AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 18, 2002.
REGISTRATION NO. __________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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CELSION CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
52-1256615
(I.R.S. Employer Identification Number)
10220-I OLD COLUMBIA ROAD
COLUMBIA, MD 21046-1705
(410) 290-5390
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
DR. AUGUSTINE Y. CHEUNG
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CELSION CORPORATION
10220-I OLD COLUMBIA ROAD
COLUMBIA, MD 21046-1705
(410) 290-5390
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent For Service)
---------------
COPIES TO:
ANITA J. FINKELSTEIN, ESQUIRE JEANNETTE C. KOONCE, ESQUIRE
VENABLE, BAETJER, HOWARD & CIVILETTI, LLP VENABLE, BAETJER, HOWARD & CIVILETTI, LLP
1201 NEW YORK AVENUE, NW, SUITE 1000 1201 NEW YORK AVENUE, NW, SUITE 1000
WASHINGTON, DC 20005 WASHINGTON, DC 20005
(202) 962-4800 (202) 962-4800
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, 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. [ ]
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CALCULATION OF REGISTRATION FEE
=========================================== ==================== ======================== ===================== ===================
Amount Proposed Proposed Maximum Amount of
Title Of Shares To Be Maximum Aggregate Offering Registration
To Be Registered Registered (1) Offering Price Per Price Fee
Share(4)
- ------------------------------------------- -------------------- ------------------------ --------------------- -------------------
Common Stock, par value $0.01 per share.. 3,243,000 shares $.39 $1,264,770 $116.36
- ------------------------------------------- -------------------- ------------------------ --------------------- -------------------
Common stock, par value $0.01 per share
issuable upon conversion of Series B 8%
Convertible Preferred Stock............. 3,193,000 shares(2) $.39 $1,245,270 $114.56
- ------------------------------------------- -------------------- ------------------------ --------------------- -------------------
Common Stock, par value $0.01 per share,
issuable upon exercise of Warrants...... 3,600,000 shares(3) $,39 $1,404,000 $129.17
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=========================================== ==================== ======================== ===================== ===================
(1) Pursuant to Rule 416 under the Securities Act of 1933, this registration
statement also covers an indeterminate number of additional shares of
Common Stock as may be issued as a result of adjustments to conversion of
accrued stock dividend or a similar transaction.
(2) Consists of (a) 3,100,000 shares of Common Stock underlying currently
outstanding shares of Series B 8% Convertible Preferred Stock and (b)
93,000 shares of Common Stock underlying shares of Series B 8% Convertible
Preferred Stock accrued as dividends through October 15, 2002, on
outstanding shares of such Preferred Stock.
(3) Consists of (a) 1,200,000 shares of Common Stock underlying currently
outstanding Warrants exercisable at $0.65 per share; (a) 600,000 shares of
Common Stock underlying currently outstanding Warrants exercisable at $0.41
per share; and (c) up to 1,800,000 additional shares of Common Stock
underlying Warrants exercisable at the market price on the date of
issuance, which are subject to issuance if the Company's Common Stock fails
to meet certain price criteria.
(4) Calculated pursuant to Rule 457(c) under the Securities Act of 1933. The
above calculation is based on the average of the high and low prices of the
Common Stock on The American Stock Exchange on October 11, 2002.
--------------------
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.
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The information in this Prospectus is not complete and may be changed. The
selling stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission of which this
Prospectus is a part is effective. This Prospectus is not an offer to sell these
securities and it is not soliciting offers to buy these securities in any
jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED OCTOBER 18, 2002
PRELIMINARY PROSPECTUS
CELSION CORPORATION
10,036,000 Shares
Common Stock
This Prospectus of Celsion Corporation, a Delaware corporation, or the
Company, relates to the offer and sale from time to time by certain selling
stockholders (the "Selling Stockholders") of up to 10,036,000 shares of the
Company's common stock, par value $0.01 per share (the "Common Stock"),
consisting of 3,243,000 currently outstanding shares, 3,193,000 shares
underlying shares of the Company's Series B 8% Convertible Preferred Stock
(including accrued dividends), and up to 3,600,000 shares issuable upon the
exercise of certain Common Stock purchase warrants (the "Warrants"), 1,800,000
of which shares underlying the Warrants are issued and outstanding and the
remaining 1,800,000 of which are subject to issuance, in whole or in part, if
the Company's Common Stock does not meet certain price criteria. The shares of
Common Stock offered hereby are referred to as the "Shares." See "Selling
Stockholders" and "Plan of Distribution."
The Company will not receive any proceeds from any sales of Shares by
the Selling Stockholders. However, the Company will receive proceeds upon any
exercise of Warrants, up to a maximum of $2,196,000 if all of the Warrants are
exercised.
The Selling Stockholders or pledgees, donees, transferees or other
successors in interest that receive Shares by way of gift, partnership
distribution or other non-sale transfer, may offer and sell some, all or none of
the Shares under this Prospectus. The Selling Stockholders or such successors
may determine the prices at which they will sell their Shares, at then
prevailing market prices or some other price. In connection with such sales, the
Selling Stockholders or their successors may use brokers or dealers who may
receive compensation or commissions for such sales. The Company has agreed to
bear all expenses in connection with the registration of the Shares. However,
the Selling Stockholders will pay any brokerage commissions, discounts and fees
in connection with the sale of their Shares. A Selling Stockholder's net
proceeds from the sale of Shares will be the sales price of the Shares sold,
less applicable commissions, discounts and fees.
Celsion's principal executive office is located at 10220-I Old Columbia
Road, Columbia, MD 21046-1705, and its phone number is (410) 290-5390.
The Common Stock is traded on The American Stock Exchange under the
symbol "CLN." On October 17, 2002, the closing price of the Common Stock on The
American Stock Exchange was $0.43.
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INVESTMENT IN THE COMPANY'S COMMON STOCK INVOLVES A HIGH DEGREE OF
RISK. YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS BEGINNING ON PAGE 7 OF THIS
PROSPECTUS BEFORE PURCHASING ANY OF THE SHARES FROM THE SELLING STOCKHOLDERS.
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.
The date of this Prospectus is October [__], 2002
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TABLE OF CONTENTS
Page
----
Where You Can Find More Information.................. i
Cautionary Statement About Forward-Looking Statements ii
Summary Information About The Company................ 1
Risk Factors......................................... 7
Use of Proceeds...................................... 14
Plan of Distribution................................. 15
Legal Matters........................................ 16
Experts.............................................. 16
We have informed the Selling Stockholders that the anti-manipulative
rules under the Securities Exchange Act of 1934, including Regulation M, may
apply to their sales of Shares in the market. We have furnished the Selling
Stockholders with a copy of these rules. We have also informed the Selling
Stockholders that they must deliver a copy of this Prospectus with any sale of
their Shares.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information
with the U.S. Securities and Exchange Commission, or the SEC. You may read and
copy any document that we have filed with the SEC at the SEC's Public Reference
Room at 450 Fifth Street, NW, Washington, DC 20549. Please call the SEC at
1-800-SEC-0330 for further information about the operation of its public
reference facilities. Our SEC filings are also available to you free of charge
at the SEC's web site at http://www.sec.gov.
We have filed a registration statement on Form S-3 with the SEC that
covers the resale of the Shares offered hereby. This Prospectus is a part of
that registration statement, but does not include all of the information
included in the registration statement. You should refer to the registration
statement for additional information about us and the Shares. Statements that we
make in this Prospectus relating to any document filed as an exhibit to or
incorporated by reference into the registration statement may not be complete.
You should review the referenced document itself for a complete understanding of
its terms.
The SEC allows us to "incorporate by reference" certain information we
file with them, which means that we can disclose important information to you in
this Prospectus by referring you to those documents. The documents that have
been incorporated by reference are an important part of the Prospectus, and you
should be sure to review that information in order to understand the nature of
any investment by you in the Shares. In addition to previously filed documents
that are incorporated by reference, documents that we file with the SEC after
the date of this Prospectus will automatically update the registration
statement. The documents that we have previously filed and that are incorporated
by reference into this Prospectus include the following:
o Our Annual Report on Form 10-K for the fiscal year ended September
30, 2001;
o Our Proxy Statement filed on January 3, 2002 relating to our 2002
Annual Meeting of Stockholders;
o Our Proxy Statement filed on October 3, 2002 relating to a Special
Meeting of Stockholders on November 8, 2002;
o Our Quarterly Reports on Form 10-Q for the quarterly periods ended
December 31, 2001, March 31, 2002 and June 30, 2002;
o Our Current Reports on Form 8-K filed October 3, 2001, November
30, 2001, December 17, 2001, January 11, 2002, January 29, 2002,
April 3, 3003, April 10, 2002, June 3, 2002, June 12, 2002 and
August 21, 2002, and
o The description of our Common Stock included in our registration
statement on Form 8-A filed on May 26, 2000.
All documents and reports filed by us pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
Prospectus and prior to the date that the offering of Shares made hereby is
terminated automatically will be incorporated by reference into this Prospectus.
Any statement contained in a document incorporated or deemed to be incorporated
by reference into this Prospectus shall be modified or superseded for the
purposes of this Prospectus to the extent that a statement contained in this
Prospectus, or in any other subsequently filed document which also is, or is
deemed to be, incorporated by reference, modifies or supersedes that statement.
Any statement modified or superseded shall not be deemed, except as modified or
superseded, to constitute a part of this Prospectus.
We will provide you with copies of any of the documents incorporated by
reference at no charge to you. However, we will not deliver copies of any
exhibits to those documents unless the exhibit itself is specifically
incorporated by reference. If you would like a copy of any document, please
write or call us at:
Celsion Corporation
10220-I Old Columbia Road
Columbia, MD 21046-1705
Attention: Corporate Secretary
(410) 290-5390
You should only rely upon the information included in or incorporated
by reference into this Prospectus or in any Prospectus supplement that is
delivered to you. We have not authorized anyone to provide you with additional
or different information. You should not assume that the information included in
or incorporated by reference into this Prospectus or any Prospectus supplement
is accurate as of any date later than the date on the front of the Prospectus or
Prospectus supplement.
i
CAUTIONARY STATEMENT ABOUT FORWARD-LOOKING STATEMENTS
Throughout this Prospectus and the other documents incorporated by
reference into this Prospectus, we make certain "forward-looking" statements.
These statements involve known and unknown risks, uncertainties and other
factors that may cause our or our industry's actual results, levels of activity,
performance, or achievements to be materially different from any future results,
levels of activity, performance or achievements contemplated by such
forward-looking statements. Such factors include, among other things, those
listed under "Risk Factors" as well as those discussed elsewhere in this
Prospectus and the documents incorporated by reference into this Prospectus. In
some cases, you can identify forward-looking statements by terminology such as
"may," "will," "should," "expect," "plan," "anticipate," "believe," "estimate,"
"predict," "potential" or "continue" or the negative of such terms or other
comparable terminology.
Forward-looking statements are only predictions and involve various
risks and uncertainties including:
o unforeseen changes in the course of research and development
activities and in clinical trials;
o possible changes in cost and timing of development and testing,
capital structure and other financial matters;
o changes in approaches to medical treatment;
o introduction of new products by others;
o possible acquisitions of other technologies, assets or businesses;
o possible actions by customers, suppliers, competitors, regulatory
authorities and others; and
o other risks detailed from time to time in the Company's reports
filed with the SEC.
Actual events or results may differ materially from those contemplated
by this Prospectus and the other documents incorporated by reference into this
Prospectus. In evaluating these statements, you should specifically consider
various factors, including those listed above and outlined under "Risk Factors."
Although we believe that our expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance or achievements. Moreover, neither we nor any other person
assumes responsibility for the accuracy and completeness of such statements. We
are under no duty to update any forward-looking statements after the date of
this Prospectus to conform such statements to actual results or circumstances.
ii
SUMMARY INFORMATION ABOUT THE COMPANY
This summary highlights selected information contained elsewhere in
this Prospectus and incorporated into this Prospectus by reference. This summary
may not contain all of the information that may be important to you in
considering an investment in our Common Stock. You should read the entire
Prospectus, including "Risk Factors," carefully before making an investment
decision. The terms the "Company," "Celsion," "we," "us" and "our" used in this
Summary and throughout this Prospectus all refer to Celsion Corporation.
GENERAL
We develop medical treatment systems primarily to treat breast cancer
and a chronic prostate enlargement condition, common in older males, known as
benign prostatic hyperplasia, or BPH, using minimally invasive focused heat
technology. We also are working with Duke University on the development of
heat-sensitive liposome compounds for use in the delivery of chemotherapy drugs
to tumor sites, and with the Memorial Sloan-Kettering Cancer Center, or
Sloan-Kettering, on the development of heat-activated gene therapy compounds.
BPH TREATMENT SYSTEM
Benign Prostatic Hyperplasia
Millions of aging men experience symptoms resulting from BPH, a
non-cancerous urological disease in which the prostate enlarges and constricts
the urethra. The prostate is a walnut-sized gland surrounding the male urethra
that produces seminal fluid and plays a key role in sperm preservation and
transportation. The prostate frequently enlarges with age. As the prostate
expands, it compresses or constricts the urethra, thereby restricting the normal
passage of urine. This restriction of the urethra may require a patient to exert
excessive bladder pressure to urinate. Because the urination process is one of
the body's primary means of cleansing impurities, the inability to urinate
adequately increases the possibility of infection and bladder and kidney damage.
Prevalence of BPH
As BPH is an age-related disorder, its incidence increases with
maturation of the population. Industry estimates suggest that more than 9
million men in the United States experience BPH symptoms and that more than 26
million men are affected by BPH worldwide. As the population continues to age,
the prevalence of BPH can be expected to continue to increase. It is generally
estimated that approximately 50 percent of all men over the age of 55 and 90
percent of all men over 75 will have BPH symptoms at various times. Industry
studies estimate the overall costs of BPH therapy for those patients currently
seeking treatment to be approximately $2.5 to $3.0 billion annually in the
United States and $8.0 to $10.0 billion worldwide.
Current Treatment Alternatives for BPH
Like cancerous tumors, BPH historically has been treated by surgical
intervention or by drug therapy. The primary treatment for BPH currently is
transurethral resection of the prostate, or TURP, a surgical procedure in which
the prostatic urethra and surrounding diseased tissue in the prostate are
trimmed with a telescopic knife, thereby widening the urethral channel for urine
flow. While the TURP procedure typically has been considered the most effective
treatment available for the relief of BPH symptoms, the procedure has
shortcomings. In the first instance, TURP generally requires from one to three
days of post-operative hospitalization. In addition, a significant percentage of
patients who undergo TURP encounter significant complications, which can include
painful urination, infection, retrograde ejaculation, impotence, incontinence
and excessive bleeding. Furthermore, the cost of the TURP procedure and the
related hospitalization is high, ranging from $8,000 to $12,000. This cost does
not take into account the costs of lost work time, which could amount to several
weeks, or the costs related to adverse effects on patients' quality of life.
Other, less radical, surgical procedures, generally categorized as
"minimally invasive" ("MI") therapies, are available as alternatives to the TURP
procedure. The primary MI treatments use microwave heating ("TUMT") to treat BPH
by incinerating the obstructing portion of the prostate. TUMT involves sedation,
catheterization and high levels of heat to incinerate a portion of the prostate.
Two other MI therapies - interstitial RF therapy and laser therapy - employ,
respectively, concentrated radio frequency (RF) waves or laser radiation to
reduce prostate swelling by cauterizing tissue instead of removing it with a
surgical knife. However, these procedures require puncture incisions in order to
insert cauterizing RF or laser probes into the affected tissue and, therefore,
1
also involve the use of a full operating facility and anesthesia, as well as the
burning of prostate tissue by the probes. Although these procedures result in
less internal bleeding and damage to the urethra than the TURP procedure and may
decrease the adverse effects and costs associated with surgery, anesthesia and
post-operative tissue recovery, they do not entirely eliminate these adverse
consequences.
Finally, drug therapy has emerged as an alternative to surgery in the
last several years. There currently are several drugs available for BPH
treatment, the two most widely prescribed being Hytrin and Proscar. Hytrin works
by relaxing certain involuntary muscles surrounding the urethra, thereby easing
urinary flow, and Proscar is intended to shrink the enlarged gland. However,
industry studies have asserted that drug therapy costs $500 to $800 per year or
more, must be maintained for life and does not offer consistent relief to a
large number of BPH patients. In fact, studies have shown that 45 percent of
patients who begin drug therapy for BPH drop out within the first year,
primarily due to the ineffectiveness of currently available drug therapies.
Also, all of the currently available BPH drugs have appreciable side effects.
Accordingly, neither the medicinal treatments nor the surgical
alternatives presently available appear to provide fully satisfactory,
cost-effective treatment solutions for BPH sufferers.
Celsion BPH Treatment System
We have developed a BPH treatment system - "Microwave
Uretheroplasty(TM)" - that combines our microwave thermotherapy capability with
a proprietary balloon compression technology licensed from MMTC, Inc. The system
consists of a microwave generator and conductors and a computer and computer
software programs that control the focusing and application of heat, plus a
specially designed balloon catheter. Treatment using this system consists of two
fundamental elements:
- Celsion's proprietary catheter, incorporating a balloon enlargement
device, delivers computer-controlled transurethral microwave heating
directly to the prostate at temperatures greater than 44(0) C (111(0)
F).
- Simultaneously, the balloon inflates the device and expands to press the
walls of the urethra from the inside outward as the surrounding prostate
tissue is heated.
The combined effect of this "heat plus compression" therapy is twofold: first,
the heat denatures the proteins in the wall of the urethra, causing a stiffening
of the opening created by the inflated balloon. Second, the heat effectively
kills off prostate cells outside the wall of the urethra, thereby creating
sufficient space for the enlarged natural opening.
