Document/Exhibit Description Pages Size
1: POS AM Amendment No. 6 to Form F-1, Filed on Form F-3 27 109K
2: EX-5.0 Opinion of Counsel 3 13K
3: EX-10.0 Common Stock Private Purchase Agreement 19 99K
4: EX-23.1 Accountants' Consent 1 6K
POS AM — Amendment No. 6 to Form F-1, Filed on Form F-3
Document Table of Contents
As filed with the Securities and Exchange Commission on March 12, 2003
Registration No. 333-31310
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
AMENDMENT NO. 6
TO
FORM F-1
REGISTRATION STATEMENT
FILED ON
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Nymox Pharmaceutical Corporation
(Exact name of registrant as specified in charter)
Quebec, Canada 8071
(State or other (Primary Standard Not Applicable
jurisdiction of Industrial Classification (I.R.S. Employer
incorporation or Code Number) Identification No.)
organization)
9900 Cavendish Blvd., Suite 306
St. Laurent, QC, Canada H4M 2V2
(514) 332-3222
(Address, including zip code, and telephone
number, including area code, of registrant's principal
executive offices)
CT Corporation System
111 Eighth Avenue, 13th Floor
New York, New York 10011
(212) 590-9200
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
------------------------------------------------------------
Copies to:
Thomas E. Hartman Jack Gemmell
Foley & Lardner Nymox Pharmaceutical Corporation
3000 K Street, N.W., Suite 500 9900 Cavendish Blvd., Suite 306
Washington, DC, 20007-5101 St.-Laurent, QC, Canada H4M 2V2
(202) 945-6191 (514) 332-3222
Approximate date of commencement of proposed sale to public: From time to
time 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, 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
All financial information in this prospectus is in United States dollars
unless otherwise noted.
[Enlarge/Download Table]
=================================== =================== ==================== ====================== ==================
Proposed Proposed
maximum maximum Amount of
Title of each class of Amount to be aggregate price aggregate offering registration
Securities to be registered registered (1) per unit (2) price fee
----------------------------------- ------------------- -------------------- ---------------------- ------------------
Common shares, no par value Up to 200,000 $4.52 $904,000 $238.66(3)
----------------------------------- ------------------- -------------------- ---------------------- ------------------
(1) Represents shares issuable on the exercise of a stock purchase warrant issued by Nymox to Jaspas Investments Ltd.
on November 1, 1999. Under the warrant, Jaspas Investments Ltd. may purchase up to 200,000 shares during the period
between November 30, 1999 and November 30, 2004.
(2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457 (c) under
the Securities Act.
(3) This registration fee was previously paid by the Registrant in connection with the initial filing of this
Registration Statement.
____________________
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 Securities and Exchange Commission ("Commission"),
acting pursuant to Section 8(a) may determine.
EXPLANATORY NOTE
This post-effective amendment to the Registrant's Form F-1 Registration
Statement originally filed on February 29, 2000 (Registration No. 333-31310), is
being filed: (i) to withdraw from registration 4,291,691 unissued common shares
of the up to 4,800,000 common shares originally registered in connection with
the Registrant's Common Stock Purchase Agreement with Jaspas Investments Ltd.,
which terminated in accordance with its terms in November 2002; and (ii) to
convert the Form F-1 Registration Statement to a Form F-3 Registration Statement
with respect to the continued registration of up to 200,000 common shares
registered in connection with a stock purchase warrant issued to Jaspas
Investments Ltd.
Preliminary Prospectus dated March 12, 2003
The information contained in this prospectus is not complete and may be
changed. The selling shareholder may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and is not
soliciting an offer to by these securities in any state where the offer or sale
is not permitted.
[LOGO]
PROSPECTUS
NYMOX PHARMACEUTICAL CORPORATION
200,000 SHARES OF COMMON STOCK
NYMOX PHARMACEUTICAL This prospectus relates to the resale by
CORPORATION Jaspas Investments Ltd. of up to 200,000
shares of Nymox common stock that Nymox
may issue upon exercise, in whole or in
part, of a warrant held by Jaspas
Investments Ltd..
9900 Cavendish Blvd Nymox will not receive any of the
Suite 306 proceeds from the sale of the shares by
St. Laurent, Quebec, Canada Jaspas Investments Ltd., but will
H4M 2V2 receive proceeds upon exercise by Jaspas
(800) 936-9669 of the warrant, except to the extent
Jaspas effects a cashless exercise of
the warrant by surrendering to Nymox a
portion of the shares of Nymox common
stock otherwise issuable upon exercise
of the warrant. Nymox will pay the costs
of registering the sale of the shares
covered by this prospectus, including
legal fees.
Nymox's common stock is listed on the
Nasdaq SmallCap Market under the symbol
"NYMX".
Investing in the common stock of Nymox involves a high degree of risk. See
"Risk Factors" beginning on Page 3.
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 ____, 2003.
TABLE OF CONTENTS
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Page
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RISK FACTORS..................................................................1
ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES AND AUTHORIZED
REPRESENTATIVE IN THE UNITED STATES.........................................7
ABOUT NYMOX....................................................................8
RECENT DEVELOPMENT............................................................10
WHERE YOU CAN FIND MORE INFORMATION ABOUT NYMOX...............................10
USE OF PROCEEDS...............................................................11
PRICE RANGE OF COMMON SHARES..................................................11
OUTSTANDING WARRANTS AND OPTIONS..............................................13
CAPITALIZATION................................................................13
THE SECURITIES BEING OFFERED..................................................14
PLAN OF DISTRIBUTION..........................................................15
SELLING SHAREHOLDER...........................................................16
CERTAIN LEGAL MATTERS.........................................................16
EXPERTS.......................................................................16
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RISK FACTORS
An investment in shares of common stock of Nymox involves a high degree of
risk. You should carefully consider each of the risks and uncertainties
described below along with all of the other information in this prospectus and
in the documents incorporated by reference into this prospectus before deciding
to invest in these shares.
It is Uncertain When, if Ever, We Will Make a Profit
We first began operations in 1995 and are only in the early stages of
commercial marketing of our diagnostic products, AlzheimAlert(TM), NicAlert(TM)
and NicoMeter(TM). We have never made a profit. We incurred a net loss of $4.8
million in 1998, $3.3 million in 1999, $4.0 million in 2000 and $3.0 million in
2001. As of December 31, 2001, Nymox's accumulated deficit was $23.1 million.
We cannot say when, if ever, Nymox will become profitable. Profitability
will depend on our uncertain ability to generate revenues from the sale of our
products and the licensing of our technology in order to offset the significant
expenditures required for us to advance our research, protect and extend our
intellectual property and develop, manufacture, license, market, distribute and
sell our technology and products successfully. Similar types of expenditures in
the past have helped produce the net losses reported above.
