REGISTRATION NO. 333-XXXX
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 20, 2002
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EPIX MEDICAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 04-3030815
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
71 ROGERS STREET
CAMBRIDGE, MASSACHUSETTS 02142
TELEPHONE: (617) 250-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MICHAEL D. WEBB
CHIEF EXECUTIVE OFFICER
71 ROGERS STREET
CAMBRIDGE, MASSACHUSETTS 02142
(617) 250-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
WILLIAM T. WHELAN, ESQ.
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, P.C.
ONE FINANCIAL CENTER
BOSTON, MASSACHUSETTS 02111
TEL: (617) 542-6000
FAX: (617) 542-2241
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practical after this Registration Statement becomes effective.
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. [ ]
CALCULATION OF REGISTRATION FEE
--------------------------- ------------------------ ------------------------- ------------------------ -------------------------
TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED(1) PER UNIT(2) PRICE REGISTRATION FEE
--------------------------- ------------------------ ------------------------- ------------------------ -------------------------
Common Stock, $.01 par 5,000,000 $13.04 $65,200,000 $5,999
value
--------------------------- ------------------------ ------------------------- ------------------------ -------------------------
(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this
registration statement shall be deemed to cover additional securities that may
be offered or issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) $13.04 per share which was the average of the high and low prices of the
common stock reported by the Nasdaq National Market on March 13, 2002 is set
forth solely for the purpose of calculating the registration fee in accordance
with Rule 457(c) of the Securities Act of 1933, as amended.
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.
The information in this prospectus is not complete and may be changed. A
Registration Statement relating to these securities has been filed with the
Securities and Exchange Commission. No one may sell these securities nor may
offers to buy be accepted until the Registration Statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and is not soliciting an offer to buy these
securities in any state where the offer, solicitation or sale is not
permitted.
SUBJECT TO COMPLETION, DATED MARCH 20, 2002
PROSPECTUS
5,000,000 SHARES
EPIX MEDICAL, INC.
COMMON STOCK
This prospectus will allow us to issue common stock over time. This
means:
o We will provide a prospectus supplement each time we issue common
stock;
o The prospectus supplement will inform you about the specific terms of
that offering and also may add, update or change information contained
in this document;
o You should read this document and any prospectus supplement carefully
before you invest.
Our common stock is listed on the Nasdaq National Market under the
symbol "EPIX." On March 19, 2002, the last reported sale price of our common
stock on the Nasdaq National Market was $15.86 per share.
-------------------------------------------
INVESTING IN OUR SECURITIES INVOLVES RISKS.
SEE "RISK FACTORS" ON PAGE 2.
-------------------------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The Date of this Prospectus is , 2002
TABLE OF CONTENTS
Page
About This Prospectus.................................................... 1
Business ................................................................ 1
Risk Factors............................................................. 2
Cautionary Note On Forward-Looking Statements............................ 3
Use of Proceeds.......................................................... 4
Plan of Distribution..................................................... 5
Legal Matters............................................................ 6
Experts.................................................................. 6
Where You Can find More Information...................................... 6
Incorporation Of Documents By Reference.................................. 7
i
ABOUT THIS PROSPECTUS
The following is only a summary. We urge you to read the entire prospectus,
including the more detailed financial statements, notes to the financial
statements and other information incorporated by reference from our other
filings with the SEC. Investing in our common stock involves risk. Therefore,
carefully consider the information provided under the heading "Risk Factors"
beginning on page 2.
BUSINESS
We are a leading developer of targeted intravascular contrast agents
intended to both improve the capability and expand the use of magnetic
resonance imaging (MRI) as a diagnostic tool for a variety of diseases. Our
principal product under development, MS-325, is an injectable intravascular
contrast agent designed for multiple cardiovascular imaging applications,
including peripheral vascular disease and coronary artery disease. We believe
that MS-325 will significantly enhance the quality of MR images and provide
physicians with a clinically superior, non-invasive (i.e., no more invasive
than a peripheral intravenous injection) and cost-effective method for
diagnosing cardiovascular disease. We also believe that MS-325 will simplify
the diagnostic pathway for a number of cardiovascular diseases and in many
cases replace highly invasive expensive X-ray angiography, which is currently
considered the definitive diagnostic exam for assessing cardiovascular
disease. We also are investigating additional imaging applications for
MS-325, including breast cancer, female sexual arousal dysfunction, and
arthritis imaging. MS-325 is currently in Phase III clinical trials for
peripheral vascular disease.
