<PAGE>
As filed with the Securities and Exchange Commission on December 22, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
==================================
WASHINGTON, D.C. 20549
________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________
MEDAREX, INC.
(Exact name of registrant as specified in its charter)
________________________
New Jersey 2836 22-2822175
(State or other (Primary standard (I.R.S. Employer
jurisdiction of industrial classification Number)
incorporation or code number)
Organization)
________________________
Medarex, Inc.
707 State Road #206
Princeton, NJ 08540
(609) 430-2880
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Donald L. Drakeman
President and
Chief Executive Officer
Medarex, Inc.
707 State Road #206
Princeton, NJ 08540
(609) 430-2880
________________________
COPIES TO:
W. Bradford Middlekauff, Esq. Dwight A. Kinsey, Esq.
Vice President and General Counsel Satterlee Stephens Burke & Burke LLP
Medarex, Inc. 230 Park Avenue
707 State Road #206 New York, NY 10169
Princeton, NJ 08540 (212) 818-9200
(609) 430-2880
________________________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of
the Registration Statement, as determined by the Registrant.
________________________
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.[_]
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CALCULATION OF REGISTRATION FEE
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================================================================================
PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OF OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED(1)(2) UNIT(1)(2) PRICE(1)(3) FEE (4)
--------------------------------------------------------------------------------
Debt Securities
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Preferred Stock, par value
$1.00 per share(5)
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Common Stock, par value
$.01 per share(6)
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Warrants(7) (8)
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Total $500,000,000 $132,000
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(1) There are being registered under this Registration Statement such
indeterminate number of shares of Common Stock and Preferred Stock of the
Registrant, such indeterminate number of Warrants of the Registrant, and
such indeterminate principal amount of Debt Securities of the Registrant,
as shall have an aggregate initial offering price not to exceed
$500,000,000. If any Debt Securities are issued at an original issue
discount, then the securities registered shall include such additional Debt
Securities as may be necessary such that the aggregate initial public
offering price of all securities issued pursuant to this Registration
Statement will equal $500,000,000. Any securities registered under this
Registration Statement may be sold separately or as units with other
securities registered under this Registration Statement. The proposed
maximum initial offering price per unit will be determined, from time to
time, by the Registrant in connection with the issuance by the Registrant
of the securities registered under this Registration Statement.
(2) Not specified with respect to each class of securities to be registered
pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
(3) Estimated solely for the purpose of calculating the registration fee. Any
offering of Debt Securities denominated in any foreign currency or currency
unit will be treated as the equivalent in U.S. dollars based on the
exchange rate applicable to the purchase of such Debt Securities from the
Registrant. No separate consideration will be received for Common Stock,
Preferred Stock, Warrants or Debt Securities that are issued upon
conversion or exchange of Debt Securities or Preferred Stock registered
hereunder.
(4) Calculated pursuant to Rule 457 of the rules and regulations under the
Securities Act.
(5) Including such indeterminate number of shares of Preferred Stock as may
from time to time be issued (i) at indeterminate prices or (ii) upon
conversion or exchange of Debt Securities registered hereunder, to the
extent any such Debt Securities are, by their terms, convertible into
Preferred Stock.
(6) Including such indeterminate number of shares of Common Stock as may from
time to time be issued (i) at indeterminate prices or (ii) upon conversion
or exchange of Debt Securities or Preferred Stock registered hereunder, to
the extent any of such Debt Securities or shares of Preferred Stock are, by
their terms, convertible into Common Stock.
(7) Including such indeterminate number of Warrants as may from time to time be
issued at indeterminate prices, representing rights to purchase certain of
the Common Stock, Preferred Stock or Debt Securities registered hereunder.
(8) Including warrants to purchase common stock, warrants to purchase preferred
stock and warrants to purchase debt securities.
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, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
<PAGE>
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 becomes effective. This prospectus is not an
offer to sell securities and we are not soliciting offers to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED _____________, 2000
$500,000,000
PROSPECTUS
MEDAREX, INC.
From time to time, we may sell any of the following securities:
- DEBT SECURITIES
- PREFERRED STOCK
- COMMON STOCK
- WARRANTS TO PURCHASE DEBT SECURITIES, PREFERRED STOCK OR COMMON STOCK
We will provide the specific terms of these securities in one or more
supplements to this prospectus. You should read this prospectus and any
prospectus supplement carefully before you invest.
Our common stock is traded over-the-counter on The Nasdaq Stock Market's
National Market under the trading symbol "MEDX." The applicable prospectus
supplement will contain information, where applicable, as to any other listing
(if any) on The Nasdaq Stock Market's National Market or any securities exchange
of the securities covered by the prospectus supplement.
____________________
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE "RISK FACTORS" ON PAGE 4.
THIS PROSPECTUS MAY NOT BE USED TO OFFER OR SELL ANY SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
____________________
The securities may be sold directly by us to investors, through agents
designated from time to time or to or through underwriters or dealers. For
additional information on the methods of sale, you should refer to the section
entitled "Plan of Distribution." If any underwriters are involved in the sale of
any securities in respect of which this prospectus is being delivered, the names
of such underwriters and any applicable commissions or discounts will be set
forth in a prospectus supplement. The net proceeds we expect to receive from
such sale also will be set forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved the securities to be issued under this
prospectus or determined if this prospectus is accurate or adequate. Any
representation to the contrary is a criminal offense.
The date of this prospectus is [ ] , 2000.
<PAGE>
TABLE OF CONTENTS
Page
----
MEDAREX ......................................................... 1
ABOUT THIS PROSPECTUS ........................................... 3
RATIO OF EARNINGS TO FIXED CHARGES .............................. 4
RISK FACTORS .................................................... 4
FORWARD-LOOKING STATEMENTS ...................................... 4
USE OF PROCEEDS ................................................. 5
SECURITIES WE MAY OFFER ......................................... 5
DESCRIPTION OF DEBT SECURITIES .................................. 6
DESCRIPTION OF CAPITAL STOCK .................................... 14
DESCRIPTION OF WARRANTS ......................................... 16
PLAN OF DISTRIBUTION ............................................ 18
LEGAL MATTERS ................................................... 19
EXPERTS ......................................................... 19
WHERE YOU CAN FIND MORE INFORMATION ............................. 19
INFORMATION INCORPORATED BY REFERENCE ........................... 19
____________________
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR TO
WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. THIS DOCUMENT MAY ONLY BE USED WHERE IT IS LEGAL
TO SELL THESE SECURITIES. THE INFORMATION IN THIS DOCUMENT MAY ONLY BE
ACCURATE ON THE DATE OF THIS DOCUMENT.
____________________
HuMAb-Mouse(R) is a registered trademark of Medarex, Inc. T-12 /SM/ is a
servicemark of Medarex, Inc. Tc Mouse(TM) is a trademark of Kirin Brewery Co.
Ltd.
