<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 2, 1999
REGISTRATION NO. 333-70631
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ABGENIX, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 2836 94-3248826
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
ABGENIX, INC.
7601 DUMBARTON CIRCLE
FREMONT, CALIFORNIA 94555
(510) 608-6500
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
R. SCOTT GREER
PRESIDENT AND
CHIEF EXECUTIVE OFFICER
ABGENIX, INC.
7601 DUMBARTON CIRCLE
FREMONT, CALIFORNIA 94555
(510) 608-6500
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE OF PROCESS)
COPIES TO:
MARIO M. ROSATI, ESQ.
CHRIS F. FENNELL, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time as the selling stockholders may decide.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- - ----------------------------------------------------------------------------------------------------------------------
- - ----------------------------------------------------------------------------------------------------------------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE(2)
- - ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, $0.0001 par value... 1,146,300 $15.50 $17,767,650 $4,940.00
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</TABLE>
(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(c) of the Securities Act of 1933, as amended, based
on the average of the high and low sales price as reported by Nasdaq on
January 13, 1999.
(2) Previously paid.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all fees and expenses payable by Abgenix in
connection with the registration of the common stock hereunder. All of the
amounts shown are estimates except for the SEC registration fee.
<TABLE>
<CAPTION>
AMOUNT
TO BE PAID
-----------
<S> <C>
SEC Registration Fee........................................ $ 4,940.00
Blue Sky Qualification Fees and Expenses.................... 5,000.00
Printing and Engraving Expenses............................. 150,000.00
Legal Fees and Expenses..................................... 150,000.00
Accounting Fees and Expenses................................ 75,000.00
Transfer Agent and Registrar Fees and Expenses.............. 10,000.00
Miscellaneous Expenses...................................... 105,060.00
-----------
Total............................................. $500,000.00
===========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law allows for the
indemnification of officers, directors and any corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act. Our Amended and Restated Certificate of Incorporation and our
Amended and Restated Bylaws provide for indemnification of our directors,
officers, employees and other agents to the extent and under the circumstances
permitted by the Delaware General Corporation Law. We have also entered into
agreements with our directors and executive officers that require Abgenix among
other things to indemnify them against certain liabilities that may arise by
reason of their status or service as directors and executive officers to the
fullest extent permitted by Delaware law. We have also purchased directors and
officers liability insurance, which provides coverage against certain
liabilities including liabilities under the Securities Act.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
(a) Since our incorporation (June 24, 1996), we have issued and sold the
following unregistered securities:
(1) On July 15, 1996, we issued 1,691,667 shares of series A senior
convertible preferred stock to Cell Genesys in exchange for $10.0 million.
(2) On July 15, 1996, we issued 2,058,333 shares of series 1
subordinated convertible preferred stock to Cell Genesys, and in exchange,
Cell Genesys contributed research, development and manufacturing
technology, as well as patents and other intellectual property specific to
the antibody therapy programs to be pursued by Abgenix, including Cell
Genesys' interest in its joint venture with Japan Tobacco.
(3) On July 15, 1996, Abgenix, in exchange for a loan in the principal
amount of up to $4,000,000, issued a convertible promissory note to Cell
Genesys convertible at an exercise price per share of $6.00 into up to
666,667 shares of series A convertible preferred stock.
(4) From July 15, 1996 to October 22, 1998, we granted options to
purchase 2,156,295 shares of common stock to employees, directors and
consultants under the 1996 Plan at exercise prices ranging from $0.60 to
$10.00 per share. Of the 2,156,295 shares granted, 1,622,008 remain
outstanding,
II-1
<PAGE> 3
349,023 shares of common stock have been purchased pursuant to exercises of
stock options or stock purchase rights under the 1996 Plan and 185,264
shares have been canceled and returned to the 1996 Plan.
(5) On January 23, 1997 and March 27, 1997, we issued two warrants to
purchase an aggregate of 121,667 shares of series A senior convertible
preferred stock (convertible into 121,667 shares of common stock) to Cell
Genesys with a weighted average exercise price per share of $6.00.
(6) On December 23, 1997, we issued 3,267,685 shares of series B
preferred stock to 29 accredited or institutional purchasers at a purchase
price per share of $6.50. In connection with and contemporaneous to this
transaction the 1,691,667 shares of series A senior convertible preferred
stock, the 2,058,333 shares of series 1 subordinated convertible preferred
stock and the $4,000,000 convertible promissory note issued to Cell
Genesys, described above, were all converted into an aggregate 4,416,667
shares of series A convertible preferred stock.