Pre-clinical animal studies have demonstrated that a natural "stent,"
or reinforced opening, in the urethra forms after the combined heat plus
compression treatment. Also, the BPH system's relatively low temperature (43(0)
C to 45(0) C) (109(0) F to 113 (0) F) appears to be sufficient to kill prostatic
cells surrounding the urethra wall, thereby creating space for the enlargement
of the urethra opening. However, the temperature is not high enough to cause
swelling in the urethra.
Celsion's investigational, minimally invasive Microwave
Uretheroplasty(TM) treatment system is designed to overcome the limitations of
all three of the current treatment systems. It is designed to be a relatively
painless, rapid procedure that delivers the efficacy of surgical treatments
without significant risks and the potential for life-altering side effects. The
potential benefits of the Microwave Uretheroplasty(TM) system include walk-in,
outpatient treatment that can be completed in less than an hour; no required
sedation; generally no post-operative catheterization; and, rapid symptomatic
relief from BPH.
Ultimate Food and Drug Administration, or FDA, approval for a device
such as our equipment typically requires two phases of clinical testing. The
purpose of Phase I testing is to show feasibility and safety and involves a
small group of patients. Phase II testing is designed to show safety and
efficacy. The FDA approved an Investigational Device Exemption, or IDE, to allow
clinical testing of our BPH system in June 1998 and we completed initial Phase I
clinical feasibility human trials of the BPH system at Montefiore Medical Center
in May 1999. In the Phase I trials, the combination of computer-controlled
microwave heat and balloon catheter expansion was able to increase peak flow
rates and to provide immediate relief of symptoms caused by BPH. In addition, we
undertook an expanded Phase I study to test an accelerated treatment protocol,
which was completed in May 2000, at Montefiore Medical Center. In July 2000, the
FDA approved the commencement of multiple-site Phase II studies to collect the
safety and efficacy data necessary for FDA premarketing approval (PMA) for
commercialization. All 160 patients required to be treated under the Phase II
trial were treated as of November 29, 2001 and, as of that date, we submitted
the first two of three required modules to the FDA in support of the PMA. We
expect to submit the last module, consisting of clinical data, in December 2002
or early 2003. If Phase II testing produces anticipated results and if our BPH
2
system meets all other requirements for FDA approval and receives such approval,
we intend to begin marketing the BPH system during the second calendar quarter
of 2003.
Based on the information we have collected to date, we believe that our
BPH system has the potential to deliver a treatment that is performed in one
hour or less on an outpatient basis, generally would not require post-treatment
catheterization, and would deliver symptomatic relief and an increase in urinary
flow rates promptly after the procedure is completed.
BREAST CANCER TREATMENT SYSTEM
Prevalence of Breast Cancer
Breast cancer is one of the leading causes of death among women in the
United States. According to statistics published in the American Cancer
Society's A Cancer Journal for Clinicians, there were an average of 183,000
newly diagnosed breast cancer cases in the United States in each of the years
from 1995 through 1999.
Current Treatment for Breast Cancer
Breast cancer is presently generally treated by mastectomy, the
surgical removal of the entire breast, or by lumpectomy, the surgical removal of
the tumor and surrounding tissue. Both procedures are often followed by
radiation therapy or chemotherapy. The more severe forms of surgical
intervention can result in disfigurement and a need for extended prosthetic and
rehabilitation therapy.
In addition, heat therapy (also known as hyperthermia or thermotherapy)
is a historically recognized method of treatment of various medical conditions,
and heat therapy has been used in the past to treat malignant tumors in
conjunction with radiation and chemotherapy. As summarized in the Fourth Edition
of Radiobiology for the Radiologist, published in 1994 by J.B. Lippincott
Company, in 24 independent studies on an aggregate of 2,234 tumors, treatment
consisting of heat plus radiation resulted in an average doubling of the
complete response rate of tumors, compared to the use of radiation alone. The
complete response rate for this purpose means the total absence of a treated
tumor for a minimum of two years. Comparable increases in the complete response
rate were reported with the use of heat combined with chemotherapy. In addition,
it has been demonstrated on numerous occasions that properly applied heat, alone
and without the concurrent use of radiation, can also kill cancer cells.
Heat Therapy in Conjunction with Radiation; First Generation Celsion
Equipment
In 1989, we obtained FDA premarketing approval for our microwave-based
Microfocus 1000 heat therapy equipment for use on surface and subsurface tumors
in conjunction with radiation therapy. Until 1995, we marketed our Microfocus
equipment for this use in 23 countries, but microwave heat therapy was not
widely accepted in the United States medical community as an effective cancer
treatment. Moreover, due to the limitations of microwave technology available at
the time, it was difficult to deliver a controlled amount of heat to subsurface
tumors without overheating surrounding healthy tissue.
New Microwave Technology from MIT
In 1993, we began working with researchers at the Massachusetts
Institute of Technology, or MIT, who had developed, originally for the United
States Defense Department, the microwave control technology known as "Adaptive
Phased Array", or APA. This technology permits properly designed microwave
equipment to focus and concentrate energy targeted at diseased tissue areas deep
within the body and to heat them selectively, without adverse impact on
surrounding healthy tissue. In 1996, MIT granted us an exclusive worldwide
license to use this technology for medical applications and since that time we
have concentrated on developing a second generation of Microfocus equipment
capable of focusing microwave energy on specific tissue areas. We have now
incorporated the APA technology in our second generation microwave therapy
equipment.
Second Generation Celsion Breast Cancer Treatment System
Using the APA technology, we have developed a prototype breast cancer
treatment system intended to destroy localized breast tumors through the
application of heat alone. The system consists of a microwave generator and
conductors, a computer and computer software programs that control the focusing,
application and duration of the thermotherapy, and a specially designed patient
treatment table.
3
In 1998, we completed pre-clinical animal testing of our prototype
system at the Massachusetts General Hospital, a teaching hospital for Harvard
Medical School in Boston, Massachusetts. Using breast tissue-equivalent phantoms
and tumors in live animals, these studies demonstrated that our system is
capable of selectively heating tumors at temperatures up to 46(0) C (115(0) F)
without damage to surrounding healthy tissues. High temperatures maintained for
eight to ten minutes can cause complete tumor necrosis (death), leading to the
death of viable cancer cells within the tumor and in its immediate vicinity. A
second prototype clinical breast cancer treatment system at Oxford University in
England was used to demonstrate successfully the ability of our equipment to
focus heat deep into animal tissue at precise locations and in small target
areas. In our view, these animal tests demonstrate that it is possible to
eliminate tumors by heat alone and without the use of radiation. Using the
pre-clinical data from Massachusetts General, the FDA granted Celsion a
supplemental premarketing approval to incorporate the APA technology with
Celsion's already approved Microfocus 1000 system. The APA technology enhances
the ability of the Microfocus 1000 system to focus energy.
In January 1999, we received an IDE from the FDA to permit clinical
testing of our breast cancer treatment system, and also received FDA approval to
proceed with Phase I human clinical studies. In August 2000, we completed the
treatment of ten patients in the Phase I study using our breast cancer equipment
at Columbia Hospital in West Palm Beach, Florida, and at Harbor UCLA Medical
Center in Torrance, California. In the study, our equipment was clinically
tested on female breast tumors on a minimally invasive basis through a single
application of precisely controlled and targeted heat. In December 2000, we
received approval from the FDA to commence Phase II trials for our breast cancer
system.
The Phase II trials consist of two protocols - the first (IIA) is
designed to ablate (kill) small breast tumors using heat alone and the second
(IIB) is designed to downsize large breast cancer tumors using a combination of
heat and chemotherapy, thus allowing a surgeon to perform a lumpectomy rather
than a mastectomy, thereby preserving the affected breast. These trials are
currently under way at Columbia Hospital, in Florida, Harbor UCLA in California
and Halle Martin Luther Breast Center in Halle, Germany. We expect to add
additional sites, both within the United States and in Europe, during the
remainder of calendar 2002. In July 2002, we reached the endpoint for the IIB
protocol by determining the maximum heat dosage required to optimize the
treatment. Results to date have been encouraging. Post-operative pathology
showed that in 24 out of the 25 patients treated with the Celsion's system the
margins of the excised tumor were clear of all the viable cancer cells and no
further surgery was required. We also have learned from our current and
potential clinical investigators that our breast cancer treatment system has the
potential to meet a significant unmet need in the realm of breast cancer
treatment. Currently 25 to 30 percent of all lumpectomy patients are recalled
for a second surgery (commonly referred to as a second incision) when, through
pathological examinations, the surgeon discovers that viable cancer cells remain
in the margins surrounding the area from which the tumor has been removed. This
additional procedure is costly for the surgeon and other medical providers and
traumatic for the patient.
We believe that studies will demonstrate that our treatment system, in
conjunction with lumpectomy, would lead to a reduction in the rate of second
incisions. Based on our Phase II trial results to date and our new learning, we
decided to revise our IIB protocol to provide a clinical endpoint demonstrating
that the incidence of second incision could be significantly reduced if a
patient underwent treatment with our system prior to lumpectomy. We submitted
the revision of our IIB protocol to the FDA in July 2002 and, in August 2002,
the FDA approved our revised protocol on condition that the IIB trials be
expanded from 43 to 222 patients, with half the patients being treated with
Celsion's system followed by lumpectomy and the remainder undergoing
conventional lumpectomies alone. At the same time, we reviewed and revised our
IIA protocol to clarify the clinical endpoints. As revised, the IIA trials will
now be fully randomized against patients receiving preoperative chemotherapy
alone and the study size has been increased from 130 to 312 patients. Treatments
under both protocols were halted while the revisions were in process. We
anticipate that both the IIA and IIB trials will be completed by the end of
calendar year 2003 and, if successful, that we will file for the addition of new
indications of use to the existing FDA premarketing approval for our Microfocus
1000 equipment.
THERMO-LIPOSOMES--DUKE UNIVERSITY TECHNOLOGY
Background
Liposomes are man-made microscopic spheres with a liquid membrane,
developed in the 1980's to encapsulate drugs for targeted delivery. Commercial
liposomes can now encapsulate chemotherapeutic drugs, enabling them to avoid
destruction by the body's immune system, and allowing them to accumulate in
tumors. However, with presently available technology, it often takes two to four
hours for commercial liposomes to release their drug contents to a tumor,
severely limiting the clinical efficacy of liposome chemotherapy treatments.
4
Development of Thermo-Sensitive Liposomes
A team of Duke University scientists has developed heat-sensitive
liposomes comprised of materials that rapidly change porosity when heated to a
specific point. As the heat-sensitive liposomes circulate within the small
arteries, arterioles, and capillaries, the drug contents of the liposomes are
released at significantly higher levels in those tissue areas which have been
heated for 30 to 60 minutes than in areas that do not receive heat. In animal
trials it has been determined that heat-sensitive liposomes deposited 50 times
the amount of drugs at a specific heated tissue site, when compared to
conventional liposomes. We have been a sponsor of this research, which is part
of a larger Duke University project to develop new temperature-sensitive
liposomes, temperature-sensitive gene promoters and related compounds, and we
are the exclusive licensee of Duke University's heat-activated liposome
technology.
Celsion's focused microwave equipment is used to provide minimally
invasive heating of cancerous tumors to trigger heat-activated liposomes within
the tumors. The heat-activated liposomes, which encapsulate chemotherapeutic
agents, are injected into the bloodstream, where they remain encapsulated until
they release their drug payload inside the heated tumor. In preliminary tumor
growth delay studies conducted at Duke University, tumor-bearing mice received a
single intravenous injection of the liposome with a 5mg per kilogram Doxorubicin
concentration. This was immediately followed by heating of the tumor to 42(0) C
(108(0) F) for one hour. The result of the study was a complete disappearance of
the tumors in 11 out of 11 mice. These animals remained disease free through the
60 days of the study.
In November 2001, we completed large animal toxicity studies involving
our Doxorubicin-laden thermo-liposome at the Roswell Park Cancer Institute, a
cancer research organization in Buffalo, New York. In March 2002, we filed an
Investigational New Drug (IND) application with the FDA for the use of this
liposome in the treatment of prostate cancer using our Microfocus equipment as
the means of heat activation. In June 2002, the IND became effective allowing us
to proceed with human clinical trials. We expect to start the Phase I clinical
trials at Roswell Park Cancer Institute in November 2002.
In addition, in January 2001, we entered into a Material Transfer
Agreement, or MTA, with the National Cancer Institute, or NCI, under which we
will supply heat-activated liposomes to enable the NCI to conduct clinical
trials on liver cancer. NCI will use an RF heating device to isolate the tumors
and to heat the liver, activating Celsion's heat-activated liposomes to kill
peripheral cancer cells. Liver cancer has yet to be successfully treated with
existing treatment modalities. NCI expects to complete the animal toxicity
studies in the fall of 2002 and to submit an IND application to the FDA for
approval early in 2003.
Celsion and Duke University are pursuing further development work and
pre-clinical studies aimed at using the new thermo-liposome technology in
conjunction with our APA focused heat technology for a variety of applications,
including cancer chemotherapy. We view the Duke thermo-liposome technology as a
highly promising improvement in the delivery of medicines used to combat serious
diseases. For example, the drugs used to fight cancer in chemotherapy regimens
are often toxic when administered in large quantities, and produce nausea,
vomiting, and exhaustion - all side effects of the body being poisoned. However,
if such a drug can be delivered directly to a tissue area where it is needed, as
opposed to being distributed through the entire circulatory system, the local
concentration of the drug could be increased without the side effects that
accompany large systemic dosing.
In addition, in the July 1, 2000 issue of Cancer Research, a Duke
University research scientist reported on his initial use of heat to activate
gene therapy and to increase the production in animals of Interleukin-12, a
genetic protein, in order to delay tumor growth. On August 8, 2000, we entered
into an agreement with Duke University, subsequently renewed for six-month
periods, under which Celsion has the right, for a period of six months
thereafter, to negotiate an exclusive license for this technology.
Production of Heat-Sensitive Liposomes
We have established a relationship with British Columbia Cancer
Authority, or BCCA, of Vancouver, Canada to provide Quality System Regulation,
or QSR (formerly Good Manufacturing Practices, or GMP), production of our
heat-activated liposome for our now completed large animal toxicity studies
under our Material Transfer Agreement with the National Cancer Institute and for
our planned Phase I clinical study in humans. BCCA is a leading drug formulation
and discovery company that specializes in liposome drug development. Celsion
will require a large-scale liposome manufacturer at such time, if any, as it
reaches Phase II clinical trials and beyond. Toward that end, we are in the
process of identifying a large-scale producer of the Doxorubicin-based
heat-activated liposome.
5
HEAT-ACTIVATED GENE THERAPY COMPOUNDS -- SLOAN-KETTERING TECHNOLOGY
Background
Cancer cells have the ability to repair themselves after radiation or
chemotherapy. Thus, patients require repeated treatments to destroy
substantially all of the cancer cells. Celsion has licensed from Memorial
Sloan-Kettering Cancer Center a biomedical innovation that we believe has
significant potential to improve cancer therapy. Sloan-Kettering has developed a
biological modifier that inhibits cancer cells' ability to repair themselves.
Activated by focused heat, this Cancer Repair Inhibitor, or CRI, temporarily
disables the repair mechanism of cancer cells, making it possible to reduce
significantly the number of radiation/chemotherapy treatments and/or lower the
treatment dosage.
A standard approach to treating cancer is radiation therapy combined
with chemotherapy. High doses of radiation kill cancer cells or keep them from
dividing, but produce chronic or acute side effects, including fatigue,
neutropenia, anemia and leukopenia. Also, depending on the location of the
tumor, other acute side effects may occur, including diarrhea, allopecia and
various foreign ulcers. Chemotherapy presents comparable or more serious side
effects.
Oncologists are seeking methods to mitigate these side effects. In
radiation therapy, such methods include hyperfractionated radiation,
intra-operative radiation, three-dimensional radiation, stereotactic
radiosurgery and the use of radio-labeled monoclonal antibodies and radio
sensitizers. CRI falls into this latter category because it "sensitizes" a
cancer cell for treatment by making it more susceptible to DNA-damaging agents
such as heat, chemicals or radiation. A product of advances in the understanding
of the biology of cancer, CRI is one of a new class of "biologics" that are
expected to become part of the cancer treatment protocol.
The Celsion Technology -- CRI Plus Focused Heat
CRI can be activated in tumors by minimally invasive focused heat in
the range of 41(0) C (106(0) F). This focused heat may be generated by Celsion's
Adaptive Phased Array microwave technology, which provides deep heating without
damage to surrounding healthy tissue. Having increased the susceptibility of
cancer cells to DNA-damaging agents, radiation and chemotherapy treatment may
then be administered with less frequency and/or at lower doses than currently is
possible. CRI would then deactivate and the patient would resume normal
post-treatment care.
In September 2001, scientists at Sloan-Kettering successfully completed
pre-clinical laboratory feasibility demonstrations to assess safety and
biological activity of CRI. In December 2001, a small animal feasibility study
was completed at Sloan-Kettering's Good Laboratory Practice (GLP) facility to
assist in drug formulation. Further studies with large animals to assess
toxicity effects are being conducted and are expected to continue into 2003.
Based on the current development timeline, we expect to file an IND application
with the Food and Drug Administration by the end of calendar year 2003 and
anticipate that we will be in a position to commence Phase I clinical (human)
trials before the end of calendar year 2004. At such time as we determine safety
and dosage in our preliminary studies, we expect to form partnership(s) with one
or more drug companies to scale-up manufacturing and marketing for larger
pivotal studies.
In May 2000, we entered into an exclusive worldwide agreement for the
commercial rights to the heat-activated gene therapy technology developed by
Sloan-Kettering.
6
RISK FACTORS
You should carefully consider the risks described below before making a
decision to invest in our Common Stock. You should also refer to the other
information in this Prospectus, as well as the information incorporated by
reference into this Prospectus, including our financial statements and the
related notes. The risks and uncertainties described below are not the only ones
that could affect our Company. Additional risks and uncertainties of which we
are unaware or that we currently believe are immaterial also may become
important factors affecting our business. If any one or more of the following
risks occur, our business, results of operations and financial condition could
be materially harmed. As a result, the trading price of our Common Stock could
decline, and you could lose all or part of your investment.