<PAGE>
MEDAREX
We are a human monoclonal antibody-based company with integrated discovery,
development and clinical supply manufacturing capabilities. We are able to
create fully human monoclonal antibodies in our "HuMAb-Mouse." These mice are
"transgenic"--that is, the mouse genes for creating antibodies have been
inactivated and have been replaced by human antibody genes. We have entered into
a binding letter of intent with Kirin Brewery Co. Ltd., which provides us with
the exclusive right (except as to Kirin, under certain circumstances) to provide
access to Kirin's Tc Mouse technology to companies headquartered outside of
Asia. Like our HuMAb-Mouse, Kirin's Tc Mouse has been designed to create fully
human antibodies. The Tc Mouse is "transchromosomic," meaning that 100% of the
human antibody genes contained in the transplanted chromosomes are present in
the mouse. As part of our partnership with Kirin, we have recently expanded our
fully-integrated human antibody technology platform with the development of a
unique cross bred mouse, which combines the unique traits of our HuMAb-Mouse
with Kirin's Tc Mouse, as the newest addition to our UltiMAb/TM/ Human Antibody
Development System/SM/. With our UltiMAb platform, we believe we have assembled
a unique family of genetically engineered mice for creating the entire spectrum
of high affinity fully human antibodies. To date, 26 companies have acquired the
rights to use our human antibody technology in their development of new
products, including major pharmaceutical and biotechnology companies such as
Novartis AG, Amgen, Inc., Immunex Corporation, Schering AG, Centocor, Inc., a
subsidiary of Johnson & Johnson, and Eli Lilly and Company.
As new disease-related targets are continually being discovered through
genomic and other research programs, we intend to use our human antibody
technology to develop therapeutic products for ourselves and for our existing
and prospective corporate partners. As part of our applied genomics strategy,
we have entered into alliances with a number of genomics and proteomics
companies including Eos Biotechnology, Inc., Regeneron, Inc., Corixa
Corporation, Oxford GlycoSciences Plc and Athersys, Inc., to develop and
commercialize genomics-derived antibody-based therapeutic products for the
treatment or prevention of life threatening diseases. We have also entered into
a collaboration with Genmab A/S, a publicly held Danish biotechnology company in
which we have a 33% equity interest, pursuant to which Genmab has the right to
enter into multitarget (five or more targets) genomic partnerships involving our
human antibody technology with certain pharmaceutical companies located in
Europe. Medarex has a right to participate in such partnerships. In addition, we
have entered into a technology access agreement with Genmab which provides
Genmab with certain rights to our human antibody technology. As part of these
transactions we may receive license fees, milestone payments, royalties and/or
profit sharing.
We believe that genomic and other research techniques are leading to the
discovery of an unprecedented number of potential targets for therapeutic
antibody products. To date, nine monoclonal antibody-based products have been
approved for sale by the United States Food and Drug Administration (FDA), with
the six highest selling of these antibodies having generated revenues in excess
of $1.3 billion worldwide. The majority of these antibodies have been on the
market for less than three years. Most of the antibodies currently in
development and all of the antibodies that form the basis of products approved
to date have been made in normal, or "wild type," mice and subsequently made
"chimeric" or "humanized," leading to a product that contains both human and
rodent proteins. These remaining rodent proteins may be recognized by a
patient's immune system as "foreign," potentially limiting the utility of the
product or causing allergic reactions. Instead of engineering mouse antibodies
to make them human, our HuMAb-Mouse makes fully human antibodies.
Using our human antibody technology, it is possible to create and develop
product candidates very rapidly. Under our T-12 development program, we have
been able to complete the process of making a very high affinity fully human
antibody to a therapeutic target, and filed an investigational new drug
application, or IND, with the FDA in less than 12 months. We believe that this
efficient and rapid development capability will provide an attractive platform
for product development for our corporate partners and for our own in-house
development programs.
The potential of our HuMAb-Mouse to rapidly generate high affinity, fully
human antibodies has led to numerous corporate partnerships under which
biopharmaceutical companies have acquired the right to use our human antibody
technology. We initiated or expanded six corporate partnerships in 1998, and an
<PAGE>
additional six in 1999. We have entered into 12 corporate partnerships in 2000,
and expect to enter into several new or expanded corporate partnerships in each
of the next several years.
The financial terms of our corporate partnerships typically include license
fees and a series of milestone payments commencing upon initiation of clinical
trials through commercialization which may total up to $7 to $10 million per
target if the antibody receives approval from the FDA and equivalent foreign
agencies. We also expect to receive royalties on product sales. In some cases,
our corporate partners reimburse us for research and development activities
conducted on their behalf. Generally, under the terms of these collaborations,
our corporate partners are responsible for all costs of product development,
manufacturing and marketing of any products.
Over 200 companies are developing monoclonal antibody-based products. We
believe that many of these companies are potential partners for our human
antibody technology. In part, this reflects the enormous increase in knowledge
about potential targets currently in research and development. For example,
genomics research has identified that there are over 100,000 human genes, many
of which are expected to be disease-related. In many cases, these genes encode
proteins that may be attractive targets for monoclonal antibody-based products.
We believe that our human antibody technology and our product development
experience coupled with our T-12 development capabilities and our manufacturing
facilities, which comply with the applicable FDA current good manufacturing
practice regulations, or cGMP, will allow us to rapidly create and develop
numerous fully human antibodies based upon these targets. We intend to develop
some of these products for our own portfolio and some in collaboration with our
existing and prospective corporate partners.
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We were incorporated in New Jersey on July 6, 1987. Our principal
executive offices are located at 707 State Road #206, Princeton, New Jersey
08540. Our telephone number is (609) 430-2880.
2
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ABOUT THIS PROSPECTUS
This pospectus is part of a registration statement that we filed with the
SEC using a "shelf" registration process. Under this shelf process, we may
offer, from time to time, in one or more offerings:
- shares of our common stock;
- shares of our preferred stock;
- our debt securities; or
- warrants to purchase our common stock, preferred stock or debt
securities.
The total offering price of these securities will not exceed $500,000,000.
This prospectus provides you with a general description of the securities we may
offer. Each time we offer securities, we will provide you with a prospectus
supplement that will describe the specific amounts, prices and terms of the
securities we offer. The prospectus supplement also may add, update or change
information contained in this prospectus.
We may sell the securities to or through underwriters, dealers or agents or
directly to purchasers. We and our agents reserve the sole right to accept and
to reject in whole or in part any proposed purchase of securities. The
prospectus supplement, which we will provide to you each time we offer
securities, will provide the names of any underwriters, dealers or agents
involved in the sale of the securities, and any applicable fee, commission or
discount arrangements with them, see the section entitled "Plan of
Distribution."
3
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RATIO OF EARNINGS TO FIXED CHARGES
We present below the deficiency of our earnings available to cover our
fixed charges. Earnings consist of loss before income taxes and equity in
earnings of unconsolidated affiliate. Fixed charges consist of interest expense
and that portion of rent expense we believe to be representative of interest.
