwriters, to sell the
unsubscribed securities to third parties.
4
The distribution of the securities may be effected from time to time in
one or more transactions:
o at a fixed price or prices, which may be changed;
o at market prices prevailing at the time of sale;
o at prices related to such prevailing market prices; or
o at negotiated prices.
Any of the prices may represent a discount from the prevailing market prices.
Shares of common stock sold pursuant to the registration statement of
which this prospectus is a part will be authorized for quotation and trading on
the Nasdaq National Market. In the sale of the securities, underwriters or
agents may receive compensation from us or from purchasers of the securities,
for whom they may act as agents, in the form of discounts, concessions or
commissions. Underwriters may sell the securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that participate
in the distribution of the securities may be deemed to be underwriters under the
Securities Act of 1933, and any discounts or commissions they receive from us
and any profit on the resale of securities they realize may be deemed to be
underwriting discounts and commissions under the Securities Act. The applicable
prospectus supplement will, where applicable:
o identify any such underwriter or agent;
o describe any compensation in the form of discounts, concessions,
commissions or otherwise received from us by each such underwriter or
agent and in the aggregate to all underwriters and agents;
o identify the amounts underwritten; and
o identify the nature of the underwriter's obligation to take the
securities.
Until the distribution of the securities is completed, rules of the
Securities and Exchange Commission may limit the ability of any underwriters and
selling group members to bid for and purchase the securities. As an exception to
these rules, underwriters are permitted to engage in some transactions that
stabilize the price of the securities. Such transactions consist of bids or
purchases for the purpose of pegging, fixing or maintaining the price of the
securities.
If any underwriters create a short position in the securities in an
offering in which they sell more securities than are set forth on the cover page
of the applicable prospectus supplement, the underwriters may reduce that short
position by purchasing the securities in the open market.
The lead underwriters may also impose a penalty bid on other
underwriters and selling group members participating in an offering. This means
that if the lead underwriters purchase securities in the open market to reduce
the underwriters' short position or to stabilize the price of the securities,
they may reclaim the amount of any selling concession from the underwriters and
selling group members who sold those securities as part of the offering.
In general, purchases of a security for the purpose of stabilization or
to reduce a short position could cause the price of the security to be higher
than it might be in the absence of such purchases. The imposition of a penalty
bid might also have an effect on the price of a security to the extent that it
were to discourage resales of the security before the distribution is completed.
5
We do not make any representation or prediction as to the direction or
magnitude of any effect that the transactions described above might have on the
price of the securities. In addition, we do not make any representation that
underwriters will engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
Under agreements into which we may enter, underwriters, dealers and
agents who participate in the distribution of the securities may be entitled to
indemnification by us against some liabilities, including liabilities under the
Securities Act.
Underwriters, dealers and agents may engage in transactions with us or
perform services for us in the ordinary course of business.
If indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by
particular institutions to purchase securities from us at the public offering
price set forth in such prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on the date or dates stated in such
prospectus supplement. Each delayed delivery contract will be for an amount no
less than, and the aggregate principal amounts of securities sold under delayed
delivery contracts shall be not less nor more than, the respective amounts
stated in the applicable prospectus supplement. Institutions with which such
contracts, when authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but will in all cases be subject to our
approval. The obligations of any purchaser under any such contract will be
subject to the conditions that (a) the purchase of the securities shall not at
the time of delivery be prohibited under the laws of any jurisdiction in the
United States to which the purchaser is subject, and (b) if the securities are
being sold to underwriters, we shall have sold to the underwriters the total
principal amount of the securities less the principal amount thereof covered by
the contracts. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
To comply with applicable state securities laws, the securities offered
by this prospectus will be sold, if necessary, in such jurisdictions only
through registered or licensed brokers or dealers. In addition, securities may
not be sold in some states unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
EXPERTS
The consolidated financial statements of AVANT Immunotherapeutics,
Inc. incorporated in this prospectus by reference to the Annual Report on
Form 10-K for the year ended December 31, 2000, have been so incorporated in
reliance upon the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
The financial statements of Megan Health, Inc. incorporated in this
prospectus by reference to the current Form 8-K/A, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated herein in reliance upon the
authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
Certain legal matters with respect to the securities offered pursuant
to this registration statement will be passed upon for us by Goodwin Procter
LLP, Boston, Massachusetts. Certain legal matters may be passed upon for any
agents or underwriters by counsel for such agents or underwriters identified in
the applicable prospectus supplement.
6
WHERE YOU CAN FIND MORE INFORMATION
We must comply with the informational requirements of the Securities
Exchange Act of 1934, as amended, and we are required to file reports and proxy
statements and other information with the Securities and Exchange Commission.