(7) On January 12, 1998, we issued 160,000 shares of series C
preferred stock to Pfizer at a per share purchase price of $8.00. This
issuance was in connection with a collaborative arrangement entered into
between Abgenix and Pfizer.
(8) On January 27, 1999, we issued 495,356 shares of common stock to
Genentech at a per share purchase price of $16.15. This issuance was in
connection with a multi-antigen research license and option agreement
entered into between Abgenix and Genentech.
The sales and issuances of securities in the transactions described above
were deemed to be exempt from registration under the Securities Act in reliance
upon Section 4(2) of the Securities Act, Regulation D promulgated thereunder, or
Rule 701 promulgated under Section 3(b) of the Securities Act, as transactions
by an issuer not involving any public offering or transactions pursuant to
compensatory benefit plans and contracts relating to compensation as provided
under Rule 701. The recipients of securities in each transaction represented
their intentions to acquire the securities for investment only and not with a
view to or for sale in connection with any distribution thereof and appropriate
legends were affixed to the securities issued in such transactions. All
recipients had adequate access, through their relationship with Abgenix, to
information about Abgenix.
(b) There were no underwritten offerings employed in connection with any of
the transactions set forth in Item 15(a).
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<C> <S>
3.1(1) Amended and Restated Certificate of Incorporation of
Abgenix, as currently in effect.
3.2(1) Amended and Restated Bylaws of Abgenix, as currently in
effect.
4.1(1) Specimen Common Stock Certificate.
*5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1(1) Form of Indemnification Agreement between Abgenix and each
of its directors and officers.
10.2(1) 1996 Incentive Stock Plan and form of agreement thereunder.
10.3(1) 1998 Employee Stock Purchase Plan and form of agreement
thereunder.
10.4(1) 1998 Director Option Plan and form of agreement thereunder.
10.5(1) Warrant dated January 23, 1997 exercisable for shares of
Series A Preferred Stock.
10.6(1) Warrant dated March 27, 1997 exercisable for shares of
Series A Preferred Stock.
10.7(3) Joint Venture Agreement dated June 12, 1991 between Cell
Genesys and JT Immunotech USA Inc.
10.7A(6) Amendment No. 1 dated January 1, 1994 to Joint Venture
Agreement.
</TABLE>
II-2
<PAGE> 4
<TABLE>
<C> <S>
10.7B(9) Amendment No. 2 dated June 28, 1996 to Joint Venture
Agreement.
10.8(3) Collaboration Agreement dated June 12, 1991 among Cell
Genesys, Xenotech, Inc. and JT Immunotech USA Inc.
10.8A(5) Amendment No. 1 dated June 30, 1993 to Collaboration
Agreement.
10.8B(13) Amendment No. 2 dated January 1, 1994 to Collaboration
Agreement.
10.8C(7) Amendment No. 3 dated July 1, 1995 to Collaboration
Agreement.
10.8D(9) Amendment No. 4 dated June 28, 1996 to Collaboration
Agreement.
10.8E(2) Amendment No. 5 dated November 1997 to Collaboration
Agreement.
10.9(3) Limited Partnership Agreement dated June 12, 1991 among Cell
Genesys, Xenotech, Inc. and JT Immunotech USA Inc.
10.9A(6) Amendment No. 2 dated January 1, 1994 to Limited Partnership
Agreement.
10.9B(8) Amendment No. 3 dated July 1, 1995 to Limited Partnership
Agreement.
10.9C(10) Amendment No. 4 dated June 28, 1996 to Limited Partnership
Agreement.
10.10(4) Field License dated June 12, 1991 among Cell Genesys, JT
Immunotech USA Inc. and Xenotech, L.P.
10.10A(10) Amendment No. 1 dated March 22, 1996 to Field License.
10.10B(10) Amendment No. 2 dated June 28, 1996 to Field License.
10.11(3) Expanded Field License dated June 12, 1991 among Cell
Genesys, JT Immunotech USA Inc. and Xenotech, L.P.
10.11A(10) Amendment No. 1 dated June 28, 1996 to Expanded Field
License.