We May Not Be Able to Raise Enough Capital to Develop and Market Our Products
Nymox has funded its operations primarily by selling shares of its common
stock. Since late 1998, a small portion of the funds came from sales. However,
sales have not been, and may not be in the foreseeable future, sufficient to
meet our anticipated financial requirements.
We will continue to need to raise substantial amounts of capital for our
business activities including our research and development programs, the conduct
of clinical trials needed to obtain regulatory approvals and the marketing and
sales of our products. We anticipate being able to fund our current total annual
budgeted expenditures of approximately $3 million per year over the next year
through our current cash position and additional financing including draw downs
through our common stock private purchase agreement with Lorros-Greyse
Investments, Inc. Clinical trials will substantially increase cash requirements.
We anticipate being able to meet these requirements as they arise. Any necessary
clinical trials for regulatory approval following successful preliminary
clinical trials will require considerably more capital. We plan to raise such
capital either through a new round of financing and/or through partnering with a
major pharmaceutical company. Additional financing may not be available when
needed, or, if available, may not be available on acceptable terms. If adequate
funds on acceptable terms are not available, we may have to curtail or eliminate
expenditures for research and development, testing, clinical trials, promotion
and marketing for some or all of our products.
We Face Challenges in Developing and Improving Our Products
Our success depends on our ability to develop or acquire rights to new
products or to improve our existing products. We are still developing many of
our products and have not yet brought them to market. We cannot assure you that
we will be able to develop or acquire rights to such products and to market them
successfully.
Developing a treatment for Alzheimer's disease is particularly challenging.
Many pharmaceutical companies, institutions and researchers are working on many
different approaches and treatments. There is no consensus among researchers
about the cause of this fatal illness and no guarantee that our drug development
programs in this area are targeting significant factors in its cause,
progression or symptoms. It is difficult to design drug candidates that can
cross from the bloodstream into the brain, where the damage from Alzheimer's
disease is occurring. Clinical trials to establish efficacy for drugs that slow
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down the progression of Alzheimer's disease over a period of months or years
often require that a large number of subjects be tracked over many months or
years, making them very expensive to conduct. The potentially long period from
discovery and patenting through development and regulatory approval to the
market can significantly reduce the patent life of an Alzheimer's disease
treatment. Any marketed treatment in this area may well eventually face
competition from "me-too" drugs developed by other pharmaceutical companies
based on our research. We will be under constant competitive pressure to improve
our products and to develop new treatments in order to protect our position in
the field.
Developing and improving our diagnostic products is also challenging. The
science and technology of the detection and measurement of very small amounts of
biochemicals in bodily fluids and tissue is evolving rapidly. We may need to
make significant expenditures in research and development costs and licensing
fees in order to take advantage of new technologies. If any major changes to our
testing technologies used in our AlzheimAlert(TM) and NicAlert(TM) and
NicoMeter(TM) tests are made, further validation studies will be required.
Developing new diagnostic products is more challenging, requiring identification
and validation of the biochemical marker being detected by the new product in
the clinical context and the development and validation of the product designed
to detect the marker.
We Face Significant and Growing Competition
The modern pharmaceutical and biotechnology industries are intensely
competitive, particularly in the field of Alzheimer's disease where there is a
large unmet need for an effective treatment. Currently there are four drugs with
the same mechanism of action approved for sale in the United States (Aricept(R),
Cognex(R), Exelon(R) and Reminyl(R)). These drugs offer some relatively
short-tem symptomatic relief, but do not treat the underlying causes of the
illness. Over the past decade, there has been an intense research effort both in
the non-profit sectors such as universities, government agencies and research
institutes and in the pharmaceutical and biotechnology industry to develop new
treatments for Alzheimer's disease. Treatment candidates under development
include:
o vaccines for Alzheimer's disease.
o enzyme-blocking therapies intended to block the production of the protein
found in the senile plaques characteristic of Alzheimer's disease. A number
of pharmaceutical and biotechnology companies including Amgen and
Bristol-Myers Squibb are working on such therapies.
o Memantine, a drug originally developed by Merz + Co. of Germany and being
developed in the United States by Forest Laboratories, Inc. and
Neurobiological Technologies, Inc., intended to reduce cell death and
injury said to be caused by the release of too much of a signal transmitter
in the brain called glutamate. The developers have applied to the FDA for
its approval for use in the United States to treat Alzheimer's disease.
o implantation of a shunt (COGNIShunt(TM)) developed by its maker, Eunoe
Inc., and designed to drain cerebrospinal fluid from the patient's skull
into his or her abdominal cavity.
o implantation of genetically modified cells that produce human nerve growth
factor into the brains of people with Alzheimer's disease. Preliminary
human testing began this year at the University of California at San Diego
in conjunction with the Salk Institute for Biological Studies.
There is also ongoing research into possible methods of preventing
Alzheimer's disease such as taking certain cholesterol-lowering drugs called
statins, estrogen replacement therapies, anti-oxidants such as vitamin E and
ginkgo biloba or anti-inflammatory drugs such as ibuprofen (e.g., Advil(R) or
Motrin(R)). The successful development of a treatment or method of preventing
Alzheimer's disease could significantly impact on our ability to develop or
market a competing treatment for Alzheimer's disease.
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Our treatments under development for enlarged prostate (benign prostatic
hyperplasia or BPH) face significant competition from existing products. There
are five drugs approved for treatment of BPH: finasteride (Proscar(R)),
terazozin (Hytrin(R)), doxazozin (Cardur(R)), tamsulosin (Flomax(R)) and
prazosin (Minipres(R)). There are a number of thermal treatments on the market
designed to shrink the enlarged prostate by heating its tissue with a device
inserted through the urethra (the tube leading from the bladder through the
penis through which men urinate) or through the abdomen. The devices on the
market use microwave energy (Prostatron(R), Targis Therapy(R) or TherMatrx(R)),
low level radiowaves (TUNA System(R)), lasers (Indigo LaserOptic Treatment
System(R)), direct heat or hot water to heat or burn away prostate tissue. A
variety of surgical procedures exist to surgically reduce or remove the prostate
or to widen the urethra. These include procedures to cut away prostate tissue
which as TURP (transurethral resection of the prostate) and using a resectoscope
with an electrical loop inserted through the penis to cut the prostate tissue. A
small device used to widen the constricted urethra called a prostatic stent can
also be inserted.
The diagnostic testing industry is also highly competitive. In the area of
Alzheimer's disease, Athena Diagnostics, Inc. markets diagnostic tests for
different biochemical indicators found in blood and spinal fluid and for genetic
predispositions for the illness. Other companies are attempting to develop and
market other diagnostic products in this area. The introduction of other
diagnostics products for Alzheimer's disease or tobacco product use that are
cheaper, easier to perform, more accurate or otherwise more attractive to the
physicians, health care payers or other potential customers would have a
significant impact on the sales of our AlzheimAlert(TM), NicAlert(TM) or
NicoMeter(TM) products.
