<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 1, 2000
REGISTRATION STATEMENT NO. 333-
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UNITED STATES
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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MILLENNIUM PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 04-3177038
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
</TABLE>
75 SIDNEY STREET
CAMBRIDGE, MASSACHUSETTS 02139
617-679-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------------------------
JOHN B. DOUGLAS III, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
MILLENNIUM PHARMACEUTICALS, INC.
75 SIDNEY STREET
CAMBRIDGE, MASSACHUSETTS 02139
617-679-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------------
COPY TO:
DAVID E. REDLICK, ESQ.
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
617-526-6000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO 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, 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
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED(1) OFFERING PRICE(2)(3) REGISTRATION FEE(4)
<S> <C> <C>
Common Stock, $0.001 par value per share(5)................. (6) (6)
Preferred Stock, $0.001 par value per share................. (6) (6)
Debt Securities............................................. (6) (6)
Warrants.................................................... (6) (6)
Total....................................................... $1,000,000,000 $264,000
</TABLE>
(1) There are being registered hereunder such indeterminate number of shares of
common stock and preferred stock, such indeterminate number of warrants to
purchase common stock, preferred stock or debt securities, and such
indeterminate principal amount of debt securities as shall have an aggregate
initial offering price not to exceed $1,000,000,000. If any debt securities
are issued at an original issued discount, then the offering price of such
debt securities shall be in such greater principal amount as shall result in
an aggregate initial offering price not to exceed $1,000,000,000, less the
aggregate dollar amount of all securities previously issued hereunder. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder. The securities registered also
include such indeterminate amounts and numbers of common stock, preferred
stock and debt securities as may be issued upon conversion of or exchange
for preferred stock or debt securities that provide for conversion or
exchange, upon exercise of warrants or pursuant to the antidilution
provisions of any such securities.
(2) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies.
(3) The proposed maximum per unit and aggregate offering prices per class of
security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities registered
hereunder.
(4) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933, as amended.
(5) The aggregate amount of Common Stock registered hereunder is limited to that
which is permissible under Rule 415(a)(4) under the Securities Act.
(6) Not required to be included in accordance with General Instruction II.D. of
Form S-3.
----------------------------------
THE COMPANY HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANY SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
SHALL DETERMINE.
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--------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 1, 2000
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE 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 IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
$1,000,000,000
MILLENNIUM PHARMACEUTICALS, INC.
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
------------------
We may from time to time issue up to $1,000,000,000 aggregate principal
amount of common stock, preferred stock, debt securities and/or warrants. We
will specify in the accompanying prospectus supplement the terms of the
securities. We may sell these securities to or through underwriters and also to
other purchasers or through agents. We will set forth the names of any
underwriters or agents in the accompanying prospectus supplement.
------------------------
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE "RISK FACTORS" ON PAGE 1.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
This prospectus may not be used to consummate sales of securities unless it
is accompanied by a prospectus supplement.
------------------------
Prospectus dated , 2000.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
ABOUT THIS PROSPECTUS....................................... 1
MILLENNIUM PHARMACEUTICALS, INC............................. 1
RISK FACTORS................................................ 1
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION.......... 2
RATIO OF EARNINGS TO FIXED CHARGES.......................... 3
USE OF PROCEEDS............................................. 3
THE SECURITIES WE MAY OFFER................................. 3
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK............. 4
DESCRIPTION OF DEBT SECURITIES.............................. 8
DESCRIPTION OF WARRANTS..................................... 13
LEGAL OWNERSHIP OF SECURITIES............................... 15
PLAN OF DISTRIBUTION........................................ 18
EXPERTS..................................................... 19
VALIDITY OF SECURITIES...................................... 20
WHERE YOU CAN FIND MORE INFORMATION......................... 20
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............. 21
</TABLE>
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to a total dollar amount of $1,000,000,000. We have provided
to you in this prospectus a general description of the securities we may offer.
Each time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. We may also add,
update or change in the prospectus supplement any of the information contained
in this prospectus. This prospectus, together with applicable prospectus
supplements, includes all material information relating to this offering.
MILLENNIUM PHARMACEUTICALS, INC.
Our goal is to become the biopharmaceutical company of the future by
building on our broad scientific and technological capabilities and methods,
which we call our "technology platform," to develop breakthrough drugs and
predictive medicine products and services. Predictive medicine involves
identifying information that enables healthcare professionals to make better
informed decisions about drug treatment and other aspects of patient care.
We use many of the same elements of our technology platform throughout our
business, from the discovery of disease-related genes, to the development of
drugs to specifically address these diseases, to the management of patients
affected by these diseases. As a result, we speak of our technological approach
as being applicable from "gene to patient." We continually seek to expand our
technology platform in an effort to increase the speed of drug discovery and
development and improve the resulting drugs.
We have entered into research, development and commercialization
arrangements, which we call "strategic alliances," with major pharmaceutical and
biotechnology companies relating to a broad range of therapeutic and predictive
medicine products and services. These alliances provide us with the opportunity
to receive royalties and profit sharing, if we and our alliance partners are
successful in developing and commercializing products. In addition, these
alliances provide substantial funding for our research and development and the
continued enhancement of our technology platform.
We were incorporated in Delaware in 1993. Our principal executive offices
are located at 75 Sidney Street, Cambridge, MA 02139 and our telephone number is
(617) 679-7000. Our world wide web address is www.mlnm.com. We have not
incorporated by reference into this prospectus the information on our website,
and you should not consider it to be a part of this document. Our web site
address is included in this document as an inactive textual reference only.
The Millennium Pharmaceuticals name and logo and the names of products and
services offered by Millennium Pharmaceuticals are trademarks, registered
trademarks, service marks or registered service marks of Millennium
Pharmaceuticals. Unless the context otherwise requires, the terms "Millennium,"
"we," "us" and "our" refer to Millennium Pharmaceuticals, Inc. and its
subsidiaries.
RISK FACTORS
Investing in our securities involves risk. Please see the risk factors
described in our Quarterly Report on Form 10-Q for the quarter ended June 30,
2000, which is incorporated by reference in this prospectus. Before making an
investment decision, you should carefully consider these risks as well as other
information we include or incorporate by reference in this prospectus. The risks
and uncertainties we have described are not the only ones facing our company.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also affect our business operations.
1
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SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
This prospectus, any prospectus supplement, and the documents incorporated
by reference in this prospectus contain "forward-looking statements" within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934 that involve risks and uncertainties, such as
statements concerning:
- our growth and future operating results;
- the discovery and development of products;
- developments in our markets and strategic focus;
- new products;
- potential acquisitions and our integration of acquired businesses,
products and technologies;
- our strategic alliances;
- our intellectual property;
- our manufacturing, marketing, sales and distribution capabilities; and
- future economic, business and regulatory conditions.
We may, in some cases, use words such as "project," "believe," "anticipate,"
"plan," "expect," "estimate," "intend," "should," "would," "will," "could" or
"may," or other words that convey uncertainty of future events or outcomes to
identify forward-looking statements. There are a number of important factors
that could cause our actual results to differ materially from the results
indicated by the forward-looking statements that we include or incorporate by
reference in this prospectus. These important factors include, among others, the
factors that we identify in the documents we incorporate by reference in this
prospectus. See "Risk Factors." You should read these factors and the other
cautionary statements that we make in this prospectus and in the documents we
incorporate by reference as being applicable to all related forward-looking
statements that we make in this prospectus and in the documents we incorporate
by reference.