WE HAVE A HISTORY OF SIGNIFICANT LOSSES AND EXPECT TO CONTINUE SUCH
LOSSES FOR THE FORESEEABLE FUTURE.
Since Celsion's inception in 1982, our expenses have substantially
exceeded our revenues, resulting in continuing losses and an accumulated deficit
of $(33,605,157) at September 30, 2001, including losses of $(4,547,215) for the
fiscal year ended September 30, 2000 and $(6,923,227) for the fiscal year ended
September 30, 2001. As of June 30, 2002, the accumulated deficit was
$41,703,593, including net loss of for the first nine months of the current
fiscal year of $(8,017,528). Because we presently have no revenues and are
committed to continuing our product research, development and commercialization
programs, we will continue to experience significant operating losses unless and
until we complete the development of new products and these products have been
clinically tested, approved by the FDA and successfully marketed. We have funded
our operations for many years primarily through the sale of the Company's
securities and have limited working capital for our product research,
development, commercialization and other activities. We have scheduled a special
meeting of our shareholders for November 8, 2002 to approve an increase in the
number of authorized shares of our Common Stock from 150,000,000 to 200,000,000
shares. If the shareholders do not approve this increase, our ability to raise
additional capital through the sale of Common Stock will be severely limited.
WE DO NOT EXPECT TO GENERATE SIGNIFICANT REVENUE FOR THE FORESEEABLE
FUTURE.
We marketed and sold our original microwave thermotherapy products,
which produced modest revenues from 1990 to 1994, but ceased marketing these
products in 1995. We have devoted our resources in ensuing years to developing a
new generation of thermotherapy and other products, but cannot market these
products unless and until we have completed clinical testing and obtained all
necessary governmental approvals. Accordingly, we have no current source of
revenues, much less profits, to sustain our present operations, and no revenues
will be available unless and until our new products are clinically tested,
approved by the FDA and successfully marketed. We cannot guarantee that any or
all of our products will be successfully tested, approved by the FDA or
marketed, successfully or otherwise, at any time in the foreseeable future or at
all.
OUR MICROWAVE HEAT THERAPY TECHNOLOGY IS STILL UNDERGOING CLINICAL
TESTING AND MAY NOT ACHIEVE SUFFICIENT ACCEPTANCE BY THE MEDICAL COMMUNITY TO
SUSTAIN OUR BUSINESS.
To date, microwave heat therapy has not been widely accepted in the
United States medical community as an effective treatment for BPH or for cancer
treatment, with or without the concurrent use of radiation. We believe that this
is primarily due to the inability of earlier technology adequately to focus and
control heat directed at specific tissue locations and to conclusions that were
drawn from a widely publicized study by the Radiation Oncology Therapy Group
that purported to show that thermotherapy in conjunction with radiation was only
marginally effective. Subsequent to the publication of that study, the Health
Care Financing Administration, a HCFA (now known as the Centers for Medicare and
Medicaid Services, or CMS) established a low medical reimbursement rate for all
thermotherapy equipment designed to be used in conjunction with radiation. While
management believes that our new technology is capable of overcoming the
limitations of the earlier technology, the medical community may not embrace the
perceived advantages of our "adaptive phased array," or APA, focused heat
therapy without more extensive testing and clinical experience than we will be
able to provide. To date, we have completed and submitted to the FDA only Phase
I clinical trials of our Microwave Uretheroplasty(TM) treatment system, although
we have completed patient treatments in our Phase II trials. Our PMA application
is being submitted on a modular basis, consisting of three separate filings: a
manufacturing module, a pre-clinical module and a module consisting of 12-month
patient follow-up data. The first two out of three modules were submitted in
November 2001 and the remaining module will be submitted after the 12-month
patient follow-up data has been collected and the first two modules have been
cleared by the FDA. The manufacturing module has been cleared already and we
anticipate that the FDA will clear the pre-clinical module in the near future.
Therefore, we presently anticipate that we will submit the third module before
the end of calendar year 2002. Our new breast cancer treatment technology is
currently in Phase II trials. Our technology may not prove as effective in
practice as we anticipate based on testing to date. If further testing and
clinical practice do not confirm the safety and efficacy of our technology or,
7
even if further testing and practice produce positive results but the medical
community does not view this new form of heat therapy as effective and
desirable, our efforts to market our new products may fail, with material
adverse consequences to our business. We intend to petition CMS for a new
reimbursement code for our breast cancer treatment. The success of our business
model depends significantly upon our ability to petition successfully for
favorable reimbursement codes. However, we cannot offer any assurances as to
when, if ever, CMS may act on our request to establish a reimbursement code for
our breast cancer treatment system. In addition, there can be no assurance that
the reimbursement level established for our breast cancer treatment system, if
established, will be sufficient for us to carry out our business plan
effectively.
IF WE ARE NOT ABLE TO OBTAIN NECESSARY FUNDING, WE WILL NOT BE ABLE TO
COMPLETE THE DEVELOPMENT, TESTING AND COMMERCIALIZATION OF OUR TREATMENTS AND
PRODUCTS.
We will need substantial additional funding in order to complete the
development, testing and commercialization of our BPH and breast cancer
treatment systems and heat-activated liposome and cancer repair inhibitor
products, as well as other potential new products. We expended approximately
$6,800,000 in the fiscal year ending September 30, 2001. As of that date, we had
available a total of approximately $2,500,000 to fund additional expenditures.
On January 9, 2002, we completed a private placement of units consisting of one
share of Common Stock, par value $0.01 per share and a warrant to purchase one
share of Celsion Common Stock, at a price of $0.50 per unit, resulting in gross
proceeds to the Company of $6,250,000. On June 3, 2002, the Company completed a
private placement of 2,000 units at a price per unit of $1,000, resulting in
gross proceeds to the Company of $2,000,000. Each unit in this offering consists
of one share of the Company's 8% Series B Convertible Preferred Stock and a
warrant to purchase 600 shares of Common Stock. On October 15, 2002, the Company
completed a private placement of 15.5 units at a price per unit of $50,000,
resulting in gross proceeds to the Company of $775,000 Each unit in this
offering consists of 150,000 shares of the Company's Common Stock. It is our
current intention both to increase the pace of development work on our present
products and to make a significant commitment to our heat-activated liposome and
cancer repair inhibitor research and development projects. The increase in the
scope of present development work and the commitment to these new projects will
require additional external funding, at least until we are able to begin
marketing our products and to generate sufficient cash flow from sale of those
products to support our continued operations. We do not have any committed
sources of financing and cannot offer any assurances that additional funding
will be available in a timely manner, on acceptable terms or at all.
If adequate funding is not available, we may be required to delay,
scale back or eliminate certain aspects of our operations or attempt to obtain
funds through unfavorable arrangements with partners or others that may force us
to relinquish rights to certain of our technologies, products or potential
markets or that could impose onerous financial or other terms. Furthermore, if
we cannot fund our ongoing development and other operating requirements,
particularly those associated with our obligations to conduct clinical trials
under our licensing agreements, we will be in breach of these licensing
agreements and could therefore lose our license rights, which could have
material adverse effects on our business.
OUR BUSINESS IS SUBJECT TO NUMEROUS AND EVOLVING STATE, FEDERAL AND
FOREIGN REGULATIONS AND WE MAY NOT BE ABLE TO SECURE THE GOVERNMENT APPROVALS
NEEDED TO DEVELOP AND MARKET OUR PRODUCTS.
Our research and development activities, pre-clinical tests and
clinical trials, and ultimately the manufacturing, marketing and labeling of our
products, all are subject to extensive regulation by the FDA and foreign
regulatory agencies. Pre-clinical testing and clinical trial requirements and
the regulatory approval process typically take years and require the expenditure
of substantial resources. Additional government regulation may be established
that could prevent or delay regulatory approval of our product candidates.
Delays or rejections in obtaining regulatory approvals would adversely affect
our ability to commercialize any product candidates and our ability to generate
product revenues or royalties.
The FDA and foreign regulatory agencies require that the safety and
efficacy of product candidates be supported through adequate and well-controlled
clinical trials. If the results of pivotal clinical trials do not establish the
safety and efficacy of our product candidates to the satisfaction of the FDA and
other foreign regulatory agencies, we will not receive the approvals necessary
to market such product candidates.
Even if regulatory approval of a product candidate is granted, the
approval may include significant limitations on the indicated uses for which the
product may be marketed. Also, manufacturing establishments in the United States
and abroad are subject to inspections and regulations by the FDA. Medical
devices must also continue to comply with the FDA's Quality System Regulation,
or QSR. Compliance with such regulations requires significant expenditures of
time and effort to ensure full technical compliance. The FDA stringently applies
regulatory standards for manufacturing.
8
We are also subject to record-keeping and reporting regulations, including FDA's
mandatory Medical Device Reporting, or MDR regulation. Labeling and promotional
activities are regulated by the FDA and, in certain instances, by the Federal
Trade Commission.
Many states in which we do or in the future may do business or in which
our products may be sold impose licensing, labeling or certification
requirements that are in addition to those imposed by the FDA. There can be no
assurance that one or more states will not impose regulations or requirements
that have a material adverse effect on our ability to sell our products.
In many of the foreign countries in which we may do business or in
which our products may be sold, we will be subject to regulation by national
governments and supranational agencies as well as by local agencies affecting,
among other things, product standards, packaging requirements, labeling
requirements, import restrictions, tariff regulations, duties and tax
requirements. There can be no assurance that one or more countries or agencies
will not impose regulations or requirements that could have a material adverse
effect on our ability to sell our products.
The European Union, or EU, has a registration process that includes
registration of manufacturing facilities (known as "ISO certification") and
product certification (known as a "CE Mark"). We have obtained ISO certification
for our existing facilities. However, there is no guarantee that we will be
successful in obtaining EU certifications for any new facilities or for our
products, or that we will be able to maintain our existing certifications in the
future.
Foreign government regulation may delay marketing of our new products
for a considerable period of time, impose costly procedures upon our activities
or provide an advantage to larger companies that compete with us. There can be
no assurance that we will be able to obtain necessary regulatory approvals, on a
timely basis or at all, for any products that we develop. Any delay in
obtaining, or failure to obtain, necessary approvals would materially and
adversely affect the marketing of our contemplated products subject to such
approvals and, therefore, our ability to generate revenue from such products.
Even if regulatory authorities approve our product candidates, such
products and our facilities, including facilities located outside the EU, may be
subject to ongoing testing, review and inspections by the European health
regulatory authorities. After receiving premarketing approval, in order to
manufacture and market any of its products, we will have to comply with
regulations and requirements governing manufacture, labeling and advertising on
an ongoing basis.
Failure to comply with applicable domestic and foreign regulatory
requirements, can result in, among other things, warning letters, fines,
injunctions and other equitable remedies, civil penalties, recall or seizure of
products, total or partial suspension of production, refusal of the government
to grant approvals, pre-market clearance or pre-market approval, withdrawal of
approvals and criminal prosecution of the Company and its employees, all of
which would have a material adverse effect on our business.
OUR BUSINESS DEPENDS ON LICENSE AGREEMENTS WITH THIRD PARTIES TO PERMIT
US TO USE PATENTED TECHNOLOGIES. THE LOSS OF ANY OF OUR RIGHTS UNDER THESE
AGREEMENTS COULD IMPAIR OUR ABILITY TO DEVELOP AND MARKET OUR PRODUCTS.
Currently, we have nine utility patents pending in the United States
Patent & Trademark Office. One application directed to our breast cancer
treatment and another application directed to our Microwave Uretheroplasty(TM)
treatment for BPH have been allowed and should issue as United States patents
within the next few months. We have filed international applications with
respect to the above technologies in various countries including Japan, China,
Europe, and Canada. Three additional U.S. utility applications are on file
directed to various features of our breast cancer treatment and three additional
applications are on file directed to different features of our thermotherapy
treatment of BPH. The ninth application on file is directed to our deep tumor
therapy treatment. However, even when our pending applications mature into
United States patents, our business will still depend on license agreements that
we have entered into with third parties until the third parties' patents expire.
We intend to file applications for international patent protections for
inventions covered by our U.S. applications. However, there can be no assurance
when, if ever, we will receive such international patent protection.
Our success will depend, in substantial part, on our ability to
maintain our rights under license agreements granting us rights to use patented
technologies. We have entered into exclusive license agreements with MIT, for
APA technology, and with MMTC, a privately owned developer of medical devices,
for microwave balloon catheter technology. We have also entered into a license
agreement with Duke University, under which we have exclusive rights to
commercialize medical treatment products and procedures based on Duke
University's thermo-liposome technology and a license agreement with Memorial
Sloan-Kettering Cancer Center under which we have rights to commercialize
certain cancer repair inhibitor products. The MIT, MMTC, Duke University and
9
Sloan-Kettering agreements each contain license fee, royalty and/or research
support provisions, testing and regulatory milestones, and other performance
requirements that we must meet by certain deadlines. If we were to breach these
or other provisions of the license and research agreements, we could lose our
ability to use the subject technology, as well as compensation for our efforts
in developing or exploiting the technology. Also, loss of our rights under the
MIT license agreement would prevent us from proceeding with our most current
product development efforts, which are dependent on licensed APA technology. Any
such loss of rights and access to technology would have a material adverse
effect on our business.
Further, we cannot guarantee that any patent or other technology rights
licensed to us by others will not be challenged or circumvented successfully by
third parties, or that the rights granted will provide adequate protection. We
are aware of published patent applications and issued patents belonging to
others, and it is not clear whether any of these patents or applications, or
other patent applications of which we may not have any knowledge, will require
us to alter any of our potential products or processes, pay licensing fees to
others or cease certain activities. Litigation, which could result in
substantial costs, may also be necessary to enforce any patents issued to or
licensed by us or to determine the scope and validity of others' claimed
proprietary rights. We also rely on trade secrets and confidential information
that we seek to protect, in part, by confidentiality agreements with our
corporate partners, collaborators, employees and consultants. We cannot
guarantee that these agreements will not be breached, that, even if not
breached, they are adequate to protect our trade secrets, that we will have
adequate remedies for any breach or that our trade secrets will not otherwise
become known to, or will not be discovered independently by, competitors.
TECHNOLOGIES FOR THE TREATMENT OF CANCER ARE SUBJECT TO RAPID CHANGE
AND THE DEVELOPMENT OF TREATMENT STRATEGIES THAT ARE MORE EFFECTIVE THAN OUR
THERMOTHERAPY TECHNOLOGY COULD RENDER OUR TECHNOLOGY OBSOLETE.
Various methods for treating cancer currently are, and in the future
may be expected to be, the subject of extensive research and development. Many
possible treatments that are being researched, if successfully developed, may
not require, or may supplant, the use of our thermotherapy technology. These
alternate treatment strategies include the use of radio frequency (RF), laser
and ultrasound energy sources. The successful development and acceptance of any
one or more of these alternative forms of treatment could render our technology
obsolete as a cancer treatment method.
WE MAY NOT BE ABLE TO HIRE OR RETAIN KEY OFFICERS OR EMPLOYEES THAT WE
NEED TO IMPLEMENT OUR BUSINESS STRATEGY AND DEVELOP OUR PRODUCTS AND BUSINESSES.
Our success depends significantly on the continued contributions of our
executive officers, scientific and technical personnel and consultants, and on
our ability to attract additional personnel as we seek to implement our business
strategy and develop our products and businesses. During our operating history,
we have assigned many essential responsibilities to a relatively small number of
individuals. However, as our business and the demands on our key employees
expand, we have been, and will continue to be, required to recruit additional
qualified employees. The competition for such qualified personnel is intense,
and the loss of services of certain key personnel or our inability to attract
additional personnel to fill critical positions as we implement our business
strategy could adversely affect our business.
Effective October 4, 2001, Spencer J. Volk, formerly the President,
Chief Executive Officer and a director of Celsion, resigned from all of these
positions. Our Board has appointed Dr. Augustine Y. Cheung, formerly the
Chairman and Chief Scientific Officer, to serve as Celsion's President and Chief
Executive Officer and Dr. Max Link, a director since 1997, has assumed the
position of Chairman of the Board. Effective September 20, 2002, Dr. LaSalle
Leffall resigned as a member of our Board of Directors. There currently are two
vacancies on the Board of Directors which we are attempting to fill with
qualified candidates. However, we cannot be sure when we will be able to fill
these vacancies.
10
OUR SUCCESS WILL DEPEND IN PART ON OUR ABILITY TO GROW AND DIVERSIFY,
WHICH IN TURN WILL REQUIRE THAT WE MANAGE AND CONTROL OUR GROWTH EFFECTIVELY.
Our business strategy contemplates growth and diversification. As we
add to our manufacturing, marketing, sales, research and development and other
capabilities, our operating expenses and capital requirements will increase. Our
ability to manage growth effectively will require that we continue to expend
funds to improve our operational, financial and management controls, reporting
systems and procedures. In addition, we must effectively expand, train and
manage our employees. We will be unable to manage our business effectively if we
are unable to alleviate the strain on resources caused by growth in a timely and
successful manner. There can be no assurance that we will be able to manage our
growth and a failure to do so could have a material adverse effect on our
business.
THE SUCCESS OF OUR PRODUCTS MAY BE HARMED IF THE GOVERNMENT, PRIVATE
HEALTH INSURERS AND OTHER THIRD-PARTY PAYORS DO NOT PROVIDE SUFFICIENT COVERAGE
OR REIMBURSEMENT.
Our ability to commercialize our thermotherapy technology successfully
will depend in part on the extent to which reimbursement for the costs of such
products and related treatments will be available from government health
administration authorities, private health insurers and other third-party
payors. The reimbursement status of newly approved medical products is subject
to significant uncertainty. We cannot guarantee that adequate third-party
insurance coverage will be available for us to establish and maintain price
levels sufficient for us to realize an appropriate return on our investment in
developing new therapies. Government, private health insurers and other
third-party payors are increasingly attempting to contain health care costs by
limiting both coverage and the level of reimbursement for new therapeutic
products approved for marketing by the FDA. Accordingly, even if coverage and
reimbursement are provided by government, private health insurers and
third-party payors for uses of our products, market acceptance of these products
would be adversely affected if the reimbursement available proves to be
unprofitable for health care providers.
