<PAGE>
As filed with the Securities and Exchange Commission on December 13, 2000
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
FORM S-3
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TRANSKARYOTIC THERAPIES, INC.
(Exact name of registrant as specified in its charter)
-----------------------------
DELAWARE 04-3027191
(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
195 ALBANY STREET
CAMBRIDGE, MASSACHUSETTS 02139
617-349-0200
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
-----------------------------
RICHARD F SELDEN, M.D., PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
TRANSKARYOTIC THERAPIES, INC.
195 ALBANY STREET
CAMBRIDGE, MASSACHUSETTS 02139
617-349-0200
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
-----------------------------
Copies to:
MICHAEL J. ASTRUE, ESQ. DAVID E. REDLICK, ESQ.
TRANSKARYOTIC THERAPIES, INC. HALE AND DORR LLP
195 ALBANY STREET 60 STATE STREET
CAMBRIDGE, MASSACHUSETTS 02139 BOSTON, MASSACHUSETTS 02109
617-349-0200 617-526-6000
<PAGE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|_______.
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|__________.
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
Proposed Maximum Aggregate Amount of
Title of Each Class of Securities to be Registered (1) Offering Price (2)(3) Registration Fee (4)
---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Common Stock, $0.01 par value per share (5)(6)......... (7) (7)
---------------------------------------------------------------------------------------------------------------
Preferred Stock, $0.01 par value per share............. (7) (7)
---------------------------------------------------------------------------------------------------------------
Debt Securities........................................ (7) (7)
---------------------------------------------------------------------------------------------------------------
Warrants............................................... (7) (7)
---------------------------------------------------------------------------------------------------------------
Total.................................................. $500,000,000 $132,000
===============================================================================================================
</TABLE>
(1) There are being registered hereunder such indeterminate number of
shares of common stock and preferred stock, such indeterminate number
of warrants to purchase common stock, preferred stock or debt
securities and such indeterminate principal amount of debt securities
as shall have an aggregate initial offering price not to exceed
$500,000,000. If any debt securities are issued at an original issue
discount, then the offering price of such debt securities shall be in
such greater principal amount as shall result in an aggregate initial
offering price not to exceed $500,000,000, less the aggregate dollar
amount of all securities previously issued hereunder. Any securities
registered hereunder may be sold separately or as units with other
securities registered hereunder. The securities registered also include
such indeterminate amounts and numbers of common stock, preferred stock
and debt securities as may be issued upon conversion of or exchange for
preferred stock or debt securities that provide for conversion or
exchange, upon exercise of warrants or pursuant to the antidilution
provisions of any such securities.
(2) In United States dollars or the equivalent thereof in any other
currency, currency unit or units, or composite currency or currencies.
(3) The proposed maximum per unit and aggregate offering prices per class
of security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities
registered hereunder.
(4) Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
(5) The aggregate amount of common stock registered hereunder is limited,
with respect to at the market offerings, to that which is permissible
under Rule 415(a)(4) under the Securities Act.
<PAGE>
(6) Includes, from and after December 26, 2000, Rights to purchase Series
B Junior Participating Preferred Stock, $0.01 par value per share,
pursuant to the Rights Agreement, dated December 13, 2000, between the
registrant and EquiServe Trust Company, N.A., as rights agent.
(7) Not required to be included in accordance with General Instruction
II.D. of Form S-3.
-----------------------------
THE COMPANY HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANY SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
SHALL DETERMINE.
<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 is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
SUBJECT TO COMPLETION, DATED DECEMBER 13, 2000
$500,000,000
TRANSKARYOTIC THERAPIES, INC.
Common Stock
Preferred Stock
Debt Securities
Warrants
-----------------------------
We may from time to time issue up to $500,000,000 aggregate principal
amount of common stock, preferred stock, debt securities and warrants. We will
specify in the accompanying prospectus supplement the terms of the securities.
We may sell these securities to or through underwriters and also to other
purchasers or through agents. We will set forth the names of any underwriters or
agents in the accompanying prospectus supplement.
-----------------------------
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE "RISK
FACTORS" ON PAGE 2.
-----------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------------------------
This prospectus may not be used to consummate sales of securities
unless it is accompanied by a prospectus supplement.
-----------------------------
Prospectus dated __________, 2000.