2
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
We present below the ratio of our earnings to our fixed charges. Earnings
consist of net income (loss) from operations before minority interest plus fixed
charges. Fixed charges consist of interest expense and that portion of rental
expense we believe to be representative of interest and a deemed preferred
dividend in 1999 and the six months ended June 30, 2000. The amounts for the
year ended December 31, 1999 include a charge for in process research and
development for $350,503,000 recorded in connection with the merger with
LeukoSite, Inc. For the year ended December 31, 1999 and the six months ended
June 30, 2000, earnings include a deemed preferred stock dividend.
The pro forma amounts for the year ended December 31, 1999 give effect to
our merger with LeukoSite, Inc. as if it had occurred on January 1, 1999. The
pro forma amounts exclude a charge for in process research and development for
$350,503,000. Except for the year ended December 31, 1995, earnings are
inadequate to cover fixed charges.
<TABLE>
<CAPTION>
PRO FORMA SIX MONTHS
YEAR ENDED ENDED
YEAR ENDED DECEMBER 31, DECEMBER 31, JUNE 30,
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1994 1995 1996 1997 1998 1999 1999 2000
-------- -------- -------- -------- -------- --------- ------------ --------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges...... -- 1.51 -- -- -- -- -- --
======= ==== ======== ======== ======= ========= ========= =========
Coverage
deficiency......... $(6,372) -- $ (8,768) $(84,632) $(3,841) $(381,884) $(110,175) $(114,418)
======= ==== ======== ======== ======= ========= ========= =========
</TABLE>
USE OF PROCEEDS
Unless we otherwise indicate in the applicable prospectus supplement, we
currently intend to use the net proceeds from the sale of the securities for
working capital and other general corporate purposes, including:
- financing our growth;
- accelerating the expansion of our technology platform;
- developing our products, including conducting advanced preclinical testing
and human clinical trials;
- capital expenditures made in the ordinary course of business; and
- acquisitions of businesses, products and technologies that complement or
expand our business, including by sponsoring research and development by
third parties in exchange for rights to products or technologies.
We may set forth additional information on the use of net proceeds from the
sale of securities we offer under this prospectus in a prospectus supplement
relating to the specific offering.
THE SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus, together
with the applicable prospectus supplements, summarize all the material terms and
provisions of the various types of securities that we may offer. We will
describe in the applicable prospectus supplement relating to any securities the
particular terms of the securities offered by that prospectus supplement. If we
indicate in the applicable prospectus supplement, the terms of the securities
may differ from the terms we have summarized below. We will also include in the
prospectus supplement information, where applicable, about material United
States federal income tax considerations relating to the securities, and the
securities exchange, if any, on which the securities will be listed.
3
<PAGE>
We may sell from time to time, in one or more offerings:
- common stock;
- preferred stock;
- debt securities; and/or
- warrants to purchase any of the securities listed above.
In this prospectus, we will refer to the common stock, preferred stock, debt
securities and warrants collectively as "securities." The total dollar amount of
all securities that we may issue will not exceed $1,000,000,000.
If we issue debt securities at a discount from their original stated
principal amount, then, for purposes of calculating the total dollar amount of
all securities issued under this prospectus, we will treat the initial offering
price of the debt securities as the total original principal amount of the debt
securities.
This prospectus may not be used to consummate a sale of securities unless it
is accompanied by a prospectus supplement.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
The following description of our common stock and preferred stock, together
with the additional information we include in any applicable prospectus
supplements, summarizes the material terms and provisions of the common stock
and preferred stock that we may offer under this prospectus. For the complete
terms of our common stock and preferred stock, please refer to our charter and
bylaws that are incorporated by reference into the registration statement which
includes this prospectus. The General Corporation Law of Delaware may also
affect the terms of these securities. While the terms we have summarized below
will apply generally to any future common stock or preferred stock that we may
offer, we will describe the particular terms of any series of these securities
in more detail in the applicable prospectus supplement. If we indicate in a
prospectus supplement, the terms of any common stock or preferred stock we offer
under that prospectus supplement may differ from the terms we describe below.
Under our charter our authorized capital stock consists of 500,000,000
shares of common stock, $0.001 par value per share, and 5,000,000 shares of
preferred stock, $0.001 par value per share. As of June 30, 2000, we had
93,676,416 shares of common stock outstanding and no shares of preferred stock
outstanding. All outstanding shares of common stock are duly authorized, validly
issued, fully paid and nonassessable.
COMMON STOCK
VOTING. For all matters submitted to a vote of stockholders, each holder of
common stock is entitled to one vote for each share registered in his or her
name on our books. Our common stock does not have cumulative voting rights. As a
result, subject to the voting rights of any outstanding preferred stock, of
which there currently is none, persons who hold more than 50% of the outstanding
common stock entitled to elect members of our board of directors can elect all
of the directors who are up for election in a particular year.
DIVIDENDS. If our board of directors declares a dividend, holders of common
stock will receive payments from our funds that are legally available to pay
dividends. However, this dividend right is subject to any preferential dividend
rights we may grant to the persons who hold preferred stock, if any is
outstanding.
4
<PAGE>
LIQUIDATION AND DISSOLUTION. If we are liquidated or dissolve, the holders
of our common stock will be entitled to share ratably in all the assets that
remain after we pay our liabilities and any amounts we may owe to the persons
who hold preferred stock, if any is outstanding.
OTHER RIGHTS AND RESTRICTIONS. Holders of our common stock do not have
preemptive rights, and they have no right to convert their common stock into any
other securities. Our common stock is not subject to redemption by us. The
rights, preferences and privileges of common stockholders are subject to the
rights of the stockholders of any series of preferred stock which we may
designate in the future. Our charter and bylaws do not restrict the ability of a
holder of common stock to transfer his or her shares of common stock. When we
issue shares of common stock under this prospectus, the shares will be fully
paid and non-assessable and will not have, or be subject to, any preemptive or
similar rights.
LISTING. Our common stock is listed on the Nasdaq National Market.
TRANSFER AGENT AND REGISTRAR. The transfer agent and registrar for our
common stock is Boston EquiServe, L.P.
PREFERRED STOCK
GENERAL. Our charter authorizes our board of directors to issue preferred
stock in one or more series and to determine the voting rights, dividend rights,
liquidation preferences, conversion rights, redemption rights, including sinking
fund provisions and redemption prices, and other terms and rights of each series
of preferred stock. We will fix the rights, preferences, privileges and
restrictions of the preferred stock of each series in the certificate of
designation relating to that series. We will incorporate by reference as an
exhibit to the registration statement which includes this prospectus the form of
any certificate of designation which describes the terms of the series of
preferred stock we are offering before the issuance of the related series of
preferred stock. This description will include:
- the title and stated value;
- the number of shares we are offering;
- the liquidation preference per share;
- the purchase price;
- the dividend rate, period and payment date, and method of calculation for
dividends;
- whether dividends will be cumulative or non-cumulative and, if cumulative,
the date from which dividends will accumulate;
- the procedures for any auction and remarketing, if any;
- the provisions for a sinking fund, if any;
- the provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption and repurchase
rights;
- any listing of the preferred stock on any securities exchange or market;
- whether the preferred stock will be convertible into our common stock,
and, if applicable, the conversion price, or how it will be calculated,
and the conversion period;
- whether the preferred stock will be exchangeable into debt securities,
and, if applicable, the exchange price, or how it will be calculated, and
the exchange period;
- voting rights, if any, of the preferred stock;
- preemption rights, if any;
5
<PAGE>
- restrictions on transfer, sale or other assignment, if any;
- whether interests in the preferred stock will be represented by depositary
shares;
- a discussion of any material or special United States federal income tax
considerations applicable to the preferred stock;
- the relative ranking and preferences of the preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our affairs;
- any limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the series of preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up our
affairs; and
- any other specific terms, preferences, rights or limitations of, or
restrictions on, the preferred stock.