WE FACE INTENSE COMPETITION AND THE FAILURE TO COMPETE EFFECTIVELY
COULD ADVERSELY AFFECT OUR ABILITY TO DEVELOP AND MARKET OUR PRODUCTS.
There are many companies and other institutions engaged in research and
development of thermotherapy technologies, both for prostate disease and cancer
treatment products, that seek treatment outcomes similar to those that we are
pursuing. In addition, a number of companies and other institutions are pursuing
alternative treatment strategies through the use of microwave, infrared, radio
frequency, laser and ultrasound energy sources, all of which appear to be in the
early stages of development and testing. We believe that the level of interest
by others in investigating the potential of thermotherapy and alternative
technologies will continue and may increase. Potential competitors engaged in
all areas of prostate and cancer treatment research in the United States and
other countries include, among others, major pharmaceutical and chemical
companies, specialized technology companies, universities and other research
institutions. Substantially all of our competitors and potential competitors
have significantly greater financial, technical, human and other resources, and
may also have far greater experience, than do we, both in pre-clinical testing
and human clinical trials of new products and in obtaining FDA and other
regulatory approvals. One or more of these companies or institutions could
succeed in developing products or other technologies that are more effective
than the products and technologies that we have been or are developing, or which
would render our technology and products obsolete and non-competitive.
Furthermore, if we are permitted to commence commercial sales of any of our
products, we will also be competing, with respect to manufacturing efficiency
and marketing, with companies having substantially greater resources and
experience in these areas.
LEGISLATIVE AND REGULATORY CHANGES AFFECTING THE HEALTH CARE INDUSTRY
COULD ADVERSELY AFFECT OUR BUSINESS.
There have been a number of federal and state proposals during the last
few years to subject the pricing of health care goods and services to government
control and to make other changes to the United States health care system. It is
uncertain which legislative proposals, if any, will be adopted (or when) or what
actions federal, state, or private payors for health care treatment and services
may take in response to any health care reform proposals or legislation. We
cannot predict the effect health care reforms may have on our business and we
can offer no assurances that any of these reforms will not have a material
adverse effect on that business.
11
WE MAY BE SUBJECT TO SIGNIFICANT PRODUCT LIABILITY CLAIMS AND
LITIGATION.
Our business exposes us to potential product liability risks inherent
in the testing, manufacturing and marketing of human therapeutic products. We
presently have product liability insurance limited to $5,000,000 per incident.
If we were to be subject to a claim in excess of this coverage or to a claim not
covered by our insurance and the claim succeeded, we would be required to pay
the claim with our own limited resources, which could have a material adverse
effect on our business. In addition, liability or alleged liability could harm
the business by diverting the attention and resources of our management and by
damaging our reputation.
WE PRESENTLY HAVE LIMITED MARKETING AND SALES CAPABILITY AND WILL BE
REQUIRED TO DEVELOP SUCH CAPABILITIES AND TO ENTER INTO ALLIANCES WITH OTHERS
POSSESSING SUCH CAPABILITIES IN ORDER TO COMMERCIALIZE OUR PRODUCTS
SUCCESSFULLY.
We intend to market our Microwave Uretheroplasty(TM) treatment system
either directly or through strategic alliances, distribution arrangements or
other arrangements with third parties at such time, if any, as it is approved
for commercialization by the FDA, and to market our breast cancer treatment
system, if and when so approved, through such third parties. There can be no
assurance that we will be able to establish sales and marketing capabilities
successfully or successfully enter into third-party marketing or distribution
arrangements. We have limited experience and capabilities in marketing,
distribution and direct sales, although we intend to develop an effective sales
and marketing capability as we pursue commercialization. We expect to incur
significant additional expense in attracting, establishing and maintaining a
marketing and sales force or entering into third-party marketing or distribution
arrangements. There can be no assurance that, to the extent we enter into any
commercialization arrangements with third parties, such third parties will
establish adequate sales and distribution capabilities or be successful in
gaining market acceptance for our products and services. There also can be no
assurance that our direct sales, marketing, licensing and distribution efforts
would be successful or that revenue from such efforts would exceed expenses.
WE DEPEND ON THIRD-PARTY SUPPLIERS TO PROVIDE US WITH COMPONENTS
REQUIRED FOR OUR PRODUCTS AND MAY NOT BE ABLE TO OBTAIN THESE COMPONENTS ON
FAVORABLE TERMS OR AT ALL.
We are not currently manufacturing any products, but are using our
facilities to assemble prototypes of the equipment for research and development
purposes. We currently purchase certain specialized microwave and thermometry
components and applicator materials and the catheter unit used for our Microwave
Uretheroplasty(TM) equipment from single or limited source suppliers because of
the small quantities involved. While we have not experienced any significant
difficulties in obtaining these components, the loss of an important current
supplier could require that we obtain a replacement supplier, which might result
in delays and additional expense in being able to make prototype equipment
available for clinical trials and other research purposes. In addition, inasmuch
as we expect to manufacture our Microwave Uretheroscopy equipment at least for
some period subsequent to FDA approval and the commencement of
commercialization, such manufacturing and commercialization also could be
delayed. In addition, in the event that we succeed in marketing our products, we
intend to use outside contractors to supply components and the Microwave
Uretheroplasty(TM) catheter, and may use such contractors to assemble finished
equipment in the future, which could cause us to become increasingly dependent
on key vendors.
WE HAVE NOT PAID DIVIDENDS IN THE PAST AND DO NOT INTEND TO DO SO FOR
THE FORESEEABLE FUTURE.
We have never paid cash dividends and do not anticipate paying cash
dividends on our Common Stock or Preferred Stock in the foreseeable future.
Therefore, our stockholders cannot achieve any degree of liquidity with respect
to their shares of Common Stock except by selling such shares.
THE EXERCISE OR CONVERSION OF OUR OUTSTANDING OPTIONS, WARRANTS AND
CONVERTIBLE PREFERRED STOCK COULD RESULT IN SIGNIFICANT DILUTION OF OWNERSHIP
INTERESTS IN OUR COMMON STOCK OR OTHER CONVERTIBLE SECURITIES.
Options and Warrants. As of September 30, 2002, we had outstanding and
exercisable warrants and options to purchase a total of 30,376,600 shares of our
Common Stock at exercise prices ranging from $0.01 to $5.00 per share (and a
weighted average exercise price of approximately $0.60 per share). In addition,
we had outstanding but unexercisable and unvested warrants and options to
purchase a total of 4,394,998 shares of our Common Stock at exercise prices
ranging from $0.50 to $ 1.36 per share. Some of the exercise prices are below
the current market price of our Common Stock, which ranged from a low of $0.36
to a high of $0.46 over the 20 trading days ending September 30, 2002. If
holders choose to exercise such warrants and options at prices below the
prevailing market price for the Common Stock, the resulting purchase of a
substantial number of shares of our Common would have a dilutive effect on our
stockholders and could adversely affect the market price of our issued and
outstanding Common Stock and convertible securities. In addition, holders of
these options and warrants who have the right to require registration of the
Common Stock under certain circumstances and who elect to require such
12
registration, or who exercise their options or warrants and then satisfy the
one-year holding period and other requirements of Rule 144 of the Securities Act
of 1933, will be able to sell in the public market some or all of shares of
Common Stock purchased upon such exercise.
Preferred Stock. As of September 30, 2002 we had outstanding a total of
893 shares of Series A 10% Convertible Preferred Stock (plus 238 shares
representing accrued dividends). The shares of Series A Preferred Stock are
subject to exchange and conversion privileges upon the occurrence of major
events, including a public offering of our securities or our merger with a
public company. In addition, the holders of the Series A Preferred Stock are
entitled to convert their preferred shares into shares of Common Stock at a
conversion price of $0.41 per share of Common Stock, subject to certain
adjustments. The holders of the Series A Preferred Stock also have registration
rights at such time, if any, as we undertake a registered public offering of
securities. Even without such registration, holders of the Series A Preferred
Stock who satisfy the requirements of Rule 144 of the Securities Act of 1933
will be able to sell in the public market shares of Common Stock acquired upon
the conversion of Series A Preferred Stock. There also were outstanding warrants
to purchase 36 shares of Series A Preferred Stock (convertible into an
additional 87,805 shares of Common Stock) as of September 30, 2002. As of
September 30, 2002, we had outstanding a total of 1,550 shares of Series B 8%
Convertible Preferred Stock (plus 41shares representing accrued dividends). The
holders of the Series B Preferred Stock are entitled to convert their preferred
shares into shares of Common Stock at a conversion price of $0.50 per share of
Common Stock, subject to certain adjustments. The holders of the Series B
Preferred Stock became entitled to registration of the shares of Common Stock
underlying their shares of Series B Preferred Stock as of September 3, 2002, the
date on which the shares of Series B Preferred Stock first became convertible.
Even without such registration, holders of the Series B Preferred Stock who
satisfy the requirements of Rule 144 of the Securities Act of 1933 will be able
to sell in the public market shares of Common Stock acquired upon the conversion
of Series B Preferred Stock. The conversion of the Series A and Series B
Preferred Stock could have a dilutive effect on our stockholders and could
adversely affect the market price of our issued and outstanding Common Stock and
convertible securities.
IF THE PRICE OF OUR SHARES REMAINS LOW, WE MAY BE DELISTED BY THE
AMERICAN STOCK EXCHANGE AND BECOME SUBJECT TO SPECIAL RULES APPLICABLE TO LOW
PRICED STOCKS.
Our Common Stock currently trades on The American Stock Exchange (the
"Amex"). The Amex, as a matter of policy, will consider the suspension of
trading in, or removal from listing of, any stock when, in the opinion of the
Amex, (i) the financial condition and/or operating results of an issuer appear
to be unsatisfactory; (ii) it appears that the extent of public distribution or
the aggregate market value of the stock has become so reduced as to make further
dealings on the Amex inadvisable; (iii) the issuer has sold or otherwise
disposed of its principal operating assets; or (iv) the issuer has sustained
losses which are so substantial in relation to its overall operations or its
existing financial condition has become so impaired that it appears
questionable, in the opinion of the Amex, whether the issuer will be able to
continue operations and/or meet its obligations as they mature. For example, the
Amex will consider suspending dealings in or delisting the stock of an issuer if
the issuer has sustained losses from continuing operations and/or net losses in
its five most recent fiscal years. Another instance where the Amex would
consider suspension or delisting of a stock is if the stock has been selling for
a substantial period of time at a low price per share and the issuer fails to
effect a reverse split of such stock within a reasonable time after being
notified that the Amex deems such action to be appropriate. We have sustained
net losses for our last five fiscal years (and beyond) and our Common Stock has
been trading at relatively low prices. Therefore, our Common Stock could be at
risk for delisting by the Amex.
Upon any such delisting, the Common Stock would become subject to the
penny stock rules of the SEC, which generally are applicable to equity
securities with a price of less than $5.00 per share (other than securities
registered on certain national securities exchanges or quoted on the Nasdaq
system, provided that current price and volume information with respect to
transactions in such securities is provided by the exchange or system). The
penny stock rules require a broker-dealer, prior to a transaction in a penny
stock not otherwise exempt from the rules, to deliver a standardized risk
disclosure document prepared by the SEC that provides information about penny
stocks and the nature and level of risks in the penny stock market. The
broker-dealer also must provide the customer with bid and ask quotations for the
penny stock, the compensation of the broker-dealer and its salesperson in the
transaction and monthly account statements showing the market value of each
penny stock held in the customer's account. In addition, the penny stock rules
require that, prior to a transaction in a penny stock that is not otherwise
exempt from such rules, the broker-dealer must make a special written
determination that the penny stock is a suitable investment for the purchaser
and receive the purchaser's written agreement to the transaction. These
disclosure requirements are likely to have a material and adverse effect on
price and the level of trading activity in the secondary market for a stock that
becomes subject to the penny stock rules. If our Common Stock were to become
subject to the penny stock rules it is likely that the price of the Common Stock
would decline and that our stockholders would find it more difficult to sell
their shares.
13
OUR STOCK PRICE COULD BE VOLATILE.
Market prices for our Common Stock and the securities of other medical,
high technology companies have been volatile. Factors such as announcements of
technological innovations or new products by us or by our competitors,
government regulatory action, litigation, patent or proprietary rights
developments and market conditions for medical and high technology stocks in
general can have a significant impact on the market for our Common Stock.
ANTI-TAKEOVER PROVISIONS IN OUR CHARTER DOCUMENTS AND DELAWARE LAW
COULD PREVENT OR DELAY A CHANGE IN CONTROL.
Our Certificate of Incorporation and Bylaws may discourage, delay or
prevent a merger or acquisition that a stockholder may consider favorable by
authorizing the issuance of "blank check" preferred stock. In addition, our
classified Board of Directors may discourage such transactions by increasing the
amount of time necessary to obtain majority representation on the Board. Certain
other provisions of our Bylaws and of Delaware law may also discourage, delay or
prevent a third party from acquiring or merging with us, even if such action
were beneficial to some, or even a majority, of our stockholders. We also have
adopted a stockholder rights plan and declared a dividend distribution of one
right for each outstanding share of Common Stock to stockholders of record as of
August 6, 2002. When it becomes exercisable, each right entitles the registered
holder to purchase from Celsion one ten-thousandth of a share of Series C Junior
Participating Preferred Stock, par value $0.01 per share, or Series C Preferred
Stock, at a price of $4.46 per one ten-thousandth (1/10,000) of a share of
Series C Preferred Stock, subject to adjustment. Under certain circumstances, if
a person or group acquires 15% or more of our outstanding Common Stock, holders
of the rights (other than the person or group triggering their exercise) will be
able to purchase, in exchange for the $4.46 exercise price, shares of our Common
Stock or of any company into which we are merged having a value of $8.92. The
rights expire on August 15, 2012, unless earlier redeemed by our Board of
Directors. Because the rights may substantially dilute the stock ownership of a
person or group attempting to take us over without the approval of our Board of
Directors, our rights plan also could make it more difficult for a third party
to acquire us (or a significant percentage of our outstanding capital stock)
without first negotiating with our Board of Directors regarding such
acquisition.
USE OF PROCEEDS
The Selling Stockholders will receive all of the net proceeds from the
sale of their respective Shares; we will not receive any proceeds from these
sales. We will, however, receive proceeds from any exercises of the Warrants at
the rate of up to $0.65 per share. The holders of the Warrants are under no
obligation to exercise them at any time or at all.
The exercise price for the Warrants is payable in cash. If all of the
Warrants were exercised for cash, we would receive maximum aggregate
consideration of $2,196,000. We intend to use any proceeds from exercise of the
Warrants for completion of the breast cancer clinical trials, working capital
and general corporate purposes.
RESALES BY SELLING STOCKHOLDERS
This Prospectus relates to the proposed resale by the Selling
Stockholders of the Shares, consisting of 3,243,000 currently outstanding
Shares, 3,193,000 Shares underlying shares of the Company's Series B 8%
Convertible Preferred Stock (including accrued dividends), and up to 3,600,000
Shares issuable upon the exercise of certain Common Stock purchase warrants (the
"Warrants"), 1,800,000 of which shares underlying the Warrants are issued and
outstanding and the remaining 1,800,000 of which shares are subject to issuance,
in whole or in part, if the Company's Common Stock does not meet certain price
criteria. The following table sets forth, as of October 15, 2002, certain
information with respect to the persons for whom the Company is registering the
Shares for resale to the public. Except as indicated by footnote below, no such
person has had a material relationship or has held any position or office, with
the Company within the last three years. The Company will not receive any of the
proceeds from the sale of the Shares, but may receive up to $2,196,000 upon the
cash exercise of the Warrants.
14
Securities Securities
Securities Beneficially Offered Beneficially Owned
Owned Prior to Offering (1) Hereby (2) After Offering (3)
---------------------------------- --------------- ----------------------------------
Common Stock Common Stock
Name of Selling Stockholder Warrants Amount Percent
- ------------------------------------- --------------- -------------- --------------- --------------- ---------------
Kim R. Baker 3,160,000 (4) 2,900,000 3,860,000 2,200,000 2%
Stephen M. Shea 663,000 (5) 640,000 1,158,000 145,000 *
Dana C. Polli 207,000 (6) 180,000 386,000 1,000 *
The Dinkel Family Trust DTD 04/04/96 309,000 (7) 270,000 579,000 0 *
Ying Jia Huang 2,092,518 1,984,518 1,728,000 2,349,036 2%
Donald S. Beard 2,150,000 (8) 151,872 450,000 1,851,872 2%
He Yao Zong 750,000 0 750,000 0 *
Jay R. Solan and Sandra Solan 350,000 234,000 150,000 434,000 *
Scott A. Ziegler 150,000 0 150,000 0 *
Michael G Putro and Cheryl L. Putro 232,000 0 150,000 82,000 *
John M. Virts II 250,000 0 150,000 100,000 *
682501 Alberta Ltd. 150,000 0 150,000 0 *
Nathan Sugerman 275,000 200,000 75,000 400,000 *
TTYLF Investments, LLC 300,000 0 300,000 0 *
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(1) We have computed "beneficial ownership" in accordance Rule 13d-3(d)
promulgated by the SEC under the Securities Exchange Act of 1934 for
purposes of this table. Therefore, the table reflects a person as
having "beneficial ownership" of shares of Common Stock if such person
has the right to acquire such shares within 60 days of September 30,
2002. For purposes of computing the percentage of outstanding shares of
Common Stock held by each person or group of persons named above, we
have assumed to be outstanding any security which such person or
persons has or have the right to acquire within that 60-day period.