10.12(2) Amended and Restated Anti-IL-8 License Agreement dated March
19, 1996 among Xenotech, L.P., Cell Genesys and Japan
Tobacco Inc.
10.13(9) Master Research License and Option Agreement dated June 28,
1996 among Cell Genesys, Japan Tobacco Inc. and Xenotech,
L.P.
10.13A(2) Amendment No. 1 dated November 1997 to the Master Research
License and Option Agreement.
10.14(2) Stock Purchase and Transfer Agreement dated July 15, 1996 by
and between Cell Genesys and Abgenix.
10.15(1) Governance Agreement dated July 15, 1996 between Cell
Genesys and Abgenix.
10.15A(1) Amendment No. 1 dated October 13, 1997 to the Governance
Agreement.
10.15B(1) Amendment No. 2 dated December 22, 1997 to the Governance
Agreement.
10.16(1) Tax Sharing Agreement dated July 15, 1996 between Cell
Genesys and Abgenix.
10.17(2) Gene Therapy Rights Agreement effective as of November 1,
1997 between Abgenix and Cell Genesys.
10.18(2) Patent Assignment Agreement dated July 15, 1996 by Cell
Genesys in favor of Abgenix.
10.19(11) Lease Agreement dated July 31, 1996 between John Arrillaga,
Trustee, or his Successor Trustee, UTA dated 7/20/77
(Arrillaga Family Trust) as amended, and Richard T. Peery,
Trustee, or his Successor Trustee, UTA dated 7/20/77
(Richard T. Peery Separate Property Trust) as amended, and
Abgenix.
10.20(1) Loan and Security Agreement dated January 23, 1997 between
Silicon Valley Bank and Abgenix.
10.21(1) Master Lease Agreement dated March 27, 1997 between
Transamerica Business Credit Corporation and Abgenix.
</TABLE>
II-3
<PAGE> 5
<TABLE>
<C> <S>
10.22(2) License Agreement dated February 1, 1997 between Ronald J. Billing, Ph.D. and Abgenix.
10.23(12) Release and Settlement Agreement dated March 26, 1997 among Cell Genesys, Abgenix,
Xenotech, L.P., Japan Tobacco Inc. and GenPharm International, Inc.
10.24(12) Cross License Agreement effective as of March 26, 1997, among Cell Genesys, Abgenix,
Xenotech, L.P., Japan Tobacco Inc. and GenPharm International, Inc.
10.25(12) Interference Settlement Procedure Agreement, effective as of March 26, 1997, among Cell
Genesys, Abgenix, Xenotech, L.P., Japan Tobacco Inc. and GenPharm International, Inc.
10.26(2) Agreement dated March 26, 1997 among Xenotech, L.P., Xenotech, Inc., Cell Genesys,
Abgenix, Japan Tobacco Inc. and JT Immunotech USA Inc.
10.27(2) Collaborative Research Agreement dated December 22, 1997 between Pfizer, Inc. and
Abgenix.
*+10.27A Amendment No. 1 dated May 26, 1998 to Collaborative Research Agreement between Abgenix
and Pfizer, Inc.
*+10.27B Amendment No. 2 dated October 22, 1998 to Collaborative Research Agreement between
Abgenix and Pfizer, Inc.
10.28(1) Amended and Restated Stockholder Rights Agreement dated January 12, 1998 among Abgenix
and certain holders of Abgenix's capital stock.
10.29(2) Collaborative Research Agreement effective as of January 28, 1998 between Schering-Plough
Research Institute and Abgenix.
10.29A(16) Amendment No. 2 effective January 28, 1999 to Collaborative Research Agreement between
Schering-Plough Research Institute and Abgenix.
10.29B(16) Amendment No. 3 effective February 12, 1999 to the Collaborative Research Agreement
between Schering-Plough Research Institute and Abgenix.
10.30(1) Excerpts from the Minutes of a Meeting of the Board of Directors of Abgenix, dated
October 23, 1996.
10.31(1) Excerpts from the Minutes of a Meeting of the Board of Directors of Abgenix, dated
October 22, 1997.
10.32(2) Exclusive Worldwide Product License dated November 1997 between Xenotech, L.P. and
Abgenix.
10.33(2) Research License and Option Agreement effective as of April 6, 1998 between Abgenix and
Genentech, Inc.