We May Not Be Able to Successfully Market Our Products
To increase our marketing, distribution and sales capabilities both in the
United States and around the world, we will need to enter into licensing
arrangements, contract sales agreements and co-marketing deals. We cannot assure
you that we will be able to enter into agreements with other companies on terms
acceptable to us, that any licensing arrangement will generate any revenue for
the company or that the costs of engaging and retaining the services of a
contract sales organization will not exceed the revenues generated.
Our Products and Services May Not Receive Necessary Regulatory Approvals
Our diagnostic products, AlzheimAlert(TM), NicAlert(TM) and NicoMeter(TM),
and our products in development, are subject to a wide range of government
regulation governing laboratory standards, product safety and efficacy. The
actual regulatory schemes in place vary from country to country and regulatory
compliance can take several years and involve substantial expenditures.
We cannot be sure that we can obtain necessary regulatory approvals on a
timely basis, if at all, for our products in development and all of the
following could have a material adverse effect on our business:
o failure to obtain or significant delays in obtaining requisite approvals;
o loss of or changes to previously obtained approvals; and
o failure to comply with existing or future regulatory requirements.
We currently market AlzheimAlert(TM) as a clinical reference laboratory
service provided by our government-inspected clinical reference laboratory in
New Jersey. Physicians send us urine samples from their patients to our
laboratory where the AlzheimAlert(TM) test is performed and the results reported
back to the physicians. A clinical laboratory test like AlzheimAlert(TM) does
not require approval from the United States Food and Drug Administration (FDA).
Our laboratory is regulated by the Centers for Medicare & Medicaid Services
(CMS) under the Clinical Laboratory Improvement Amendments and is subject to
inspection and
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certification. In addition, individual states like New York and Florida have
their own requirements for reference laboratories like ours that offer
diagnostic services. In addition, the FDA has its own regulations governing in
vitro diagnostic products, including some of the reagents used in clinical
reference laboratories. Any changes in CMS or state law requirements or in the
FDA regulations could have a detrimental impact on our ability to offer or
market any reference laboratory services and/or on our ability to obtain
reimbursement from the Medicare and Medicaid programs and providers.
We may develop a diagnostic kit based on AlzheimAlert(TM) for sale to third
parties. If so, we will require prior approval from the FDA before we can
market, distribute or sell such a product in the United States. We have not
submitted any such product to the FDA for approval. In general, such approval
requires clinical testing as to the safety and efficacy of the device and
preparation of an approval application with extensive supporting documentation.
If approved, the device would then be subject to postmarketing record and
reporting obligations and manufacturing requirements. Similar requirements exist
in many other countries. Obtaining these approvals and complying with the
subsequent regulatory requirements can be both time-consuming and expensive.
We currently sell NicAlert(TM) and NicoMeter(TM) as tests for tobacco
product use and for research use. In October, 2002, we received 510(k) clearance
from the U.S. Food and Drug Administration for our NicAlert(TM) product.
In the United States, our drugs in development will require FDA approval,
which comes only at the end of a lengthy, expensive and often arduous process.
We have not submitted any drugs for FDA approval. We have begun Phase I safety
studies for NX-1207, our investigational new drug for benign prostatic
hyperplasia (BPH). We cannot predict with any certainty the amount of time the
FDA will take to approve one of our drugs or even whether any such approval will
be forthcoming. Similar requirements exist in many other countries.
Protecting Our Patents and Proprietary Information is Costly and Difficult
We believe that patent and trade secret protection is important to our
business, and that our success will depend, in part, on our ability to obtain
strong patents, to maintain trade secret protection and to operate without
infringing the proprietary rights of others.
Obtaining and maintaining our patent position is costly. We pay for the
filing, prosecution and fees of over 200 patents and patent applications in
countries around the world, including the United States, Europe, Japan, Canada,
Australia, New Zealand and South Korea. In the United States alone, Nymox has
fourteen patents issued or allowed and at least eleven patent applications
pending relating to its technology. Its subsidiary, Serex Inc. has nine patents
issued and allowed. Through licensing agreements with the Massachusetts General
Hospital, Nymox separately licensed global patent rights relating to neural
thread proteins and to novel cancer markers that have potential application both
for the treatment and diagnosis of specific cancers. These licensed patent
rights include five issued United States patents and numerous patents and patent
application in other countries around the world. We believe that we have strong
patent protection for the products we sell and for our product development
programs and are in the process of extending that patent protection to cover
more countries or new discoveries or products. We cannot assure you that
additional patents covering new products or improvements will be issued or that
any new or existing patents will be of commercial benefit or be valid and
enforceable if challenged.
We are not currently involved in patent litigation. In the pharmaceutical
and biotechnology industry patent disputes are frequent and can preclude the
commercialization of products. Patent litigation is costly and the outcome often
difficult to predict. It can expose us to significant liabilities to third
parties and
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may require us to obtain third-party licenses at a material cost or cease using
the technology or product in dispute.
We Face Changing Market Conditions
The healthcare industry is in transition with a number of changes that
affect the market for therapeutic and diagnostic test products. The U.S. Federal
and various state governments have under consideration a number of proposals
that may have the effect of directly or indirectly limiting drug prices in the
U.S. markets. Such changes may adversely affect the prices we may charge for any
therapeutic drug we develop. Funding changes and budgetary considerations can
lead major health care payers and providers to make changes in reimbursement
policies for our AlzheimAlert(TM) product. These changes can seriously impact
the potential for growth for the market for AlzheimAlert(TM), either favorably
when the decision is to offer broad coverage for our test at a reasonable price
or negatively when the decision is to deny coverage altogether. Changes in the
healthcare delivery system have resulted in major consolidation among reference
laboratories and in the formation of multi-hospital alliances, reducing the
number of institutional customers for therapeutic and diagnostic test products.
There can be no assurance that Nymox will be able to enter into and/or sustain
contractual or other marketing or distribution arrangements on a satisfactory
commercial basis with these institutional customers.
Health Care Plans May Not Cover or Adequately Pay for our Products and Services
Throughout the developed world, both public and private health care plans
are under considerable financial and political pressure to contain their costs.
The two principal methods of restricting expenditures on drugs and diagnostic
products and services are to deny coverage or, if coverage is granted, to limit
reimbursement. For single-payer government health care systems, a decision to
deny coverage or to severely restrict reimbursement for one of our products can
have an adverse effect on our business and revenues.