However, securities that may be acquired within that 60-day period are
not deemed to be outstanding for purposes of computing the percentage
ownership of any other person. All of the Warrants are currently
exercisable and, therefore, the Selling Stockholders may be deemed to
be the beneficial owner of the shares of Common Stock underlying such
Warrants pursuant to Rule 13d-3(d). Notwithstanding the foregoing, for
purposes of this table, we have not, however, included the Shares
underlying warrants and registered hereby under the column "Securities
Beneficially Owned Prior to Offering--Common Stock." Instead, the
Shares are reflected under the column "Securities Offered Hereby."
Except as indicated in the footnotes to this table and pursuant to
applicable community property laws, the Company believes, based on
information supplied by such persons, that the persons named in this
table have sole voting and investment power with respect to all shares
of Common Stock which they beneficially own.
(2) Represents the maximum number of shares of Common Stock issuable to
each Selling Stockholder upon exercise in full of Warrants issued or
issuable thereto.
(3) Assumes the eventual sale of all Shares by each Selling Stockholder.
There can be no assurance that any Selling Stockholder will sell any or
all of the Shares owned thereby or issuable thereto.
(4) Including 2,060,000 shares issuable up conversion of the Company's
Series B 8% Convertible Preferred Stock.
(5) Including 618,000 shares issuable up conversion of the Company's Series
B 8% Convertible Preferred Stock.
(6) Including 206,000 shares issuable up conversion of the Company's Series
B 8% Convertible Preferred Stock
(7) Including 309,000 shares issuable up conversion of the Company's Series
B 8% Convertible Preferred Stock
(8) Including 154,472 shares issuable up conversion of the Company's Series
A 8% Convertible Preferred Stock
* Less than 1%.
PLAN OF DISTRIBUTION
The Selling Stockholders may, in their discretion, offer and sell
Shares from time to time on The American Stock Exchange or otherwise at prices
and on terms then prevailing, at prices related to the then-current market
price, or at negotiated prices. The distribution of the Shares may be effected
from time to time in one or more transactions including, without limitation:
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
o transactions involving block trades;
o purchases by a broker, dealer or underwriter as principal and
resale by that person for its own account under this Prospectus;
o put or call option transactions;
o privately negotiated transactions; or
o by any other legally available means.
In effecting sales, broker-dealers or agents engaged by the Selling
Stockholders may arrange for other broker-dealers or agents to participate. From
time to time, one or more of the Selling Stockholders may pledge, hypothecate or
grant a security interest in some or all of the Shares owned thereby, and the
pledgees, secured parties or persons to whom such securities have been
hypothecated shall, upon foreclosure in the event of default, be deemed to be
Selling Stockholders under this Prospectus. In addition, the Selling
Stockholders may from time to time sell short the Common Stock of the Company
and, in such instances, this Prospectus may be delivered in connection with such
short sale and the Shares offered hereby may be used to cover such short sale.
Sales of Selling Stockholders' Shares may also be made pursuant to Rule
144 under the Securities Act of 1933, where applicable. The Selling
Stockholders' Shares may also be offered in one or more underwritten offerings,
on a firm commitment or best efforts basis. The Company will receive no proceeds
from the sale of Shares by the Selling Stockholders, although it will receive
the exercise price upon any exercise of Warrants.
To the extent required under the Securities Act of 1933, the aggregate
amount of Selling Stockholders' Common Stock being offered and the terms of the
offering, the names of any such agents, brokers, dealers or underwriters and any
applicable commission with respect to a particular offer will be set forth in an
accompanying Prospectus supplement. Any underwriters, dealers, brokers or agents
participating in the distribution of the Shares may receive compensation in the
form of underwriting discounts, concessions, commissions or fees from a Selling
Stockholder and/or purchasers of Selling Stockholders' Shares, for whom they may
act. In addition, Selling Stockholders may be deemed to be underwriters under
the Securities Act and any profits on the sale of Shares by them may be deemed
to be discounts or commissions under the Securities Act. Selling Stockholders
may have other business relationships with the Company or its affiliates in the
ordinary course of business.
From time to time each of the Selling Stockholders may transfer, pledge,
donate or assign their Shares to lenders, family members and others and each of
such persons will be deemed to be a Selling Stockholder for purposes of this
Prospectus. The number of Shares beneficially owned by those Selling
Stockholders who transfer, pledge, donate or assign Shares will decrease as and
when they take such actions. The plan of distribution for the Shares sold
hereunder will otherwise remain unchanged, except that the transferees,
pledgees, donees or other successors will be Selling Stockholders hereunder.
Without limiting the foregoing, in connection with distributions of the
Shares, a Selling Stockholder may enter into hedging transactions with
broker-dealers and the broker-dealers may engage in short sales of the Common
Stock in the course of hedging the positions they assume with such Selling
Stockholder. A Selling Stockholder may also enter into option or other
transactions with broker-dealers that involve the delivery of Shares to the
broker-dealers, who may then resell or otherwise transfer such Shares. A Selling
Stockholder may also lend or pledge Shares to a broker-dealer and the
broker-dealer may sell the Shares so borrowed or, upon default, may sell or
otherwise transfer the pledged Shares.
Under applicable rules and regulations under the Securities Exchange Act
of 1934, any person engaged in the distribution of the Common Stock may not bid
for or purchase shares of Common Stock during a period which commences one
business day (five business days, if the Company's public float is less than $25
million or its average daily trading volume is less than $100,000) prior to such
person's participation in the distribution, subject to exceptions for certain
passive market making activities. In addition and without limiting the
foregoing, each Selling Stockholder will be subject to applicable provisions of
the Securities Exchange Act of 1934 and the rules and regulations thereunder,
including, without limitation, Regulation M, which provisions may limit the
timing of purchases and sales of shares of the Company's Common Stock by such
Selling Stockholder.
15
The Company is bearing all costs relating to the registration of the
Shares (other than fees and expenses, if any, of counsel or other advisors to
the Selling Stockholders). Any commissions, discounts or other fees payable to
broker-dealers in connection with any sale of the Shares will be borne by the
Selling Stockholders selling such Shares.
The Company may indemnify the Selling Stockholders in certain
circumstances, against certain liabilities, including liabilities arising under
the Securities Act of 1933.
LEGAL MATTERS
The legality of the securities in this offering has been passed upon
for us by our counsel, Venable, Baetjer, Howard & Civiletti, LLP of Washington,
DC.
EXPERTS
Our financial statements at September 30, 1999, 2000 and 2001 for the
fiscal years ended September 30, 1999, 2000 and 2001 are incorporated by
referenced into this Prospectus from our Annual Report on Form 10-K for the
fiscal year ended September 30, 2001 have been audited by Stegman & Co.,
independent accountants, and are so incorporated by reference in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
II-4
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
We estimate that our expenses to be paid in connection with the offering
(other than placement agent discounts, commissions and reasonable expense
allowances), all of which will be paid by the Company, will be as follows:
SEC Registration Fee.................... $361
American Stock Exchange Listing Fee..... $22,500
Accounting Fees and Expenses............ $500
Legal Fees and Expenses................. $25,000
Printing and Engraving.................. $200
Miscellaneous........................... $5,000
------
Total $53,561
- -----
*These are estimated amounts.
Item 15. Indemnification of Directors and Officers.
The Company is organized under the laws of the State of Delaware. Our
Certificate of Incorporation provides that we shall indemnify our current and
former directors and officers, and may indemnify our current and former
employees and agents, against any and all liabilities and expenses incurred in
connection with their services in those capacities to the maximum extent
permitted by Delaware law.
The Delaware General Corporation Law (the "DGCL") provides that a
Delaware corporation has the power generally to indemnify its current and former
directors, officers, employees and other agents (each, a "Corporate Agent")
against expenses and liabilities (including amounts paid in settlement) in
connection with any proceeding involving such person by reason of his being a
Corporate Agent, other than a proceeding by or in the right of the corporation,
if such person acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation and, with respect to
any criminal proceeding, such person had no reasonable cause to believe his
conduct was unlawful.
In the case of an action brought by or in the right of the corporation,
indemnification of a Corporate Agent is permitted if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation. However, no indemnification is permitted in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation, unless and only to the extent that the
court in which such proceeding was brought shall determine upon application that
despite the adjudication of liability, but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to such indemnification.
To the extent that a Corporate Agent has been successful on the merits
or otherwise in the defense of such proceeding, whether or not by or in the
right of the corporation, or in the defense of any claim, issue or matter
therein, the corporation is required to indemnify such person for expenses in
connection therewith. Under the DGCL, the corporation may advance expenses
incurred by a Corporate Agent in connection with a proceeding, provided that the
Corporate Agent undertakes to repay such amount if it shall ultimately be
determined that such person is not entitled to indemnification. Our Certificate
of Incorporation requires us to advance expenses to any person entitled to
indemnification, provided that such person undertakes to repay the advancement
if it is determined in a final judicial decision from which there is no appeal
that such person is not entitled to indemnification.
The power to indemnify and advance the expenses under the DGCL does not
exclude other rights to which a Corporate Agent may be entitled to under the
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
Our Certificate of Incorporation permits us to secure insurance on
behalf of our directors, officers, employees and agents for any expense,
liability or loss incurred in such capacities, regardless of whether the
Certificate of Incorporation or Delaware law would permit indemnification
against such expense, liability or loss.
II-1
The purpose of these provisions is to assist us in retaining qualified
individuals to serve as our directors, officers, employees and agents by
limiting their exposure to personal liability for serving as such.
Item 16. Exhibits.
Exhibit
No. Description
4.1 Certificate of Incorporation of Celsion Corporation (the
"Company"), as amended through June 5, 2001, and as in effect
on August 14, 2001 (incorporated by reference to Exhibit 3.1
to the Quarterly Report of the Company on Form 10-Q for the
quarter ended June 30, 2001).
4.2 Bylaws of the Company, as amended (incorporated by reference
to Exhibit 3.2 to the Quarterly Report of the Company on Form
10-Q for the quarter ended June 30, 2001).
4.3+ Certificate of the Designations, Powers, Preferences and
Rights of the Series B 8% Convertible Preferred Stock of
Celsion Corporation
4.4+ Certificate of Designations of Series C Junior Participating
Preferred Stock of Celsion Corporation
4.5 Celsion Corporation and American Stock Transfer & Trust
Company Rights Agreement dated as of August 15, 2002
(incorporated by reference to Exhibit 99.1 to the Current
Report on Form 8-K filed August 21, 2002).
4.6+ Form of Warrant to Purchase Common Stock of the Company .
5.1+ Opinion of Venable, Baetjer, Howard & Civiletti, LLP re:
Legality.
23.1+ Consent of Stegman & Company, independent public accountants
of the Company.
23.2+ Consent of Venable, Baetjer, Howard & Civiletti, LLP.
(included in Exhibit 5.1).
24.1+ Power of Attorney (included in Signature Page).
- ----------
+ Denotes exhibits filed herewith.
Item 17. Undertakings.
(A) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in the
registration statement;
II-2
provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment to this 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.
(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 undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
SIGNATURES
----------
Under the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Columbia, Maryland, on the 18th day of October 2002.
CELSION CORPORATION
By: /S/ Augustine Y. Cheung
------------------------
Augustine Y. Cheung
President and Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Augustine Y. Cheung and John Mon
and each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place, and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, or any related
registration statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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.
Signature Title Date
--------- ----- ----
/S/ Augustine Y. Cheung Director, President and Chief October 18, 2002
------------------------------------- Executive Officer (Principal
Augustine Y. Cheung Executive Officer)
/S/ Anthony P. Deasey Executive Vice President and Chief October 18, 2002
------------------------------------ Financial Officer (Principal
Anthony P. Deasey Financial and Accounting
Officer)
/S/ John Mon Vice President, Secretary, October 18, 2002
------------------------------------ Director
John Mon
/S/ Max E. Link Chairman of the Board of Directors October 18, 2002
---------------
Max E. Link
/S/ Claude Tihon Director October 14, 2002
------------------------------------
Claude Tihon
/S/ Kris Venkat Director October 12, 2002
------------------------------------
Kris Venkat
II-4
9
CERTIFICATE OF THE DESIGNATIONS, POWERS,
PREFERENCES AND RIGHTS
OF THE
SERIES B 8% CONVERTIBLE PREFERRED STOCK
(PAR VALUE $0.01 PER SHARE)
OF
CELSION CORPORATION
------------------------
(A DELAWARE CORPORATION)
PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
-----------------
CELSION CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), by its
President,
DOES HEREBY CERTIFY:
FIRST: That, pursuant to authority expressly vested in the Board of
Directors of the Corporation by the provisions of its Certificate of
Incorporation, the Board of Directors duly adopted the following resolution
providing for the designation and issuance of up to Five Thousand (5,000) shares
of Series B 8% Convertible Preferred Stock, $0.01 par value:
RESOLVED, that this Board of Directors, pursuant to
authority expressly vested in it by the provisions of the
Certificate of Incorporation of the Corporation, hereby
authorizes the issue from time to time of a series of
Preferred Stock of the Corporation and hereby fixes the
designation, preferences, and the relative, participating,
optional or other rights, and the qualifications, limitations
or restrictions thereof, in addition to those set forth in the
Corporation's Certificate of Incorporation, to be in their
entirety as follows:
1. Designation, Par Value and Number of Shares.
The formal designation of the shares shall be "Series B 8%
Convertible Preferred Stock" (referred to herein for convenience as "Series B
Preferred Stock" or as "Preferred B Shares"). The par value of Series B
Preferred Stock is $0.01 per share. The Series B Preferred Stock shall consist
1
of Five Thousand (5,000) shares.
2. Liquidation Preference and Ranking.
(a) Upon any voluntary or involuntary liquidation, dissolution
or winding up of the business and affairs of the Corporation, and before the
holders of shares of the Corporation's common stock, par value $0.01 per share
(the "Common Stock") or any other class or series of stock of the Corporation
ranking junior in liquidation to the Series B Preferred Stock shall be entitled
to any payment on account of such shares, the holders of Series B Preferred
Stock then outstanding shall be entitled to receive, as a liquidation
preference, an amount equal to One Thousand Dollars ($1,000) per share (the
"Original Cost"), plus any accrued but unpaid dividends (the Original Cost plus
such dividends being referred to as the "Liquidation Preference") to which such
stockholders have become entitled and which have not theretofore been paid.
After the holders of Series B Preferred Stock shall have received such payment
of the Liquidation Preference plus all accrued and unpaid dividends in the
course of such liquidation, dissolution or winding up, they shall have no right
or claim to any of the remaining assets of the Corporation.
(b) If, upon any liquidation, dissolution or winding up, the
Corporation shall have insufficient funds to permit payment to the holders of
Series B Preferred Stock then outstanding of the entire amount to which they are
entitled as a Liquidation Preference, then such funds as are available for such
purpose shall be distributed among such holders on the basis of the number of
shares of Series B Preferred Stock held by each such holder so that, as nearly
as may be practicable, the amount each such holder shall receive shall represent
the same proportion of such available funds as such holder's total holding of
shares of Series B Preferred Stock represents of the total shares of Series B
Preferred Stock outstanding at the time.
(c) For all purposes under this Certificate of Designations,
all shares of Series B Preferred Stock shall be of equal rank with each other.
(d) For all purposes under this Certificate of Designations,
shares of Series B Preferred Stock shall rank in parity with shares of the
Corporation's Series A 10% Convertible Preferred Stock.
3. Dividends.
(a) The holders of Series B Preferred Stock shall be entitled
to receive, when, as and if declared by the Board of Directors of the
Corporation, out of capital surplus or earnings at the time legally available
therefor, dividends at the annual rate of eight percent (8%) per share, payable
in fully-paid and non-assessable shares of Series B Preferred Stock which shall
be valued, for this purpose, at an amount equal to the Original Cost (as
adjusted in a manner similar to that provided for the Conversion Price in
Section 9(a), as applicable). Dividends shall accrue, whether or not declared,
unless such dividends are then prohibited by the provisions of the Delaware
2
General Corporation Law or the Corporation's Certificate of Incorporation.
(b) Dividends shall be cumulative and shall be payable
semi-annually on December 31 and on June 30 commencing with December 31, 2002,
to stockholders of record on the immediately preceding December 15th and June
15th, respectively, or such other record date as may be fixed for that purpose
by the Board of Directors; provided, however, that if December 15th or June 15th
shall not be a business day and the Board of Directors shall not fix another
record date, the record date shall be the next succeeding business day.
Dividends payable with respect to any shares of Series B Preferred Stock for the
initial dividend period and for any period less than a full six-month period
shall accrue from the date of issuance of such shares of Series B Preferred
Stock on which such dividends are payable, and shall be computed and apportioned
on the basis of a 180-day period composed of six 30-day months. Holders of
Series B Preferred Stock shall not be entitled to any dividends in excess of the
full dividends provided for herein, and no interest or sum of money in lieu of
interest shall be payable in respect of any dividend payment which may be in
arrears. No dividends shall be payable on any fractional or full shares of
Series B Preferred Stock which shall have been declared, paid or distributed as
dividends on outstanding Preferred B Shares.
4. No Dividends or Distributions to Junior Securities.
Except as may be otherwise provided in this Certificate of
Designations, so long as any shares of Series B Preferred Stock are outstanding,
no dividends shall be declared or paid or set aside for payment, and no other
distribution shall be declared or made, upon any Common Stock of the Corporation
or upon any other shares of a class or series of stock which is junior in right
and ranking to the Series B Preferred Stock, unless all amounts then due to the
holders of Series B Preferred Stock, including the dividends provided for
herein, have been paid.
5. Voting Rights.
Except as otherwise expressly provided herein or as required
by law, the Series B Preferred Stock shall have no voting rights. However,
notwithstanding the foregoing, the written consent or affirmative vote of the
holders of a majority of the outstanding shares of Series B Preferred Stock is
required to approve (i) any proposed amendment to the Certificate of
Incorporation of the Corporation that would materially alter or change the
powers, preferences, or special rights of the Series B Preferred Stock so as to
affect the holders adversely, and (ii) any plan of merger or consolidation that
contains provisions which, if contained in a proposed amendment to the
Certificate of Incorporation of the Corporation, would have entitled the holders
of the Series B Preferred Stock to vote, as a class, on the issue.