<PAGE>
TABLE OF CONTENTS
PAGE
ABOUT THIS PROSPECTUS........................................................1
TRANSKARYOTIC THERAPIES, INC.................................................1
RISK FACTORS.................................................................2
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION...........................2
RATIO OF EARNINGS TO FIXED CHARGES...........................................3
USE OF PROCEEDS..............................................................3
THE SECURITIES WE MAY OFFER..................................................4
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK..............................5
DESCRIPTION OF DEBT SECURITIES..............................................10
DESCRIPTION OF WARRANTS.....................................................16
LEGAL OWNERSHIP OF SECURITIES...............................................18
PLAN OF DISTRIBUTION........................................................22
VALIDITY OF SECURITIES......................................................23
EXPERTS.....................................................................23
WHERE YOU CAN FIND MORE INFORMATION.........................................24
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.............................24
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the SEC utilizing a "shelf" registration process. Under this shelf process, we
may sell any combination of the securities described in this prospectus in one
or more offerings up to a total dollar amount of $500,000,000. We have provided
to you in this prospectus a general description of the securities we may offer.
Each time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. We may also add,
update or change in the prospectus supplement any of the information contained
in this prospectus. This prospectus, together with applicable prospectus
supplements, includes all material information relating to this offering.
TRANSKARYOTIC THERAPIES, INC.
We are a biopharmaceutical company engaged in the development and
commercialization of products based on our three proprietary development
platforms: Gene-Activated-TM-proteins, Niche Protein-TM-products, and Gene
Therapy.
We were incorporated in Delaware in 1988. Our principal executive
offices are located at 195 Albany Street, Cambridge, Massachusetts 02139, and
our telephone number is (617) 349-0200. Our web site is located at
www.tktx.com. We have not incorporated by reference into this prospectus the
information on our web site and you should not consider it to be a part of
this document. Our web site address is included in this document as an
inactive textual reference only. The Transkaryotic Therapies name and logo
and the names of products offered by us are trademarks or registered
trademarks of Transkaryotic Therapies. Unless the context otherwise requires,
the terms "Transkaryotic Therapies," "we," "us" and "our" refer to
Transkaryotic Therapies, Inc. and its subsidiaries.
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<PAGE>
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
and in our Quarterly Report on Form 10-Q for the quarter ended September 30,
2000, which are incorporated by reference in this prospectus. Before making an
investment decision, you should carefully consider these risks as well as other
information we include or incorporate by reference in this prospectus. The risks
and uncertainties we have described are not the only ones facing our company.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also affect our business operations.
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
This prospectus, any prospectus supplement and the documents we
incorporate by reference in this prospectus contain "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933, and Section 21E
of the Securities Exchange Act of 1934. For this purpose, any statements
contained in this prospectus or incorporated by reference in this prospectus
that are not statements of historical fact may be deemed to be forward-looking
statements. We may, in some cases, use words such as "project," "believe,"
"anticipate," "plan," "expect," "estimate," "intend," "should," "will," "could"
or "may" or other words that convey uncertainty of future events or outcomes to
identify forward-looking statements. There are a number of important factors
that could cause our actual results to differ materially from the results
anticipated by these forward-looking statements, including, without limitation,
whether any of our Gene-Activated protein, Niche Protein product, or Gene
Therapy product candidates will advance in the clinical trial process, the
timing of such clinical trials, whether the clinical trial results will warrant
continued product development, the timing of making required regulatory filings
such as Investigational New Drug applications and BLAs, whether our products
will receive approval from the FDA or equivalent foreign regulatory agencies,
and, if such products receive approval, whether they will be successfully
distributed and marketed; the results of litigation in which we are involved or
may become involved; competition; our dependence on third parties, including,
without limitation, collaborators, manufacturers and distributors; and other
risks set forth under "Risk Factors." These important factors include the
factors that we identify in the documents we incorporate by reference in this
prospectus. You should read these factors and the other cautionary statements
made in this prospectus and in the documents we incorporate by reference as
being applicable to all related forward-looking statements wherever they appear
in this prospectus and in the documents incorporated by reference.
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<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
Our consolidated ratio of earnings to fixed charges and our
deficiency of earnings to fixed charges for the periods indicated is as
follows:
<TABLE>
<CAPTION>
Nine Months
(Dollars in thousands) Year Ended December 31, Ended September 30,
--------------------------------------------------- --------------------
1995 1996 1997 1998 1999 1999 2000
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges 7.9 -- -- -- -- -- --
======== ========== ========= ========== ========== ========== =========
Deficiency of earnings to fixed
charges -- $(11,972) $(12,871) $(19,965) $(44,866) $(35,021) $(33,606)
======== ========== ========= ========== ========== ========== =========
</TABLE>
We have computed the ratio of earnings to fixed charges shown above
by dividing income from operations before income taxes and fixed charges by
fixed charges. Fixed charges consist of interest on all indebtedness and a
percentage of rental expense of operating leases that represents interest.