<TABLE>
<CAPTION>
Nine
Months
Ended
Years Ended December 31, September 30,
------------------------ ------------
<S> <C> <C> <C> <C> <C> <C>
1995 1996 1997 1998 1999 2000
------- ------- -------- -------- -------- -------
(in thousands)
--------------------------------------------------------------------------------------
Deficiency of Earnings $(6,509) $(6,868) $(55,377) $(22,196) $(17,553) $(8,662)
Available to Cover
Fixed Charges
</TABLE>
RISK FACTORS
Investing in our securities involves risk. Please see the risk factors
described in our Annual Report on Form 10-K for the year ended December 31, 1999
(the "1999 10-K"), 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.
FORWARD-LOOKING STATEMENTS
Certain statements contained in this prospectus and any prospectus
supplement including, without limitation, statements containing the words
"believes," "anticipates," "expects" and words of similar import, constitute
"forward-looking statements." Such forward-looking statements involve known and
unknown risks, uncertainties and other factors which may cause our actual
results, performance or achievements, or industry results, to be materially
different from any future results, performance or achievements expressed or
implied by such forward-looking statements. We believe that it is important to
communicate our future expectations to our investors. However, there may be
events in the future that we are not able to accurately predict or control. The
factors listed in the 1999 10-K in the section captioned "Risk Factors," as well
as any cautionary language in the 1999 10-K, provide examples of risks,
uncertainties and events that may cause our actual results to differ materially
from the expectations we describe in our forward-looking statements.
Certain of these factors are discussed in more detail elsewhere in the 1999
10-K, including, without limitation, under the captions "Risk Factors,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and "Business." Given these uncertainties, you should not place
undue reliance on such forward-looking statements. We disclaim any obligation
to update any such factors or to publicly announce the result of any revisions
to any of the forward-looking statements contained herein, to reflect future
events or developments. Before you invest in our securities, you should be
aware that the occurrence of the events described in these risk factors and
elsewhere in the 1999 10-K could have a material adverse effect on our business,
results of operations and financial position.
USE OF PROCEEDS
Except as described in any prospectus supplement, we currently intend to
use the net proceeds from our sale of the securities for our general corporate
purposes, which may include repaying indebtedness, making additions to our
working capital or funding future acquisitions.
4
<PAGE>
When we offer a particular series of securities, the prospectus supplement
relating to that offering will describe the intended use of the net proceeds
received from that offering. The actual amount of net proceeds we spend on a
particular use will depend on many factors, including:
- our future revenue growth, if any;
- our future capital expenditures; and
- the amount of cash required by our operations.
Many of these factors are beyond our control. Therefore, we will retain
broad discretion in the use of the net proceeds.
SECURITIES WE MAY OFFER
We may offer shares of common stock, shares of preferred stock, debt
securities or warrants to purchase common stock, preferred stock or debt
securities, or any combination of the foregoing, either individually or as units
consisting of one or more securities. We may offer up to $500,000,000 of
securities under this prospectus. If securities are offered as units, we will
describe the terms of the units in a prospectus supplement.
5
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DESCRIPTION OF DEBT SECURITIES
We may offer any combination of senior debt securities or subordinated debt
securities. Debt securities are unsecured obligations to repay advanced funds.
We may issue the senior debt securities and the subordinated debt securities
under separate indentures between us, as issuer, and the trustee or trustees
identified in the prospectus supplement. The form for each type of indenture is
filed as an exhibit to the registration statement of which this prospectus is a
part.
The prospectus supplement will describe the particular terms of any debt
securities we may offer. The following summaries of the debt securities and the
indentures are not complete. We urge you to read the indentures and the
description of the debt securities included in the prospectus supplement.
General
We may issue an unlimited principal amount of debt securities in separate
series. We may specify a maximum aggregate principal amount for the debt
securities of any series. The debt securities will have terms that are
consistent with the indentures. Unless the prospectus supplement indicates
otherwise, senior debt securities will be unsecured and unsubordinated
obligations and will rank equal with all our other unsecured and unsubordinated
debt. Subordinated debt securities will be paid only if all payments due under
our senior indebtedness, including any outstanding senior debt securities, have
been made.
The indentures might not limit the amount of other debt that we may incur
and might not contain financial or similar restrictive covenants. The indentures
might not contain any provision to protect holders of debt securities against a
sudden or dramatic decline in our ability to pay our debt.
The prospectus supplement will describe the debt securities and the price
or prices at which we will offer the debt securities. The description will
include:
- the title and form of the debt securities;
- any limit on the aggregate principal amount of the debt securities or
the series of which they are a part;
- the person to whom any interest on a debt security of the series will
be paid;
- the date or dates on which we must repay the principal;
- the rate or rates at which the debt securities will bear interest, if
any, the date or dates from which interest will accrue, and the dates
on which we must pay interest;
- if applicable, the duration and terms of the right to extend interest
payment periods;
- the place or places where we must pay the principal and any premium or
interest on the debt securities;
- the terms and conditions on which we may redeem any debt security, if
at all;
- any obligation to redeem or purchase any debt securities, and the
terms and conditions on which we must do so;
- the denominations in which we may issue the debt securities;
6
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- the manner in which we will determine the amount of principal of or
any premium or interest on the debt securities;
- the currency in which we will pay the principal of and any premium or
interest on the debt securities;
- the principal amount of the debt securities that we will pay upon
declaration of acceleration of their maturity;
- the amount that will be deemed to be the principal amount for any
purpose, including the principal amount that will be due and payable
upon any maturity or that will be deemed to be outstanding as of any
date;
- if applicable, that the debt securities are defeasible and the terms
of such defeasance;
- if applicable, the terms of any right to convert debt securities into,
or exchange debt securities for, shares of common stock or other
securities or property;
- whether we will issue the debt securities in the form of one or more
global securities and, if so, the respective depositaries for the
global securities and the terms of the global securities;
- the subordination provisions that will apply to any subordinated debt
securities;
- any addition to or change in the events of default applicable to the
debt securities and any change in the right of the trustee or the
holders to declare the principal amount of any of the debt securities
due and payable; and
- any addition to or change in the covenants in the indentures.
We may sell the debt securities at a substantial discount below their
stated principal amount. We will describe U.S. federal income tax
considerations, if any, applicable to debt securities sold at an original issue
discount in the prospectus supplement. An "original issue discount security" is
any debt security sold for less than its face value, and which provides that the
holder cannot receive the full face value if maturity is accelerated. The
prospectus supplement relating to any original issue discount securities will
describe the particular provisions relating to acceleration of the maturity upon
the occurrence of an event of default. In addition, we will describe U.S.
federal income tax or other considerations applicable to any debt securities
that are denominated in a currency or unit other than U.S. dollars in the
prospectus supplement.
Conversion and Exchange Rights
The prospectus supplement will describe, if applicable, the terms on which
you may convert debt securities into or exchange them for common stock or other
securities or property. The conversion or exchange may be mandatory or may be at
your option. The prospectus supplement will describe how the number of shares of
common stock or other securities or property to be received upon conversion or
exchange would be calculated.