10.33A(2) Amendment No. 1 effective as of June 18, 1998 to Research License and Option Agreement
between Abgenix and Genentech, Inc.
10.34(14) Research Collaboration Agreement dated July 15, 1998 between Millennium BioTherapeutics,
Inc. and Abgenix.
*+10.35 Research Collaboration Agreement dated September 29, 1998 between Millennium
BioTherapeutics, Inc. and Abgenix.
*10.35A Amendment No. 1 effective as of November 29, 1998 to the Research Collaboration Agreement
between Millennium BioTherapeutics, Inc. and Abgenix.
*+10.36 Research License and Option Agreement dated October 30, 1998 between Millennium
BioTherapeutics, Inc. and Abgenix.
10.37(16) Research Collaboration Agreement dated December 22, 1998 between Centocor, Inc. and
Abgenix.
*+10.38 Memorandum of Understanding between Research Corporation Technologies, Inc. and Abgenix.
</TABLE>
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<PAGE> 6
<TABLE>
.39(15) 10 Registration Rights Agreement dated November 18, 1998 between the selling
stockholders and Abgenix.
<C> <S>
*+10.40 Research License and Option Agreement dated January 4, 1999 between AVI
BioPharma, Inc. and Abgenix.
10.41(17) Registration Rights Agreement dated January 27, 1999 between Genentech
and Abgenix.
10.42(16) Multi-Antigen Research License and Option Agreement dated January 27,
1999 between Genentech and Abgenix.
*23.1 Consent of Ernst & Young LLP, Independent Auditors.
*23.2 Consent of Counsel (included in Exhibit 5.1).
*24.1 Power of Attorney.
</TABLE>
- - ---------------
* Previously filed.
+ Confidential treatment requested for portions of these exhibits. Omitted
portions have been filed separately with the Commission.
(1) Incorporated by reference to the same exhibit filed with Abgenix's
Registration Statement on Form S-1 (File No. 333-49415).
(2) Incorporated by reference to the same exhibit filed with Abgenix's
Registration Statement on Form S-1 (File No. 333-49415), portions of which
have been granted confidential treatment.
(3) Incorporated by reference to the same exhibit filed with Cell Genesys'
Registration Statement on Form S-1 (File No. 33-46452), portions of which
have been granted confidential treatment.
(4) Incorporated by reference to the same exhibit filed with Cell Genesys'
Registration Statement on Form S-1 (File No. 33-46452).
(5) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly Report on Form 10-Q for the quarter ended June 30, 1993, portions
of which have been granted confidential treatment.
(6) Incorporated by reference to the same exhibit filed with Cell Genesys'
Annual Report on Form 10-K for the year ended December 31, 1993, portions
of which have been granted confidential treatment.
(7) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995, portions
of which have been granted confidential treatment.
(8) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995.
(9) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996, portions
of which have been granted confidential treatment.
(10) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996.
(11) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly report on Form 10-Q for the quarter ended September 30, 1996.
(12) Incorporated by reference to the same exhibit filed with Cell Genesys'
Annual Report on Form 10-K for the year ended December 31, 1996, as
amended, portions of which have been granted confidential treatment.
(13) Incorporated by reference to the same exhibit filed with Cell Genesys'
Annual Report on Form 10-K for the year ended December 31, 1993.
(14) Incorporated by reference to the same exhibit filed with Abgenix's Current
Report on Form 8-K filed with the Commission on July 17, 1998, portions of
which have been granted confidential treatment.
(15) Incorporated by reference to the same exhibit filed with Abgenix's Current
Report on Form 8-K filed with the Commission on November 24, 1998.
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<PAGE> 7
(16) Incorporated by reference to the same exhibit filed with Abgenix's
Registration Statement on Form S-1 (File No. 333-71289), portions for which
Abgenix has requested confidential treatment.
(17) Incorporated by reference to the same exhibit filed with Abgenix's
Registration Statement on Form S-1 (File No. 333-71289).
(b) Financial Statement Schedules:
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS
Insofar as indemnification by Abgenix for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Abgenix, we have 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
Abgenix of expenses incurred or paid by a director, officer or controlling
person of Abgenix in the successful defense of any action, suit or proceeding)
is asserted by a director, officer or controlling person in connection with the
securities being registered, we will, unless in the opinion of our counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by Abgenix is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
We hereby undertake:
(a) 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 the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) That, for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed
as part of a registration statement in reliance upon Rule 430A and
contained in the form of prospectus filed by Abgenix pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of the registration statement as of the time it was declared
effective.