You may read and copy these reports, proxy statements and other information at
the public reference facilities maintained by the Securities and Exchange
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, and at the Securities and Exchange Commission's Regional Offices at
7 World Trade Center, 13th Floor, New York, New York 10048, and Citicorp Center,
500 W. Madison Street, Suite 1400, Chicago, Illinois 60661-2511. You may also
obtain copies at the prescribed rates from the Public Reference Section of the
Securities and Exchange Commission at its principal office in Washington, D.C.
You may call the Securities and Exchange Commission at 1-800-SEC-0330 for
further information about the public reference rooms. The Securities and
Exchange Commission maintains a web site that contains reports, proxy and
information statements and other information regarding issuers like us that file
electronically with the Securities and Exchange Commission. You may access the
Securities and Exchange Commission's web site at http://www.sec.gov.
This prospectus constitutes part of a registration statement on Form
S-3 filed under the Securities Act with respect to the securities. As permitted
by the Securities and Exchange Commission's rules, this prospectus omits some of
the information, exhibits and undertakings included in the registration
statement. You may read and copy the information omitted from this prospectus
but contained in the registration statement, as well as the periodic reports and
other information we file with the Securities and Exchange commission, at the
public reference facilities maintained by the Securities and Exchange Commission
in Washington, D.C., New York, New York and San Francisco, California.
Statements contained 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 document filed as an exhibit to the
registration statement, each such statement being qualified in all respects by
such reference.
INCORPORATION OF DOCUMENTS BY REFERENCE
The Securities and Exchange Commission allows us to incorporate by
reference in this prospectus the information that we file with them.
Incorporation by reference means that we can disclose important information to
you by referring you to other documents that are legally considered to be part
of this prospectus, and later information that we file with the Securities and
Exchange Commission will automatically update and supersede the information in
this prospectus, any supplement and the documents listed below. We incorporate
by reference the specific documents listed below and any future filings made
with the Securities and Exchange Commission under Section 13(a), 13(c), 14, or
15(d) of the Securities Exchange Act of 1934, as amended, until all of the
shares are sold:
o our Current Report on Form 10-Q filed with the Securities and Exchange
Commission on May 11, 2001;
o our Annual Report on Form 10-K for the fiscal year ended December 31,
2000, including information specifically incorporated by reference into
our Form 10-K from our definitive proxy statement for our 2001 Annual
Meeting of Stockholders;
o our Current Report on Form 8-K filed with the Securities and Exchange
Commission on December 12, 2000, Form 8-K/A filed with the Securities
and Exchange Commission on January 30, 2001 and Form 8-K/A filed
with the Securities and Exchange Commission on July 3, 2001;
o the definitive Proxy Statement for our annual meeting of stockholders
filed on March 28, 2000; and
7
o the description of the rights to purchase shares of our Series C-1
Junior Participating Cumulative Preferred Stock contained in our
Registration Statement on Form 8-A, filed on November 14, 1994,
including all amendments and reports updating that description.
We will furnish without charge to each person, including any beneficial
owner, to whom this prospectus is delivered, upon written or oral request, a
copy of any documents incorporated by reference other than exhibits to those
documents. Requests should be addressed to: 119 Fourth Avenue, Needham,
Massachusetts 02494, Attention: Corporate Secretary (telephone number (781)
433-0771).
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone to provide you with
different information. You should not assume that the information in this
prospectus or the documents incorporated by reference is accurate as of any date
other than the date on the front of this prospectus or those documents.
8
AVANT
IMMUNOTHERAPEUTICS,
INC.
----------------
PROSPECTUS
----------------
_________, 2001
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION(1).
The following are the estimated expenses of the distribution of the
shares registered hereunder on Form S-3:
Registration Fee--Securities and Exchange Commission...................$ 16,748
Accountants Fees and Expenses..........................................$ 6,000
Legal Fees and Expenses................................................$ 20,000
Printing Expenses......................................................$ 4,000
Miscellaneous..........................................................$ 2,000
Total..................................................................$ 48,748
- ------------------
(1) The amounts set forth above, except for the SEC Registration Fee, are
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
AVANT is a Delaware corporation. In accordance with the Delaware
General Corporation Law (the "DGCL"), Article Six of the Registrant's Third
Restated Certificate of Incorporation, as amended, provides that no director of
the Registrant shall be personally liable to the Registrant or its stockholders
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to AVANT or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
The DGCL permits, but does not require, a corporation to indemnify its
directors, officers, employees or agents and expressly provides that the
indemnification provided for under the DGCL shall not be deemed exclusive of any
indemnification right under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The DGCL permits indemnification against
expenses and certain other liabilities arising out of legal actions brought or
threatened against such persons for their conduct on behalf of the corporation,
provided that each such person acted in good faith and in a manner that he or
she reasonably believed was in or not opposed to the corporation's best
interests and in the case of a criminal proceeding, had no reasonable cause to
believe his or her conduct was unlawful. The DGCL does not allow indemnification
of directors in the case of an action by or in the right of the corporation
(including stockholder derivative suits) unless the directors successfully
defend the action or indemnification is ordered by the court. The Amended and
Restated Bylaws of AVANT (the "Bylaws") provide for indemnification to the
directors, officers, employees and agents of AVANT consistent with that
authorized by the DGCL. Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended, may be permitted to directors and
officers of AVANT pursuant to the foregoing provision or otherwise, AVANT has
been advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities
Exchange Act of 1934, as amended, and is therefore, unenforceable.