In the United States, where, to a significant degree, the patient
population for our products is elderly, Medicare and Medicaid are sources of
reimbursement. In general, any restriction on reimbursement, coverage or
eligibility under either program could adversely affect reimbursement to Nymox
for products and services provided to beneficiaries of the Medicare and/or
Medicaid programs. Many elderly people are covered by a variety of private
health care organizations either operating private health care plans or Medicare
or Medicaid programs subject to government regulation. These organizations are
also under considerable financial constraints and we may not be able to secure
coverage or adequate reimbursement from these organizations. Without coverage,
we will have to look to the patients themselves who may be unwilling or unable
to pay for the product; in turn, doctors may be reluctant to order or prescribe
our products in the absence of coverage of the product for the patient.
The Future Sale of Eligible Shares may Dilute Nymox's Stock Price
The issuance of further shares and the eligibility of issued shares for
sale will dilute our common stock and may lower its share price. There were
23,020,954 common shares of Nymox issued and outstanding as of December 31,
2002. All of these shares are eligible for sale under Rule 144 or are otherwise
freely tradable. In addition, 1,654,000 share options were outstanding on that
date, of which 1,489,000 are currently vested, and 611,860 shares are subject to
issuance upon exercise of warrants. The great majority of the Nymox options
expire in 3 to 8 years. These options have been granted to employees, officers,
directors and consultants of the company. Moreover, Nymox may use its shares as
currency in acquisitions.
We Face Potential Losses Due to Foreign Currency Exchange Risks
Nymox incurs certain expenses, principally relating to salaries and
operating expenses at its Canadian head office, in Canadian dollars. All other
expenses are derived in U.S. dollars. As a result, we are
-5-
exposed to the risk of losses due to fluctuations in the exchange rates between
the U.S. dollar and the Canadian dollar. We protect ourselves against this risk
by maintaining cash balances in both currencies. We do not currently engage in
hedging activities. We cannot say with any assurance that the Company will not
suffer losses as a result of unfavorable fluctuations in the exchange rates
between the United States dollar and Canadian dollar.
We Have Never Paid a Dividend and are Unlikely to do so in the Foreseeable
Future
Nymox has never paid any dividends and does not expect to do so in the
foreseeable future. We expect to retain any earnings or positive cash flow in
order to finance and develop Nymox's business.
Cautionary Statement Regarding Forward-Looking Statements
You should be aware that this prospectus and certain documents incorporated
herein by reference contains forward-looking statements about, among other
things, the anticipated operations, product development, financial condition and
operating results of Nymox, proposed clinical trials and proposed transactions,
including collaboration agreements.
By forward-looking statements, we mean any statements that are not
statements of historical fact, including (but are not limited to) statements
preceded by or that include the words, "believes", "expects", "anticipates",
"hopes", "targets" or similar expressions.
In connection with the "safe harbor" provisions in the Private Securities
Litigation Reform Act of 1995, we are including this cautionary statement to
identify some of the important factors that could cause Nymox's actual results
or plans to differ materially from those projected in forward-looking statements
made by, or on behalf of, Nymox. These factors, many of which are beyond the
control of Nymox, include Nymox's ability to:
o identify and capitalize on possible collaboration, strategic partnering or
divestiture opportunities;
o obtain suitable financing to support its operations and clinical trials;
o manage its growth and the commercialization of its products;
o achieve operating efficiencies as it progresses from a development-stage to
a later-stage biotechnology company;
o successfully compete in its markets;
o realize the results it anticipates from the clinical trials of its
products;
o succeed in finding and retaining joint venture and collaboration partners
to assist it in the successful marketing, distribution and
commercialization of its products;
o achieve regulatory clearances for its products;
o obtain on commercially reasonable terms adequate product liability
insurance for its commercialized products;
o adequately protect its proprietary information and technology from
competitors and avoid infringement of proprietary information and
technology of its competitors;
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o assure that its products, if successfully developed and commercialized
following regulatory approval, are not rendered obsolete by products or
technologies of competitors; and
o not encounter problems with third parties, including key personnel, upon
whom it is dependent.
Although Nymox believes that the forward-looking statements contained in
this registration statement are reasonable, it cannot ensure that its
expectations will be met. These statements involve risks and uncertainties.
Actual results may differ materially from those expressed or implied in these
statements. Factors that could cause such differences include, but are not
limited to, those discussed under "Risk Factors."
You may request a copy of these filings, at no cost, by writing or
telephoning Nymox at the following address:
Nymox Pharmaceutical Corporation
9900 Cavendish Blvd., Suite 306
St. Laurent, QC, Canada H4M 2V2
(514) 332-3222
You should rely only on the information that we incorporate by reference or
provide in this prospectus. We have not authorized anyone to provide you with
different information. We are not making an offer of these securities in any
jurisdiction 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 prospectus.
ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES AND
AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Many of Nymox's directors, officers and certain experts named in this
prospectus are residents of Canada. Consequently, it may be difficult for United
States investors to effect service within the United States upon Nymox's
directors, officers or certain experts named in this prospectus, or to realize
in the United States upon judgments of courts of the United States predicated
upon civil liabilities under the Securities Act. A judgment of a court of the
United States predicated solely upon such civil liabilities would probably be
enforceable in Canada by the Canadian court if the United States court in which
the judgment was obtained had jurisdiction, as determined by the Canadian court,
in the matter. There is substantial doubt whether an original action could be
brought successfully in Canada against any of such persons or Nymox predicated
solely upon such civil liabilities.
The authorized agent to receive service of process in the United States is
CT Corporation System, 111 Eighth Ave., 13th Floor, New York, NY, 10011,
telephone (212) 590-9200.
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ABOUT NYMOX
Nymox is a development stage biopharmaceutical company based in Maywood,
New Jersey and Saint Laurent, Quebec, Canada. Nymox was incorporated in May,
1995 to acquire all of the common shares of DMS Pharmaceutical Inc., a private
company which, since 1989, conducted research and development on diagnostics and
drugs for brain disorders and diseases of the aged with an emphasis on
Alzheimer's disease.
We specialize in the research and development of therapeutics and
diagnostics for the aging population with an emphasis on Alzheimer's disease.
Alzheimer's disease is a progressive, terminal brain disease of the elderly
marked by an irreversible decline in mental abilities, including memory and
comprehension, and often accompanied by changes in behavior and personality. It
currently afflicts an estimated four million people in the United States and at
least fifteen million people worldwide. As the baby-boomer generation continues
to age, these figures are expected to rise sharply.
AlzheimAlert(TM), an Aid for the Diagnosis of Alzheimer's Disease
We market a proprietary diagnostic test for Alzheimer's disease, known as
AlzheimAlert(TM), through our clinical reference laboratory in Maywood, New
Jersey. AlzheimAlert(TM) is an improved version of our AD7C(TM) test, which has
been on the market since 1997. It measures the level in urine of a brain protein
called neural thread protein which is elevated early in Alzheimer's disease. The
test helps physicians make an early diagnosis of the disease.
