-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KYDXssg6MLh8WWPz5UllIY4mdpro369YiRC7uEX4vSajedsT6iVMZkCfQmMLcwts safTKnD5s9EwD/D8KSYOvQ== 0001032210-99-001657.txt : 19991125 0001032210-99-001657.hdr.sgml : 19991125 ACCESSION NUMBER: 0001032210-99-001657 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19991123 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TARGETED GENETICS CORP /WA/ CENTRAL INDEX KEY: 0000921114 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 911549568 STATE OF INCORPORATION: WA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-86509 FILM NUMBER: 99763298 BUSINESS ADDRESS: STREET 1: 1100 OLIVE WAY STREET 2: STE 100 CITY: SEATTLE STATE: WA ZIP: 98101 BUSINESS PHONE: 2066237612 MAIL ADDRESS: STREET 1: 1100 OLIVE WAY STREET 2: STE 100 CITY: SEATTLE STATE: WA ZIP: 98101 S-3/A 1 FORM S-3 AMENDMENT NO. 2 As filed with the Securities and Exchange Commission on November 23, 1999 Registration No. 333-86509 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- AMENDMENT NO.2 To FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- TARGETED GENETICS CORPORATION (Exact name of registrant as specified in its charter) Washington 91-1549568 (State or other jurisdiction of incorporation or (I.R.S. Employer Identification Number) organization)
1100 Olive Way, Suite 100 Seattle, Washington 98101 (206) 623-7612 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) H. STEWART PARKER Chief Executive Officer Targeted Genetics Corporation 1100 Olive Way, Suite 100 Seattle, Washington 98101 (206) 623-7612 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------- Copies to: STEPHEN M. GRAHAM ANN L. MCGUIRE Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 (206) 583-8888 --------------- Approximate date of commencement of proposed sale to the public: As soon as practicable 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 of 1933, 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 of 1933, 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. [_] --------------- 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, as amended, or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ + + +The information in this preliminary prospectus is not complete and may be + +changed. These securities may not be sold until the registration statement + +filed with the Securities and Exchange Commission is effective. This + +preliminary prospectus offers to sell or seeks an offer to buy these + +securities only in jurisdictions where the offer or sale is permitted. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION, DATED NOVEMBER 23, 1999 TARGETED GENETICS CORPORATION 500,000 Shares of Common Stock Alkermes, Inc. may offer for sale up to 500,000 shares of Targeted Genetics' common stock from time to time. We will not receive any proceeds from the sale of these shares. Alkermes may sell the shares in transactions in the over-the-counter market through the Nasdaq National Market, in privately negotiated transactions, through options or otherwise or through a combination of these. It may sell the shares at fixed prices that may change, at market prices prevailing at the time of the sale or at negotiated prices. These transactions may or may not involve brokers or dealers. Our common stock is quoted on Nasdaq under the symbol "TGEN." On November 22, 1999, the last reported sales price of our common stock was $1.47 per share. Investing in this stock involves risks. See "Risk Factors" beginning on page 2. ------------ 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 , 1999. RISK FACTORS If we are unable to secure financing on terms acceptable to us for future capital needs, we will be unable to fund continuing operations. Developing and commercializing our potential products will require substantial additional financial resources. Because we cannot expect internally generated cash flow to fund development and commercialization of our products, we will look to outside sources for funding. These sources could involve one or more of the following types of transactions: . technology partnerships, . technology sales, . technology licenses, . issuing debt or . equity arrangements. If we cannot obtain additional financing when needed or on acceptable terms, we will be unable to fund continuing operations. In addition, if we raise additional funds by issuing equity securities, our shareholders will likely experience significant dilution of their ownership interest. We estimate that we have sufficient funding from on-hand balances, expected revenue and other contractually committed funding to meet our expected needs until at least the second quarter of 2001. If we do not receive regulatory approval for our products, which are in the early stage of product development, we may be unable to generate sufficient revenues to maintain our business. We do not yet have products in the commercial markets. All of our potential products, including tgAAV-CF, our cystic fibrosis product candidate, and tgDCC- E1A, our cancer product candidate, are in research and development or in early- stage clinical trials. We cannot apply for regulatory approval of our potential products until we have performed additional research and development and testing, and we cannot market products in the United States until we receive regulatory approval. We may be unable to develop, test and gain regulatory approval of our products. If our efforts are unsuccessful, we may be