When we issue shares of preferred stock under this prospectus, the shares
will be fully paid and nonassessable and will not have, or be subject to, any
preemptive or similar rights.
VOTING RIGHTS. The General Corporation Law of Delaware provides that the
holders of preferred stock will have the right to vote separately as a class on
any proposal involving fundamental changes in the rights of holders of that
preferred stock. This right is in addition to any voting rights that may be
provided for in the applicable certificate of designation.
OTHER. The preferred stock could have other rights, including economic
rights senior to our common stock, so that the issuance of the preferred stock
could adversely affect the market value of our common stock. The issuance of the
preferred stock may also have the effect of delaying, deferring or preventing a
change in control of us without any action by the stockholders.
CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
We have shares of common stock and preferred stock available for future
issuance without stockholder approval. We may utilize these additional shares
for a variety of corporate purposes, including future public offerings to raise
additional capital, facilitating corporate acquisitions or paying a dividend on
the capital stock.
The existence of unissued and unreserved common stock and preferred stock
may enable our board of directors to issue shares to persons friendly to current
management or to issue preferred stock with terms that could render more
difficult or discourage a third party attempt to obtain control of us by means
of a merger, tender offer, proxy contest or otherwise, thereby protecting the
continuity of our management. In addition, if we issue preferred stock, the
issuance could adversely affect the voting power of holders of common stock and
the likelihood that such holders will receive dividend payments and payments
upon liquidation.
DELAWARE LAW AND CHARTER AND BY-LAW PROVISIONS
BUSINESS COMBINATIONS. We are subject to the provisions of Section 203 of
the General Corporation Law of Delaware. Section 203 prohibits a publicly-held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner. A "business
combination" includes mergers, asset sales and other transactions resulting in a
financial benefit to the interested stockholder. Subject to specified
exceptions, an "interested stockholder" is a person who, together with
affiliates and associates, owns, or within three years did own, 15% or more of
the corporation's voting stock.
6
<PAGE>
STAGGERED BOARD. Our charter provides for the division of our board of
directors into three classes as nearly equal in size as possible with staggered
three-year terms. In addition, our charter provides that directors may be
removed only for cause by the affirmative vote of the holders of two-thirds of
the shares of our capital stock entitled to vote. Under our charter, any vacancy
on the board of directors, however occurring, including a vacancy resulting from
an enlargement of the board, may only be filled by vote of a majority of the
directors then in office. The classification of our board of directors and the
limitations on the removal of directors and filling of vacancies could have the
effect of making it more difficult for a third party to acquire, or of
discouraging a third party from acquiring, control of us.
SUPERMAJORITY VOTES REQUIRED. The General Corporation Law of Delaware
provides generally that the affirmative vote of a majority of the shares
entitled to vote on any matter is required to amend a corporation's charter or
bylaws, unless a corporation's charter or bylaws, as the case may be, requires a
greater percentage. Our charter and bylaws require the affirmative vote of the
holders of at least 75% of the shares of our capital stock issued and
outstanding and entitled to vote to amend or repeal any of the provisions
described in the prior paragraph.
LIMITATION OF LIABILITY; INDEMNIFICATION. Our charter contains provisions
permitted under the General Corporation Law of Delaware relating to the
liability of directors. The provisions eliminate a director's liability for
monetary damages for a breach of fiduciary duty, except in circumstances
involving wrongful acts, such as the breach of a director's duty of loyalty or
acts or omissions which involve intentional misconduct or a knowing violation of
law. The limitation of liability described above does not alter the liability of
our directors and officers under federal securities laws. Furthermore, our
charter contains provisions to indemnify our directors and officers to the
fullest extent permitted by the General Corporation Law of Delaware. These
provisions do not limit or eliminate our right or the right of any shareholder
of ours to seek non-monetary relief, such as an injunction or rescission in the
event of a breach by a director or an officer of his duty of care to us. We
believe that these provisions will assist us in attracting and retaining
qualified individuals to serve as directors.
STOCKHOLDER ACTION; SPECIAL MEETING OF STOCKHOLDERS. Our charter provides
that stockholders may take action only at a duly called annual or special
meeting of stockholders and may not take action by written consent. Our charter
further provides that special meetings of our stockholders may be called only by
the chairman of the board of directors, by a majority of the board of directors
or by our chief executive officer, and in no event may the stockholders call a
special meeting.
ADVANCE NOTICE REQUIREMENTS FOR STOCKHOLDER PROPOSALS AND DIRECTOR
NOMINATIONS. Our bylaws provide that stockholders seeking to bring business
before an annual meeting of stockholders, or to nominate candidates for election
as directors at an annual meeting of stockholders, must meet specified
procedural requirements. The bylaws also include a similar requirement for
making nominations for directors. These provisions may preclude stockholders
from bringing matters before an annual meeting of stockholders or from making
nominations for directors at an annual or special meeting of stockholders.
7
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we
include in any applicable prospectus supplements, summarizes the material terms
and provisions of the debt securities that we may offer under this prospectus.
While the terms we have summarized below will apply generally to any future debt
securities we may offer, we will describe the particular terms of any debt
securities that we may offer in more detail in the applicable prospectus
supplement. If we indicate in a prospectus supplement, the terms of any debt
securities we offer under that prospectus supplement may differ from the terms
we describe below.
We will issue the senior notes under the senior indenture which we will
enter into with a trustee to be named in the senior indenture. We will issue the
subordinated notes under the subordinated indenture which we will enter into
with a trustee to be named in the subordinated indenture. We have filed forms of
these documents as exhibits to the registration statement which includes this
prospectus. We use the term "indentures" to refer to both the senior indenture
and the subordinated indenture. The indentures will be qualified under the Trust
Indenture Act. We use the term "debenture trustee" to refer to either the senior
trustee or the subordinated trustee, as applicable.
The following summaries of material provisions of the senior notes, the
subordinated notes and the indentures are subject to, and qualified in their
entirety by reference to, all the provisions of the indenture applicable to a
particular series of debt securities. Except as we may otherwise indicate, the
terms of the senior indenture and the subordinated indenture are identical.
We conduct some of our operations through our subsidiaries. Our rights and
the rights of our creditors, including holders of debt securities, to the assets
of any subsidiary of ours upon that subsidiary's liquidation or reorganization
or otherwise would be subject to the prior claims of that subsidiary's
creditors, except to the extent that we may be a creditor with recognized claims
against the subsidiary. Our subsidiaries' creditors would include trade
creditors, debt holders, secured creditors and taxing authorities. Except as we
may provide in a prospectus supplement, neither the debt securities nor the
indentures restrict us or any of our subsidiaries from incurring indebtedness.
GENERAL
We will describe in each prospectus supplement the following terms relating
to a series of notes:
- the title;
- any limit on the amount that may be issued;
- whether or not we will issue the series of notes in global form, the terms
and who the depository will be;
- the maturity date;
- the annual interest rate, which may be fixed or variable, or the method
for determining the rate and the date interest will begin to accrue, the
dates interest will be payable and the regular record dates for interest
payment dates or the method for determining such dates;
- whether or not the notes will be secured or unsecured, and the terms of
any secured debt;
- the terms of the subordination of any series of subordinated debt;
- the place where payments will be payable;
- our right, if any, to defer payment of interest and the maximum length of
any such deferral period;
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- the date, if any, after which, and the price at which, we may, at our
option, redeem the series of notes pursuant to any optional redemption
provisions;
- the date, if any, on which, and the price at which we are obligated,
pursuant to any mandatory sinking fund provisions or otherwise, to redeem,
or at the holder's option to purchase, the series of notes;
- whether the indenture will restrict our ability to pay dividends, or will
require us to maintain any asset ratios or reserves;
- whether we will be restricted from incurring any additional indebtedness;
- a discussion on any material or special United States federal income tax
considerations applicable to the notes;
- the denominations in which we will issue the series of notes, if other
than denominations of $1,000 and any integral multiple thereof; and
- any other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities.