The early diagnosis of Alzheimer's disease is important to physicians,
patients and their families. It enables them to make informed and early social,
legal and medical decisions about treatment and care. It permits patients to
take advantage of new improvements in drug treatment and care. Even a modest
delay in institutionalization can mean substantial social and financial savings.
There is a widely recognized need for a simple, accurate and convenient
test that can help physicians diagnose Alzheimer's disease. Chapter 5 of the
Surgeon General's Report on Mental Health is indicative of this recognition. In
this Report, the Surgeon General described the diagnosis of Alzheimer's disease
as "challenging" and its early detection as "difficult." As a result,
Alzheimer's disease and other dementias, the Surgeon General's report states,
are "currently underrecognized, especially in primary care settings, where most
older patients seek care."
AlzheimAlert(TM) is one of a variety of diagnostic testing methodologies,
technologies and products that have been recently developed to aid physicians in
the diagnosis of Alzheimer's disease. It is the only commercially available
urine test for this purpose and tests for a unique, proprietary marker, neural
thread protein.
Two Principal Programs to Develop Treatments for Alzheimer's Disease
We have two principal programs to develop treatments of Alzheimer's
disease. The first program targets neural thread protein, the brain protein
detected by AlzheimAlert(TM), and its role in the extensive brain cell loss
associated with Alzheimer's disease. The second program is based on spherons.
Nymox researchers believe spherons are a source of senile plaques, the
characteristic abnormality found in abundance in the brains of patients with
Alzheimer's disease and widely believed to play a major role in the cause and
course of the illness.
These programs are in the development stage. We cannot assure you that
these programs will produce effective and marketable treatments for Alzheimer's
disease. The research may fail or the compounds may not receive necessary
regulatory approval. As a development stage company, we may partner with a major
pharmaceutical company in the conduct of necessary human clinical trials, to
finish product
-8-
development, to obtain regulatory approval, and ultimately to market any
product. There is no guarantee we will be able to enter into such a partnership
arrangement on satisfactory terms.
Neural Thread Protein Based Drugs
There is a body of scientific and medical evidence showing that neural
thread protein, the brain protein detected by our AlzheimAlert(TM) test, may
play a key role in Alzheimer's disease. We are developing compounds that can
impede the effects of neural thread protein and thus potentially slow or halt
the progression of Alzheimer's disease. We licensed the basic technology to
develop such compounds including patent rights in 1997 from the Massachusetts
General Hospital as part of a sponsored research and licensing agreement and
have a similar licensing arrangement with the Rhode Island Hospital.
Drugs Targeting Spherons
We are a world leader in research and development into drugs for the
treatment of Alzheimer's disease that target spherons. Spherons are tiny balls
of densely packed protein found in brain cells scattered throughout the brains
of all humans from age one. They were first discovered, characterized and
isolated by Nymox researchers. We believe that spherons are a cause of senile
plaques and that stopping or inhibiting the transformation of spherons into
senile plaques will help stop or slow the progression of Alzheimer's disease.
You should be aware that there is no consensus among researchers about the
causes or possible treatments of Alzheimer's disease and that not all
researchers share this belief that spherons are the cause of Alzheimer's disease
or are a target for the development of treatments for the disease.
We developed and patented novel, proprietary drug screening methods based
on spherons and now have several drug candidates which have shown promise in
animal and other preclinical studies and for which we plan to seek regulatory
approval to being clinical studies for humans. We hold global patent rights
covering both methods for using spherons as targets for developing drugs and for
the actual drug candidates discovered.
The Use of Statin Drugs for the Treatment or Prevention of Alzheimer's Disease
In October 2002, we were issued a United States patent for the use of
statin drugs to treat, prevent or reduce the risk of the onset of Alzheimer's
disease. Statins are a class of commonly prescribed cholesterol lowering drugs
that have a well-established safety record and are widely available. A number of
published studies showed a link between statin use and lower incidence of
Alzheimer's disease. Research in this area is ongoing and no statin drug has
been approved for use in the treatment or prevention of Alzheimer's disease.
New Antibacterial Agents Against Infections and Food Contamination
We are developing new antibacterial agents. One agent has proven effective
against the E. coli O157:H7 bacteria which can cause serious contamination in
meat and other food and drink products. We are developing treatments for E. coli
O157:H7 contamination of meat. We also have a series of collaboration agreements
with universities and research institutions and a biotechnology company,
Biophage Inc. We have also developed other new antibacterial agents that can
potentially treat human disease such as difficult chronic and persistent urinary
tract infections and streptococcal or staphylococcal infections. We hold patents
rights in this area in the United States and Australia and are pursuing further
patent rights both in the United States and in other countries.
-9-
Development of Therapeutic Products for Enlarged Prostate
We are developing treatments for enlarged prostate (benign prostatic
hyperplasia or BPH), using novel compounds. We have begun Phase 1 safety studies
in humans for one treatment candidate, NX-1207.
Enlarged prostate or BPH affects more than half of men in their sixties and
as many as 90% of men in their seventies and eighties. Symptoms include more
frequent urination (especially at night), difficulty urinating, incomplete
emptying of the bladder and sometimes complete inability to urinate. More
serious cases may require surgical intervention to reduce the size of the
prostate and to remove it entirely. There is a need for a simple, effective
treatment for BPH, particularly in cases where existing drug treatments have
proven to be ineffective and where more intrusive procedures such as surgical
cutting away of prostate tissue may be undesirable to the patient or bring
unacceptable risks.
The NicAlert(TM) and NicoMeter(TM) Tests for Tobacco Product Use
We also market NicAlert(TM) and NicoMeter(TM), inexpensive, simple-to-use
test strips that use urine or saliva (NicAlert(TM) only) to determine whether a
person is using tobacco products. Both NicAlert(TM) and NicoMeter(TM) detect
levels of cotinine, a byproduct of the body's breakdown of nicotine and
generally regarded as the best indicator of tobacco exposure for smokers and
nonsmokers. Both NicAlert(TM) and NicoMeter(TM) are currently being used in
research programs into tobacco use and exposure and being marketed in the United
States and Japan as tests to determine whether a person, such as a teenager,
student athlete or insurance applicant, is using a tobacco product. In October
2002, NicAlert(TM) received FDA clearance. Both NicAlert(TM) and NicoMeter(TM)
employ the patented technology of our subsidiary, Serex, Inc.
RECENT DEVELOPMENT
On January 27, 2003 we entered into a Common Stock Private Purchase
Agreement with Lorros-Greyse Investments, Ltd., a Panamanian corporation, for
the future issuance and sale of Nymox's common shares. Under the agreement,
Lorros-Greyse is committed to purchase up to $5 million of Nymox's common shares
over the twenty-four month period ending in January of 2005. From time to time
during this period until the $5 million maximum is reached, Nymox may give
Lorros-Greyse a draw notice to purchase up to $500,000 of Nymox's common shares.