unable to introduce and sell a quantity of products sufficient to maintain our business. We have a history of losses and may never become profitable, which could result in a decline in the value of our common stock and a loss of your investment. We have generated small amounts of revenue and incurred significant net losses since we began business. As of September 30, 1999, we have incurred losses totaling $100.4 million. We expect to continue to incur substantial additional losses in the future, due primarily to the following factors: . all of our products are in a testing phase and have not received regulatory approval, and . we will likely spend significant amounts on operating expenses. We may never generate profits, and if we do become profitable, we may be unable to sustain or increase profitability on a quarterly or annual basis. As a result, the trading price of our stock could decline and you could lose all or part of your investment. If our clinical trials are unsuccessful, we may have to delay or discontinue development of potential products, which could result in decreased ability to generate revenue and difficulty in obtaining additional financing. Limited data supports our belief that gene and cell therapy treatments are both safe and effective. Our clinical trials may not demonstrate the safety and efficacy of our potential products, and we may encounter 2 unacceptable side effects or other problems in the clinical trials. Should this occur, we may have to delay or discontinue development of the potential product that causes the problem. If we cannot commercialize and sell potential products after successful clinical trials, our ability to generate revenue may decrease and we may be unable to secure additional financing to fund our operations. Failure to recruit patients could delay or prevent clinical trials of our potential products, which could cause a delay or inability to introduce products to market and a resulting decrease in our ability to generate revenue. Identifying and qualifying patients to participate in testing our potential products is critical to our near-term success. The timing of our clinical trials depends on the speed at which we can recruit patients to participate in testing our products. Delays in recruiting or enrolling patients to test our products could result in increased costs, delays in advancing our product development, delays in proving the usefulness of our technology or termination of the clinical trials altogether. If we are unable to timely introduce potential products to market after successful clinical trials, our ability to generate revenue may decrease and we may be unable to secure additional financing. We may be unable to adequately protect our proprietary rights, which may limit our ability to compete effectively. Our success depends in part on our ability to protect our proprietary rights. We own or have licenses to patents on a number of genes, processes, practices and techniques critical to our present and potential products. If we fail to obtain and maintain patent protection for our technology, our competitors may market competing products that threaten our market position. The failure of our licensors to obtain and maintain patent protection for technology they license to us could similarly harm our business. Patent positions in the field of biotechnology are highly uncertain and involve complex legal, scientific and factual questions. Our patent applications may not result in issued patents. Even if we secure a patent, the patent may not afford adequate protection against our competitors. We also rely on unpatented proprietary technology. Because this technology does not benefit from the protection of patents, we may be unable to meaningfully protect this proprietary technology from unauthorized use or misappropriation by a third party. Intellectual property claims and litigation could subject us to significant liability for damages and invalidation of our proprietary rights. As the biotechnology industry expands, the risk increases that other companies may claim that our processes and potential products infringe on their patents. Defending these claims would be costly and would likely divert management's attention and resources away from our operations. If we infringe on another company's patented processes or technology, we may have to pay damages or obtain a license in order to continue manufacturing or marketing the affected product or using the affected process. We may be unable to obtain a license on acceptable terms. Our potential tgAAV-CF product uses our proprietary AAV delivery technology to deliver a normal copy of a CFTR gene to which we have rights under a nonexclusive license. The United States Patent and Trademark Office has declared an interference proceeding to determine the priority of invention of this gene. While we do not expect to directly participate in the CFTR gene interference proceedings, we have an interest in the outcome. If the eventual outcome does not favor our licensor, we would have to secure a license to the CFTR gene from the prevailing party to continue with development of tgAAV-CF. The costs of licensing the CFTR gene could be substantial and could include royalties greater than those we currently pay. If we cannot secure this license on acceptable terms and on a timely basis, we may be unable to develop or deliver our potential tgAAV-CF product, which could result in decreased ability to generate revenue and difficulty in obtaining additional financing to fund our operations. 