6. Elective Conversion.
The holders of shares of Series B Preferred Stock shall have the
following conversion rights:
3
(a) Subject to the terms and conditions of this Section 6, the
holder of any share or shares of Series B Preferred Stock shall have the right,
at such holder's option at any time commencing with September 3, 2002, to
convert any such shares of Series B Preferred Stock (except that upon any
liquidation of the Corporation the right of conversion shall terminate at the
close of business on the business day fixed for payment of the amount
distributable on the Series B Preferred Stock) into such number of fully paid
and nonassessable shares of the Corporation's Common Stock as is obtained by (i)
multiplying the number of shares of Series B Preferred Stock so to be converted
by One Thousand Dollars ($1,000) and (ii) dividing the result by the conversion
price of Fifty Cents ($0.50) per share or, in case an adjustment of such price
has taken place pursuant to the further provisions hereof, then by the
conversion price as last adjusted and in effect at the date any such share or
shares of Series B Preferred Stock are surrendered for conversion; provided,
that, in no event shall such conversion price be less than $0.01 per share (such
price, or such price as last adjusted, being referred to as the "Conversion
Price").
(b) The conversion right provided under paragraph (a) of this
Section 6 shall be exercised by a holder of the Preferred B Shares subject to
conversion by delivering to the Corporation, during regular business hours, or
to such agent as may be designated by the Corporation, the original certificate
or certificates for the Preferred B Shares to be converted, duly endorsed or
assigned either in blank or to the Corporation, accompanied by written notice in
substantially the form attached hereto as Exhibit A, stating that the holder
elects to convert such Preferred B Shares (or the number of such Preferred B
Shares as to which the conversion right is to be exercise) and stating the name
or names (with address and Social Security or Federal Taxpayer Identification
Number) in which the certificate or certificates for the shares of Common Stock
are to be issued. Conversion shall be deemed to have been effected on the date
when the aforesaid delivery is made (the "Conversion Date").
(c) As promptly as practicable after the receipt of the
written notice referred to in Section 6(b) and surrender of the certificate or
certificates for the share or shares of Series B Preferred Stock to be
converted, the Corporation shall issue and deliver to such holder (or upon the
written order of such holder) to the place designated by such holder, a
certificate or certificates for the number of shares of Common Stock to which
such holder is entitled as a consequence of such conversion. To the extent
permitted by law, the person in whose name the certificate or certificates for
Common Stock are to be issued shall be deemed to have become a stockholder of
record on the applicable Conversion Date unless the transfer books of the
Corporation are closed on that date, in which event such person shall be deemed
to have become a stockholder of record on the next succeeding business day on
which the transfer books are open and, at such time, the rights of the holder of
such Preferred B Share or Shares shall cease.
(d) All shares of Series B Preferred Stock which shall have
been surrendered for conversion shall no longer be deemed to be outstanding, and
all rights with respect to such shares, including the rights, if any, to receive
notices and to vote, shall immediately cease and terminate on the Conversion
4
Date, with respect to Preferred B Shares which have been converted, except only
the right of the holders thereof to receive shares of Common Stock in conversion
therefor. Any shares of Series B Preferred Stock so converted shall be retired
and canceled and shall not be reissued, and the Corporation (without the need
for stockholder action) may from time to time take such appropriate action as
may be necessary to reduce the authorized number of shares of Series B Preferred
Stock accordingly.
7. Mandatory Redemption. The Corporation shall have the follow-
ing rights to redeem shares of Series B Preferred Stock:
(a) Subject to the terms and conditions of this Section 7, the
Corporation shall have the right (the "Redemption Right"), at its option at any
time (except that, upon any liquidation of the Corporation, the Redemption Right
shall terminate at the close of business on the business day fixed for payment
of the amount distributable on the Series B Preferred Stock), to redeem and
require the conversion of all or a portion of the Preferred B Shares then
outstanding for and into such number of fully paid and nonassessable shares of
Common Stock (the "Redemption Stock") as is obtained by (i) multiplying the
number of shares of Series B Preferred Stock so to be converted and redeemed by
One Thousand Dollars ($1,000) and (ii) dividing the result by the Conversion
Price. In the event that the Corporation elects to exercise its Redemption Right
as to fewer than all of the Preferred B Shares then outstanding, Preferred B
Shares shall be redeemed ratably (based on the number of shares held thereby and
the total number of Preferred B Shares then outstanding) from each holder
thereof.
(b) At least twenty (20) calendar days prior to the date
selected by the Board of Directors as the effective date for the exercise of its
Redemption Right pursuant to this Section 7 (a "Redemption Date") the
Corporation shall give notice (a "Redemption Notice") to each holder of record
(at the close of business on the business day next preceding the day on which
the Redemption Notice is given) of shares of Series B Preferred Stock notifying
such holder of the redemption and specifying the Redemption Date, the number of
shares of Series B Preferred Stock to be redeemed from such holder, the number
of shares of Redemption Stock issuable thereto in respect thereof and the place
where said Redemption Price shall be payable. The Redemption Notice shall be
addressed to each holder at such holder's address as shown by the records of the
Corporation.
(c) For a period of ten (10) calendar days following the
delivery of the Redemption Notice, each holder of Series B Preferred Stock shall
have the right to designate, by means of a notice substantially in the form of
Exhibit B hereto, the name or names (with address and Social Security or Federal
Taxpayer Identification Number) in which the certificate or certificates for the
shares of Redemption Stock are to be issued. In the event that any holder shall,
for any reason, fail to make such designation as to some or all of the shares of
Redemption Stock issuable thereto, all shares of Redemption Stock not subject to
5
valid and timely designation shall be issued in the name of the holder of the
Series B Preferred Stock subject to the Redemption Right.
(d) From and after the close of business on a Redemption Date,
unless there shall have been a default in issuance of the Redemption Stock as
required hereby, all rights of holders of shares of Series B Preferred Stock
(except the right to receive the Redemption Stock) shall cease with respect to
the shares to be redeemed on such Redemption Date, and such shares shall be
retired and canceled and shall not be reissued, and the Corporation (without the
need for stockholder action) may from time to time take such appropriate action
as may be necessary to reduce the authorized number of shares of Series B
Preferred Stock accordingly.
8. Provisions Applicable to Conversions and Redemptions.
(a) No fractional shares of Common Stock shall be issued upon
conversion or redemption of shares of Series B Preferred Stock into or for
shares of Common Stock or Redemption Stock, and the number of shares of Common
Stock or Redemption Stock to be delivered upon such conversion or redemption, in
lieu of delivering any fractional share, shall be rounded to the nearest whole
share (with .5 shares rounded up or down to the even number of shares). Upon
conversion of only a portion of the number of shares covered by a certificate
representing shares of Series B Preferred Stock surrendered for conversion or
upon the written order of the holder of the certificate surrendered for
conversion, the Corporation shall issue and deliver to such holder, at the
expense of the Corporation, a new certificate covering the number of shares of
Series B Preferred Stock representing the unconverted portion of the certificate
so surrendered. Upon redemption of only a portion of the number of shares
covered by a certificate representing shares of Series B Preferred Stock, the
certificate or certificates representing the Preferred B Shares so redeemed
shall, from and after the Redemption Date, be deemed for all purposes to
represent that number of shares of Series B Preferred Stock not subject to
redemption and such certificate or certificates shall be deemed canceled, and of
no further effect with respect to shares redeemed; provided, however, that the
Corporation shall, upon surrender to it or to such agent as may be designated by
the Corporation of the original certificate or certificates for the Preferred B
Shares to be redeemed or upon the written order of the holder of the certificate
so surrendered, issue and deliver to the holder of any shares of Series B
Preferred Stock, at the expense of the Corporation, a new certificate covering
the number of shares of Series B Preferred Stock representing the unredeemed
portion of the certificate so surrendered.
(b) The Corporation shall, at all times when Series B
Preferred Stock shall be outstanding, reserve and keep available out of its
authorized but unissued Common Stock, for the purpose of effecting the
conversion or redemption of Series B Preferred Stock, such number of its duly
authorized shares as shall from time to time be sufficient to effect the
conversion or redemption of all outstanding shares of Series B Preferred Stock.
6
(c) All shares of Common Stock (including Redemption Stock)
which may be issued in connection with the conversion or redemption provisions
set forth herein will, upon issuance by the Corporation, be validly issued,
fully paid and non-assessable. No adjustment shall be made for dividends on any
share of Series B Preferred Stock which is being converted or redeemed (unless
such dividends have been accrued and are unpaid as of the Conversion or
Redemption Date) or on any share of Common Stock (including Redemption Stock)
issued on exercise of a holder's conversion right or the Corporation's
Redemption Right as provided herein.
(d) The Corporation shall pay any and all issue and other
taxes that may be payable in respect of any issuance or delivery of shares of
Common Stock (including Redemption Stock) upon conversion or redemption of
shares of Series B Preferred Stock pursuant hereto. The Corporation shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of shares of Common Stock
(including Redemption Stock) in a name other than that in which the shares of
Series B Preferred Stock so converted or redeemed were registered, and no such
issuance or delivery shall be made unless and until the person or entity
requesting such issuance has paid to the Corporation the amount of any such tax
or has established, to the satisfaction of the Corporation, that such tax has
been paid.
9. Adjustments to Conversion Price.
(a) The Conversion Price (which is initially established at
Fifty Cents ($0.50) per share of Common Stock (including Redemption Stock)) in
effect from time to time shall be subject to adjustment (to the nearest cent)
from time to time as follows:
(i) If the Corporation, at any time after June 1,
2002 and at any time prior to the conversion of a Preferred Share shall have
subdivided its outstanding shares of Common Stock by recapitalization, reclassi
fication or split-up thereof, or if the Corporation shall have declared a stock
dividend or distributed shares of Common Stock to its stockholders, the
Conversion Price immediately prior to such conversion shall be proportionately
increased; and, if the Corporation, prior to such conversion, shall have at any
time combined the outstanding shares of Common Stock by recapitalization, re
classification or comparable combination thereof, the Conversion Price
immediately prior to such conversion shall be proportionately increased.
(ii) In case the Corporation, after June 1, 2002,
shall consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Conversion Price shall be adjusted in such manner that the holder of
Preferred B Shares, upon the conversion or redemption thereof as provided
herein, at any time after the consummation of such consolidation, merger or
conveyance, shall be entitled to receive the securities or property to which
such holder would have been entitled upon such consummation if such holder had
exercised his right to convert such Preferred B Shares immediately prior
thereto.
7
(b) Any provision of this Section 9 to the contrary
notwithstanding, no adjustment of the Conversion Price shall be made if the
amount of such adjustment would be less than One Cent ($0.01) per share;
provided, however, that any such adjustment shall be carried forward and an
adjustment with respect thereto shall be made at such time, if any, as any
subsequent adjustment(s) together with such carried-forward adjustment(s) result
in an aggregate adjustment of One Cent ($0.01) or more.
(c) Upon any adjustment of the Conversion Price, then and in
each such case, other than as provided in paragraph (b) above, the Corporation's
chief financial officer shall give written notice thereof to each holder of
shares of Series B Preferred Stock at the address of such holder as shown on the
books of the Corporation, which notice shall state the Conversion Price
resulting from such adjustment, setting forth in reasonable detail the method
upon which such calculation is based.
10. General.
(a) The Corporation shall not amend, alter or repeal the
preferences, special rights or other powers of the Series B Preferred Stock so
as to affect adversely the Series B Preferred Stock, without the written consent
or affirmative vote of the holders of a majority of the then outstanding shares
of Series B Preferred Stock, given in writing or by vote at a meeting,
consenting or voting (as the case may be) separately as a class, in accordance
with applicable law. Without limiting the generality of the foregoing, the
authorization of any shares of capital stock with preference or priority over
the Series B Preferred Stock as to the right to receive either dividends or
amounts distributable upon liquidation, dissolution or winding up of the
Corporation shall be deemed to affect adversely the Series B Preferred Stock,
and the authorization of any shares of capital stock on a parity with Series B
Preferred Stock as to the right to receive either dividends or amounts
disbributable upon liquidation, dissolution or winding up of the Corporation
shall not be deemed to affect adversely the Series B Preferred Stock.
(b) The number of authorized shares of Series B Preferred
Stock may be increased (but only for the purpose of providing a sufficient
number of authorized Preferred B Shares for the payment of dividends on
outstanding Preferred B Shares) or decreased (but not below the number of shares
then outstanding) by the directors of the Corporation.
(c) Any of the rights of the holders of Series B Preferred
Stock set forth herein may be waived by the affirmative vote of the holders of a
majority of the shares of Series B Preferred Stock then outstanding, which vote
may be taken by written consent or at a meeting of the holders of Preferred B
Shares.
11. Notices.
(a) Any notices required to be given to any holder of Series B
Preferred Stock shall be deemed properly given if deposited in the United States
8
mail, postage prepaid, or sent by facsimile or by overnight or express delivery
service, or by electronic mail or similar electronic transmission, followed by
duplicate notice via United States first class mail, postage prepaid, and
addressed to the holder of record at such holder's address appearing at the
books of the Corporation.
(b) In case of any (i) capital reorganization of the
Corporation, reclassification, of the capital stock of the Corporation,
consolidation or merger of the Corporation with or into another corporation, or
conveyance of all or substantially all of the assets of the Corporation to
another corporation; (ii) voluntary or involuntary dissolution, liquidation or
winding up of the Corporation; or (iii) other event specified in this
Certificate of Designations or pursuant to applicable law requiring the taking
of such a record, then, and in each such case, the Corporation shall mail or
cause to be mailed to each holder of shares of Series B Preferred Stock a notice
specifying, as the case may be, the date on which a record is to be taken for
the foregoing purposes and providing the information reasonably required in
order enable to holders of record of Preferred B Shares to exercise the rights
conferred by this Certificate of Designations.
SECOND: That such determination of the designation,
preferences and the relative, participating, optional or other rights, and the
qualifications, limitations or restrictions thereof, relating to said Series B
Preferred Stock, was duly made by the Board of Directors pursuant to the
provisions of the Certificate of Incorporation of the Corporation, and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, as amended.
[SIGNATURE PAGE FOLLOWS.]
9
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations for its Series B 8% Convertible Preferred Stock to be duly executed
by its President and by its Secretary, respectively, this 28th day of May, 2002.
CELSION CORPORATION
By: /s/ Augustine Y. Cheung
-----------------------------------------
Augustine Y. Cheung
President and Chief Executive Officer
ATTEST
/s/ John Mon
-------------------
John Mon, Secretary
10
Exhibit A
---------
CELSION (DELAWARE) CORPORATION
NOTICE OF CONVERSION OF
SERIES B 8% CONVERTIBLE PREFERRED STOCK
(To be Executed by the Registered Holder in order to convert the Series B
Preferred Stock)
The undersigned Holder hereby irrevocably elects to convert
___________shares of the Series B 8% Convertible Preferred Stock (the "Series B
Preferred Stock") of Celsion Corporation, a Delaware corporation (the
"Corporation") represented by stock certificate No(s). ________________
_______________________________ (the "Preferred Stock Certificates") into shares
of common stock ("Common Stock") of the Corporation according to the conditions
set forth in the Certificate of Designations for Series B Preferred Stock, as of
the date written below. If shares are to be issued in the name of a person other
than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto and is delivering herewith such certificates. No fee will be
charged to the Holder for any conversion, except for transfer taxes, if any. A
copy of each of the Preferred Stock Certificates being converted is attached
hereto.
Date of Submission: ___________________________________________________________
Number of Share of Series B 8% Convertible Preferred Stock to be Converted: ____
Name of Holder:_________________________________________________________________
By:_____________________________________________________________________________
Title:__________________________________________________________________________
Address:________________________________________________________________________
Social Security or Federal Taxpayer ID No: _____________________________________
IMPORTANT
No shares of Common Stock will be issued until the original Series B Preferred
Stock Certificates(s) to be converted and the Notice of Conversion are received
by the Corporation. The Holder shall fax, or otherwise deliver, a copy of this
completed and fully executed Notice of Conversion to the Corporation at the
office of the Corporation or such other location designated by the Corporation
and shall deliver, at the same time, the original Preferred Stock Certificate(s)
representing the Series B Preferred Stock being converted, duly endorsed for
transfer.
11
Exhibit B
---------
CELSION (DELAWARE) CORPORATION
NOTICE OF NAME AND ADDRESS OF
TRANSFEREE OF SHARES OF REDEMPTION STOCK
In accordance with Section 7 of the Certificate of Designations, the
Corporation has exercised its redemption right and the undersigned holder of
shares of the Corporation's Series B 8% Convertible Preferred Stock (the "Series
B Preferred Stock") subject to such redemption right desires to have the shares
of Common Stock of the Corporation, par value $0.01 per share, issued pursuant
to such redemption (the "Redemption Shares") issued in the name of a person
other than the undersigned. The undersigned desires to have the Redemption
Shares issued to the individual or entity identified below. The undersigned will
pay all transfer taxes payable with respect thereto and is delivering herewith
such certificates (the "Preferred Stock Certificates") representing the shares
of Series B Preferred Stock subject to redemption. No fee will be charged to the
undersigned holder for redemption, except for transfer taxes, if any. A copy of
each of the Preferred Stock Certificates being redeemed is attached hereto.
Date of Submission: ___________________________________________________________
Name of Holder:_________________________________________________________________
By:_____________________________________________________________________________
Title:__________________________________________________________________________
Address:________________________________________________________________________
Social Security or Federal Taxpayer ID No: _____________________________________
IMPORTANT
No shares of Common Stock will be issued until the original Series B
Preferred Stock Certificates(s) representing the Series B Preferred Stock being
redeemed, duly endorsed for transfer, are received by the Corporation.