The price per common share for each purchase is equal to 97% of the average of
the closing price of the common shares on the Nasdaq Small Cap Market for the
five trading days preceding the day the draw notice is given to Lorros-Greyse.
The sale of common shares to Lorros-Greyse and any resales of common shares by
Lorros-Greyse are intended to be made pursuant to the exemption from
registration provided by Registration S under the Securities Act of 1933, as
well as any other available exemption from registration.
On January 30, 2003, Lorros-Greyse purchased 107,382 of our common shares
for $3.725 per share, or an aggregate of $400,000. This is the only draw to date
under the Common Stock Private Purchase Agreement.
WHERE YOU CAN FIND MORE INFORMATION ABOUT NYMOX
Nymox files periodic reports and other information with the SEC. You may
read and copy any document that Nymox files at the SEC's public reference room
at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the public reference room.
Nymox's common shares are listed on the Nasdaq SmallCap Market. You can
consult reports and other information about Nymox that it filed pursuant to the
rules of the Nasdaq Stock Market.
-10-
The SEC allows us to incorporate by reference the information we file with
them. This means that we can disclose important information to you by referring
to documents. The information that we incorporate by reference is an important
part of this prospectus. We incorporate by reference the following documents and
any future filings that we make with the SEC under Section 13(a), 13(c) and
15(d) of the Securities Exchange Act of 1934, as amended, until we complete the
offerings using this prospectus:
o Our Annual Report on Form 20-F for the fiscal year ended December 31, 2001;
and
o Our reports on Form 6-K furnished to the SEC since the end of the fiscal
year covered by the Annual Report on Form 20-F referred to above.
o All subsequent annual reports filed by Nymox on Form 20-F, all subsequent
filings by Nymox on Form 6-K (but only to the extent that Nymox identifies
in Form 6-K that it is being incorporated by reference into this
prospectus), and all subsequent filings made under Sections 12, 13, 14 of
15(d) of the Securities Exchange Act dated after the date of this
prospectus and before the termination of the offering are deemed
incorporated by reference into, and to be a part of, this prospectus from
the date such documents are filed.
o All other reports filed by Nymox under Sections 13(a) or 15(d) of the
Securities Exchange Act since the end of the fiscal year covered by the
Annual Report on Form 20-F referred to above.
Information that we file with the SEC will automatically update and
supercede information in documents filed with the SEC at earlier dates. All
information appearing in this prospectus is qualified in its entirety by the
information and financial statements, including the notes, contained in the
documents that we incorporate by reference in this prospectus.
USE OF PROCEEDS
We will not realize any proceeds from the sale of the common shares by
Jaspas Investments Ltd.; rather, Jaspas will receive those proceeds directly.
However, we will receive proceeds if and when Jaspas Investments Ltd. exercises
the warrant to purchase the common shares. We intend to use the proceeds from
the exercise of such warrant for working capital and other general corporate
purposes.
PRICE RANGE OF COMMON SHARES
Nymox's common shares trade on the Nasdaq Stock Market. Nymox's common
shares traded on the Nasdaq National Market from December 1, 1997 until
September 16, 1999, when they began trading on the Nasdaq SmallCap Market.
Nymox's common shares also traded on the Montreal Exchange from December 18,
1995 until November 19, 1999.
The following tables set out the high and low reported trading prices of
the common shares on the Nasdaq Stock Market during the periods indicated.
Annual High and Low Market Prices - Past five years
YEAR ANNUAL HIGH ANNUAL LOW
---- ----------- ----------
1997 $10.750 $6.250
1998 $13.625 $2.500
1999 $ 5.875 $2.500
2000 $10.563 $1.063
2001 $ 4.910 $1.750
2002 $ 5.750 $2.800
2003 $ 4.400 $3.410
-11-
Quarterly High and Low Market Prices - Past Two Years
YEAR QUARTERLY PERIOD HIGH SALES PRICE LOW SALES PRICE
---- ---------------- ---------------- ---------------
2001 1ST Quarter $3.000 $1.750
2nd Quarter $3.100 $1.760
3rd Quarter $4.910 $2.310
4th Quarter $5.000 $3.650
2002 1st Quarter $4.410 $3.500
2nd Quarter $4.750 $2.810
3rd Quarter $5.750 $3.050
4th Quarter $4.500 $2.800
2003 1st Quarter $4.400 $3.410
Monthly High and Low Market Prices - Most Recent Six Months
DATE MONTHLY HIGH MONTHLY LOW
---- ------------ -----------
September, 2002 $4.550 $3.050
October, 2002 $3.650 $2.800
November, 2002 $4.220 $3.460
December, 2002 $4.500 $3.320
January, 2003 $4.150 $3.410
February, 2003 $4.400 $4.160
-12-
OUTSTANDING WARRANTS AND OPTIONS
Description Warrants Issued Exercise Price Expiry Date
----------- --------------- -------------- -----------
Series H 66,667 $9.375 Mar. 6, 2004
Series I 26,667 $7.8125 Mar. 6, 2004
Series E 200,000 $4.5315 Nov. 30, 2004
Series F 160,000 $4.0625 Nov. 30, 2004
Series G 109,879 $3.70 Jan. 8, 2005
Series G 5,783 $3.70 Jan. 8, 2005
Series J 42,864 $3.70 Jul. 31, 2005
The total number of shares subject to options at February 28, 2003 was
1,654,000, of which options representing 1,489,000 shares are currently
exercisable. Of those, the total number of shares subject to options held by
directors and officers of Nymox is 930,000, of which options representing
825,000 shares are currently exercisable.
There are no rights, warrants or options presently outstanding under which
Nymox could issue additional common shares, with the exception of options
enabling certain directors, employees and consultants of Nymox to acquire common
shares under Nymox's stock option plan as summarized in the preceding paragraph
and of warrants entitling the holders to acquire up to 611,860 common shares of
Nymox as outlined in the above table.
CAPITALIZATION
The following table sets forth our capitalization as of December 31, 2001.
This table should be read in conjunction with the financial statements and
related notes, and the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included in the documents incorporated by
reference into this prospectus.
Long term debt and capital lease obligations $0
------------------
Shareholder's Equity:
Share Capital and Other:
Common stock, no par value; 22,297,525 shares
issued and outstanding
Shares authorized for issue: unlimited $25,376,557
Warrants 421,638
Accumulated deficit ($23,153,447)
------------------
Total shareholder's equity $2,644,748
==================
Total capitalization $2,644,748
==================
-13-
THE SECURITIES BEING OFFERED
This prospectus relates to the up to 200,000 Nymox common shares issuable
to Jaspas Investments Ltd. upon exercise, in whole or in part, of a warrant
Nymox issued to Jaspas Investments Ltd.