3 Delays or unexpected costs in obtaining approval of our products or complying with governmental regulatory requirements could decrease our ability to generate revenue and make funding our operations more difficult. The regulatory process in the gene and cell therapy industry is costly, time- consuming and subject to unpredictable delays. Accordingly, we cannot predict with any certainty how long it will take or how much it will cost to obtain regulatory approvals for clinical trials or for manufacturing or marketing our potential products. Delays in bringing a potential product to market or unexpected costs in obtaining regulatory approval could decrease our ability to generate revenue and make it more difficult to obtain additional financing necessary to fund our operations. In addition, all manufacturing operations are subject on an ongoing basis to the current Good Manufacturing Practices requirement of the Food and Drug Administration. While we currently anticipate that we will be able to manufacture product that meets this requirement, we may be unable to attain or maintain compliance with current or future Good Manufacturing Practices requirements. If we discover previously unknown problems after we receive regulatory approval of a potential product or fail to comply with applicable regulatory requirements, we may suffer restrictions on our ability to market the product, including mandatory withdrawal of the product from the market. This, or an unexpected increase in the cost of compliance, could decrease our ability to generate revenue. If we or our business partners are unable to successfully market and distribute our products, our business will fail. We have no experience in sales and marketing. To market any products that may result from our development programs, we will need to develop marketing and sales capabilities, either on our own or with others. We intend to enter into collaborations with corporate partners to utilize the mature marketing and distribution capabilities of our partners. While we believe that these collaborative partners will be motivated to market and distribute our potential products, our current and potential future partners may not commit sufficient resources to commercializing our technology on a timely basis. Furthermore, our present or future collaborators may pursue the development or marketing of competing products. If our business partners do not successfully market and distribute our products and we are unable to develop sufficient marketing and distribution capabilities on our own, our business will fail. The intense competition and rapid technological change in our market may result in pricing pressures and failure of our products to achieve market acceptance. We presently face competition from other companies developing gene and cell therapy technologies and from companies using more traditional approaches to treating human diseases. Most of our competitors have substantially more experience and financial and infrastructure resources than we do in the following areas: . research and development, . clinical trials, . obtaining Food and Drug Administration and other regulatory approvals, . manufacturing, and . marketing and distribution. Consequently, our competitors may be able to commercialize new products more rapidly than we do, or manufacture and market competitive products more successfully than we do. This could result in pricing pressures or the failure of our products to achieve market acceptance. In addition, gene and cell therapy are new and rapidly evolving fields and are expected to continue to undergo significant and rapid technological change. Rapid technological development by our competitors could result in our actual and proposed technologies, products or processes losing market share or becoming obsolete. 4 If we do not attract and retain qualified personnel and scientific collaborators, we will be unable to successfully and timely develop our potential products and may be unable to generate sufficient revenue to maintain our business. Our future success depends in part on our ability to attract and retain key employees. We have programs in place to retain personnel, including programs to create a positive work environment and competitive compensation packages. Because competition for employees in our field is intense, however, we may be unable to retain our existing personnel or attract additional qualified employees. If we experience turnover or difficulties recruiting new employees, our research and development could be delayed and we could experience difficulties in generating sufficient revenue to maintain our business. Our success also depends on the continued availability of outside scientific collaborators to perform research and develop processes to advance and augment our internal research efforts. Competition for collaborators in gene and cell therapy is intense. If we are unsuccessful in recruiting or maintaining our relationships with scientific collaborators, we could experience delays in our research and development or loss of access to important enabling technology. Our limited manufacturing capability may limit our ability to successfully introduce our potential products. We currently do not have the capacity to manufacture large-scale clinical or commercial