The use of MRI has grown steadily over the past 10 years due to reduced
cost and improved imaging capabilities and now provides an effective diagnostic
modality for a broad range of applications. MRI manufacturers have improved the
hardware and software of their systems, reducing the time per procedure
dramatically while significantly enhancing image resolution. While MRI is
currently used extensively to image many organs and tissues in the body, its use
in imaging the arteries and veins has been limited. Prior attempts to develop
contrast agents to facilitate the clinical utility of MRI, particularly for
coronary arteries, have had limited success. Unlike most currently available MRI
contrast agents, which are non-specific, MS-325 is an injectable intravascular
contrast agent intended to enhance the quality of MR images and provide
physicians with a superior method for diagnosing diseases affecting the
vasculature. MS-325 is a small molecule, which produces an MRI signal because of
the presence of gadolinium, a highly magnetically active element favored by
clinicians for enhancing MR images. This molecule is designed with our
proprietary technology to bind to albumin, the most common blood protein. In
MS-325 images using standard MRI techniques, the blood gives off a strong
magnetic signal and appears bright against the dark background of surrounding
tissue. Because of its affinity for albumin, MS-325 remains at high
concentrations in the bloodstream throughout the MRI exam and therefore provides
the image acquisition time and signal strength needed to obtain a high contrast,
high resolution image of the cardiovascular system. Like most currently
available non-specific contrast agents, MS-325 is designed to be excreted safely
through the kidneys over time.
We have entered into strategic alliances with Schering Aktiengesellschaft
and Tyco/Mallinckrodt Inc. for the development, manufacture and
commercialization of MS-325 and other vascular contrast agents. We have also
formed collaborations with the three major MRI scanner manufacturers, General
Electric Medical Systems, Philips Medical Systems and Siemens to develop
advanced imaging techniques designed to facilitate the use of MS-325-enhanced
MRA.
We are also seeking to develop a targeted contrast agent that would
enable MRI to illuminate blood clots, which we refer to as our thrombus
program. Such a product could potentially change the diagnostic work-up for
many of the conditions associated with thromboembolic disease, including
Pulmonary Embolism (PE) and Deep Vein Thrombosis (DVT). We believe that the
use of this new approach could lead to better medical outcomes due to earlier
and more definitive diagnosis. Early diagnosis is especially important for
clots in the thigh, pelvis and vena cava. Because of their increased
likelihood of migrating to the lungs once inside the pulmonary vasculature,
these clots can be fatal. We believe that such a contrast agent could
eliminate the need for the Computed Tomography (CT), ultrasound and nuclear
medicine studies currently used to identify thrombotic disease, and could
potentially provide a non-invasive but clinically equivalent alternative to
pulmonary angiography. We further believe that our proprietary technology
platform could enable MRI to differentiate old and new clot formation,
potentially identifying those clots that pose the most risk to patients.
Our prototype clot-imaging agent is based on a family of highly specific
peptides that bind to fibrin, the dominant protein inside clots. The selected
peptide is linked to a proprietary gadolinium group, which for the first time
will provide a sufficiently strong signal to allow imaging of clots during MRI
exams. In November 1999, we announced that a prototype agent, EP-862, had been
shown in preclinical testing to detect sub-millimeter blood clots in an animal
model. We have continued to advance this program, identifying several improved
prototype agents. We expect to continue to devote significant resources to the
thrombus program in the future and hope to file an Initial New Drug
application with the FDA, which, if approved, will allow us to begin human
safety trials.
We incorporated in Delaware in 1988 and commenced operations in 1992. Our
principal executive offices are located at 71 Rogers Street, Cambridge,
Massachusetts 02142-1118 and our telephone number is (617) 250-6000. Our Web
site is located at http://www.epixmed.com. We do not intend for the information
contained in our Web site to be considered a part of this prospectus.
1
RISK FACTORS
An investment in our common stock involves a high degree of risk. You
should carefully consider the following risk factors, other information included
in this prospectus, any supplement to this prospectus and information in our
periodic reports filed with the SEC. The material risks and uncertainties
described below are related to this offering. You should also consider the risks
discussed in our annual report filed on Form 10-K with the SEC on April 2, 2001,
which relate to our business in general. if any of the following risks actually
occur, our business, financial condition or results of operations could be
materially and adversely affected, and you may lose some or all of your
investment.
Our stock price is volatile. It is possible that you may lose all or part of
your investment.
