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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 23, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ILEX ONCOLOGY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2699185
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11550 I.H. 10 WEST, SUITE 100
SAN ANTONIO, TEXAS 78230
(210) 949-8200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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MICHAEL T. DWYER
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
ILEX ONCOLOGY, INC.
11550 I.H. 10 WEST, SUITE 100
SAN ANTONIO, TEXAS 78230
(210) 949-8200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies of all communications, including all communications sent to the agent
for service, should be sent to:
PHILLIP M. RENFRO, ESQ. MARK J. MIHANOVIC, ESQ.
FULBRIGHT & JAWORSKI L.L.P. MCDERMOTT, WILL & EMERY
300 CONVENT STREET, SUITE 2200 2049 CENTURY PARK EAST, 34TH FLOOR
SAN ANTONIO, TEXAS 78205 LOS ANGELES, CALIFORNIA 90067
(210) 270-7172 (310) 277-4110
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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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: [ ]
If the registrant elects to deliver its latest annual report to
securityholders or a complete and legible facsimile thereof, pursuant to Item
11(a)(1)of this Form, check the following box: [ ]
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: [X] 333-87721
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 this Form is a post-effective amendment filed pursuant to Rule
462(d)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
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT OF SHARES PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED TO BE REGISTERED(1) PER SHARE(2) PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share...... 575,000 $ 12.907 $ 7,421,525 $ 2,063(3)
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Total............................... 575,000 $ 7,421,525 $ 2,063(3)
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(1) Includes 75,000 shares of common stock that the underwriters have the
option to purchase to cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), under the Securities Act of 1933, as amended. The
calculation of the registration fee is based on the average of the high and
low prices of the common stock as reported on The Nasdaq National Market on
November 19, 1999.
(3) Previously paid. The Company initially registered 4,025,000 shares on a
Registration Statement on Form S-3 (Reg. No. 333-87721) which, based on the
Proposed Maximum Price Per Share of $16.0313 at such time, resulted in
Proposed Maximum Aggregate Offering Price of $64,525,983, and a
Registration Fee of $17,938.22. Based on the current Proposed Maximum Price
Per Share of $12.907, the Proposed Maximum Aggregate Offering Price has
decreased $5,153,783, even when including the 575,000 additional shares
registered pursuant hereto, such that no additional fee is required to be
paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(a),
MAY DETERMINE.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
ILEX Oncology, Inc. (the "Registrant") is filing this Registration
Statement pursuant to Rule 462(b) promulgated under the Securities Act of 1933,
as amended. This Registration Statement relates to the public offering of common
stock, par value $0.01 per share ("Common Stock"), of the Registrant
contemplated by the Registration Statement on Form S-3 (Reg. No. 333-87721)
filed by the Registrant with the Securities and Exchange Commission (the
"Commission") on September 24, 1999, as amended by Amendment No. 1 thereto filed
on October 5, 1999, Amendment No. 2 thereto filed on October 25, 1999, and
Amendment No. 3 thereto filed on November 16, 1999, which was declared effective
November 22, 1999 (the "Prior Registration Statement"). The Registrant is filing
this Registration Statement for the sole purpose of increasing the number of
shares of Common Stock offered by 500,000 shares, the number of additional
shares the underwriters have an option to purchase by 75,000 and decreasing the
aggregate offering price to the public set forth in such Prior Registration
Statement by $ 5,153,783. The contents of the Prior Registration Statement are
incorporated herein by reference.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies it has reasonable grounds to believe that it meets all
requirements for filing Form S-3 and has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
city of San Antonio, Texas, on November 23, 1999.
ILEX ONCOLOGY, INC.
By: /s/ MICHAEL T. DWYER
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Michael T. Dwyer
Vice President and Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<C> <S> <C>
/s/ GARY V. WOODS*
- ----------------------------------------------------- Chairman of the Board November 23, 1999
Gary V. Woods
/s/ RICHARD L. LOVE*
- ----------------------------------------------------- President, Chief Executive November 23, 1999
Richard L. Love Officer, and a Director
(Principal Executive
Officer)
/s/ MICHAEL T. DWYER
- ----------------------------------------------------- Vice President and Chief November 23, 1999
Michael T. Dwyer Financial Officer
(Principal Financial and
Accounting Officer)
/s/ DANIEL D. VON HOFF, M.D.*
- ----------------------------------------------------- Director November 23, 1999
Daniel D. Von Hoff, M.D.