quantities of our potential products. To do so, we will need to expand our current facilities and staff or supplement them through the use of contract providers. We may be unable to obtain or develop the necessary manufacturing capabilities. If we cannot, we will be unable to introduce sufficient product to sustain our business. Our use of hazardous materials to develop our products exposes us to liability risks and the risk of regulatory limitation of our use of these materials, either of which could reduce our ability to generate revenue and make it more difficult to fund our operations. Our research and development activities involve the controlled use of hazardous materials. Although we believe that our safety procedures for handling and disposing of these materials comply with applicable laws and regulations, we cannot eliminate the risk of accidental contamination or injury from hazardous materials. If a hazardous material accident occurred, we would be liable for any resulting damages. This liability could exceed our financial resources. Additionally, hazardous materials are subject to regulatory oversight. Accidents unrelated to our operations could cause federal, state or local regulatory agencies to restrict our access to hazardous materials needed in our research and development efforts. If our access to these materials is limited, we could experience delays in our research and development programs. Paying damages or experiencing delays caused by restricted access could reduce our ability to generate revenues and make it more difficult to fund our operations. The costs of product liability claims and product recalls could exceed the amount of our insurance, which could significantly harm our results of operations or our reputation and result in a decline in the value of our stock. Our business activities expose us to the risk of liability claims or product recalls and any adverse publicity that might result from a liability claim against us. We currently have only limited amounts of product liability insurance, and the amounts of claims against us may exceed our insurance coverage. Product liability insurance is expensive and may not continue to be available on acceptable terms. A product liability claim not covered by insurance or in excess of our insurance or a product recall could significantly harm our financial results or our reputation. Either of these could result in a decrease in our stock price, and you could lose all or part of your investment. 5 SELLING SHAREHOLDER The following table provides information regarding Alkermes, Inc. and the number of shares being offered by Alkermes.
Shares Beneficially Shares That May Be Sold Owned After Offering --------------------------------- -------------------- Shares Beneficially Percentage of Percentage of Owned Before Common Stock Common Stock Beneficial Owner Offering Outstanding Amount Outstanding - ---------------- ------------------- ------------- ------ ------------- Alkermes, Inc............ 500,000 1.5% -- --
Except as a shareholder, Alkermes has not had a material relationship with Targeted Genetics, or any of its affiliates, within the past three years. Alkermes received all of the shares covered by this prospectus from Targeted Genetics in a private transaction on June 9, 1999. All of the shares were "restricted securities" under the Securities Act before this registration. Alkermes has represented to us that it purchased the shares for its own account, for investment only and not with a view towards selling or distributing them, except in sales registered under the Securities Act or exempted from the registration requirements of the Securities Act. In recognition of the fact that Alkermes, even though purchasing the shares for investment, may wish to be legally permitted to sell its shares when it deems appropriate, we agreed with Alkermes to file a registration statement to register the resale of the shares and to prepare and file all amendments and supplements necessary to keep the registration statement effective until the earlier of (1) the date on which Alkermes has sold all the shares or (2) the date on which Alkermes may sell all of the shares under Rule 144(k) under the Securities Act. PLAN OF DISTRIBUTION Alkermes or its transferees or other successors-in-interest may sell the shares of common stock offered by this prospectus from time to time, in one or more transactions. Alkermes may sell the shares at fixed prices that may change, at market prices at the time of sale or at negotiated prices. Alkermes may sell the shares . in the over-the-counter market through the Nasdaq National Market or any other national securities exchange, . in privately negotiated transactions, . through options or otherwise, or . through a combination of these. Alkermes may sell the shares to or through broker-dealers, who may receive compensation in the form of discounts, concessions or commissions from Alkermes or the purchasers. Any broker-dealer may act as a broker-dealer on behalf of Alkermes in connection with the offering of the shares. We will not receive any of the proceeds from the sale of the shares by Alkermes. Alkermes may sell any shares covered by this prospectus that qualify for sale under Rule 144 of the Securities Act in transactions complying with Rule 144, rather than through this prospectus. If required, we will distribute a supplement to this prospectus to describe material