(d) That, for 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 that
time shall be deemed to be the initial bona fide offering thereof.
(e) 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.
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<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Abgenix has duly caused this Post-Effective Amendment No. 1 to the Registration
Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fremont, State of California, on the 1st day of
March, 1999.
ABGENIX, INC.
By: /s/ R. SCOTT GREER
------------------------------------
R. Scott Greer
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933 as amended, this
Post-Effective Amendment No. 1 to the 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/ R. SCOTT GREER President, Chief Executive March 1, 1999
- - -------------------------------------------------------- Officer and Director
R. Scott Greer (Principal Executive
Officer)
/s/ KURT W. LEUTZINGER Vice President, Finance and March 1, 1999
- - -------------------------------------------------------- Chief Financial Officer
Kurt W. Leutzinger (Principal Financial and
Accounting Officer)
Chairman of the Board
- - --------------------------------------------------------
Stephen A. Sherwin, M.D.
* M. KATHLEEN BEHRENS, PH.D. Director March 1, 1999
- - --------------------------------------------------------
M. Kathleen Behrens, Ph.D.
* RAJU S. KUCHERLAPATI, PH.D. Director March 1, 1999
- - --------------------------------------------------------
Raju S. Kucherlapati, Ph.D.
* MARK B. LOGAN Director March 1, 1999
- - --------------------------------------------------------
Mark B. Logan
* JOSEPH E. MAROUN Director March 1, 1999
- - --------------------------------------------------------
Joseph E. Maroun
*By: /s/ R. SCOTT GREER March 1, 1999
---------------------------------------------------
R. Scott Greer
(Attorney-In-Fact)
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- - ----------- -----------------------
<S> <C>
3.1(1) Amended and Restated Certificate of Incorporation of
Abgenix, as currently in effect.
3.2(1) Amended and Restated Bylaws of Abgenix, as currently in
effect.
4.1(1) Specimen Common Stock Certificate.
*5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1(1) Form of Indemnification Agreement between Abgenix and each
of its directors and officers.
10.2(1) 1996 Incentive Stock Plan and form of agreement thereunder.
10.3(1) 1998 Employee Stock Purchase Plan and form of agreement
thereunder.
10.4(1) 1998 Director Option Plan and form of agreement thereunder.
10.5(1) Warrant dated January 23, 1997 exercisable for shares of
Series A Preferred Stock.
10.6(1) Warrant dated March 27, 1997 exercisable for shares of
Series A Preferred Stock.
10.7(3) Joint Venture Agreement dated June 12, 1991 between Cell
Genesys and JT Immunotech USA Inc.
10.7A(6) Amendment No. 1 dated January 1, 1994 to Joint Venture
Agreement.
10.7B(9) Amendment No. 2 dated June 28, 1996 to Joint Venture
Agreement.
10.8(3) Collaboration Agreement dated June 12, 1991 among Cell
Genesys, Xenotech, Inc. and JT Immunotech USA Inc.
10.8A(5) Amendment No. 1 dated June 30, 1993 to Collaboration
Agreement.
10.8B(13) Amendment No. 2 dated January 1, 1994 to Collaboration
Agreement.
10.8C(7) Amendment No. 3 dated July 1, 1995 to Collaboration
Agreement.
10.8D(9) Amendment No. 4 dated June 28, 1996 to Collaboration
Agreement.
10.8E(2) Amendment No. 5 dated November 1997 to Collaboration
Agreement.
10.9(3) Limited Partnership Agreement dated June 12, 1991 among Cell
Genesys, Xenotech, Inc. and JT Immunotech USA Inc.
10.9A(6) Amendment No. 2 dated January 1, 1994 to Limited Partnership
Agreement.
10.9B(8) Amendment No. 3 dated July 1, 1995 to Limited Partnership
Agreement.
10.9C(10) Amendment No. 4 dated June 28, 1996 to Limited Partnership
Agreement.
10.10(4) Field License dated June 12, 1991 among Cell Genesys, JT
Immunotech USA Inc. and Xenotech, L.P.
10.10A(10) Amendment No. 1 dated March 22, 1996 to Field License.