The market prices of the capital stock of medical technology companies have
historically been very volatile, and the market price of the shares of our
common stock fluctuates. The market price of our common stock is affected by:
o actual or anticipated fluctuations in our operating results;
o announcements of technological innovation or new commercial products by us
or our competitors;
o new collaborations entered into by us or our competitors;
o developments with respect to proprietary rights, including patent and
litigation matters;
o results of pre-clinical and clinical trials;
o conditions and trends in the pharmaceutical and other technology
industries;
o adoption of new accounting standards affecting such industries;
o changes in financial estimates by securities analysts; and
o general market conditions.
In addition, the stock market has from time to time experienced significant
price and volume fluctuations that have particularly affected the market prices
for the common stock of development stage companies. These broad market
fluctuations may adversely affect the market price of our common stock. In the
past, following periods of volatility in the market price of a particular
company's securities, shareholders have often brought class action securities
litigation against that company. Such litigation, if brought against us, could
result in substantial costs and a diversion of management's attention and
resources.
We may not be able to achieve or maintain profitability.
Since we commenced operations in 1992, we have incurred significant net
losses. We have never reported positive net income and we may never do so. As of
December 31, 2001, we had an accumulated deficit of approximately $92.0 million.
Certain anti-takeover clauses in our charter and by-law provisions and in
Delaware law may make an acquisition of us more difficult.
Our Restated Certificate of Incorporation authorizes the Board of Directors
to issue, without stockholder approval, up to 1,000,000 shares of preferred
stock with voting, conversion and other rights and preferences that could
adversely affect the voting power or other rights of the holders of Common
Stock. The issuance of Preferred Stock or of rights to purchase Preferred Stock
could be used to discourage an unsolicited acquisition proposal. In addition,
the possible issuance of Preferred Stock could discourage a proxy contest, make
more difficult the acquisition of a substantial block of our Common Stock or
limit the price that investors might be willing to pay for shares of our Common
Stock. The Restated Certificate provides for staggered terms for the members of
the Board of Directors. A staggered Board of Directors and certain provisions of
our By-laws and of Delaware law applicable to us could delay or make more
difficult a merger, tender offer or proxy contest involving us. We, for example,
are subject to Section 203 of the General Corporate Law of Delaware, which,
subject to certain exceptions, restricts certain transactions and business
combinations between a corporation and a stockholder owning 15% or more of the
corporation's outstanding voting stock for a period of three years from the date
the stockholder becomes an interested stockholder. These provisions may have the
effect of delaying or preventing a change of control of us without action by the
stockholders and, therefore, could adversely affect the price of our stock.
2
Because we do not plan to pay cash dividends on our common stock, holders of
shares of our common stock will not be able to receive any return unless they
sell their shares.
We have never declared cash dividends on our common stock and we do not
anticipate declaring and paying cash dividends on our common stock at any time
in the foreseeable future. The decision whether to apply legally available funds
to the payment of dividends on our common stock will be made by our board from
time to time in the exercise of its business judgment, taking into account,
among other things, results of operations and financial condition, any then
existing or proposed commitments by us for the use of available funds, and our
obligations with respect to the holders of any then outstanding indebtedness or
preferred stock.
CAUTIONARY NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference contain
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act. These statements can be identified by
the use of forward-looking terminology such as "may," "will," "could," "expect,"
"anticipate," "estimate," "continue" or other similar words. These statements
discuss future expectations, contain projections of results of operations or of
financial condition or state trends and known uncertainties or other
forward-looking information. Examples of forward-looking statements can be found
in the discussion set forth under "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Business" in the Form 10-K
for the year ended December 31, 2000 filed with the SEC on April 2, 2001 and
incorporated in this prospectus by reference. Such statements are based on
current expectations that involve a number of uncertainties. When considering
forward-looking statements, you should keep in mind that the risk factors noted
above and other factors noted throughout this prospectus or incorporated by
reference could cause our actual results to differ significantly from those
contained in any forward-looking statement. We do not intend to update any
forward-looking statements to conform to actual results unless required by law.
3
USE OF PROCEEDS
We intend to use the net proceeds of this offering, if any, for general
corporate purposes including research and development and for the acquisition
of, or investment in, companies, technologies or assets that complement our
business. However, we have no present understandings, commitments or agreements
to enter into any potential acquisitions or to make any investments.