AVANT currently carries a directors' and officers' liability insurance
policy which provides for payment of expenses of AVANT's directors and officers
in connection with threatened, pending or completed actions, suits or
proceedings against them in their capacities as directors and officers, in
accordance with the Bylaws and the DGCL.
II-1
ITEM 16. EXHIBITS.
EXHIBIT
NO. DESCRIPTION
1.1* Form(s) of Underwriting Agreement(s).
4.1 Third Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-4 (Reg. No. 333-59215)).
4.2 Certificate of Amendment of Third Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit 3.1 of
the Company's Registration Statement on Form S-4 (Reg. No.
333-59215)).
4.3 Certificate of Designation for series C-1 Junior Participating
Cumulative Preferred Stock (incorporated herein by reference to
Exhibit 3.1 of the Company's Registration Statement on Form S-4
(Reg. No. 333-59215)).
4.4 Second Certificate of Amendment of Third Restated Certificate of
Incorporation of the Company (incorporated herein by reference to
Exhibit 3.2 of the Company's Registration Statement on Form S-4
(Reg. No. 333-59215)).
4.5 Amended and Restated By-Laws of the Company as of November 10,
1994 (incorporated herein by reference to Exhibit 3.3 of the
Company's Registration Statement on Form S-4 (Reg. No.
333-59215)).
4.6* Form of Warrant.
4.7* Form of Warrant Agreement.
5.1 Opinion of Goodwin Procter LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Goodwin Procter LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page hereto).
99.1 Agreement and Plan of Merger, dated as of November 20, 2000,
between the Company, AVANT Acquisition Corp. and Megan Health,
Inc. (incorporated herein by reference to Exhibit 2.1 of the
Company's Current Report of Form 8-K, dated December 12, 2000
(File No. 000-15006)).
99.2 Stock Purchase Agreement dated as of December 1, 2000 by and
between the Company and Pfizer Inc. (incorporated herein by
reference to Exhibit 10.12 of the Company's Annual Report of Form
10-K, dated March 27, 2001 (File No. 000-15006)).
- -------------------------------------------------------------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K.
II-2
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. 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 range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% 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 the registration statement or
any material change to such information in the registration statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the undersigned registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the 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 therein, and the
offering of such securities at that time to be the initial BONA FIDE
offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Needham, Commonwealth of Massachusetts, on July 6,
2001.
AVANT IMMUNOTHERAPEUTICS, INC.
By: /s/ Una S. Ryan, Ph.D.
-------------------------------------
Una S. Ryan, Ph.D.
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated, each of whom also constitutes and appoints Una S. Ryan and
Avery W. Catlin, and each of them singly, his true and lawful attorney-in-fact
and agent, for him, 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 to this Registration Statement, and to file the same and all exhibits
thereto and any other documents in connection therewith with the Securities and
Exchange Commission, granting unto each attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that each attorney-in-fact and
agent or his substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
SIGNATURE TITLE DATE
/s/ Una S. Ryan, Ph.D. President, Chief Executive Officer and July 6, 2001
- ------------------------------ Director (Principal Executive Officer)
Una S. Ryan, Ph.D.
/s/ J. Barrie Ward, Ph.D. Chairman July 6, 2001
- ------------------------------
J. Barrie Ward, Ph.D.
/s/ Avery W. Catlin Senior Vice President, July 6, 2001
- ------------------------------ Chief Financial Officer and Treasurer
Avery W. Catlin (Principal Financial Officer and
Principal Accounting Officer)
/s/ Harry H. Penner, Jr. Director July 6, 2001
- ------------------------------
Harry H. Penner, Jr.
/s/ Peter A. Sears, Esq. Director July 6, 2001
- ------------------------------
Peter A. Sears, Esq.
/s/ Thomas R. Ostermueller Director July 6, 2001
- ------------------------------
Thomas R. Ostermueller
/s/ Karen Shoos Lipton Director July 6, 2001
- ------------------------------
Karen Shoos Lipton
/s/ Frederick W. Kyle Director July 6, 2001
- ------------------------------
Frederick W. Kyle
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
1.1* Form(s) of Underwriting Agreement(s).
4.1 Third Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-4 (Reg. No. 333-59215)).
4.2 Certificate of Amendment of Third Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit 3.1 of
the Company's Registration Statement on Form S-4 (Reg. No.