10.10B(10) Amendment No. 2 dated June 28, 1996 to Field License.
10.11(3) Expanded Field License dated June 12, 1991 among Cell
Genesys, JT Immunotech USA Inc. and Xenotech, L.P.
10.11A(10) Amendment No. 1 dated June 28, 1996 to Expanded Field
License.
10.12(2) Amended and Restated Anti-IL-8 License Agreement dated March
19, 1996 among Xenotech, L.P., Cell Genesys and Japan
Tobacco Inc.
10.13(9) Master Research License and Option Agreement dated June 28,
1996 among Cell Genesys, Japan Tobacco Inc. and Xenotech,
L.P.
10.13A(2) Amendment No. 1 dated November 1997 to the Master Research
License and Option Agreement.
10.14(2) Stock Purchase and Transfer Agreement dated July 15, 1996 by
and between Cell Genesys and Abgenix.
10.15(1) Governance Agreement dated July 15, 1996 between Cell
Genesys and Abgenix.
10.15A(1) Amendment No. 1 dated October 13, 1997 to the Governance
Agreement.
10.15B(1) Amendment No. 2 dated December 22, 1997 to the Governance
Agreement.
</TABLE>
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<PAGE> 10
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- - ----------- -----------------------
<S> <C>
10.16(1) Tax Sharing Agreement dated July 15, 1996 between Cell
Genesys and Abgenix.
10.17(2) Gene Therapy Rights Agreement effective as of November 1,
1997 between Abgenix and Cell Genesys.
10.18(2) Patent Assignment Agreement dated July 15, 1996 by Cell
Genesys in favor of Abgenix.
10.19(11) Lease Agreement dated July 31, 1996 between John Arrillaga,
Trustee, or his Successor Trustee, UTA dated 7/20/77
(Arrillaga Family Trust) as amended, and Richard T. Peery,
Trustee, or his Successor Trustee, UTA dated 7/20/77
(Richard T. Peery Separate Property Trust) as amended, and
Abgenix.
10.20(1) Loan and Security Agreement dated January 23, 1997 between
Silicon Valley Bank and Abgenix.
10.21(1) Master Lease Agreement dated March 27, 1997 between
Transamerica Business Credit Corporation and Abgenix.
10.22(2) License Agreement dated February 1, 1997 between Ronald J.
Billing, Ph.D. and Abgenix.
10.23(12) Release and Settlement Agreement dated March 26, 1997 among
Cell Genesys, Abgenix, Xenotech, L.P., Japan Tobacco Inc.
and GenPharm International, Inc.
10.24(12) Cross License Agreement effective as of March 26, 1997,
among Cell Genesys, Abgenix, Xenotech, L.P., Japan Tobacco
Inc. and GenPharm International, Inc.
10.25(12) Interference Settlement Procedure Agreement, effective as of
March 26, 1997, among Cell Genesys, Abgenix, Xenotech, L.P.,
Japan Tobacco Inc. and GenPharm International, Inc.
10.26(2) Agreement dated March 26, 1997 among Xenotech, L.P.,
Xenotech, Inc., Cell Genesys, Abgenix, Japan Tobacco Inc.
and JT Immunotech USA Inc.
10.27(2) Collaborative Research Agreement dated December 22, 1997
between Pfizer, Inc. and Abgenix.
*+10.27A Amendment No. 1 dated May 26, 1998 to Collaborative Research
Agreement between Abgenix and Pfizer, Inc.
*+10.27B Amendment No. 2 dated October 22, 1998 to Collaborative
Research Agreement between Abgenix and Pfizer, Inc.
10.28(1) Amended and Restated Stockholder Rights Agreement dated
January 12, 1998 among Abgenix and certain holders of
Abgenix's capital stock.
10.29(2) Collaborative Research Agreement effective as of January 28,
1998 between Schering-Plough Research Institute and Abgenix.
10.29A(16) Amendment No. 2 effective January 28, 1999 to Collaborative
Research Agreement between Schering-Plough Research
Institute and Abgenix.
10.29B(16) Amendment No. 3 effective February 12, 1999 to the
Collaborative Research Agreement between Schering-Plough
Research Institute and Abgenix.
10.30(1) Excerpts from the Minutes of a Meeting of the Board of
Directors of Abgenix, dated October 23, 1996.