7
<PAGE>
Subordination of Subordinated Debt Securities
Unless the prospectus supplement indicates otherwise, the following
provisions will apply to the subordinated debt securities. The indebtedness
underlying the subordinated debt securities will be payable only if all payments
due under our senior indebtedness, including any outstanding senior debt
securities, have been made. If we distribute our assets to creditors upon any
dissolution, winding-up, liquidation or reorganization or in bankruptcy,
insolvency, receivership or similar proceedings, we must first pay all amounts
due or to become due on all senior indebtedness before we pay the principal of,
or any premium or interest on, the subordinated debt securities. In the event
the subordinated debt securities are accelerated because of an event of default,
we may not make any payment on the subordinated debt securities until we have
paid all senior indebtedness or the acceleration is rescinded. If the payment of
subordinated debt securities accelerates because of an event of default, we must
promptly notify holders of senior indebtedness of the acceleration.
If we experience a bankruptcy, dissolution or reorganization, holders of
senior indebtedness may receive more, ratably, and holders of subordinated debt
securities may receive less, ratably, than our other creditors. The indenture
for subordinated debt securities may not limit our ability to incur additional
senior indebtedness.
Form, Exchange and Transfer
We will issue debt securities only in fully registered form, without
coupons, and, unless the prospectus supplement indicates otherwise, only in
denominations of $1,000 and integral multiples thereof. The holder of a debt
security may elect, subject to the terms of the indentures and the limitations
applicable to global securities, to exchange them for other debt securities of
the same series of any authorized denomination and of similar terms and
aggregate principal amount.
Holders of debt securities may present them for exchange as provided above
or for registration of transfer, duly endorsed or with the form of transfer duly
executed, at the office of the transfer agent we designate for that purpose. We
will not impose a service charge for any registration of transfer or exchange of
debt securities, but we may require a payment sufficient to cover any tax or
other governmental charge payable in connection with the transfer or exchange.
We will name the transfer agent in the prospectus supplement. We may designate
additional transfer agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent acts, but we
must maintain a transfer agent in each place in which we will pay on debt
securities.
If we redeem the debt securities, we will not be required to issue,
register the transfer of or exchange any debt security during a specified period
prior to mailing a notice of redemption. We are not required to register the
transfer of or exchange any debt security selected for redemption, except the
unredeemed portion of the debt security being redeemed.
Global Securities
The debt securities may be represented, in whole or in part, by one or more
global securities that will have an aggregate principal amount equal to that of
all debt securities of that series. Each global security will be registered in
the name of a depositary identified in the prospectus supplement. We will
deposit the global security with the depositary or a custodian, and the global
security will bear a legend regarding the restrictions on exchanges and
registration of transfer.
No global security may be exchanged in whole or in part for debt securities
registered, and no transfer of a global security in whole or in part may be
registered, in the name of any person other than the depositary or any nominee
or successor of the depositary unless:
8
<PAGE>
- the depositary is unwilling or unable to continue as depositary; or
- the depository is no longer in good standing under the Exchange Act or
other applicable statute or regulation.
The depositary will determine how all securities issued in exchange for a
global security will be registered.
As long as the depositary or its nominee is the registered holder of a
global security, we will consider the depositary or the nominee to be the sole
owner and holder of the global security and the underlying debt securities.
Except as stated above, owners of beneficial interests in a global security will
not be entitled to have the global security or any debt security registered in
their names, will not receive physical delivery of certificated debt securities
and will not be considered to be the owners or holders of the global security or
underlying debt securities. We will make all payments of principal, premium and
interest on a global security to the depositary or its nominee. The laws of some
jurisdictions require that some purchasers of securities take physical delivery
of such securities in definitive form. These laws may prevent you from
transferring your beneficial interests in a global security.
Only institutions that have accounts with the depositary or its nominee and
persons that hold beneficial interests through the depositary or its nominee may
own beneficial interests in a global security. The depositary will credit, on
its book-entry registration and transfer system, the respective principal
amounts of debt securities represented by the global security to the accounts of
its participants. Ownership of beneficial interests in a global security will be
shown only on, and the transfer of those ownership interests will be effected
only through, records maintained by the depositary or any such participant.
The policies and procedures of the depositary may govern payments,
transfers, exchanges and others matters relating to beneficial interests in a
global security. we and the trustee will assume no responsibility or liability
for any aspect of the depositary's or any participant's records relating to, or
for payments made on account of, beneficial interests in a global security.
Payment and Paying Agents
Unless the prospectus supplement indicates otherwise, we will pay principal
and any premium or interest on a debt security to the person in whose name the
debt security is registered at the close of business on the regular record date
for such interest.
Unless the prospectus supplement indicates otherwise, we will pay principal
and any premium or interest on the debt securities at the office of our
designated paying agent. Unless the prospectus supplement indicates otherwise,
the corporate trust office of the trustee will be the paying agent for the debt
securities.
Any other paying agents we designate for the debt securities of a
particular series will be named in the prospectus supplement. We may designate
additional paying agents, rescind the designation of any paying agent or approve
a change in the office through which any paying agent acts, but we must maintain
a paying agent in each place of payment for the debt securities.
The paying agent will return to us all money we pay to it for the payment
of the principal, premium or interest on any debt security that remains
unclaimed for a specified period. Thereafter, the holder may look only to us for
payment, as an unsecured general creditor.
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Consolidation, Merger and Sale of Assets
Under the terms of the indentures, so long as any securities remain
outstanding, we may not consolidate or enter into a share exchange with or merge
into any other person, in a transaction in which we are not the surviving
corporation, or sell, convey, transfer or lease our properties and assets
substantially as an entirety to any person, unless:
- the successor assumes our obligations under the debt securities and
the indentures; and
- we meet the other conditions described in the indentures.
Events of Default
Each of the following will constitute an event of default under each
indenture:
- failure to pay the principal of or any premium on any debt security
when due;
- failure to pay any interest on any debt security when due, for more
than a specified number of days past the due date;
- failure to deposit any sinking fund payment when due;
- failure to perform any covenant or agreement in the indenture that
continues for a specified number of days after written notice has been
given by the trustee or the holders of a specified percentage in
aggregate principal amount of the debt securities of that series;
- certain events in bankruptcy, insolvency or reorganization; and
- any other event of default specified in the prospectus supplement.
If an event of default occurs and continues, both the trustee and holders
of a specified percentage in aggregate principal amount of the outstanding
securities of that series may declare the principal amount of the debt
securities of that series to be immediately due and payable. The holders of a
majority in aggregate principal amount of the outstanding securities of that
series may, under certain circumstances, rescind and annul the acceleration if
all events of default, other than the nonpayment of accelerated principal, have
been cured or waived.