/s/ JOHN L. CASSIS*
- ----------------------------------------------------- Director November 23, 1999
John L. Cassis
/s/ A. DANA CALLOW, JR.*
- ----------------------------------------------------- Director November 23, 1999
A. Dana Callow, Jr.
/s/ RUSKIN C. NORMAN, M.D.*
- ----------------------------------------------------- Director November 23, 1999
Ruskin C. Norman, M.D.
/s/ JASON S. FISHERMAN, M.D.*
- ----------------------------------------------------- Director November 23, 1999
Jason S. Fisherman, M.D.
</TABLE>
II-1
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<TABLE>
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SIGNATURE TITLE DATE
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<C> <S> <C>
/s/ JOSEPH S. BAILES, M.D.* Director November 23, 1999
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Joseph S. Bailes, M.D.
/s/ GLENN C. RICE, PH.D.* Director November 23, 1999
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Glenn C. Rice, Ph.D.
* By: /s/ MICHAEL T. DWYER
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Michael T. Dwyer
(Attorney-in-Fact)
</TABLE>
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EXHIBIT INDEX
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NO. DESCRIPTION
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5.1* -- Opinion of Fulbright & Jaworski L.L.P. regarding legality
23.1 -- Consent of Fulbright & Jaworski L.L.P. (contained in
Exhibit 5)
23.2* -- Consent of Arthur Andersen LLP
24.1** -- Power of attorney (on signature page)
</TABLE>
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* Filed herewith.
** Incorporated by reference to the Registrants Registration Statement on Form
S-3, as amended (File No. 333-87721).
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EXHIBIT 5.1
[LETTERHEAD OF FULLBRIGHT & JAWORSKI L.L.P.]
November 23, 1999
ILEX Oncology, Inc.
11550 IH 10 West, Suite 100
San Antonio, Texas 78230
Ladies and Gentlemen:
We have acted as counsel to ILEX Oncology, Inc., a Delaware corporation
(the "Company"), in connection with its filing with the Securities and Exchange
Commission of a Registration Statement on Form S-3 (the "Abbreviated
Registration Statement"), under the Securities Act of 1933, as amended (the
"Act") for the registration of 500,000 shares of common stock, par value $.01
per share, of the Company (the "Common Stock") and up to an additional 75,000
shares of Common Stock subject to an option (the "Over-Allotment Option") from
the Company to the representatives of the underwriters (the "Representatives").
The Abbreviated Registration Statement relates to the same class of securities
registered pursuant to the Company's Registration Statement on Form S-3 (No.
333-87721) declared effective on November 22, 1999 (the "Initial Registration
Statement").
The Abbreviated Registration Statement, together with the Initial
Registration Statement (collectively, the "Registration Statement") relate to
the proposed sale by the Company, in a public offering, of an aggregate of
4,000,000 shares of the Company's Common Stock. The Registration Statement also
relates to the proposed sale by the Company of an aggregate of up to an
additional 600,000 shares of Common Stock subject to the Over-Allotment Option.
All such shares of Common Stock are hereinafter referred to as the "Shares."
In connection with this opinion, we have examined the originals, or
copies certified or otherwise identified to our satisfaction, of (i) the
Company's Restated Certificate of Incorporation, as amended, and By-Laws filed
as Exhibits 3.1 and 3.2, respectively, to the Initial Registration Statement,
(ii) the form of Underwriting Agreement, between the Company and the
Representative filed as Exhibit 1.1 to the Initial Registration Statement (the
"Underwriting Agreement"), and (iii) such corporate records, documents and such
questions of law as we have deemed necessary or appropriate for the purposes of
this opinion. In such examinations, we have assumed the geniuneness of
signatures and the conformity to original documents of the documents supplied to
us as copies. As to the various questions of fact material to such opinion, we
have relied upon statements and certificates of officers and representatives of
the Company. We have further assumed that all documents examined by us in the
form of drafts will, when executed by the requisite signatories thereto, conform
in substance and form in all material respects to the drafts that we have
examined.
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November 23, 1999
Page 2
Based upon the foregoing, and subject to the qualifications hereinafter
set forth, we are of the opinion that the Shares have been duly authorized and,
when issued in accordance with the terms and conditions of the Underwriting
Agreement, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus contained therein. This consent is not to be
construed as an admission that we are a person whose consent is required to be
filed with the Registration Statement under the provisions of the Securities Act
of 1933, as amended.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 29, 1999,
included in ILEX Oncology, Inc.'s Form 10-K for the year ended December 31,
1998, and to all references to our firm included in this Registration
Statement.
ARTHUR ANDERSEN LLP
San Antonio, Texas
November 19, 1999