12
CERTIFICATE OF DESIGNATIONS, POWERS,
of
SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
of
CELSION CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
Celsion Corporation, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), in
accordance with the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of Directors in
accordance with the provisions of the Certificate of Incorporation of the said
Corporation, the said Board of Directors on August 6, 2002 adopted the following
resolution creating a series of 15,000 shares of Preferred Stock designated as
"Series C Junior Participating Preferred Stock":
RESOLVED, that pursuant to the authority vested in the
Board of Directors of this Corporation in accordance with the
provisions of the Certificate of Incorporation, a series of
Preferred Stock, par value $.01 per share, of the Corporation
be, and hereby is, created, and that the designation and number
of shares thereof and the voting and other powers, preferences
and relative, participating, optional or other rights of the
shares of such series and the qualifications, limitations and
restrictions thereof are as follows:
Series C Junior Participating Preferred Stock
---------------------------------------------
1. Designation and Amount. There shall be a series of Preferred Stock
that shall be designated as "Series C Junior Participating Preferred Stock," and
the number of shares constituting such series shall be 15,000. Such number of
shares may be increased or decreased by resolution of the Board of Directors;
provided, however, that no decrease shall reduce the number of shares of Series
C Junior Participating Preferred Stock to less than the number of shares then
issued and outstanding plus the number of shares issuable upon exercise of
outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Corporation.
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2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any class or series of stock of the Corporation ranking prior and
superior to the shares of Series C Junior Participating Preferred Stock with
respect to dividends, the holders of shares of Series C Junior Participating
Preferred Stock, in preference to the holders of shares of any class or series
of stock of the Corporation ranking junior to the Series C Junior Participating
Preferred Stock in respect thereof, shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of the first,
fourth, seventh and tenth month in each calendar year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series C Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $100
or (b) the Adjustment Number (as defined below) times the aggregate per share
amount of all cash dividends, and the Adjustment Number times the aggregate per
share amount (payable in kind) of all non-cash dividends or other distributions
other than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock, par value $.01 per share, of the Corporation (the "Common
Stock") since the immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series C Junior Participating
Preferred Stock. The "Adjustment Number" shall initially be 10,000. In the event
that, after August 6, 2002, Corporation shall (i) declare and pay any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such Adjustment
Number by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or distribution on the
Series C Junior Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock).
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series C Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
C Junior Participating Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares of
Series C Junior Participating Preferred Stock entitled to receive a quarterly
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dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series C Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series C Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 60 calendar days prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series C Junior Participa-
ting Preferred Stock shall have the following voting rights:
(A) Each share of Series C Junior Participating Preferred Stock
shall entitle the holder thereof to a number of votes equal to the Adjustment
Number on all matters submitted to a vote of the stockholders of the
Corporation.
(B) Except as required by law, by Section 3(C) and by Section 10
hereof, holders of Series C Junior Participating Preferred Stock shall have no
special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
(C) If, at the time of any annual meeting of stockholders for the
election of directors, the equivalent of six quarterly dividends (whether or not
consecutive) payable on any share or shares of Series C Junior Participating
Preferred Stock are in default, the number of directors constituting the Board
of Directors of the Corporation shall be increased by two. In addition to voting
together with the holders of Common Stock for the election of other directors of
the Corporation, the holders of record of the Series C Junior Participating
Preferred Stock, voting separately as a class to the exclusion of the holders of
Common Stock, shall be entitled at said meeting of stockholders (and at each
subsequent annual meeting of stockholders), unless all dividends in arrears on
the Series C Junior Participating Preferred Stock have been paid or declared and
set apart for payment prior thereto, to vote for the election of two directors
of the Corporation, the holders of any Series C Junior Participating Preferred
Stock being entitled to cast a number of votes per share of Series C Junior
Participating Preferred Stock as is specified in paragraph (A) of this Section
3. Each such additional director shall not be a member of Class I, Class II or
Class III of the Board of Directors of the Corporation, but shall serve until
the next annual meeting of stockholders for the election of directors, or until
his or her successor shall be elected and shall qualify, or until his or her
right to hold such office terminates pursuant to the provisions of this Section
3(C). Until the default in payments of all dividends which permitted the
election of said directors shall cease to exist, any director who shall have
been so elected pursuant to the provisions of this Section 3(C) may be removed
at any time, without cause, only by the affirmative vote of the holders of the
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shares of Series C Junior Participating Preferred Stock at the time entitled to
cast a majority of the votes entitled to be cast for the election of any such
director at a special meeting of such holders called for that purpose, and any
vacancy thereby created may be filled by the vote of such holders. If and when
such default shall cease to exist, the holders of the Series C Junior
Participating Preferred Stock shall be divested of the foregoing special voting
rights, subject to revesting in the event of each and every subsequent like
default in payments of dividends. Upon the termination of the foregoing special
voting rights, the terms of office of all persons who may have been elected
directors pursuant to said special voting rights shall forthwith terminate, and
the number of directors constituting the Board of Directors shall be reduced by
two. The voting rights granted by this Section 3(C) shall be in addition to any
other voting rights granted to the holders of the Series C Junior Participating
Preferred Stock in this Section 3.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series C Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series C Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series C Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series C Junior Participating
Preferred Stock, except dividends paid ratably on the Series C Junior
Participating Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled; or
(iii) purchase or otherwise acquire for consideration any shares
of Series C Junior Participating Preferred Stock, or any shares of stock ranking
on a parity with the Series C Junior Participating Preferred Stock, except in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of Series C Junior
Participating Preferred Stock, or to such holders and holders of any such shares
ranking on a parity therewith, upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
4
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
5. Reacquired Shares. Any shares of Series C Junior Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired promptly after the acquisition thereof. All such
shares shall upon their retirement become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
any conditions and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation,
dissolution or winding up of the Corporation, voluntary or otherwise, no
distribution shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series C Junior Participating Preferred Stock unless, prior thereto, the holders
of shares of Series C Junior Participating Preferred Stock shall have received
an amount per share (the "Series C Liquidation Preference") equal to the greater
of (i) $100 plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, or
(ii) the Adjustment Number times the per share amount of all cash and other
property to be distributed in respect of the Common Stock upon such liquidation,
dissolution or winding up of the Corporation.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series C Liquidation Preference and
the liquidation preferences of all other classes and series of stock of the
Corporation, if any, that rank in parity with the Series C Junior Participating
Preferred Stock in respect thereof, then the assets available for such
distribution shall be distributed ratably to the holders of the Series C Junior
Participating Preferred Stock and the holders of such parity shares in
proportion to their respective liquidation preferences.
(C) Neither the merger or consolidation of the Corporation into or
with another entity nor the merger or consolidation of any other entity into or
with the Corporation shall be deemed to be a liquidation, dissolution or winding
up of the Corporation within the meaning of this Section 6.
7. Consolidation, Merger, Etc. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the
outstanding shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case each share
of Series C Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal to the Adjustment
Number times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged.
5
8. No Redemption. Shares of Series C Junior Participating Preferred
Stock shall not be subject to redemption by the Corporation.
9. Ranking. The Series C Junior Participating Preferred Stock shall
rank junior to all other series of the Preferred Stock as to the payment of
dividends and as to the distribution of assets upon liquidation, dissolution or
winding up, unless the terms of any such series shall provide otherwise, and
shall rank senior to the Common Stock as to such matters.
10. Amendment. At any time that any shares of Series C Junior
Participating Preferred Stock are outstanding, the Certificate of Incorporation
of the Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series C Junior
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds of the outstanding shares of
Series C Junior Participating Preferred Stock, voting separately as a class.
11. Fractional Shares. Series C Junior Participating Preferred Stock
may be issued in fractions of a share that shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series C Junior Participating Preferred Stock.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
6th day of August, 2002.
CELSION CORPORATION
By: /s/Augustine Y. Cheung
--------------------------------------------
Augustine Y. Cheung
President and Chief Executive Officer
THE SECURITIES REPRESENTED HEREBY AND ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, PURSUANT TO REGISTRATION THEREUNDER OR EXEMPTION FROM THE REGISTRATION
REQUIREMENTS THEREOF. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR
RESALE IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
CELSION CORPORATION
WARRANT TO PURCHASE COMMON STOCK
Void after June 1, 2007
1. Warrant to Purchase Common Stock. Serial Number:
--------------------------------
1.1 Warrant to Purchase Shares. This warrant (this "Initial
Warrant") certifies that, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, __________________ (the "Warrant
Holder") is entitled, effective as of June 1, 2002 (the "Issue Date"), subject
to the terms and conditions of this Initial Warrant, to purchase from Celsion
Corporation, a Delaware corporation (the "Company"), up to a total of
________________ (__________) shares of the Common Stock of the Company, par
value One Cent ($0.01) per share (each, a "Warrant Share" and, collectively, the
"Warrant Shares"), at a purchase price (the "Exercise Price") of Sixty-Five
Cents ($0.65) per Warrant Share, at any time prior to 5:00 p.m. prevailing
Eastern time on June 1, 2007 (the "Expiration Date"). The Warrant (as defined
below) must be exercised, if at all, in whole or in part, any time on or before
the Expiration Date, subject to earlier redemption by the Company as provided
herein. Unless the context otherwise requires, the term "Shares" shall mean and
include the Common Stock of the Company and other securities and property at any
time receivable or issuable upon exercise of this Initial Warrant or any
Additional Warrant issued pursuant hereto. The term "Warrant" as used herein,
shall include this Initial Warrant, any Additional Warrants (as defined below)
issued pursuant hereto, and any warrants delivered in substitution or exchange
therefor as provided herein.
1.2 Contingent Issuance of Warrants to Purchase Additional Shares.
--------------------------------------------------------------
(a) In the event that the high sales price for the Common
Stock as reported on the American Stock Exchange or other national market and/or
over-the-counter market, as then constitutes the primary exchange on or through
which the Common Stock then is traded, has not exceeded $0.65 per share (subject
to adjustment for stock splits, stock dividends, recapitalizations, and the
like) for any period of at least ten (10) consecutive trading days commencing on
or after the Issue Date and ending on the 90th calendar day following such Issue
Date (or, if such 90th day is not a trading day, ending on the next succeeding
business day) (the "First Measurement Date"), then immediately subsequent to
such First Measurement Date the Company shall issue to the Warrant Holder an
additional Warrant (an "Additional Warrant") providing for the purchase of that
number of Warrant Shares equal to one-half (1/2) of the number of Warrant Shares
originally subject to this Warrant.
(b) In the event that the Company is required to issue an
Additional Warrant in accordance with subsection (a) above and the high sales
price for the Common Stock as reported on the American Stock Exchange or other
national market and/or over-the-counter market, as then constitutes the primary
exchange on or through which the Common Stock then is traded, has not exceeded
$0.65 per share (subject to adjustment for stock splits, stock dividends,
recapitalizations, and the like) for any period of at least ten (10) consecutive
trading days commencing on or after the First Measurement Date and ending on the
180th calendar day following the Issue Date (or, if such 180th day is not a
trading day, ending on the next succeeding business day) (the "Second
Measurement Date"), then immediately subsequent to such Second Measurement Date
the Company shall issue to the Warrant Holder an Additional Warrant providing
for the purchase of that number of Warrant Shares equal to two-thirds (2/3) of
the number of Warrant Shares originally subject to this Warrant.
(c) In the event that the Company is required to issue
Additional Warrants in accordance with subsection (a) and subsection (b) above
and the high sales price for the Common Stock as reported on the American Stock
Exchange or other national market and/or over-the-counter market, as then
constitutes the primary exchange on or through which the Common Stock then is
traded, has not exceeded $0.65 per share (subject to adjustment for stock
splits, stock dividends, recapitalizations and the like) for any period of at
least ten (10) consecutive trading days commencing on or after the Second
Measurement Date and ending on the 270th calendar day following the Issue Date
(or, if such 270th day is not a trading day, ending on the next succeeding
business day) (the "Third Measurement Date"), then immediately subsequent to
such Third Measurement Date the Company shall issue to the Warrant Holder an
Additional Warrant providing for the purchase of that number of Warrant Shares
equal to five-sixths (5/6) of the number of Warrant Shares originally subject to
this Warrant.
(d) Any Additional Warrant(s) issued as provided in this
Section 1.2 shall be identical, as to terms, to this Initial Warrant and shall
differ only in the number of Shares covered thereby and in that Additional
Warrants shall not provide for the issuance of Additional Warrants.
1.3 Adjustment of Exercise Price and Number of Shares. The number
and character of the Warrant Shares and the Exercise Price therefor, are subject
to adjustment upon occurrence of the following events:
(a) Adjustment for Stock Splits, Stock Dividends,
Recapitalizations, and the like. The Exercise Price of this Warrant and the
number of Shares issuable upon exercise of this Warrant shall each be
proportionally adjusted to reflect any stock dividend, stock split, reverse
stock split, combination of shares, reclassification, recapitalization or other
similar event altering the number of outstanding shares of the Company's Common
Stock.
(b) Adjustment for Capital Reorganization, Consolidation,
Merger. If any reorganization of the capital stock of the Company, any
consolidation or merger of the Company with or into another corporation, or the
sale of all or substantially all of the Company's assets to another corporation
shall be effected in such a way that holders of the Company's Common Stock will
2
be entitled to receive stock, securities or assets with respect to or in
exchange for the Company's Common Stock, then in each such case the Warrant
Holder, upon the exercise of the Warrant at any time after the consummation of
such capital reorganization, consolidation, merger, or sale, shall be entitled
to receive, in lieu of the stock or other securities and property receivable
upon the exercise of the Warrant prior to such consummation, the stock or other
securities or property to which such Warrant Holder would have been entitled
upon such consummation if such Warrant Holder had exercised this Warrant
immediately prior to the consummation of such capital reorganization,
consolidation, merger, or sale, all subject to further adjustment as provided in
this Section 1.3; and in each such case, the terms of this Warrant shall be
applicable to the shares of stock or other securities or property receivable
upon the exercise of this Warrant after such consummation.
2. Manner of Exercise.
------------------
2.1 Warrant Exercise Agreement. This Warrant may be exercised, in
whole or in part, on any business day on or prior to the Expiration Date,
subject to earlier redemption by the Company as provided herein. To exercise
this Warrant, the Warrant Holder must surrender to the Company this Warrant and
deliver to the Company: (a) a duly executed exercise agreement in the form
attached hereto as Exhibit A, or in such other form as may be approved by the
Company from time to time (the "Warrant Exercise Agreement"); and (b) payment in
full of the Exercise Price for the number of Warrant Shares to be purchased upon
exercise hereof (the "Aggregate Exercise Price"). If someone other than the
Warrant Holder exercises this Warrant, then such person must submit to the
Company each of the items set forth in clauses (a) and (b) of the foregoing
sentence and, in addition, must submit (c) documentation acceptable to the
Company that such person has the right to exercise this Warrant and (d) if
applicable, a spousal consent in the form attached hereto as Exhibit B. Upon a
partial exercise, this Warrant shall be surrendered, and a new warrant of the
same tenor for purchase of the number of remaining Warrant Shares not previously
purchased shall be issued by the Company to the Warrant Holder. This Warrant
shall be deemed to have been exercised as of the close of business on the date
of its surrender or, if such date is not a business day, then as of the close of
business on the next succeeding business day, for exercise as provided above,
and the person entitled to receive the Warrant Shares issuable upon such
exercise shall be treated for all purposes as the holder of record of such
Warrant Shares as of the close of business on such deemed exercise date.
2.2 Limitations on Exercise. This Warrant may not be exercised as
to fewer than One Hundred (100) Warrant Shares, unless it is exercised as to all
Warrant Shares as to which this Warrant is then exercisable and in no event may
this Warrant be issued other than for a whole number of Warrant Shares.
2.3 Payment. The Warrant Exercise Agreement shall be accompanied by
full payment of the Aggregate Exercise Price for the Warrant Shares being
purchased, in cash, by certified or cashier's check, wire transfer or other
immediately available funds.
3
2.4 Tax Withholding. Prior to the issuance of the Warrant Shares
upon exercise of this Warrant, the Warrant Holder must pay or provide for any
applicable federal or state withholding obligations of the Company.
2.5 Issuance of Shares. Provided that the Warrant Exercise
Agreement, any other documentation required hereby and payment as required
hereby have been received by the Company as provided above, the Company shall
issue the Warrant Shares (adjusted as provided herein) purchased pursuant to
such exercise, registered in the name of the Warrant Holder, the Warrant
Holder's authorized assignee or the Warrant Holder's legal representative, and
shall deliver one or more certificates representing the Warrant Shares as the
Warrant Holder reasonably may request with the appropriate legends affixed
thereto.
3. Registration Rights. The Warrant Shares will have the registration
rights as provided for in Section 4 of the Subscription Agreement entered into
between the Company and the Warrant Holder in connection with the issuance and
purchase of this Warrant (the "Subscription Agreement").
4. Redemption. The Company, at its sole discretion, may, at any time
and from time to time after September 3, 2002, redeem and cancel all or any part
of the Warrant then outstanding upon the payment of consideration consisting of
One Cent ($0.01) for each Warrant Share subject to this Warrant redeemed and
cancelled; provided, however, that any such redemptions and cancellations may be
made by the Company only upon thirty (30) calendar days' prior written notice
(the "Redemption Date" being the close of business on the 30th day following the
date the notice is deemed to be given to the Warrant Holder pursuant to Section
9 hereof) and only if the closing sales price for a share of the Company's
Common Stock as reported on the American Stock Exchange or other national market
and/or over-the-counter market, as then constitutes the primary exchange on or
through which the Common Stock then is traded, has been equal to or greater than
Two Dollars ($2.00) for any period of at least ten (10) consecutive trading days
commencing on or after the Issue Date; and provided, further, that any Warrant
Holder subject to such redemption and cancellation may exercise such Warrant at
any time prior to the expiration of the thirty (30)-day notice period; and
provided further that the Company's right to redeem and cancel the Warrant shall
be suspended in the event the shelf registration statement required under
Section 4 of the Subscription Agreement is subject to a stop order or is
otherwise not in effect or if the Warrant Holder is advised under Section 4(c)
of the Subscription Agreement that the prospectus included in such shelf
registration statement contains a material misstatement or omission during any
portion of the thirty (30)-day notice period, with such suspension to terminate
and the Company's right to redeem and cancel to be reinstated on the date
following the date on which (i) a registration statement covering the Warrant
Shares is effective and not subject to any stop order and (ii) the Company has
delivered to the Warrant Holder a prospectus covering the Warrant Shares of such
Warrant Holder under Section 4(c) of the Subscription Agreement. The notice
period shall then be extended for a period equal to the number of days during
the notice period during which registration was not effective or the prospectus
was not available or contained a material misstatement or omission. If less than
all of the outstanding Warrants are redeemed and cancelled, Warrants shall be
redeemed and cancelled on a pro rata basis.