CONVERSION OR EXCHANGE RIGHTS
We will set forth in the prospectus supplement the terms on which a series
of notes may be convertible into or exchangeable for common stock or other
securities of ours. We will include provisions as to whether conversion or
exchange is mandatory, at the option of the holder or at our option. We may
include provisions pursuant to which the number of shares of common stock or
other securities of ours that the holders of the series of notes receive would
be subject to adjustment.
CONSOLIDATION, MERGER OR SALE
The indentures do not contain any covenant which restricts our ability to
merge or consolidate, or sell, convey, transfer or otherwise dispose of all or
substantially all of our assets. However, any successor to or acquirer of such
assets must assume all of our obligations under the indentures or the notes, as
appropriate.
EVENTS OF DEFAULT UNDER THE INDENTURE
The following are events of default under the indentures with respect to any
series of notes that we may issue:
- if we fail to pay interest when due and our failure continues for 90 days
and the time for payment has not been extended or deferred;
- if we fail to pay the principal, or premium, if any, when due and the time
for payment has not been extended or delayed;
- if we fail to observe or perform any other covenant contained in the notes
or the indentures, other than a covenant specifically relating to another
series of notes, and our failure continues for 90 days after we receive
notice from the debenture trustee or holders of at least 25% in aggregate
principal amount of the outstanding notes of the applicable series; and
- if specified events of bankruptcy, insolvency or reorganization occur as
to us.
If an event of default with respect to notes of any series occurs and is
continuing, the debenture trustee or the holders of at least 25% in aggregate
principal amount of the outstanding notes of that series, by notice to us in
writing, and to the debenture trustee if notice is given by such holders, may
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declare the unpaid principal of, premium, if any, and accrued interest, if any,
due and payable immediately.
The holders of a majority in principal amount of the outstanding notes of an
affected series may waive any default or event of default with respect to the
series and its consequences, except defaults or events of default regarding
payment of principal, premium, if any, or interest, unless we have cured the
default or event of default in accordance with the indenture. Any waiver shall
cure the default or event of default.
Subject to the terms of the indentures, if an event of default under an
indenture shall occur and be continuing, the debenture trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the
request or direction of any of the holders of the applicable series of notes,
unless such holders have offered the debenture trustee reasonable indemnity. The
holders of a majority in principal amount of the outstanding notes of any series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the debenture trustee, or exercising any
trust or power conferred on the debenture trustee, with respect to the notes of
that series, provided that:
- the direction so given by the holder is not in conflict with any law or
the applicable indenture; and
- subject to its duties under the Trust Indenture Act, the debenture trustee
need not take any action that might involve it in personal liability or
might be unduly prejudicial to the holders not involved in the proceeding.
A holder of the notes of any series will only have the right to institute a
proceeding under the indentures or to appoint a receiver or trustee, or to seek
other remedies if:
- the holder has given written notice to the debenture trustee of a
continuing event of default with respect to that series;
- the holders of at least 25% in aggregate principal amount of the
outstanding notes of that series have made written request, and such
holders have offered reasonable indemnity to the debenture trustee to
institute the proceeding as trustee; and
- the debenture trustee does not institute the proceeding, and does not
receive from the holders of a majority in aggregate principal amount of
the outstanding notes of that series other conflicting directions within
60 days after the notice, request and offer.
These limitations do not apply to a suit instituted by a holder of notes if
we default in the payment of the principal, premium, if any, or interest on, the
notes.
We will periodically file statements with the debenture trustee regarding
our compliance with specified covenants in the indentures.
MODIFICATION OF INDENTURE; WAIVER
We and the debenture trustee may change an indenture without the consent of
any holders with respect to specific matters, including:
- to fix any ambiguity, defect or inconsistency in the indenture; and
- to change anything that does not materially adversely affect the interests
of any holder of notes of any series.
In addition, under the indentures, the rights of holders of a series of
notes may be changed by us and the debenture trustee with the written consent of
the holders of at least a majority in aggregate principal amount of the
outstanding notes of each series that is affected. However, we and the
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debenture trustee may only make the following changes with the consent of each
holder of any outstanding notes affected:
- extending the fixed maturity of the series of notes;
- reducing the principal amount, reducing the rate of or extending the time
of payment of interest, or any premium payable upon the redemption of any
notes; or
- reducing the percentage of notes, the holders of which are required to
consent to any amendment.
DISCHARGE
Each indenture provides that we can elect to be discharged from our
obligations with respect to one or more series of debt securities, except for
obligations to:
- register the transfer or exchange of debt securities of the series;
- replace stolen, lost or mutilated debt securities of the series;
- maintain paying agencies;
- hold monies for payment in trust;
- compensate and indemnify the trustee; and
- appoint any successor trustee.
In order to exercise our rights to be discharged, we must deposit with the
trustee money or government obligations sufficient to pay all the principal of,
any premium, if any, and interest on, the debt securities of the series on the
dates payments are due.
FORM, EXCHANGE, AND TRANSFER
We will issue the notes of each series only in fully registered form without
coupons and, unless we otherwise specify in the applicable prospectus
supplement, in denominations of $1,000 and any integral multiple thereof. The
indentures provide that we may issue notes of a series in temporary or permanent
global form and as book-entry securities that will be deposited with, or on
behalf of, The Depository Trust Company or another depository named by us and
identified in a prospectus supplement with respect to that series. See "Legal
Ownership of Securities" for a further description of the terms relating to any
book-entry securities.
At the option of the holder, subject to the terms of the indentures and the
limitations applicable to global securities described in the applicable
prospectus supplement, the holder of the notes of any series can exchange the
notes for other notes of the same series, in any authorized denomination and of
like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable to
global securities set forth in the applicable prospectus supplement, holders of
the notes may present the notes for exchange or for registration of transfer,
duly endorsed or with the form of transfer endorsed thereon duly executed if so
required by us or the security registrar, at the office of the security
registrar or at the office of any transfer agent designated by us for this
purpose. Unless otherwise provided in the notes that the holder presents for
transfer or exchange, we will make no service charge for any registration of
transfer or exchange, but we may require payment of any taxes or other
governmental charges.
We will name in the applicable prospectus supplement the security registrar,
and any transfer agent in addition to the security registrar, that we initially
designate for any notes. We may at any time designate additional transfer agents
or rescind the designation of any transfer agent or approve a
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change in the office through which any transfer agent acts, except that we will
be required to maintain a transfer agent in each place of payment for the notes
of each series.
If we elect to redeem the notes of any series, we will not be required to:
- issue, register the transfer of, or exchange any notes of that series
during a period beginning at the opening of business 15 days before the
day of mailing of a notice of redemption of any notes that may be selected
for redemption and ending at the close of business on the day of the
mailing; or
- register the transfer of or exchange any notes so selected for redemption,
in whole or in part, except the unredeemed portion of any notes we are
redeeming in part.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The debenture trustee, other than during the occurrence and continuance of
an event of default under an indenture, undertakes to perform only those duties
as are specifically set forth in the applicable indenture. Upon an event of
default under an indenture, the debenture trustee must use the same degree of
care as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the debenture trustee is under no obligation
to exercise any of the powers given it by the indentures at the request of any
holder of notes unless it is offered reasonable security and indemnity against
the costs, expenses and liabilities that it might incur.