10.31(1) Excerpts from the Minutes of a Meeting of the Board of
Directors of Abgenix, dated October 22, 1997.
10.32(2) Exclusive Worldwide Product License dated November 1997
between Xenotech, L.P. and Abgenix.
10.33(2) Research License and Option Agreement effective as of April
6, 1998 between Abgenix and Genentech, Inc.
10.33A(2) Amendment No. 1 effective as of June 18, 1998 to Research
License and Option Agreement between Abgenix and Genentech,
Inc.
10.34(14) Research Collaboration Agreement dated July 15, 1998 between
Millennium BioTherapeutics, Inc. and Abgenix.
*+10.35 Research Collaboration Agreement dated September 29, 1998
between Millennium BioTherapeutics, Inc. and Abgenix.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- - ----------- -----------------------
<S> <C>
*10.35A Amendment No. 1 effective as of November 29, 1998 to the
Research Collaboration Agreement between Millennium
BioTherapeutics, Inc. and Abgenix.
*+10.36 Research License and Option Agreement dated October 30, 1998
between Millennium BioTherapeutics, Inc. and Abgenix.
10.37(16) Research Collaboration Agreement dated December 22, 1998
between Centocor, Inc. and Abgenix.
*+10.38 Memorandum of Understanding between Research Corporation
Technologies, Inc. and Abgenix.
10.39(15) Registration Rights Agreement dated November 18, 1998
between the selling stockholders and Abgenix.
*+10.40 Research License and Option Agreement dated January 4, 1999
between AVI BioPharma, Inc. and Abgenix
10.41(17) Registration Rights Agreement dated January 27, 1999 between
Genentech and Abgenix.
10.42(16) Multi-Antigen Research License and Option Agreement dated
January 27, 1999 between Genentech and Abgenix.
*23.1 Consent of Ernst & Young LLP, Independent Auditors.
*23.2 Consent of Counsel (included in Exhibit 5.1).
*24.1 Power of Attorney.
</TABLE>
- - ---------------
* Previously filed.
+ Confidential treatment requested for portions of these exhibits. Omitted
portions have been filed separately with the Commission.
(1) Incorporated by reference to the same exhibit filed with Abgenix's
Registration Statement on Form S-1 (File No. 333-49415).
(2) Incorporated by reference to the same exhibit filed with Abgenix's
Registration Statement on Form S-1 (File No. 333-49415), portions of which
have been granted confidential treatment.
(3) Incorporated by reference to the same exhibit filed with Cell Genesys'
Registration Statement on Form S-1 (File No. 33-46452), portions of which
have been granted confidential treatment.
(4) Incorporated by reference to the same exhibit filed with Cell Genesys'
Registration Statement on Form S-1 (File No. 33-46452).
(5) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly Report on Form 10-Q for the quarter ended June 30, 1993, portions
of which have been granted confidential treatment.
(6) Incorporated by reference to the same exhibit filed with Cell Genesys'
Annual Report on Form 10-K for the year ended December 31, 1993, portions
of which have been granted confidential treatment.
(7) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995, portions
of which have been granted confidential treatment.
(8) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995.
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(9) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996, portions
of which have been granted confidential treatment.
(10) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996.
(11) Incorporated by reference to the same exhibit filed with Cell Genesys'
Quarterly report on Form 10-Q for the quarter ended September 30, 1996.
(12) Incorporated by reference to the same exhibit filed with Cell Genesys'
Annual Report on Form 10-K for the year ended December 31, 1996, as
amended, portions of which have been granted confidential treatment.
(13) Incorporated by reference to the same exhibit filed with Cell Genesys'
Annual Report on Form 10-K for the year ended December 31, 1993.
(14) Incorporated by reference to the same exhibit filed with Abgenix's Current
Report on Form 8-K filed with the Commission on July 17, 1998, portions of
which have been granted confidential treatment.
(15) Incorporated by reference to the same exhibit filed with Abgenix's Current
Report on Form 8-K filed with the Commission on November 24, 1998.
(16) Incorporated by reference to the same exhibit filed with Abgenix's
Registration Statement on Form S-1 (File No. 333-71289), portions for which
Abgenix has requested confidential treatment.
(17) Incorporated by reference to the same exhibit filed with Abgenix's
Registration Statement on Form S-1 (File No. 333-71289).
II-11