Except for certain duties in case of an event of default, the trustee will
not be obligated to exercise any of its rights or powers at the request or
direction of any of the holders, unless the holders have offered the trustee
reasonable indemnity. If they provide this indemnification, the holders of a
majority in aggregate principal amount of the outstanding securities of any
series may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
on the trustee with respect to the debt securities of that series.
No holder of a debt security of any series may institute any proceeding
with respect to the indentures, or for the appointment of a receiver or a
trustee, or for any other remedy, unless:
- the holder has previously given the trustee written notice of a
continuing event of default;
- the holders of a specified percentage in aggregate principal amount of
the outstanding securities of that series have made a written request
upon the trustee, and have offered reasonable indemnity to the
trustee, to institute the proceeding; and
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- the trustee has failed to institute the proceeding for a specified
period of time after its receipt of the notification; and
- the trustee has not received a direction inconsistent with the request
within a specified number of days.
Modification and Waiver
We and the 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 debt securities of any series.
In addition, under the indentures, the rights of holders of a series of
notes may be changed by us and the trustee with the written consent of the
holders of at least a majority in aggregate principal amount of the outstanding
debt securities of each series that is affected. However, we and the trustee may
only make the following changes with the consent of the holder of any
outstanding debt securities 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 debt securities; or
- reducing the percentage of debt securities the holders of which are
required to consent to any amendment.
The holders of a majority in principal amount of the outstanding debt
securities of any series may waive any past default under the indenture with
respect to debt securities of that series, except a default in the payment of
principal, premium or interest on any debt security of that series or in respect
of a covenant or provision of the indenture that cannot be amended without each
holder's consent.
Except in certain limited circumstances, we may set any day as a record
date for the purpose of determining the holders of outstanding debt securities
of any series entitled to give or take any direction, notice, consent, waiver or
other action under the indentures. In certain limited circumstances, the trustee
may set a record date. To be effective, the action must be taken by holders of
the requisite principal amount of such debt securities within a specified period
following the record date.
Defeasance
To the extent stated in the prospectus supplement, we may elect to apply
the provisions in the indentures relating to defeasance and discharge of
indebtedness, or to defeasance of certain restrictive covenants, to the debt
securities of any series. The indentures provide that, upon satisfaction of the
requirements described below, we may terminate all of our obligations under the
debt securities of any series and the applicable indenture, known as legal
defeasance, other than our obligation:
- to maintain a registrar and paying agents and hold moneys for payment
in trust;
- to register the transfer or exchange of the notes; and
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- to replace mutilated, destroyed, lost or stolen notes.
In addition, we may terminate our obligation to comply with any restrictive
covenants under the debt securities of any series or the applicable indenture,
known as covenant defeasance.
We may exercise our legal defeasance option even if we have previously
exercised our covenant defeasance option. If we exercise either defeasance
option, payment of the notes may not be accelerated because of the occurrence of
events of default.
To exercise either defeasance option as to debt securities of any series,
we must irrevocably deposit in trust with the trustee money and/or obligations
backed by the full faith and credit of the U.S. that will provide money in an
amount sufficient in the written opinion of a nationally recognized firm of
independent public accountants to pay the principal of, premium, if any, and
each installment of interest on the debt securities. We may only establish this
trust if, among other things:
- no event of default shall have occurred or be continuing;
- in the case of legal defeasance, we have delivered to the trustee an
opinion of counsel to the effect that we have received from, or there
has been published by, the IRS a ruling or there has been a change in
law, which in the opinion of our counsel, provides that holders of the
debt securities will not recognize gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred;
- in the case of covenant defeasance, we have delivered to the trustee
an opinion of counsel to the effect that the holders of the debt
securities will not recognize gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred; and
- we satisfy other customary conditions precedent described in the
applicable indenture.
Notices
We will mail notices to holders of debt securities as indicated in the
prospectus supplement.
Title
We may treat the person in whose name a debt security is registered as the
absolute owner, whether or not such debt security may be overdue, for the
purpose of making payment and for all other purposes.
Governing Law
The indentures and the debt securities will be governed by and construed in
accordance with the laws of the state of New York.
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DESCRIPTION OF CAPITAL STOCK
The following is a description of the common stock and preferred stock we
may offer under this prospectus. 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 these securities in more detail in the
applicable prospectus supplement.
General
Our restated certificate of incorporation authorizes the issuance of up to
200,000,000 shares of common stock, $.01 par value per share, and authorizes the
issuance of up to 2,000,000 shares of preferred stock, $1.00 par value per
share, the rights and preferences of which may be established from time to time
by the Board of Directors. As of December 1, 2000, 72,366,210 shares of common
stock were issued and outstanding and no shares of preferred stock were issued
and outstanding.
Common Stock
Each share of common stock entitles the holder thereof to one vote on all
matters submitted to a vote of the shareholders. Since the holders of common
stock do not have cumulative voting rights, holders of more than 50% of the
outstanding shares can elect all of our directors and holders of the remaining
shares by themselves cannot elect any directors. The holders of common stock do
not have preemptive rights or rights to convert their common stock into other
securities. Holders of common stock are entitled to receive ratably such
dividends as may be declared by the Board of Directors out of funds legally
available therefor. In the event of our liquidation, dissolution or winding up,
holders of common stock have the right to a ratable portion of the assets
remaining after payment of liabilities. All shares of common stock outstanding
and to be outstanding upon completion of this offering are and will be fully
paid and non-assessable.
Preferred Stock
Our authorized preferred stock consists of 2,000,000 shares, par value
$1.00 per share. Our restated certificate of incorporation grants the Board of
Directors the authority to issue by resolution shares of preferred stock in one
or more series and to fix the number of shares constituting any such series, the
voting powers, if any, designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, including the rate or rates at which, and the other terms
and conditions on which, dividends shall be payable; whether and on what terms
the shares constituting any series shall be redeemable, subject to sinking fund
provisions, or convertible or exchangeable; and the liquidation preferences, if
any, of such series, without any further vote or action by the stockholders. For
example, the Board of Directors is authorized to issue a series of preferred
stock that would have the right to vote, separately or with any other series of
preferred stock, on any proposed amendment to our restated certificate of
incorporation, or any other proposed corporate action, including business
combinations and other transactions. The Board of Directors currently does not
contemplate the issuance of any preferred stock and is not aware of any pending
or proposed transactions that would be affected by such issuance.
The authorization of undesignated preferred stock makes it possible for the
Board of Directors to issue preferred stock with voting or other rights or
preferences that could impede the success of any attempt to change control of
our company. These and other provisions may have the effect of deferring hostile
takeovers or delaying changes in control or management of our company. The
amendment of any of these provisions would require approval by holders of at
least 66 2/3% of the outstanding common stock.
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We have filed registration statements on Form S-8 under the Securities
Act which cover 5,100,053 shares of common stock currently issuable under our
stock option plans. Shares issued under these plans, other than shares issued to
affiliates, will be freely tradeable in the public market.