PAYMENT AND PAYING AGENTS
Unless we otherwise indicate in the applicable prospectus supplement, we
will make payment of the interest on any notes on any interest payment date to
the person in whose name the notes, or one or more predecessor securities, are
registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the notes of a
particular series at the office of the paying agents designated by us, except
that unless we otherwise indicate in the applicable prospectus supplement, will
we make interest payments by check which we will mail to the holder. Unless we
otherwise indicate in a prospectus supplement, we will designate the corporate
trust office of the debenture trustee in the City of New York as our sole paying
agent for payments with respect to notes of each series. We will name in the
applicable prospectus supplement any other paying agents that we initially
designate for the notes of a particular series. We will maintain a paying agent
in each place of payment for the notes of a particular series.
All money we pay to a paying agent or the debenture trustee for the payment
of the principal of or any premium or interest on any notes which remains
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to us, and the holder of the security
thereafter may look only to us for payment thereof.
GOVERNING LAW
The indentures and the notes will be governed by and construed in accordance
with the laws of the State of New York, except to the extent that the Trust
Indenture Act is applicable.
SUBORDINATION OF SUBORDINATED NOTES
The subordinated notes will be unsecured and will be subordinate and junior
in priority of payment to certain of our other indebtedness to the extent
described in a prospectus supplement. The subordinated indenture does not limit
the amount of subordinated notes which we may issue. It also does not limit us
from issuing any other secured or unsecured debt.
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DESCRIPTION OF WARRANTS
The following description, together with the additional information we may
include in any applicable prospectus supplements, summarizes the material terms
and provisions of the warrants that we may offer under this prospectus and the
related warrant agreements and warrant certificates. While the terms summarized
below will apply generally to any warrants that we may offer, we will describe
the particular terms of any series of warrants in more detail in the applicable
prospectus supplement. If we indicate in the prospectus supplement, the terms of
any warrants offered under that prospectus supplement may differ from the terms
described below. Specific warrant agreements will contain additional important
terms and provisions and will be incorporated by reference as an exhibit to the
registration statement which includes this prospectus.
GENERAL
We may issue warrants for the purchase of common stock, preferred stock
and/or debt securities in one or more series. We may issue warrants
independently or together with common stock, preferred stock and/or debt
securities, and the warrants may be attached to or separate from these
securities.
We will evidence each series of warrants by warrant certificates that we
will issue under a separate agreement. We will enter into the warrant agreement
with a warrant agent. Each warrant agent will be a bank that we select which has
its principal office in the United States and a combined capital and surplus of
at least $50,000,000. We will indicate the name and address of the warrant agent
in the applicable prospectus supplement relating to a particular series of
warrants.
We will describe in the applicable prospectus supplement the terms of the
series of warrants, including:
- the offering price and aggregate number of warrants offered;
- the currency for which the warrants may be purchased;
- if applicable, the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each such
security or each principal amount of such security;
- if applicable, the date on and after which the warrants and the related
securities will be separately transferable;
- in the case of warrants to purchase debt securities, the principal amount
of debt securities purchasable upon exercise of one warrant and the price
at, and currency in which, this principal amount of debt securities may be
purchased upon such exercise;
- in the case of warrants to purchase common stock or preferred stock, the
number of shares of common stock or preferred stock, as the case may be,
purchasable upon the exercise of one warrant and the price at which these
shares may be purchased upon such exercise;
- the effect of any merger, consolidation, sale or other disposition of our
business on the warrant agreement and the warrants;
- the terms of any rights to redeem or call the warrants;
- any provisions for changes to or adjustments in the exercise price or
number of securities issuable upon exercise of the warrants;
- the dates on which the right to exercise the warrants will commence and
expire;
- the manner in which the warrant agreement and warrants may be modified;
- federal income tax consequences of holding or exercising the warrants;
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- the terms of the securities issuable upon exercise of the warrants; and
- any other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
Before exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such exercise,
including:
- in the case of warrants to purchase debt securities, the right to receive
payments of principal of, or premium, if any, or interest on, the debt
securities purchasable upon exercise or to enforce covenants in the
applicable indenture; or
- in the case of warrants to purchase common stock or preferred stock, the
right to receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if any.
EXERCISE OF WARRANTS
Each warrant will entitle the holder to purchase the securities that we
specify in the applicable prospectus supplement at the exercise price that we
describe in the applicable prospectus supplement. Unless we otherwise specify in
the applicable prospectus supplement, holders of the warrants may exercise the
warrants at any time up to 5:00 P.M. New York time on the expiration date that
we set forth in the applicable prospectus supplement. After the close of
business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant
certificate representing the warrants to be exercised together with specified
information, and paying the required amount to the warrant agent in immediately
available funds, as provided in the applicable prospectus supplement. We will
set forth on the reverse side of the warrant certificate and in the applicable
prospectus supplement the information that the holder of the warrant will be
required to deliver to the warrant agent.
Upon receipt of the required payment and the warrant certificate properly
completed and duly executed at the corporate trust office of the warrant agent
or any other office indicated in the applicable prospectus supplement, we will
issue and deliver the securities purchasable upon such exercise. If fewer than
all of the warrants represented by the warrant certificate are exercised, then
we will issue a new warrant certificate for the remaining amount of warrants. If
we so indicate in the applicable prospectus supplement, holders of the warrants
may surrender securities as all or part of the exercise price for warrants.
ENFORCEABILITY OF RIGHTS BY HOLDERS OF WARRANTS
Each warrant agent will act solely as our agent under the applicable warrant
agreement and will not assume any obligation or relationship of agency or trust
with any holder of any warrant. A single bank or trust company may act as
warrant agent for more than one issue of warrants. A warrant agent will have no
duty or responsibility in case of any default by us under the applicable warrant
agreement or warrant, including any duty or responsibility to initiate any
proceedings at law or otherwise, or to make any demand upon us. Any holder of a
warrant may, without the consent of the related warrant agent or the holder of
any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, its warrants.
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LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more
global securities. We describe global securities in greater detail below. We
refer to those persons who have securities registered in their own names on the
books that we or any applicable trustee maintain for this purpose as the
"holders" of those securities. These persons are the legal holders of the
securities. We refer to those persons who, indirectly through others, own
beneficial interests in securities that are not registered in their own names,
as "indirect holders" of those securities. As we discuss below, indirect holders
are not legal holders, and investors in securities issued in book-entry form or
in street name will be indirect holders.
BOOK-ENTRY HOLDERS
We may issue securities in book-entry form only, as we will specify in the
applicable prospectus supplement. This means securities may be represented by
one or more global securities registered in the name of a financial institution
that holds them as depositary on behalf of other financial institutions that
participate in the depositary's book-entry system. These participating
institutions, which are referred to as participants, in turn, hold beneficial
interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the
holder of that security. Securities issued in global form will be registered in
the name of the depositary or its participants. Consequently, for securities
issued in global form, we will recognize only the depositary as the holder of
the securities, and we will make all payments on the securities to the
depositary. The depositary passes along the payments it receives to its
participants, which in turn pass the payments along to their customers who are
the beneficial owners. The depositary and its participants do so under
agreements they have made with one another or with their customers; they are not
obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities
directly. Instead, they will own beneficial interests in a global security,
through a bank, broker or other financial institution that participates in the
depositary's book-entry system or holds an interest through a participant. As
long as the securities are issued in global form, investors will be indirect
holders, and not holders, of the securities.
STREET NAME HOLDERS
We may terminate a global security or issue securities in non-global form.
In these cases, investors may choose to hold their securities in their own names
or in "street name." Securities held by an investor in street name would be
registered in the name of a bank, broker or other financial institution that the
investor chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that institution.
For securities held in street name, we will recognize only the intermediary
banks, brokers and other financial institutions in whose names the securities
are registered as the holders of those securities, and we will make all payments
on those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they
agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders,
not holders, of those securities.