The amounts actually expended for each purpose may vary significantly
depending upon numerous factors, including the amount and timing of the proceeds
from this offering, progress of our research, drug discovery and development
programs, the results of pre-clinical and clinical studies, the timing of
regulatory approvals, technological advances, determinations as to commercial
potential of our compounds and the status of competitive products. In addition,
expenditures will also depend upon the establishment of collaborative research
arrangements with other companies and other factors. Pending application of the
net proceeds, we intend to invest the net proceeds of the offering in
short-term, investment-grade, interest-bearing securities.
4
PLAN OF DISTRIBUTION
We may offer the common stock:
o directly to purchasers;
o to or through underwriters;
o through dealers, agents or institutional investors; or
o through a combination of such methods.
Regardless of the method used to sell the common stock, we will provide a
prospectus supplement that will disclose:
o the identity of any underwriters, dealers, agents or investors who purchase
the common stock;
o the material terms of the distribution, including the number of shares sold
and the consideration paid;
o the amount of any compensation, discounts or commissions to be received by
the underwriters, dealers or agents;
o the terms of any indemnification provisions, including indemnification from
liabilities under the federal securities laws; and
o the nature of any transaction by an underwriter, dealer or agent during the
offering that is intended to stabilize or maintain the market price of the
common stock.
5
LEGAL MATTERS
The validity of the issuance of the common stock offered in this prospectus
is being passed upon for us by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C., Boston, Massachusetts.
EXPERTS
Our financial statements, appearing in our Annual Report on Form 10-K for
the year ended December 31, 2000, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such financial statements are incorporated
herein by reference in reliance upon such report given on the authority of such
firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a public company and file annual, quarterly and special reports,
proxy statements and other information with the Securities and Exchange
Commission. You may read and copy any document we file at the SEC's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You can
request copies of these documents by writing to the SEC and paying a fee for the
copying cost. Please call the SEC at 1-800-SEC-0330 for more information about
the operation of the public reference room. Our SEC filings are also available
to the public at the SEC's web site at "http://www.sec.gov." In addition, our
stock is listed for trading on the Nasdaq National Market. You can read and copy
reports and other information concerning us at the offices of the National
Association of Securities Dealers, Inc. located at 1735 K Street, Washington,
D.C. 20006.
This prospectus is only part of a Registration Statement on Form S-3 that
we have filed with the SEC under the Securities Act of 1933 and therefore omits
certain information contained in the Registration Statement. We have also filed
exhibits and schedules with the Registration Statement that are excluded from
this prospectus, and you should refer to the applicable exhibit or schedule for
a complete description of any statement referring to any contract or other
document. You may:
o inspect a copy of the Registration Statement, including the
exhibits and schedules, without charge at the public reference
room, or
o obtain a copy from the SEC upon payment of the fees prescribed by
the SEC.
6
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
it, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be a part of this prospectus and information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until the sale of all of the shares of common stock. The documents we are
incorporating by reference are:
o our Quarterly Reports on Form 10-Q for the quarterly periods ended
September 30, 2001, June 30, 2001 and March 31, 2001;
o our Annual Report on Form 10-K for the fiscal year ended December 31, 2000;
o our Forms 8-K filed on March 18, 2002, January 25, 2002, January 16, 2002,
January 14, 2002 and September 25, 2001;
o our Definitive Proxy Statement filed on April 18, 2001; and
o the description of our common stock contained in "Description of Capital
Stock" in the Registration Statement on Form S-1 filed with the SEC on
January 30, 1997 (File No. 333-17581), including any amendment or report
filed for the purpose of updating such description.
You may request a copy of these filings at no cost by writing or
telephoning our Investor Relations Officer at the following address and phone
number:
EPIX Medical, Inc.
71 Rogers Street
Cambridge, Massachusetts 02142
(617) 250-6000
This prospectus is part of a Registration Statement that we filed with the
SEC. You should rely only on the information incorporated by reference in or
provided in this prospectus and the Registration Statement. We have not
authorized any other person to provide you with different information. We are
not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the front of this document.
7
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The table sets forth our estimates of our expenses in connection with the
issuance and distribution of the common stock being registered.
ITEM AMOUNT
------
SEC registration fee.............................. $5,999.00
Legal fees and expenses........................... $75,000.00
Accounting fees and expenses...................... $75,000.00
Miscellaneous fees and expenses................... $10,000.00
----------
Total............................................. $165,999.00
===========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the General Corporation Law of the State of Delaware
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no cause to believe his conduct was unlawful.