In addition, we have filed a registration statement with the Securities and
Exchange Commission with respect to 246,002 shares of our common stock held by
one of our shareholders. Once this registration statement is declared effective
by the Securities and Exchange Commission, the shareholder may sell such shares
in the public market. Such sales, or the perception that these sales could
occur, may have an adverse effect on the market price of our common stock and
could impair our ability to raise capital through an offering of equity
securities.
Certain Special Charter and By-Law Provisions
Our restated certificate of incorporation and by-laws contain certain
provisions that may delay, defer or prevent a change in control. Specifically,
the Board of Directors is classified. Directors are elected for three year terms
with only one class of board members elected each year. In addition, the by-laws
provide that special meetings of shareholders may be called only by the
President, the Chief Executive Officer, the Chairman of the Board of Directors
or the Board of Directors.
Furthermore, our restated certificate of incorporation, as amended,
incorporates all of the provisions of the New Jersey Shareholders Protection Act
(the "New Jersey Act"), which provides that resident New Jersey corporations may
not engage in certain Business Combinations with any Interested Stockholder (as
such terms are defined therein) for a period of five years following the date
that such Interested Stockholder became the owner, directly or indirectly, of
10% or more of the voting power of our company, unless (i) such transaction is
approved by our Board of Directors prior to the acquisition date, or (ii) the
holders of two-thirds (66 2/3%) of our voting stock, excluding the shares of the
Interested Stockholder, approve such transaction. The New Jersey Act also
precludes the purchase by us (except as hereinafter noted) at a premium over
market of any of our voting stock from an Interested Stockholder who has owned
such securities for less than five years. Notwithstanding the foregoing, such a
purchase would be permitted if the same offer were made to all other holders of
the same kind of securities, or the transaction were approved by the holders of
66 2/3% of our outstanding voting stock excluding the shares of any Interested
Stockholder, or the Board of Directors approved such a transaction prior to such
Interested Stockholder's acquisition date. Our restated certificate of
incorporation, as amended, does not provide for any additional anti-takeover
protections other than those set forth in the New Jersey Act.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Continental Stock
Transfer & Trust Company, Two Broadway, New York, New York 10004.
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DESCRIPTION OF WARRANTS
Warrants to Purchase Common Stock or Preferred Stock
The following summarizes the terms of common stock warrants and preferred
stock warrants we may issue. This description is subject to the detailed
provisions of a stock warrant agreement that we will enter into with a stock
warrant agent we select at the time of issue. While the terms we have
summarized below will apply generally to any future warrants to purchase common
stock or preferred stock that we may offer, we will describe the particular
terms of these securities in more detail in the applicable prospectus
supplement.
General. We may issue stock warrants evidenced by stock warrant
certificates under a stock warrant agreement independently or together with any
securities we offer by any prospectus supplement. If we offer stock warrants,
the prospectus supplement will describe the terms of the stock warrants,
including:
- the offering price, if any;
- the number of shares of common or preferred stock purchasable upon
exercise of one stock warrant and the initial price at which the
shares may be purchased upon exercise;
- if applicable, the designation and terms of the preferred stock
purchasable upon exercise of the stock warrants;
- the dates on which the right to exercise the stock warrants begins and
expires;
- U.S. federal income tax consequences;
- call provisions, if any;
- the currencies in which the offering price and exercise price are
payable; and
- if applicable, any antidilution provisions.
Exercise of Stock Warrants. You may exercise stock warrants by surrendering
to the stock warrant agent the stock warrant certificate, which indicates your
election to exercise all or a portion of the stock warrants evidenced by the
certificate. Surrendered stock warrant certificates must be accompanied by
payment of the exercise price in the form of cash or a check. The stock warrant
agent will deliver certificates evidencing duly exercised stock warrants to the
transfer agent. Upon receipt of the certificates, the transfer agent will
deliver a certificate representing the number of shares of common stock or
preferred stock purchased. If you exercise fewer than all the stock warrants
evidenced by any certificate, the stock warrant agent will deliver a new stock
warrant certificate representing the unexercised stock warrants.
No Rights as Stockholders. Holders of stock warrants are not entitled to
vote, to consent, to receive dividends or to receive notice as stockholders with
respect to any meeting of stockholders, or to exercise any rights whatsoever as
stockholders.
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Warrants to Purchase Debt Securities
The following summarizes the terms of the debt warrants we may offer. This
description is subject to the detailed provisions of a debt warrant agreement
that we will enter into with a debt warrant agent we select at the time of
issue. While the terms we have summarized below will apply generally to any
future warrants to purchase debt securities that we may offer, we will describe
the particular terms of these s ecurities in more detail in the applicable
prospectus supplement.
General. We may issue debt warrants evidenced by debt warrant certificates
independently or together with any securities offered by any prospectus
supplement. If we offer debt warrants, the prospectus supplement will describe
the terms of the warrants, including:
- the offering price, if any;
- the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the warrants and the terms of
the indenture under which the debt securities will be issued;
- if applicable, the designation and terms of the debt securities with
which the debt warrants are issued and the number of debt warrants
issued with each debt security;
- if applicable, the date on and after which the debt warrants and any
related securities will be separately transferable;
- the principal amount of debt securities purchasable upon exercise of
one debt warrant and the price at which the principal amount of debt
securities may be purchased upon exercise;
- the dates on which the right to exercise the debt warrants begins and
expires;
- U.S. federal income tax consequences;
- whether the warrants represented by the debt warrant certificates will
be issued in registered or bearer form;
- the currencies in which the offering price and exercise price are
payable; and
- if applicable, any antidilution provisions.
You may exchange debt warrant certificates for new debt warrant
certificates of different denominations and may present debt warrant
certificates for registration of transfer at the corporate trust office of the
debt warrant agent, which will be listed in the prospectus supplement.
Warrantholders do not have any of the rights of holders of debt securities,
except to the extent that the consent of warrantholders may be required for
certain modifications of the terms of an indenture or form of the debt security,
as the case may be, and the series of debt securities issuable upon exercise of
the debt warrants. In addition, warrantholders are not entitled to payments of
principal of and interest, if any, on the debt securities.
Exercise of Debt Warrants. You may exercise debt warrants by surrendering
the debt warrant certificate at the corporate trust office of the debt warrant
agent, with payment in full of the exercise price. Upon the exercise of debt
warrants, the debt warrant agent will, as soon as practicable, deliver the debt
securities in authorized denominations in accordance with your instructions and
at your sole cost and risk. If less than all the debt warrants evidenced by the
debt warrant certificate are exercised, the agent will issue a new debt warrant
certificate for the remaining amount of debt warrants.
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PLAN OF DISTRIBUTION
We may sell the securities through underwriters or dealers, through agents,
or directly to one or more purchasers. The prospectus supplement will describe
the terms of the offering of the securities, including:
- the name or names of any underwriters, if any;
- the purchase price of the securities and the proceeds we will receive
from the sale;
- any underwriting discounts and other items constituting underwriters'
compensation;
- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to dealers;
and
- any securities exchange or market on which the securities may be
listed.