LEGAL HOLDERS
Our obligations, as well as the obligations of any applicable trustee and of
any third parties employed by us or a trustee, run only to the legal holders of
the securities. We do not have obligations
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to investors who hold beneficial interests in global securities, in street name
or by any other indirect means. This will be the case whether an investor
chooses to be an indirect holder of a security or has no choice because we are
issuing the securities only in global form.
For example, once we make a payment or give a notice to the holder, we have
no further responsibility for the payment or notice even if that holder is
required, under agreements with depositary participants or customers or by law,
to pass it along to the indirect holders but does not do so. Similarly, we may
want to obtain the approval of the holders to amend an indenture, to relieve us
of the consequences of a default or of our obligation to comply with a
particular provision of the indenture or for other purposes. In such an event,
we would seek approval only from the holders, and not the indirect holders, of
the securities. Whether and how the holders contact the indirect holders is up
to the holders.
SPECIAL CONSIDERATIONS FOR INDIRECT HOLDERS
If you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you should check with
your own institution to find out:
- how it handles securities payments and notices;
- whether it imposes fees or charges;
- how it would handle a request for the holders' consent, if ever required;
- whether and how you can instruct it to send you securities registered in
your own name so you can be a holder, if that is permitted in the future;
- how it would exercise rights under the securities if there were a default
or other event triggering the need for holders to act to protect their
interests; and
- if the securities are in book-entry form, how the depositary's rules and
procedures will affect these matters.
GLOBAL SECURITIES
A global security is a security held by a depositary which represents one or
any other number of individual securities. Generally, all securities represented
by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global
security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we
select for this purpose is called the depositary. Unless we specify otherwise in
the applicable prospectus supplement, The Depository Trust Company, New York,
New York, known as DTC, will be the depositary for all securities issued in
book-entry form.
A global security may not be transferred to or registered in the name of
anyone other than the depositary, its nominee or a successor depositary, unless
special termination situations arise. We describe those situations below under
"--Special Situations When a Global Security Will Be Terminated." As a result of
these arrangements, the depositary, or its nominee, will be the sole registered
owner and holder of all securities represented by a global security, and
investors will be permitted to own only beneficial interests in a global
security. Beneficial interests must be held by means of an account with a
broker, bank or other financial institution that in turn has an account with the
depositary or with another institution that does. Thus, an investor whose
security is represented by a global security will not be a holder of the
security, but only an indirect holder of a beneficial interest in the global
security.
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If the prospectus supplement for a particular security indicates that the
security will be issued in global form only, then the security will be
represented by a global security at all times unless and until the global
security is terminated. If termination occurs, we may issue the securities
through another book-entry clearing system or decide that the securities may no
longer be held through any book-entry clearing system.
SPECIAL CONSIDERATIONS FOR GLOBAL SECURITIES
As an indirect holder, an investor's rights relating to a global security
will be governed by the account rules of the investor's financial institution
and of the depositary, as well as general laws relating to securities transfers.
We do not recognize an indirect holder as a holder of securities and instead
deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor
should be aware of the following:
- An investor cannot cause the securities to be registered in his or her
name, and cannot obtain non-global certificates for his or her interest in
the securities, except in the special situations we describe below;
- An investor will be an indirect holder and must look to his or her own
bank or broker for payments on the securities and protection of his or her
legal rights relating to the securities, as we describe under "--Legal
Ownership of Securities" above;
- An investor may not be able to sell interests in the securities to some
insurance companies and to other institutions that are required by law to
own their securities in non-book-entry form;
- An investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the securities
must be delivered to the lender or other beneficiary of the pledge in
order for the pledge to be effective;
- The depositary's policies, which may change from time to time, will govern
payments, transfers, exchanges and other matters relating to an investor's
interest in a global security. We and any applicable trustee have no
responsibility for any aspect of the depositary's actions or for its
records of ownership interests in a global security. We and the trustee
also do not supervise the depositary in any way;
- The depositary may, and we understand that DTC will, require that those
who purchase and sell interests in a global security within its book-entry
system use immediately available funds, and your broker or bank may
require you to do so as well; and
- Financial institutions that participate in the depositary's book-entry
system, and through which an investor holds its interest in a global
security, may also have their own policies affecting payments, notices and
other matters relating to the securities. There may be more than one
financial intermediary in the chain of ownership for an investor. We do
not monitor and are not responsible for the actions of any of those
intermediaries.
SPECIAL SITUATIONS WHEN A GLOBAL SECURITY WILL BE TERMINATED
In a few special situations described below, the global security will
terminate and interests in it will be exchanged for physical certificates
representing those interests. After that exchange, the choice of whether to hold
securities directly or in street name will be up to the investor. Investors must
consult their own banks or brokers to find out how to have their interests in
securities transferred to their own name, so that they will be direct holders.
We have described the rights of holders and street name investors above.
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The global security will terminate when the following special situations
occur:
- if the depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary for that global security and we do not
appoint another institution to act as depositary within 90 days;
- if we notify any applicable trustee that we wish to terminate that global
security; or
- if an event of default has occurred with regard to securities represented
by that global security and has not been cured or waived.
The prospectus supplement may also list additional situations for
terminating a global security that would apply only to the particular series of
securities covered by the prospectus supplement. When a global security
terminates, the depositary, and not we or any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial direct
holders.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more of the
following ways from time to time:
- through agents to the public or to investors;
- to underwriters for resale to the public or to investors; or
- directly to investors.
We will set forth in a prospectus supplement the terms of the offering of
securities, including:
- the name or names of any agents or underwriters;
- the purchase price of the securities being offered and the proceeds we
will receive from the sale;
- any over-allotment options under which underwriters may purchase
additional securities from us;
- any agency fees or underwriting discounts and other items constituting
agents' or underwriters' compensation;
- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to dealers; and
- any securities exchanges on which such securities may be listed.
AGENTS
We may designate agents who agree to use their reasonable efforts to solicit
purchases for the period of their appointment or to sell securities on a
continuing basis.
UNDERWRITERS
If we use underwriters for a sale of securities, the underwriters will
acquire the securities for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will be subject
to the conditions set forth in the applicable underwriting agreement. The
underwriters will be obligated to purchase all the securities of the series
offered if they purchase any of the securities of that series. We may change
from time to time any initial public offering price and any discounts or
concessions the underwriters allow or reallow or pay to dealers. We may use
underwriters with whom we have a material relationship. We will describe in the
prospectus supplement naming the underwriter the nature of any such
relationship.
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DIRECT SALES
We may also sell securities directly to one or more purchasers without using
underwriters or agents.
Underwriters, dealers and agents that participate in the distribution of the
securities may be underwriters as defined in the Securities Act and any
discounts or commissions they receive from us and any profit on their resale of
the securities may be treated as underwriting discounts and commissions under
the Securities Act. We will identify in the applicable prospectus supplement any
underwriters, dealers or agents and will describe their compensation. We may
have agreements with the underwriters, dealers and agents to indemnify them
against specified civil liabilities, including liabilities under the Securities
Act. Underwriters, dealers and agents may engage in transactions with or perform
services for us or our subsidiaries in the ordinary course of their businesses.
TRADING MARKETS AND LISTING OF SECURITIES
Unless otherwise specified in the applicable prospectus supplement, each
class or series of securities will be a new issue with no established trading
market, other than our common stock, which is listed on the Nasdaq National
Market. We may elect to list any other class or series of securities on any
exchange, but we are not obligated to do so. It is possible that one or more
underwriters may make a market in a class or series of securities, but the
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot give any assurance as to the
liquidity of the trading market for any of the securities.
STABILIZATION ACTIVITIES
Any underwriter may engage in overallotment, stabilizing transactions, short
covering transactions and penalty bids in accordance with Regulation M under the
Exchange Act. Overallotment involves sales in excess of the offering size, which
create a short position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a specified
maximum. Short covering transactions involve purchases of the securities in the
open market after the distribution is completed to cover short positions.