Warrant
Under the terms of the Stock Purchase Agreement, dated November 1, 1999,
between Jaspas Investments Ltd. and Nymox, we granted Jaspas a warrant to
purchase 200,000 shares of Nymox's common shares, exercisable for a period of
five (5) years from November 30, 1999, at an exercise price equal to 110% of the
average daily price of the common shares on the closing date of November 12,
1999. The average daily price of Nymox's shares for that day was $4.1097; thus
the exercise price for the warrant is $4.5315.
The warrant permits Jaspas to purchase up to 200,000 shares through one or
more exercises of the warrant at any time after November 30, 1999 and before the
close of business on November 30, 2004.
Jaspas may also effect a cashless exercise of the warrant. Under a cashless
exercise Jaspas may, in whole or in part, exercise the warrant without payment
to Nymox of the exercise price and be entitled to receive the number of shares
of Nymox equal to the quotient obtained by dividing [(A-B) (X)] by (A) where:
A = the average of the high and low trading prices per share of Common
Stock on the Trading Day preceding the date of such election on the
Nasdaq Stock Market, or if the Common Stock is not traded on the
Nasdaq Stock Market, then the principal market in terms of volume, and
converted into US Dollars;
B = the Exercise Price of the Warrants; and
X = the number of shares issuable upon exercise of the Warrants in
accordance with the terms of this Warrant.
Common Shares
Our articles of incorporation authorize the issuance of an unlimited number
of common shares. They do not authorize the issuance of any other class of
shares. As of December 31, 2002, 23,020,954 common shares of Nymox were issued
and outstanding.
The holders of the common shares of our Company are entitled to receive
notice of and to attend all meetings of the shareholders of our Company and have
one vote for each common share held at all meetings of the shareholders of our
Company. Our directors are elected at each annual meeting of shareholders and do
not stand for reelection at staggered intervals.
The holders of common shares are entitled to receive dividends and our
company may pay dividends, as and when declared by our board of directors, out
of moneys properly applicable to the payment of dividends, in such amount and in
such form as our board of directors may from time to time determine, and all
dividends which our board of directors may declare on the common shares shall be
declared and paid in equal amounts per share on all common shares at the time
outstanding. Nymox has never declared a dividend on the common shares and has no
present intention of ever paying such a dividend.
In the event of the dissolution, liquidation or winding-up of the company,
whether voluntary or involuntary, or any other distribution of assets of the
company among its shareholders for the purpose of winding up its affairs, the
holders of the common shares will be entitled to receive the remaining property
and assets of the company.
-14-
PLAN OF DISTRIBUTION
We are registering the resale by Jaspas Investments Ltd. of common shares
issuable to Jaspas upon exercise of the warrant issued to Jaspas on November
1999. Nymox will not receive any sales proceeds from Jaspas' sale of these
shares. All costs, expenses and fees in connection with the registration of the
common shares offered by this prospectus will be borne by Nymox. Brokerage
commissions and similar selling expenses, if any, attributable to the sale of
common shares will be borne by Jaspas. Sales of common shares pursuant to this
prospectus may be effected by Jaspas from time to time in one or more types of
transactions (which may include block transactions) on the Nasdaq SmallCap
Market or on any other exchange in which the common shares are listed. Jaspas
can sell the shares in negotiated transactions, through put or call options
transactions relating to the common shares, through short sales of common
shares, or a combination of such methods of sale, at market prices prevailing at
the time of sale, at negotiated prices or at fixed prices, which may be changed.
These transactions may or may not involve brokers or dealers.
Jaspas Investments Ltd. may sell the shares directly to purchasers or to or
through broker-dealers, which may act as agents or principals. The
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from Jaspas and/or the purchasers of common shares for who such
broker-dealers may act as agents or to whom they sell as principal, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions).
Jaspas and any broker-dealer that acts in connection with the sale of
common shares may be deemed to be an "underwriter" within the meaning of Section
2(a)(11) of the Securities Act of 1933, and any commissions received by such
broker-dealers and any profit on the resale of the common shares sold by them
while acting as principals will be deemed to be underwriting discounts or
commissions under the Securities Act. Jaspas may agree to indemnify any agent,
dealer or broker-dealer that participates in transactions involving sales of the
common shares against certain liabilities, including liabilities arising under
the Securities Act.
Because Jaspas may be deemed to be an "underwriter" within the meaning of
Section (2)(a)(11) of the Securities Act, it will be subject to the prospectus
delivery requirements of the Securities Act.
If Jaspas Investments Ltd. notifies us that it has entered into any
material arrangement with a broker-dealer for the sale of Nymox common shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, we will file a supplement to
this prospectus, if required, pursuant to Rule 424(b) under the Securities Act,
disclosing:
o the name of the participating broker-dealer(s);
o the number of shares involved;
o the price at which such shares were sold
o the commission paid or discounts or concessions allowed to the
broker-dealer(s), where applicable;
o whether the broker-dealer(s) conducted any investigations to verify
the information in or incorporated by reference in this prospectus;
and
o other material facts of the transactions.
-15-
SELLING SHAREHOLDER
Jaspas Investments Ltd. has informed us that it does not presently own any
common shares of Nymox Pharmaceutical Corporation. Jaspas' principal offices are
located in the British Virgin Islands, c/o Beacon Capital Management, Harbour
House, 2nd Floor, Waterfront Drive, Road Town, Tortals, British Virgin Islands.
CERTAIN LEGAL MATTERS
The validity of the common shares offered hereby will be passed upon for
Nymox by Jack Gemmell, General Counsel of Nymox.
EXPERTS
The financial statements of Nymox as of December 31, 2001, 2000 and 1999
and for each of the years in the three year period ended December 31, 2001 have
been incorporated by reference in this prospectus and in the registration
statement in reliance upon reports of KPMG LLP, independent auditors, and upon
the authority of KPMG LLP as experts in accounting and auditing.
-16-
================================================================================
Up to
200,000 Common Shares
offered by
Jaspas Investments Ltd.
NYMOX
PHARMACEUTICAL
CORPORATION
P R O S P E C T U S
__, 2003
================================================================================
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8: INDEMNIFICATION OF DIRECTORS AND OFFICERS
Nymox maintains Directors' and Officers' Liability Insurance (the "Policy")
for its own benefit and for the benefit of its subsidiaries and their respective
directors and officers. Subject to the limitations therein set forth, the Policy
extends coverage to directors and officers for any loss (as defined in the
Policy) incurred in connection with the performance of their duties and to Nymox
and its subsidiaries for any loss for which they have indemnified their
respective directors or officers as permitted by law.