Only underwriters named in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for
their own account and may resell them from time to time in one or more
transactions at a fixed public offering price or at varying prices determined at
the time of sale. We may offer the securities to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. Subject to certain conditions, the underwriters will be obligated to
purchase all the securities of the series offered by the prospectus supplement.
Any public offering price and any discounts or concessions allowed or reallowed
or paid to dealers may change from time to time.
We may sell securities directly or through agents we designate from time to
time. We will name any agent involved in the offering and sale of securities and
we will describe any commissions we will pay the agent in the prospectus
supplement. Unless the prospectus supplement states otherwise, our agent will
act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types
of institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
We will describe the conditions to these contracts and the commissions we must
pay for solicitation of these contracts in the prospectus supplement.
We may provide agents and underwriters with indemnification against certain
civil liabilities, including liabilities under the Securities Act, or
contribution with respect to payments that the agents or underwriters may make
with respect to such liabilities. Agents and underwriters may engage in
transactions with, or perform services for, us in the ordinary course of
business.
All securities we offer other than common stock will be new issues of
securities with no established trading market. Any underwriters may make a
market in these securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. We cannot guarantee
the liquidity of the trading markets for any securities.
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LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for us by
Satterlee Stephens Burke & Burke LLP, New York, New York. Dwight A. Kinsey,
Esq., a partner of Satterlee Stephens Burke & Burke LLP owns 6,000 shares of our
common stock. Mr. Kinsey also holds options to purchase 40,000 shares of our
common stock which he received for service rendered as our Assistant Secretary.
No other partner or associate of the firm owns shares or holds options to
purchase any of our shares having a fair market value either individually or in
the aggregate in excess of $50,000.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements at December 31, 1998 and 1999, and for each of the three
years in the period ended December 31, 1999, as set forth in their report, which
is incorporated by reference in this prospectus and elsewhere in the
registration statement. Our financial statements are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC under the Securities Act a registration
statement on Form S-3. This prospectus does not contain all of the information
contained in the registration statement, certain portions of which have been
omitted under the rules of the SEC. We are subject to the information and
reporting requirements of the Exchange Act under which we file periodic reports,
proxy statements and other information with the SEC. Copies of the reports,
proxy statements and other information may be examined without charge at the
Public Reference Section of the SEC, 450 Fifth Street, NW., Room 1024,
Washington, D.C. 20549, and the SEC's Regional office located at 500 West
Madison Street, Suite 1400, Chicago IL 60661, or on the Internet at www.sec.gov.
Copies of all or a portion of such materials can be obtained from the Public
Reference Section of the SEC upon payment of prescribed fees. Please call the
Securities and Exchange Commission at 800-SEC-0330 for further information about
the Public Reference Room. We file information electronically with the SEC.
Our SEC filings are available from the SEC's Internet site at
http://www.sec.gov, which contains reports, proxy and information statements and
-------------------
other information regarding issuers that file electronically. Our SEC filings
and other information may also be inspected at the offices of Nasdaq Operations,
1735 K Street, NW., Washington, D.C. 20006.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference information into this
prospectus, which means that we can disclose important information to you by
referring you to another document we have filed with the SEC. The information
incorporated by reference is deemed to be part of this prospectus, except for
any information superseded by information contained directly in the prospectus
or any prospectus supplement. This prospectus incorporates by reference the
documents set forth below that have previously been filed with the SEC. These
documents contain important information about us and our financial condition.
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Our SEC Filings Period
--------------- ------
Annual Report on Form 10-K Year ended December 31, 1999.
Quarterly Reports on Form 10-Q For the quarters ended March 31, June 30
and September 30, 2000.
Quarterly Report on Form 10-Q/A Filed on November 17, 2000
Current Reports on Form 8-K Filed on January 26, 2000, February 14,
2000, March 3, 2000, March 7, 2000,
September 13, 2000, September 15, 2000
and December 22, 2000.
Current Report on Form 8-K/A Filed on March 1, 2000.
Registration Statement on Form 8-A Filed May 25, 1991, setting forth a
description for our common stock
(including any amendments or reports filed
for the purpose of updating such
description).
We incorporate by reference in this prospectus additional documents that we may
file with the SEC between the date the registration statement was initially
filed and the date of termination of the offering. These include periodic
reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K, as well as proxy statements.
We undertake no obligation to publicly update any forward-looking statements,
whether as a result of information, future events or otherwise. You are
advised, however, to consult any further disclosures we make on related subjects
in our 10-K, 10-Q and 8-K reports to the Securities and Exchange Commission.
Also note that we provide a cautionary discussion of risks and uncertainties
relevant to our business in the "Risk Factors" section of our Annual Report on
Form 10-K for the year ended December 31, 1999. These are factors that we think
could cause our actual results to differ materially from expected results.
Other factors besides those listed there could also adversely affect us. This
discussion is provided as permitted by the Private Securities Litigation Reform
Act of 1995.
You can obtain any of the documents incorporated by reference through us, the
SEC or the SEC's world wide web site described above. Documents that we
incorporate by reference are available without charge, excluding all exhibits
unless specifically incorporated by reference as an exhibit to this prospectus.
You may obtain documents incorporated in this prospectus by requesting them in
writing or by telephone at the following address:
MEDAREX, INC.
707 State Road #206
Princeton, New Jersey 08540
Attention: Secretary
(609) 430-2880
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PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
Expenses in connection with the issuance and distribution of the securities
being registered, other than the underwriting discounts and commissions, are set
forth in the following table. All amounts except the Securities and Exchange
Commission registration fee are estimated.
Expenses
--------
Registration Fee - Securities and Exchange Commission $132,000
Transfer Agent and Trustee's Fees and Expenses $ 2,500
Accounting Fees and Expenses $ 10,000
Legal Fees and Expenses $ 25,000
Blue Sky Fees and Expenses $ 5,000
Printing and Engraving $ 10,000
Miscellaneous $ 5,500
TOTAL $190,000
The Registrant will bear all of the expenses of the registration of the
securities being offered.
Item 15. Indemnification of Directors and Officers
The Restated Certificate of Incorporation, as amended, and Article XIII
of the Registrant's Amended and Restated By-Laws provide for the
indemnification of its Officers and Directors under certain circumstances
and are incorporated herein by reference.