Penalty bids permit the underwriters to reclaim a selling concession from a
dealer when the securities originally sold by the dealer are purchased in a
covering transaction to cover short positions. Those activities may cause the
price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of the activities at any time.
PASSIVE MARKET MARKING
Any underwriters who are qualified market markers on the Nasdaq National
Market may engage in passive market making transactions in the securities on the
Nasdaq National Market in accordance with Rule 103 of Regulation M, during the
business day prior to the pricing of the offering, before the commencement of
offers or sales of the securities. Passive market makers must comply with
applicable volume and price limitations and must be identified as passive market
makers. In general, a passive market maker must display its bid at a price not
in excess of the highest independent bid for such security; if all independent
bids are lowered below the passive market maker's bid, however, the passive
market maker's bid must then be lowered when certain purchase limits are
exceeded.
19
<PAGE>
EXPERTS
The consolidated financial statements of Millennium Pharmaceuticals, Inc.
appearing in our Annual Report (Form 10-K) for the year ended December 31, 1999
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
The consolidated financial statements of LeukoSite, Inc. as of December 31,
1997 and 1998 and for each of the three years in the period ended December 31,
1998 and the financial statements of L&I Partners, L.P. as of December 31, 1997
and 1998 and for the period from inception through December 31, 1997, the year
ended December 31, 1998 and the period from inception through December 31, 1998
incorporated by reference in this prospectus and elsewhere in the Registration
Statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports.
The financial statements of CytoMed, Inc. as of December 31, 1998 and 1997
and for each of the three years in the period ended December 31, 1998
incorporated in this Prospectus by reference to the Millennium Pharmaceuticals
Form 8-K/A dated January 6, 2000, have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
VALIDITY OF SECURITIES
The validity of the securities offered hereby will be passed upon for us by
Hale and Dorr LLP, Boston, Massachusetts.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other documents with the SEC. You may
read and copy any document we file with the SEC at the public reference
facilities the SEC maintains at:
Room 1024, Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
and at the SEC's Regional Offices located at:
Northwestern Atrium Center
Suite 1400
500 West Madison Street
Chicago, Illinois 60661
and
Seven World Trade Center
13th Floor
New York, New York 10048
and you may also obtain copies of such material by mail from the Public
Reference Section of the SEC at:
450 Fifth Street, N.W.
Washington, D.C. 20549
20
<PAGE>
at prescribed rates. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms.
The SEC also maintains a web site on the world wide web, the address of
which is http://www.sec.gov. That site also contains our annual, quarterly and
special reports, proxy statements, information statements and other information.
This prospectus is part of a registration statement that we filed with the
SEC. The registration statement contains more information than this prospectus
regarding us and the securities, including certain exhibits and schedules. You
can obtain a copy of the registration statement from the SEC at any address
listed above or from the SEC's Internet site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate" into this prospectus information that we
file with the SEC in other documents. This means that we can disclose important
information to you by referring to other documents that contain that
information. Any information that we incorporate by reference is considered part
of this prospectus. The documents and reports that we list below are
incorporated by reference into this prospectus. In addition, all documents and
reports which we file pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this prospectus are incorporated by reference in
this prospectus as of the respective filing dates of these documents and
reports. Statements contained in documents that we file with the SEC and that
are incorporated by reference in this prospectus will automatically update and
supersede information contained in this prospectus, including information in
previously filed documents or reports that have been incorporated by reference
in this prospectus, to the extent the new information differs from or is
inconsistent with the old information.
We have filed the following documents with the SEC. These documents are
incorporated herein by reference as of their respective dates of filing:
(1) Our Annual Report on Form 10-K for the year ended December 31, 1999;
(2) Our Current Report on Form 8-K/A filed with the SEC on January 6, 2000;
(3) Our Current Report on Form 8-K filed with the SEC on January 6, 2000;
(4) Our Current Report on Form 8-K filed with the SEC on January 11, 2000;
(5) Our Current Report on Form 8-K filed with the SEC on January 19, 2000;
(6) Our Current Report on Form 8-K/A filed with the SEC on January 27, 2000;
(7) Our Current Report on Form 8-K filed with the SEC on February 9, 2000;
(8) Our Current Report on Form 8-K filed with the SEC on April 13, 2000;
(9) Our Current Report on Form 8-K filed with the SEC on April 25, 2000;
(10) Our Current Report on Form 8-K filed with the SEC on June 30, 2000;
(11) Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2000;
(12) Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2000;
(13) All our filings pursuant to the Exchange Act after the date of filing the
initial registration statement and prior to effectiveness of the
registration statement; and
(14) The description of our common stock contained in our registration statement
on Form 8-A filed with the SEC on April 26, 1996, including any amendments
or reports filed for the purpose of updating that description.
21
<PAGE>
You may request, orally or in writing, a copy of these documents, which will
be provided to you at no cost, by contacting:
Investor Relations
Millennium Pharmaceuticals, Inc.
75 Sidney Street
Cambridge, MA 02139
Telephone: (617) 679-7000
You should rely only on the information contained in this prospectus,
including information incorporated by reference as described above, or any
supplement or that we have referred you to. We have not authorized anyone else
to provide you with different information. You should not assume that the
information in this prospectus or any supplement is accurate as of any date
other than the date on the front of those documents or that any document
incorporated by reference is accurate as of any date other than its filing date.
You should not consider this prospectus to be an offer or solicitation relating
to the securities in any jurisdiction in which such an offer or solicitation
relating to the securities is not authorized. Furthermore, you should not
consider this prospectus to be an offer or solicitation relating to the
securities if the person making the offer or solicitation is not qualified to do
so, or if it is unlawful for you to receive such an offer or solicitation.
22
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses to be incurred in
connection with the registration of the securities being registered hereby, all
of which will be borne by Millennium Pharmaceuticals, Inc. All amounts shown are
estimates except the Securities and Exchange Commission registration fee.
<TABLE>
<S> <C>
SEC registration fee........................................ $264,000
Transfer agent's, trustee's and depository's fees and
expenses.................................................. $ 25,000
Printing and engraving expenses............................. $ 10,000
Legal fees and expenses..................................... $150,000
Accounting fees and expenses................................ $ 20,000
Miscellaneous............................................... $ 6,000
--------
Total Expenses.......................................... $475,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Nine of the Registrant's Amended and Restated Certificate of
Incorporation (the "Restated Certificate of Incorporation") provides that no
director of the Registrant shall be personally liable for any monetary damages
for any breach of fiduciary duty as a director, except to the extent that the
Delaware General Corporation Law prohibits the elimination or limitation of
liability of directors for breach of fiduciary duty.
Article Nine of the Restated Certificate of Incorporation provides that a
director or officer of the Registrant (a) shall be indemnified by the Registrant
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the Registrant) brought
against him by virtue of his position as a director or officer of the Registrant
if he acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful and (b) shall be indemnified by the Registrant against all expenses
(including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Registrant brought against
him by virtue of his position as a director or officer of the Registrant if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant, except that no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the Registrant, unless a court determines that, despite
such adjudication but in view of all of the circumstances, he is entitled to
indemnification of such expenses. Notwithstanding the foregoing, to the extent
that a director or officer has been successful, on the merits or otherwise,
including, without limitation, the dismissal of an action without prejudice, he
is required to be indemnified by the Registrant against all expenses (including
attorneys' fees) incurred in connection therewith. Expenses shall be advanced to
a Director or officer at his request, provided that he undertakes to repay the
amount advanced if it is ultimately determined that he is not entitled to
indemnification for such expenses.