Section 124 of the Canada Business Corporations Act ("CBCA") provides:
Indemnification
124. (1) A corporation may indemnify a director or officer of the
corporation, a former director or officer of the corporation or another
individual who acts or acted at the corporation's request as a director or
officer or an individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount paid to settle
an action or satisfy a judgment, reasonably incurred by the individual in
respect of any civil, criminal, administrative, investigative or other
proceeding in which the individual is involved because of that association
with the corporation or other entity.
Advance of costs
(2) A corporation may advance moneys to a director, officer or other
individual for the costs, charges and expenses of a proceeding referred to
in subsection (1). The individual shall repay the moneys if the individual
does not fulfil the conditions of subsection (3).
Limitation
(3) A corporation may not indemnify an individual under subsection (1)
unless the individual
(a) acted honestly and in good faith with a view to the best interests
of the corporation, or, as the case may be, to the best interests of the
other entity for which the individual acted as director or officer or in a
similar capacity at the corporation's request; and
(b) in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, the individual had reasonable
grounds for believing that the individual's conduct was lawful.
Indemnification in derivative actions
(4) A corporation may, with the approval of a court, indemnify an
individual referred to in subsection (1), or advance moneys under
subsection (2), in respect of an action by or on behalf of the corporation
or other entity to procure a judgment in its favour, to which the
individual is made a party because of the individual's association with the
corporation or other entity as described in subsection (1) against all
costs, charges and expenses reasonably incurred by the individual in
connection with such action, if the individual fulfills the conditions set
out in subsection (3).
Right to indemnity
(5) Despite subsection (1), an individual referred to in that subsection is
entitled to indemnity from the corporation in respect of all costs, charges
and expenses reasonably incurred by the
individual in connection with the defence of any civil, criminal,
administrative, investigative or other proceeding to which the individual
is subject because of the individual's association with the corporation or
other entity as described in subsection (1), if the individual seeking
indemnity
(a) was not judged by the court or other competent authority to have
committed any fault or omitted to do anything that the individual ought to
have done; and
(b) fulfils the conditions set out in subsection (3).
Insurance
(6) A corporation may purchase and maintain insurance for the benefit of an
individual referred to in subsection (1) against any liability incurred by
the individual
(a) in the individual's capacity as a director or officer of the
corporation; or
(b) in the individual's capacity as a director or officer, or similar
capacity, of another entity, if the individual acts or acted in that
capacity at the corporation's request.
Application to court
(7) A corporation, an individual or an entity referred to in subsection (1)
may apply to a court for an order approving an indemnity under this section
and the court may so order and make any further order that it sees fit.
Notice to Director
(8) An applicant under subsection (7) shall give the Director notice of the
application and the Director is entitled to appear and be heard in person
or by counsel.
Other notice
(9) On an application under subsection (7) the court may order notice to be
given to any interested person and the person is entitled to appear and be
heard in person or by counsel.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the United States Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is therefore unenforceable.
Item 9. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT NO. DESCRIPTION
----------- -----------
4.0 Stock Purchase Warrant issued to Jaspas Investments Ltd.
dated November 1, 1999 [Incorporated by reference to Exhibit
2.3 to Nymox Pharmaceutical Corporation's Registration
Statement on Form F-1 (File No. 333-31310)]
5.0 Opinion of Jack Gemmell, General Counsel of Nymox
10.0 Common Stock Private Purchase Agreement dated as of January
27, 2003, by and between the Company and Lorros-Greyse
Investments, Ltd.
23.1 Consent of KPMG LLP
23.2 Consent of Jack Gemmell, General Counsel to Nymox (included
in opinion filed herewith as Exhibit 5.0)
24.0 Powers of Attorney (contained as part of the signature page)
Item 17. UNDERTAKINGS
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 l0(a)(3) of the
Securities Act of 1933, as amended ("Securities Act").
(ii) To reflect in the prospectus included in this registration
statement any facts or events arising after the effective date
of this 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 this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission
("SEC") 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 this
registration statement.
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 the periodic reports
filed by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act, that are incorporated by reference in this registration
statement;
2. For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus 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.
4. To file a post-effective amendment to the registration statement to
include any financial statements required by Item 8.A. of Form 20-F at
the start of any delayed offering or throughout a continuous offering.
Financial statements and information otherwise required by Section
10(a)(3) of the Act need not be furnished, provided that the
registrant includes in the prospectus, by means of a post-effective
amendment, financial statements required pursuant to this paragraph
(a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, with
respect to registration statements on Form F-3, a post-effective
amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Act if such financial
statements and information are 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 Form F-3.
5. The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the 1934 Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
6. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under
Item 8 above, or otherwise, the Registrant has been advised that in
the opinion of the Securities Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933
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 of whether such indemnification
by it is against public policy as expressed in the Securities Act of
1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Montreal, Country of
Canada, on this 12th day of March, 2003.
NYMOX PHARMACEUTICAL CORPORATION
By: /s/ Paul Averback, M.D.
--------------------------------------
Paul Averback, M.D.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated as of this 12th day of March, 2003. Each person whose
signature appears below constitutes and appoints Dr. Paul Averback and Roy
Wolvin, and each of them individually, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully as he or she might or could do in
person, hereby ratifying and confirming all that each said attorney-in-fact and
agent may lawfully do or cause to be done by virtue hereof.
[Enlarge/Download Table]
/s/ Jack Gemmell /s/ Paul Averback, M.D. /s/ Roy Wolvin
----------------------------- ----------------------------- -----------------------------
Jack Gemmell Paul Averback, M.D. Roy Wolvin
Director President and Chief Executive Chief Financial Officer and
Officer and Director Secretary-Treasurer
(Principal Executive Officer) (Principal Financial and
Accounting Officer)
/s/ Walter von Wartburg /s/ Hans Black, M.D. /s/ Michael R. Sonnenreich
----------------------------- ----------------------------- -----------------------------
Walter von Wartburg Hans Black, M.D. Michael R. Sonnenreich
Director Director Director
NYMOX CORPORATION
(Authorized Representative
in the United States)
By: /s/ Roy Wolvin
-------------------------
Roy Wolvin
Secretary-Treasurer
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
4.0 Stock Purchase Warrant issued to Jaspas Investments Ltd.
dated November 1, 1999 [Incorporated by reference to Exhibit
2.3 to Nymox Pharmaceutical Corporation's Registration
Statement on Form F-1 (File No. 333-31310)]
5.0 Opinion of Jack Gemmell, General Counsel of Nymox
10.0 Common Stock Private Purchase Agreement dated as of January
27, 2003, by and between the Company and Lorros-Greyse
Investments, Ltd.
23.1 Consent of KPMG LLP
23.2 Consent of Jack Gemmell, General Counsel to Nymox (included
in opinion filed herewith as Exhibit 5.0)
24.0 Powers of Attorney (contained as part of the signature page)
Dates Referenced Herein and Documents Incorporated by Reference
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