4
5. Compliance with Laws and Regulations. The issuance, transfer and
exercise of this Warrant and the issuance and transfer of the Warrant Shares
shall be subject to compliance by the Company and the Warrant Holder with all
applicable requirements of federal and state securities laws and with all
applicable requirements of any stock exchange and/or over-the-counter market on
which the Company's Common Stock may be listed at the time of such issuance or
transfer.
6. Transfer and Exchange. This Warrant and the rights hereunder may not
be transferred in whole or in part without the Company's prior written consent,
which consent shall not be unreasonably withheld, and may not be transferred
unless such transfer complies with all applicable securities laws. If a transfer
of all or part of this Warrant is permitted as provided in the preceding
sentence, then this Warrant and all rights hereunder may be transferred, in
whole or in part, on the books of the Company or its agent maintained for such
purpose at the principal office of the Company or its agent, by the Warrant
Holder in person or by its duly authorized attorney, upon surrender of this
Warrant properly endorsed and upon payment of any necessary transfer tax or
other governmental charge imposed upon such transfer. Upon any permitted partial
transfer, the Company will issue and deliver to the Warrant Holder a new Warrant
or Warrants of like tenor with respect to the portion of the Warrant not so
transferred. Each taker and holder of this Warrant or any portion hereof, by
taking or holding the same, consents and agrees to be bound by the terms,
conditions, representations and warranties hereof, including the registration
provisions contained in Section 4 of the Subscription Agreement, (and as a
condition to any transfer of this Warrant the transferee shall execute an
agreement confirming the same), and, when this Warrant shall have been so
endorsed, the person in possession of this Warrant may be treated by the
Company, and all other persons dealing with this Warrant, as the absolute owner
hereof for any purpose and as the person entitled to exercise the rights
represented hereby, any notice to the contrary notwithstanding; provided,
however, that until a transfer of this Warrant is duly registered on the books
of the Company or its agent, the Company may treat the Warrant Holder hereof as
the owner of this Warrant for all purposes.
7. Privileges of Stock Ownership. This Warrant shall not entitle the
holder hereof to any voting rights or other rights as a shareholder of the
Corporation, or to any other rights whatsoever except the rights herein
expressed and such as are set forth, and no dividends shall be payable or accrue
in respect of this Warrant or the interest represented hereby or the shares
purchasable hereunder until or unless, and except to the extent that, this
Warrant shall be exercised.
8. Entire Agreement. The Warrant Exercise Agreement is incorporated
herein by reference. This Warrant, the Warrant Exercise Agreement, and the
Subscription Agreement for the purposes and to the extent set forth herein,
constitute the entire agreement of the parties and supersede all prior
undertakings and agreements with respect to the subject matter hereof.
9. Notices. Any notice required to be given or delivered to the
Company under the terms of this Warrant shall be in writing and addressed to the
Secretary of the Company at its principal corporate offices. Any notice required
to be given or delivered to the Warrant Holder shall be in writing and addressed
to the Warrant Holder at the address indicated below or at such other address as
such party may designate in writing from time to time to the Company. All
5
notices shall be deemed to have been given or delivered: upon personal delivery;
five (5) calendar days after deposit in the United States mail by certified or
registered mail (return receipt requested) with postage thereon prepaid; one (1)
business day after deposit for next business day delivery with any return
receipt express courier (prepaid); or one (1) business day after transmission by
fax or telecopier with confirmation of transmission thereof.
10. Successors and Assigns. This Warrant shall be binding upon and
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer set forth herein, this Warrant shall be binding
upon the Warrant Holder and the Warrant Holder's heirs, executors,
administrators, legal representatives, successors and assigns.
11. Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of Maryland as such laws are applied to
agreements between Maryland residents entered into and to be performed entirely
within Maryland.
12. Acceptance. The Warrant Holder has read and understands the terms
and provisions of this Warrant, and accepts this Warrant subject to all the
terms and conditions hereof. The Warrant Holder acknowledges that there may be
adverse tax consequences upon exercise of this Warrant or disposition of the
Warrant Shares and that the Warrant Holder should consult a tax adviser prior to
such exercise or disposition.
13. Amendment. This Warrant may be modified only by a written
instrument signed by or on behalf of the Company and the Warrant Holder.
14. Captions and Headings. Captions to and headings of the various
provisions hereof are solely for the convenience of the parties, are not a part
of this agreement, and shall not be used for the interpretation of or
determination of the validity of this Agreement or any term or provision hereof.
[Execution Page Follows]
6
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its Chief Financial Officer as of June 1, 2002.
CELSION CORPORATION
Signed:
-----------------------------------
Printed: ANTHONY P. DEASEY
----------------------------------
Title: Executive Vice President-Finance
and Administration,
Chief Financial Officer
Address:
10220-I Old Columbia Road
Columbia, Maryland 21046-1785
ATTEST:
[Corporate Seal]
_____________________________
John Mon
Corporate Secretary
WARRANT HOLDER
Print Name:____________________________________
Signed:
________________________________________
Title:_________________________________________
Address:
_______________________________________________
_______________________________________________
_______________________________________________
7
Execution Copy
8
EXHIBIT A
CELSION CORPORATION
WARRANT EXERCISE AGREEMENT
CELSION CORPORATION
10220-I Old Columbia Road
Columbia, Maryland 21046-1785
Attention: Chief Financial Officer
The Warrant Holder hereby elects to purchase the number of Warrant
Shares (as defined in that certain Warrant dated as of the date set forth below
(the "Warrant"), the terms and conditions of which are hereby incorporated by
reference), and provides the information set forth below in connection with such
purchase (please print):
Warrant Holder:_________________________________________________________________
Social Security or Tax I.D. No.:________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
Warrant Date:___________________________________________________________________
Date of Exercise:_______________________________________________________________
Exercise Price Per Shares:______________________________________________________
Number of Shares Subject to Exercise and Purchase:______________________________
Total Exercise Price:___________________________________________________________
Exact Name of in which Shares are to be Issued:_________________________________
________________________________________________________________________________
The Warrant Holder hereby delivers to the Company the Aggregate Exercise Price
in cash, by certified or cashier's check, wire transfer or other immediately
available funds, in the aggregate amount of $_______, receipt of which is
acknowledged by the Company.
9
Tax Consequences. THE COMPANY IS UNDER NO OBLIGATION TO REPORT THE
EXERCISE OF THIS WARRANT TO THE INTERNAL REVENUE SERVICE OR ANY TAXING AUTHORITY
OF ANY STATE, LOCAL OR OTHER JURISDICTION. THE WARRANT HOLDER UNDERSTANDS THAT
HE, SHE OR IT MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF THE WARRANT
HOLDER'S PURCHASE OR DISPOSITION OF THE WARRANT OR THE UNDERLYING WARRANT SHARES
(EACH, AS DEFINED IN THE WARRANT). THE WARRANT HOLDER REPRESENTS THAT HE, SHE OR
IT HAS CONSULTED WITH A TAX CONSULTANT(S) THE WARRANT HOLDER DEEMS ADVISABLE IN
CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE WARRANT OR THE UNDERLYING
WARRANT SHARES AND THAT THE WARRANT HOLDER IS NOT RELYING ON THE COMPANY FOR ANY
TAX ADVICE.
__________________________________________
Name of Warrant Holder
__________________________________________
Signature of Warrant Holder
__________________________________________
Printed Name
__________________________________________
Title
10
EXHIBIT B
SPOUSAL CONSENT
The undersigned spouse of the Warrant Holder has read, understands, and
hereby approves the Warrant Exercise Agreement between the Warrant Holder and
the Company (the "Agreement"). In consideration of the Company's granting the
Warrant Holder the right to purchase the Warrant Shares as set forth in the
Agreement, the undersigned hereby agrees to be bound irrevocably by the
Agreement and further agrees that any community property interest shall
similarly be bound by the Agreement. The undersigned hereby appoints the Warrant
Holder as his or her attorney-in-fact with respect to any amendment or exercise
of any rights under the Agreement.
Date:____________________________
Warrant Holder's Spouse
Address:______________________________
______________________________________
______________________________________
11
Venable, Baetjer, Howard & Civiletti, LLP
1201 New York Avenue, NW
Suite 1000
Washington, DC 20005
October 18, 2002
Celsion Corporation
10220-I Old Columbia Road
Columbia, Maryland 21046
Re: Registration for Resale of 10,036,000 Shares
of Common Stock for Resale on Form S-3
--------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Celsion Corporation, a Delaware corporation
(the "Registrant"), in connection with a registration statement on Form S-3 (the
"Registration Statement") filed this day with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), pertaining to the registration for resale, by certain
securityholders named in the Registration Statement, of up to 10,036,000 shares
(the "Registration Shares") of common stock, par value $0.01 per share ("Common
Stock"), of the Registrant, consisting of (a) 3,243,000 currently outstanding
shares of Common Stock (the "Common Stock Placement Shares"), (b) up to
3,193,000 shares of Common Stock (the "Series B Conversion Shares") issuable
upon conversion of shares of the Registrant's Series B 8% Convertible Preferred
Stock, par value $.01 per share (the "Series B Preferred Shares") and (c) up to
3,600,000 shares of Common Stock (the "Warrant Shares") underlying Common Stock
purchase warrants, of which warrants to purchase 1,800,000 shares of Common
Stock are outstanding as of the date hereof and warrants to purchase an
additional 1,800,000 are subject to contingent issuance under certain
circumstances.
This opinion letter is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
For the purpose of rendering our opinions as expressed herein, we have
been furnished and have reviewed the following documents:
(i) the Certificate of Incorporation of the Registrant as
filed with the Secretary of State of the State of Delaware (the "Secretary of
State") on May 17, 2000, the Certificate of Designation of the Registrant as
filed with the Secretary of State on August 17, 2000, the Certificate of
Ownership and Merger of the Registrant filed with the Secretary of State on
August 17, 2000, the Certificate of Amendment of the Registrant as filed with
the Secretary of State on June 5, 2001, the Certificate of Designations of the
Registrant as filed with the Secretary of State on May 29, 2002 (the "Series B
Certificate of Designations") and the Certificate of Designations of the
Registrant as filed with the Secretary of State on August 20, 2002
(collectively, the "Certificate of Incorporation");
(ii) the bylaws of the Registrant, as amended through and in
effect as of the date hereof (the "Bylaws");
(iii) the Registration Statement;
(iv) a form of subscription agreement (the "Series B
Subscription Agreement") relating to the issuance and sale of up to 2,000 units,
each such unit consisting of (a) one (1) share of the Registrant's Series B
Preferred Shares, each of which is convertible into 2,000 shares of the
Registrant's Series B Conversion Shares and (b) one (1) warrant to acquire 600
Warrant Shares, subject to issuance of additional warrants (up to a maximum of
warrants to purchase 1,200 Warrant Shares) under certain circumstances (all such
warrants being referred to collectively as the "Series B Unit Warrants");
(v) a form of the Series B Unit Warrant;
(vi) a form of subscription agreement (the "Common Stock
Placement Subscription Agreement") relating to the issuance and sale of up to 30
units, each such unit consisting of 150,000 Common Stock Placement Shares;
(vii) certain resolutions of the Board of Directors of the
Registrant (the "Board"), certified by an officer of the Registrant, relating
to, among other things, (a) the issuance of the Series B Preferred Shares, the
Series B Conversion Shares, the Series B Unit Warrants, the Warrant Shares and
the Common Stock Placement Shares and (b) the approval of the Certificate of
Designations for the Series B Preferred Shares, the Series B Unit Warrants, the
Registration Statement, the Series B Subscription Agreement, the Common Stock
Placement Subscription Agreement, and the transactions contemplated thereby;
(viii) a certificate of the Secretary of State as to the good
standing of the Registrant; and
(ix) a certificate of an officer of the Registrant as to
certain matters (the "Officer's Certificate").
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In our examination of
documents executed or to be executed by parties other than the Registrant, its
directors and officers, we have assumed that such parties had, have or will have
the power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such documents
and the validity and binding effect thereof. For the purpose of rendering our
opinions as expressed herein, we have not reviewed any document other than the
documents set forth above, and we assume there exists no provision of any such
other document that bears upon or is inconsistent with our opinions as expressed
herein. We have conducted no independent factual investigation of our own, but
rather have relied solely upon the foregoing documents, the statements and
information set forth therein, and the additional matters recited or assumed
herein, all of which we assume to be true, complete and accurate in all material
respects.
In addition to the foregoing, for the purpose of rendering our opinions
as expressed herein, we have, with your consent, assumed the following matters:
(1) that (a) each Series B Subscription Agreement conforms in
all material respects to the form of Series B Subscription Agreement furnished
for our review, (b) each Common Stock Placement Subscription Agreement conforms
in all material respects to the form of Common Stock Placement Subscription
Agreement furnished for our review and (c) each Series B Unit Warrant conforms
in all material respects to the form of the Series B Unit Warrant furnished for
our review;
(2) that each of the Series B Subscription Agreements, each of
the Common Stock Placement Subscription Agreements, and each of the Series B
Unit Warrants has been duly authorized, executed and delivered by each of the
parties thereto;
(3) that the Registrant has received or will receive, prior to
the time of issuance of the Series B Preferred Shares, the Series B Unit
Warrants, the Series B Conversion Shares, the Warrant Shares and the Common
Stock Placement Shares, as applicable, the entire amount of the consideration
contemplated by (a) the Series B Subscription Agreement, the Series B
Certificate of Designations, the Series B Unit Warrant or the Common Stock
Placement Subscription Agreement, as the case may be and (b) the resolutions of
the Board (i) authorizing the issuance of the Series B Preferred Shares, the
Series B Unit Warrants, the Series B Conversion Shares, the Warrant Shares and
the Common Stock Placement Shares and (ii) approving the Series B Certificate of
Designations, the Series B Subscription Agreement, the Series B Unit Warrants
and the Common Stock Placement Subscription Agreement;
(4) that the Registrant has and will have sufficient
authorized, unissued and otherwise unreserved shares of Common Stock available
for issuance at the time of each issuance of Registration Shares;
(5) that the relevant provisions of the Certificate of
Incorporation, the Bylaws and the General Corporation Law of the State of
Delaware (the "DGCL") in effect at the time of issuance of any of the
Registration Shares did not or will not differ in any relevant respect from the
analogous provisions of the Certificate of Incorporation, the Bylaws and the
DGCL in effect as of the date of this opinion letter and that no additional
relevant provisions shall have been added subsequent to the date hereof;
(6) that stock certificates (the "Stock Certificates")
representing the Common Stock, in the form attached as Exhibit E to the
Officer's Certificate, have been or will be duly completed, executed and
delivered by the President and the Secretary of the Registrant to reflect each
due and valid issuance of any Registration Shares;
(7) that no Registration Shares shall be issued at a per share
price less than the par value thereof; and
(8) that each issuance Registration Shares has been or will be
recorded properly in the stock ledger of the Registrant at the time of such
issuance.
Based upon and subject to the foregoing and upon our review of such
matters of law as we have deemed necessary and appropriate in order to render
our opinions as expressed herein, and subject to the assumptions, limitations,
exceptions and qualifications set forth herein, it is our opinion (a) that the
Registration Shares have been duly authorized, (b) that the Common Stock
Placement Shares have been validly issued and are fully paid and nonassessable
and (c) that, when issued, delivered and paid for in accordance with the terms
of the Series B Certificate of Designations or the Series B Unit Warrants, as
the case may be, the Series B Conversion Shares and the Warrant Shares will be
validly issued, fully paid and nonassessable.
This letter expresses our opinions with respect to the DGCL (without
regard to the principles of conflict of laws thereof) governing matters such as
due organization and the authorization and issuance of stock as such laws are in
effect as of the date hereof, as well as the pertinent provisions of the
Delaware Constitution, and reported judicial decisions interpreting such laws
related to the matters set forth herein as in effect as of such date. It does
not extend to the securities or "blue sky" laws of any jurisdiction, to federal
securities laws, to the laws of contract or to any other laws of any other
jurisdiction or the rules and regulations of stock exchanges or of any other
regulatory body and we do not express any opinion as to the effect of any other
laws on the opinions stated herein. We assume no obligation to update the
opinions set forth herein.
We hereby consent to the use of and filing of this opinion letter and
the opinions expressed herein as an exhibit to the Registration Statement and to
the use of our name under the caption "Legal Matters" in the prospectus that
forms a part of the Registration Statement, provided, however, that in giving
such consent we do not admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission. This opinion letter and the opinions expressed
herein are being furnished to you solely for submission to the Commission as an
exhibit to the Registration Statement and, accordingly, may not be relied upon
in any other manner without, in each instance, our prior written consent.
Very truly yours,
/s/ Venable, Baetjer, Howard & Civiletti, LLP
---------------------------------------------
Venable, Baetjer, Howard & Civiletti, LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We consent to the incorporation by reference in this Registration
Statement on Form S-3 pertaining to Celsion Corporation of our report dated
November 6, 2001 with respect to the financial statements of Celsion Corporation
included in its Annual Report on Form 10-K for the year ended September 30, 2001
filed with the Securities and Exchange Commission.
/s/ Stegman & Company
---------------------
Stegman & Company
Baltimore, Maryland
October 14, 2002