Section 145(b) provides that a Delaware corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses actually and reasonably
incurred by him in connection therewith; that indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and that the corporation may purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or incurred by him in any such capacity or
arising out of his status as such whether or not the corporation would have the
power to indemnify him against such liabilities under such Section 145.
The Certificate of Incorporation, as amended, and By-laws, as amended, of
the Company provide for indemnification of the Company's directors and officers
to the fullest extent permitted by law. The By-laws also permit the Board of
Directors to authorize the Company to purchase and maintain insurance against
any liability asserted against any director, officer, employee or agent of the
Company arising out of his capacity as such. Insofar as indemnification for
liabilities under the Securities Act may be permitted to directors, officers, or
controlling persons of the Company pursuant to the Company's Certificate of
Incorporation, as amended, its By-laws, as amended, and the Delaware General
Corporation Law, the Company has been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in such
Act and is therefore unenforceable.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law,
the Company's Certificate of Incorporation, as amended, provides that directors
of the Company shall not be personally liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, relating to prohibited dividends or
distributions or the repurchase or redemption of stock or (iv) for any
transaction from which the director derives an improper personal benefit. As a
result of this provision, the Company and its stockholders may be unable to
obtain monetary damages from a director for breach of his or her duty of care.
II-1
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
-----------
4.1** Restated Certificate of Incorporation of the Company. (Filed as Exhibit
4.1 to the Company's Registration Statement on Form S-8 (File No.
333-30531) and incorporated herein by reference.)
4.2** Amended and Restated By-laws of the Company. (Filed as Exhibit 4.2 to
the Company's Registration Statement on Form S-8 (File No. 333-30531)
and incorporated herein by reference.)
4.3** Specimen certificate for shares of Common Stock of the Company. (Filed
as Exhibit 4.1 to the Company's Registration Statement on Form S-1
(File No. 333-17581) and incorporated herein by reference.)
5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with
respect to the legality of the securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
-------------------
** Previously filed
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or any decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
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 the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-2
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant, 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.
(c) 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.
(d) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are
not set forth in the prospectus, to deliver, or cause to be delivered
to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, as amended, the
Registrant has duly caused this Form S-3 Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in Cambridge,
Massachusetts on March 20, 2002.
EPIX MEDICAL, INC.
BY: /s/ MICHAEL D. WEBB
----------------------------
Michael D. Webb
Chief Executive Officer
POWER OF ATTORNEY
The registrant and each person whose signature appears below constitutes
and appoints Michael D. Webb, his, her or its true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him, her or
it and in his, her or its name, place and stead, in any and all capacities, to
sign and file (i) any and all amendments (including post-effective amendments)
to this Registration Statement, with all exhibits thereto, and other documents
in connection therewith, and (ii) a registration statement, and any and all
amendments thereto, relating to the offering covered hereby filed pursuant to
Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as
he, she or it might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Chief Executive Officer March 20, 2002
/s/ MICHAEL D. WEBB (Principal Executive Officer)
-----------------------------------
Michael D. Webb
Vice President of Finance and March 20, 2002
/s/ PAMELA E. CAREY Administration and Chief Financial Officer
----------------------------------- (Principal Financial and Accounting Officer)
Pamela E. Carey
/s/ CHRISTOPHER F. O. GABRIELI Chairman of the Board and Director March 20, 2002
-----------------------------------
Christopher F. O. Gabrieli
/s/ STANLEY T. CROOKE Director March 20, 2002
-----------------------------------
Stanley T. Crooke, M.D., Ph.D.
/s/ PETER WIRTH Director March 20, 2002
-----------------------------------
Peter Wirth
/s/ RANDALL B. LAUFFER Director March 20, 2002
-----------------------------------
Randall B. Lauffer, Ph.D.
INDEX TO EXHIBITS FILED WITH
FORM S-3 REGISTRATION STATEMENT
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1** Restated Certificate of Incorporation of the Company. (Filed as Exhibit
4.1 to the Company's Registration Statement on Form S-8 (File No.
333-30531) and incorporated herein by reference.)
4.2** Amended and Restated By-laws of the Company. (Filed as Exhibit 4.2 to
the Company's Registration Statement on Form S-8 (File No. 333-30531)
and incorporated herein by reference.)
4.3** Specimen certificate for shares of Common Stock of the Company. (Filed
as Exhibit 4.1 to the Company's Registration Statement on Form S-1
(File No. 333-17581) and incorporated herein by reference.)
5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with
respect to the legality of the securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
-------------------
** Previously filed