changes in the terms of the offering. We have the right to suspend the use of this prospectus for up to 30 days if we notify Alkermes of an event that would cause the information about us in this prospectus us to become untrue or omit to state a material fact. Any broker-dealers who assist in the sale of the shares covered by this prospectus may be considered "underwriters" within the meaning of Section 2(11) of the Securities Act. Any commissions they receive or 6 profits they earn on the resale of the shares may be underwriting discounts and commissions under the Securities Act. Subject to limited exceptions, we have agreed to bear all expenses in connection with the registration and sale of the shares being offered by Alkermes. We have also agreed to indemnify Alkermes and the broker-dealers who act in connection with the sale of the shares against liabilities they incur in connection with the sale of the shares, including liabilities under the Securities Act. Alkermes may be unable to sell any or all of the shares covered by this prospectus. VALIDITY OF COMMON STOCK Perkins Coie LLP, Seattle, Washington will provide Alkermes with an opinion that the shares of common stock offered by this prospectus are duly authorized, validly issued, fully paid and nonassessable. EXPERTS Ernst & Young LLP, independent auditors, have audited our financial statements included in our annual report on Form 10-K for the year ended December 31, 1998, as described in their report, which is incorporated by reference into this prospectus and elsewhere into the registration statement of which this prospectus is a part. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP's report, given on their authority as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC's website at http://www.sec.gov. The SEC's website contains reports, proxy statements and other information regarding issuers, such as Targeted Genetics, that file electronically with the SEC. You may also read and copy any document we file with the SEC at its Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may also obtain copies of the documents at prescribed rates by writing to the Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of its Public Reference Room. The SEC allows us to "incorporate by reference" into this prospectus the information we have filed with the SEC. The information incorporated by reference is an important part of this prospectus and is considered to be part of this prospectus. The information that we file subsequently with the SEC will automatically update this prospectus. We incorporate by reference the documents listed below and any filings we make with the SEC under Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, after the initial filing of the registration statement that contains this prospectus and before the time that all the securities offered by this prospectus are sold: . Our annual report on Form 10-K for the fiscal year ended December 31, 1998; . Our quarterly report on Form 10-Q for the quarter ended September 30, 1999; . Our current report on Form 8-K, filed on August 4, 1999; and . The description of our capital stock contained in our registration statement on Form 8-A, effective as of April 26, 1994, including any amendment or report we have filed to update that description. You may request a copy of these filings, at no cost, by writing or telephoning us at the following address: Targeted Genetics Corporation Attention: Investor Relations 1100 Olive Way, Suite 100 Seattle, Washington 98101 (206) 623-7612 7 SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS We make forward-looking statements in this prospectus and in the documents that are incorporated by reference into this prospectus. These forward-looking statements, which include statements concerning our possible or assumed future business success or financial results, are subject to risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of events that we are unable to predict accurately or over which we have no control, including those described in "Risk Factors" and elsewhere in this prospectus. We undertake no obligation to publicly update any forward-looking statements for any reason, even if new information becomes available or unexpected events occur. 8 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- You should rely only on the information contained in this prospectus. Neither we nor Alkermes, Inc. has authorized anyone to give you different information or representations. This prospectus is an offer to sell, and a solicitation of offers to buy, the shares offered by this prospectus only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is correct only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale of the common stock offered by this prospectus. ---------------- TABLE OF CONTENTS
Page ---- Risk Factors............................................................... 2 Selling Shareholder........................................................ 6 Plan of Distribution....................................................... 6 Validity of Common Stock................................................... 7 Experts.................................................................... 7 Where You Can Find More Information........................................ 7 Special Note Regarding Forward-Looking Statements.......................... 8
- ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- 500,000 Shares TARGETED GENETICS CORPORATION Common Stock ---------------- PROSPECTUS ---------------- , 1999 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution The following table lists the costs and expenses payable by the registrant in connection with the common stock being registered. All amounts are estimates except the SEC registration fee and the Nasdaq National Market listing fee. SEC registration fee................................................ $ 231 Nasdaq National Market listing fee for additional shares............ $17,500 Legal fees and expenses............................................. $10,000 Accounting fees and expenses........................................ $ 5,000 ------- Total............................................................. $32,731 =======
Item 15. Indemnification of Directors and Officers Sections 23B.08.500 through 23B.08.600 of the Washington Business Corporation Act authorize a court to award, or a corporation's board of directors to grant, indemnification to directors and officers on terms sufficiently broad to permit indemnification under some circumstances for liabilities arising under the Securities Act of 1933. Section 10 of the registrant's bylaws provides for indemnification of the registrant's directors, officers, employees and agents to the maximum extent permitted by Washington law. The registrant maintains a liability insurance policy for this purpose. Some directors of the registrant, who are affiliated with principal shareholders of the registrant, also may be indemnified by those shareholders against liability they may incur in their capacities as directors of the registrant. Section 23B.08.320 of the Washington Business Corporation Act authorizes a corporation to limit a director's liability to the corporation or its shareholders for monetary damages for acts or omissions as a director, except in circumstances involving intentional misconduct, knowing violations of law or illegal corporate loans or distributions, or any transaction from which the director personally receives a benefit in money, property or services to which the director is not legally entitled. Article 11 of the registrant's articles of incorporation contains provisions implementing, to the fullest extent permitted by Washington law, these limitations on a director's liability to the registrant and its shareholders. Item 16. Exhibits 5.1 Opinion of Perkins Coie LLP, counsel to the registrant, regarding the validity of the common stock* 23.1 Consent of Ernst & Young LLP, independent auditors 23.2 Consent of Perkins Coie LLP (contained in Exhibit 5.1)* 24.1 Power of attorney (contained 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 to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; II-1 (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; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities 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 of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. D. The undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. (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. II-2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunder duly authorized, in the City of Seattle, State of Washington, on the 22nd day of November, 1999. TARGETED GENETICS CORPORATION /s/ H. Stewart Parker By: _________________________________ H. Stewart Parker President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities indicated below on the 22nd day of November, 1999.
Signature Title --------- ----- /s/ H. Stewart Parker President, Chief Executive Officer and ________________________________________ Director (Principal Executive Officer) H. Stewart Parker /s/ James A. Johnson Senior Vice President, Finance and ________________________________________ Administration, Chief Financial Officer, James A. Johnson Treasurer and Secretary (Principal Financial and Accounting Officer) * Jeremy Curnock Cook Chairman of the Board of Directors ________________________________________ Jeremy Curnock Cook ________________________________________ Director Jack L. Bowman * James D. Grant Director ________________________________________ James D. Grant * Louis P. Lacasse Director ________________________________________ Louis P. Lacasse * Nelson L. Levy Director ________________________________________ Nelson L. Levy, Ph.D., M.D. ________________________________________ Director Mark Richmond, Ph.D. /s/ James A. Johnson * ______________________________________ James A. Johnson Attorney-in-Fact
II-3 EXHIBIT INDEX
Exhibit Number - ------- 5.1 Opinion of Perkins Coie LLP, counsel to the registrant, regarding the legality of the common stock* 23.1 Consent of Ernst & Young LLP, independent auditors 23.2 Consent of Perkins Coie LLP (contained in Exhibit 5.1)* 24.1 Power of attorney (contained on signature page)*
- -------- * Previously Filed. EX-23.1 2 CONSENT OF ERNST & YOUNG, LLP EXHIBIT 23.1 CONSENT OF ERNST & YOUNG, LLP, INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" on the Registration Statement (Form S-3) and related Prospectus of Targeted Genetics Corporation for the registration of 500,000 shares of its Common Stock and to the incorporation by reference therein of our report dated February 5, 1999, with respect to the financial statements of Targeted Genetics Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Seattle, Washington November 22, 1999 -----END PRIVACY-ENHANCED MESSAGE-----