Indemnification is required to be made unless the Registrant determines that
the applicable standard of conduct required for indemnification has not been
met. In the event of a determination by the Registrant that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition
II-1
<PAGE>
precedent to the right of indemnification, the director or officer must give the
Registrant notice of the action for which indemnity is sought and the Registrant
has the right to participate in such action or assume the defense thereof.
Section 145 of the General Corporation Law of Delaware provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
The Registrant has purchased directors' and officers' liability insurance
which would indemnify its directors and officers against damages arising out of
certain kinds of claims which might be made against them based on their
negligent acts or omissions while acting in their capacity as such.
In the Underwriting Agreements the underwriters will agree to indemnify,
under certain conditions, the Registrant, its directors, certain of its officers
and persons who control the Registrant within the meaning of the Securities Act,
against certain liabilities.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- ------------------------------------------------------------
<C> <S>
1.1 The form of equity underwriting agreement will be filed as
an exhibit to a Current Report of the Registrant on Form 8-K
and incorporated herein by reference
1.2 The form of debt underwriting agreement will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K
and incorporated herein by reference
3.1* Amended and Restated Certificate of Incorporation of the
Registrant, as amended
3.2* Amended and Restated By-Laws of the Registrant, as amended
4.1 Form of senior indenture
4.2 Form of subordinated indenture
4.3** Specimen common stock certificate
4.4 The form of any senior note with respect to each particular
series of senior notes issued hereunder will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K
and incorporated herein by reference
4.5 The form of any subordinated note with respect to each
particular series of subordinated notes issued hereunder
will be filed as an exhibit to a Current Report on the
Registrant of Form 8-K and incorporated hereby by reference
4.6 The form of any certificate of designation with respect to
any preferred stock issued hereunder and the related form of
preferred stock certificate will be filed as exhibits to a
Current Report of the Registrant on Form 8-K and
incorporated herein by reference
5.1 Opinion of Hale and Dorr LLP
12.1 Statement of Computation of Ratio of Earnings to Fixed
Charges
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- ------------------------------------------------------------
<C> <S>
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of PricewaterhouseCoopers LLP
23.4 Consent of Hale and Dorr LLP, included in Exhibit 5.1 filed
herewith
24.1 Power of Attorney (See page II-5 of this Registration
Statement)
25.1 The Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of the Trustee under the
Senior Indenture will be incorporated herein by reference
from a subsequent filing in accordance with Section
305(b)(2) of the Trust Indenture Act of 1939
25.2 The Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of the Trustee under the
Subordinated Indenture will be incorporated herein by
reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939
</TABLE>
------------------------
* Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
filed with the SEC on June 20, 1996, the Registrant's Current Report on
Form 8-K filed with the SEC on April 13, 2000 and the Registrant's Quarterly
Report on Form 10-Q filed with the SEC on May 2, 2000.
** Incorporated by reference to the Registrant's Registration Statement on
Form S-1 filed on May 2, 1996 (File No. 333-02490).
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 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus 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 the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent 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 this Registration Statement
or any material change to such information in this Registration
Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included is a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act, that are incorporated by
reference in this Registration Statement.
II-3
<PAGE>
(2) That, for the purposes of determining any liability under the Securities
Act, 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 the 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.
The Registrant hereby 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 Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at the time shall be deemed to be the initial BONA FIDE offering thereof.
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 indemnification provisions described herein, 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 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.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under Subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-4
<PAGE>
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cambridge, Commonwealth of Massachusetts, on
July 31, 2000.
<TABLE>
<S> <C> <C>
MILLENNIUM PHARMACEUTICALS, INC.
By: /s/ JOHN B. DOUGLAS III
-----------------------------------------
John B. Douglas III
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
</TABLE>
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Millennium Pharmaceuticals,
hereby severally constitute and appoint Mark J. Levin, Steven H. Holtzman,
Kevin P. Starr and John B. Douglas III and each of them singly, our true and
lawful attorneys with full power to any of them, and to each of them singly, to
sign for us and in our names in the capacities indicated below the Registration
Statement on Form S-3 filed herewith and any and all pre-effective and
post-effective amendments to said Registration Statement and any subsequent
registration statement filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and to file the same with all exhibits thereto, and the other
documents in connection therewith, with the Securities and Exchange Commission,
and generally to do all such things in our name and behalf in our capacities as
officers and directors to enable Millennium Pharmaceuticals to comply with the
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ MARK J. LEVIN
------------------------------------------- Chairman of the Board of July 31, 2000
Mark J. Levin Directors, Chief Executive
Officer and President
(Principal Executive Officer)
/s/ KEVIN P. STARR
------------------------------------------- Chief Financial Officer July 31, 2000
Kevin P. Starr (Principal Financial and
Accounting Officer)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JOSHUA BOGER, PH.D.
------------------------------------------- Director July 31, 2000
Joshua Boger, Ph.D.
/s/ EUGENE CORDES, PH.D.
------------------------------------------- Director July 31, 2000
Eugene Cordes, Ph.D.
/s/ A. GRANT HEIDRICH III
------------------------------------------- Director July 31, 2000
A. Grant Heidrich III
/s/ RAJU S. KUCHERLAPATI, PH.D.
------------------------------------------- Director July 31, 2000
Raju S. Kucherlapati, Ph.D.
/s/ ERIC S. LANDER, PH.D.
------------------------------------------- Director July 31, 2000
Eric S. Lander, Ph.D.
/s/ NORMAN C. SELBY
------------------------------------------- Director July 31, 2000
Norman C. Selby
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
--------------------- ----------- --------
<C> <S> <C>
1.1 The form of equity underwriting agreement will be filed as
an exhibit to a Current Report of the Registrant on Form
8-K and incorporated herein by reference..................
1.2 The form of debt underwriting agreement will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K
and incorporated herein by reference......................
3.1* Amended and Restated Certificate of Incorporation of the
Registrant, as amended....................................
3.2* Amended and Restated By-Laws of the Registrant, as
amended...................................................
4.1 Form of senior indenture....................................
4.2 Form of subordinated indenture..............................
4.3** Specimen common stock certificate...........................
4.4 The form of any senior note with respect to each particular
series of senior notes issued hereunder will be filed as
an exhibit to a Current Report of the Registrant on
Form 8-K and incorporated herein by reference.............
4.5 The form of any subordinated note with respect to each
particular series of subordinated notes issued hereunder
will be filed as an exhibit to a Current Report on the
Registrant of Form 8-K and incorporated hereby by
reference.................................................
4.6 The form of any certificate of designation with respect to
any preferred stock issued hereunder and the related form
of preferred stock certificate will be filed as exhibits
to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference..........................
5.1 Opinion of Hale and Dorr LLP................................
12.1 Statement of Computation of Ratio of Earnings to Fixed
Charges...................................................
23.1 Consent of Ernst & Young LLP................................
23.2 Consent of Arthur Andersen LLP..............................
23.3 Consent of PricewaterhouseCoopers LLP.......................
23.4 Consent of Hale and Dorr LLP, included in Exhibit 5.1 filed
herewith..................................................
24.1 Power of Attorney (See page II-5 of this Registration
Statement)................................................
25.1 The Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of the Trustee under
the Senior Indenture will be incorporated herein by
reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939......
25.2 The Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of the Trustee under
the Subordinated Indenture will be incorporated herein by
reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939......
</TABLE>
------------------------
* Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
filed with the SEC on June 20, 1996, the Registrant's Current Report on
Form 8-K filed with the SEC on April 13, 2000 and the Registrant's Quarterly
Report on Form 10-Q filed with the SEC on May 2, 2000.
** Incorporated by reference to the Registrant's Registration Statement on
Form S-1 filed on May 2, 1996 (File No. 333-02490).