Section 14A:3-5 of The New Jersey Business Corporation Act (the "NJBCA")
empowers a New Jersey corporation to indemnify any person who is or was a
director, officer, employee or agent of the indemnifying corporation or of
any constituent corporation absorbed by the indemnifying corporation in a
consolidation or merger and any person who is or was a director, officer,
trustee, employee or agent of any other enterprise, serving as such at the
request of the indemnifying corporation, or of any such constituent
corporation, or legal representative of any such director, officer,
trustee, employee or agent (a "corporate agent"), against his expenses and
liabilities incurred in connection with any proceeding involving the
corporate agent, other than a proceeding by or in the right of the
corporation, if (a) such corporate agent 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 (b) with respect to any criminal proceeding, such
corporate agent had no reason to believe that his conduct was unlawful. In
addition, a corporation may indemnify such corporate agent against his
expenses in connection with any preceding by or in the right of the
corporation to procure a judgment in its favor which involves such
corporate agent by reason of his having been such corporate agent, 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 corporation. However, in such
proceeding no indemnification shall be provided in respect of any claim,
issue or matter as to which such corporate agent shall have been adjudged
to be liable to the corporation, unless and only to the extent that the
Superior Court of the State of New Jersey or the court in which such
proceeding was brought shall determine upon application that despite the
adjudication of liability, but in view of all circumstances of the case,
such corporate agent is fairly and reasonably entitled to indemnity for
such expenses as the Superior Court or such other court shall deem proper.
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Under the NJBCA a corporation shall indemnify a corporate agent against
expenses to the extent that such corporate agent has been successful on the
merits or otherwise in any proceeding referred to above or in defense of
any claim, issue or matter therein.
The indemnification and advancement of expenses provided by or granted
pursuant to the NJBCA shall not exclude any other rights, including the
right to be indemnified against liabilities and expenses incurred in
proceedings by or in the right of the corporation, to which a corporate
agent may be entitled under a certificate of incorporation, by-law,
agreement, vote of shareholders, or otherwise; provided that no
indemnification shall be made to or on behalf of a corporate agent if a
judgment or other final adjudication adverse to the corporate agent
establishes that his acts or omissions (a) were in breach of his duty of
loyalty to the corporation or its shareholders, (b) were not in good faith
or involved a knowing violation of law or (c) resulted in receipt by the
corporate agent of an improper personal benefit.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Act") may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in that 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 Act and
will be governed by the final adjudication of such issue.
The Registrant maintains a standard form of officers' and directors'
liability insurance policy which provides coverage to the officers and
directors of the Registrant for certain liabilities, including certain
liabilities which may arise out of this Registration Statement.
II-2
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
The following exhibits are filed as part of this Registration Statement:
*1.1 Form of Underwriting Agreement Basic Terms.
/1/3.1 Restated Certificate of Incorporation of the Registrant, as
amended.
/1/3.2 Amended and Restated By-laws of the Registrant.
/1/4.1 Form of Specimen of Common Stock Certificate.
*4.2 Form of Senior Indenture
*4.3 Form of Subordinated Indenture
*4.4 Form of Warrant
*4.5 Form of Certificate of Designation with respect to Preferred
Stock
*5.1 Opinion of Satterlee Stephens Burke & Burke LLP re: legality of
securities being registered.
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Satterlee Stephens Burke & Burke LLP (included in
their opinion filed as Exhibit 5.1.)
24.1 Power of Attorney (included in the signature page to the
Registration Statement).
*25.1 Statement of Eligibility and Qualification on Form T-1 under the
Trust Indenture Act of 1939 , as amended.
____________________
/1/ Incorporated by reference to the identically numbered exhibit to the
Registrant's Registration Statement on Form S-1 (File No. 33-39956) filed on
April 12, 1991.
* To be filed by amendment or as an exhibit to a report pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act.
(b) Financial Statement Schedules
----------------------------------
All schedules are omitted because of the absence of the conditions under
which they are required, or because the information called for is included in
the financial statements or notes thereto.
II-3
<PAGE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sale are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a) (3) of
Securities Act of 1933;
(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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Securities and Exchange Commission pursuant to Rule 424 (b) under
the Securities Act of 1933 if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraph (1) (i) and (1) (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15 (d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for the purpose of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13 (a) or
Section 15 (d) of the Securities Exchange Act (and, where applicable, each
filing of any employee benefit plan's annual report pursuant to Section 15 (d)
of the Securities Exchange Act) that is incorporated by reference in the
Registration Statement 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 file offering thereof.
(5) 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 Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Township of
Princeton, State of New Jersey, on this 21st day of December 2000
MEDAREX, INC.
By: /s/ Irwin Lerner
---------------------------------
Irwin Lerner
Chairman of the Board
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Medarex, Inc., a New Jersey
corporation, do hereby constitute and appoint Donald L. Drakeman and Christian
Schade, and either of them, the lawful attorney and agent, with power and
authority to do any and all acts and things and to execute any and all
instruments which said attorney and agent, determine may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power of authority,
the powers granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, post-effective and
supplements thereof, and to any and all instruments or documents filed as part
of or in connection with such Registration Statement, and each of the
undersigned hereby certifies and confirms all that said attorney and agent,
shall do or cause to be done by virtue hereof. The Power of Attorney may be
signed in several counterparts.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as
of the dates indicated below.
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.
Signature Title Date
--------- ----- ----
Chairman of the Board December 21, 2000
/s/ Irwin Lerner
---------------------------
Irwin Lerner
/s/ Donald L. Drakeman President, Chief Executive December 21, 2000
--------------------------- Officer and Director
Donald L. Drakeman (Principal Executive Officer)
/s/ Michael A. Appelbaum Executive Vice President December 21, 2000
--------------------------- and Director
Michael A. Appelbaum
Senior Vice President, Treasurer December 21, 2000
/s/ Christian Schade and Chief Financial Officer
--------------------------- (Principal Financial and
Christian Schade Accounting Officer)
/s/ Michael W. Fanger Director December 21, 2000
---------------------------
Michael W. Fanger
/s/ Julius A. Vida Director December 21, 2000
---------------------------
Julius A. Vida
/s/ Charles R. Schaller Director December 21, 2000
---------------------------
Charles R. Schaller
/s/ W. Leigh Thompson, Jr. Director December 21, 2000
---------------------------
W. Leigh Thompson, Jr.
Director December , 2000
---------------------------
Fred Craves
<PAGE>
INDEX TO EXHIBITS
*1.1 Form of Underwriting Agreement Basic Terms.
/1/3.1 Restated Certificate of Incorporation of the Registrant, as
amended.
/1/3.2 Amended and Restated By-laws of the Registrant.
/1/4.1 Form of Specimen of Common Stock Certificate.
*4.2 Form of Senior Indenture
*4.3 Form of Subordinated Indenture
*4.4 Form of Warrant
*4.5 Form of Certificate of Designation with respect to Preferred
Stock
*5.1 Opinion of Satterlee Stephens Burke & Burke LLP re: legality of
securities being registered.
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Satterlee Stephens Burke & Burke LLP (included in
their opinion filed as Exhibit 5.1.)
24.1 Power of Attorney (included in the signature page to the
Registration Statement).
*25.1 Statement of Eligibility and Qualification on Form T-1 under the
Trust Indenture Act of 1939 , as amended.
____________________
/1/ Incorporated by reference to the identically numbered exhibit to the
Registrant's Registration Statement on Form S-1 (File No. 33-39956) filed on
April 12, 1991.
* To be filed by amendment or as an exhibit to a report pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act.