333-59215)).
4.3 Certificate of Designation for series C-1 Junior Participating
Cumulative Preferred Stock (incorporated herein by reference to
Exhibit 3.1 of the Company's Registration Statement on Form S-4
(Reg. No. 333-59215)).
4.4 Second Certificate of Amendment of Third Restated Certificate of
Incorporation of the Company (incorporated herein by reference to
Exhibit 3.2 of the Company's Registration Statement on Form S-4
(Reg. No. 333-59215)).
4.5 Amended and Restated By-Laws of the Company as of November 10,
1994 (incorporated herein by reference to Exhibit 3.3 of the
Company's Registration Statement on Form S-4 (Reg. No.
333-59215)).
4.6* Form of Warrant.
4.7* Form of Warrant Agreement.
5.1 Opinion of Goodwin Procter LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Goodwin Procter LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page hereto).
99.1 Agreement and Plan of Merger, dated as of November 20, 2000,
between the Company, AVANT Acquisition Corp. and Megan Health,
Inc. (incorporated herein by reference to Exhibit 2.1 of the
Company's Current Report of Form 8-K, dated December 12, 2000
(File No. 000-15006)).
99.2 Stock Purchase Agreement dated as of December 1, 2000 by and
between the Company and Pfizer Inc. (incorporated herein by
reference to Exhibit 10.12 of the Company's Annual Report of Form
10-K, dated March 27, 2001 (File No. 000-15006)).
- --------------------------------------------------------------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K.
GOODWIN PROCTER Goodwin Procter LLP T: 617.570.1000
Counsellors at Law F: 617.523.1231
Exchange Place goodwinprocter.com
Boston, MA 02109
Exhibit 5.1
July 6, 2001
AVANT Immunotherapeutics, Inc.
119 Fourth Avenue
Needham, Massachusetts 02494
Attn: Dr. Una S. Ryan
Re: Legality of Securities to be Registered under
Registration Statement on Form S-3
-----------------------------------------
Ladies and Gentlemen:
This opinion is delivered in connection with the registration statement
on Form S-3 (the "Registration Statement") pursuant to the Securities Act of
1933, as amended (the "Securities Act"), relating the sale from time to time of
10,000,000 shares of common stock, par value $.001 per share ("Common Stock"),
1,000,000 warrants to purchase shares of Common Stock ("Warrants") and the
rights (the "Rights") to purchase shares of Series C-1 Junior Participating
Cumulative Preferred Stock, which are attached to all shares of Common Stock
(collectively, the "Securities"), of AVANT Immunotherapeutics, Inc., a Delaware
corporation (the "Company"). The Registration Statement provides that the
Securities may be offered separately or together, in separate series, in
amounts, at prices and on terms to be set forth on one or more prospectus
supplements (each a "Prospectus Supplement") to the Prospectus contained in the
Registration Statement.
In connection with rendering this opinion, we have examined the
Certificate of Incorporation and the Bylaws of the Company, each as amended to
date; such records of the corporate proceedings of the Company as we have deemed
material; a registration statement on Form S-3 under the Securities Act relating
to the Securities, and the prospectus contained therein; and such other
certificates, receipts, records and documents as we considered necessary for the
purposes of this opinion. We express no herein opinion concerning the laws of
any jurisdiction other than the laws of the United States of America and The
Commonwealth of Massachusetts and the Delaware General Corporation Law.
Based upon the foregoing, we are of the opinion that (i) when the
Securities are specifically authorized for issuance by the Company's Board of
Directors or an authorized committee thereof (the "Authorizing Resolution"),
(ii) upon receipt by the Company of the full consideration therefor as provided
in the Authorizing Resolution and (iii) upon the issuance of the Securities as
described in the Registration Statement and a Prospectus Supplement that is
consistent with the Authorizing Resolution, the Securities will be legally
issued, fully paid and nonassessable.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Securities Act and applicable requirements of state
laws regulating the offer and sale of securities.
GOODWIN PROCTER
We hereby consent to being named as counsel to the Company in the
Registration Statement, to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus.
Very truly yours,
/s/ GOODWIN PROCTER LLP
GOODWIN PROCTER LLP
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 2, 2001 relating to the
financial statements of Avant Immunotherapeutics, Inc., which appears in
Avant Immunotherapeutic's Annual Report on Form 10-K for the year ended
December 31, 2000. We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
July 5, 2001
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated November 10, 2000
(except with respect to the matter discussed in Note 12, as to which the date
is December 1, 2000) included in AVANT Immunotherapeutics, Inc.'s Form 8-K/A
dated January 30, 2001, and to all references to our firm included in this
registration statement.
/s/ Arthur Andersen LLP
St. Louis, Missouri
July 5, 2001