USE OF PROCEEDS
Unless we otherwise indicate in the applicable prospectus supplement,
we currently intend to use the net proceeds from the sale of the securities for
working capital and other general corporate purposes, including:
- to finance our growth;
- to develop our products, including conducting basic research,
preclinical testing and human clinical trials;
- for capital expenditures made in the ordinary course of business,
including facilities expansion; and
- for acquisitions of businesses, products and technologies that
complement or expand our business.
We may set forth additional information on the use of net proceeds from
the sale of securities we offer under this prospectus in a prospectus supplement
relating to the specific offering.
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<PAGE>
THE SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus,
together with the applicable prospectus supplements, summarize the material
terms and provisions of the various types of securities that we may offer. We
will describe in the applicable prospectus supplement relating to any securities
the particular terms of the securities offered by that prospectus supplement. If
we indicate in the applicable prospectus supplement, the terms of the securities
may differ from the terms we have summarized below. We will also include in the
prospectus supplement information, where applicable, about material United
States federal income tax considerations relating to the securities, and the
securities exchange, if any, on which the securities will be listed.
We may sell from time to time, in one or more offerings:
- common stock;
- preferred stock;
- debt securities; and
- warrants to purchase any of the securities listed above.
In this prospectus, we will refer to the common stock, preferred stock,
debt securities and warrants collectively as "securities." The total dollar
amount of all securities that we may issue will not exceed $500,000,000.
If we issue debt securities at a discount from their original stated
principal amount, then, for purposes of calculating the total dollar amount of
all securities issued under this prospectus, we will treat the initial offering
price of the debt securities as the total original principal amount of the debt
securities.
This prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
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<PAGE>
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
The following description of our common stock and preferred stock,
together with the additional information we include in any applicable prospectus
supplements, summarizes the material terms and provisions of the common stock
and preferred stock that we may offer under this prospectus. For the complete
terms of our common stock and preferred stock, please refer to our charter and
by-laws, which are incorporated by reference into the registration statement
which includes this prospectus. The General Corporation Law of Delaware may also
affect the terms of these securities. While the terms we have summarized below
will apply generally to any future common stock or preferred stock that we may
offer, we will describe the particular terms of any series of these securities
in more detail in the applicable prospectus supplement. If we indicate in a
prospectus supplement, the terms of any common stock or preferred stock we offer
under that prospectus supplement may differ from the terms we describe below.
Under our charter, our authorized capital stock consists of 100,000,000
shares of common stock, $0.01 par value per share, and 10,000,000 shares of
preferred stock, $0.01 par value per share, of which 10,000 shares have been
designated as series A convertible preferred stock. As of September 30, 2000, we
had 22,692,843 shares of common stock outstanding and 10,000 shares of series A
preferred stock outstanding. All outstanding shares of common stock and series A
preferred stock are duly authorized, validly issued, fully paid and
non-assessable.
COMMON STOCK
VOTING. For all matters submitted to a vote of stockholders, each
holder of common stock is entitled to one vote for each share registered in his
or her name on our books. Our common stock does not have cumulative voting
rights. As a result, subject to the voting rights of any outstanding preferred
stock, persons who hold more than 50% of the outstanding common stock entitled
to elect members of our board of directors can elect all of the directors who
are up for election in a particular year.
DIVIDENDS. If our board of directors declares a dividend, holders of
common stock will receive payments from our funds that are legally available to
pay dividends. However, this dividend right is subject to any preferential
dividend rights we may grant to the persons who hold preferred stock, if any is
outstanding.
LIQUIDATION AND DISSOLUTION. If we are liquidated or dissolve, the
holders of our common stock will be entitled to share ratably in all the assets
that remain after we pay our liabilities and any amounts we may owe to the
persons who hold preferred stock, if any is outstanding.
OTHER RIGHTS AND RESTRICTIONS. Holders of our common stock do not have
preemptive rights, and they have no right to convert their common stock into any
other securities. Our common stock is not subject to redemption by us. The
rights, preferences and privileges of common stockholders are subject to the
rights of the holders of any outstanding series of preferred stock. Our charter
and by-laws do not restrict the ability of a holder of common stock to transfer
his or her shares of common stock. When we issue shares of common stock under
this prospectus, the shares will be fully paid and non-assessable and will not
have, or be subject to, any preemptive or similar rights.
LISTING. Our common stock is listed on the Nasdaq National Market.
TRANSFER AGENT AND REGISTRAR. The transfer agent and registrar for our
common stock is EquiServe LLP.
PREFERRED STOCK
GENERAL. Our charter authorizes our board of directors to issue
preferred stock in one or more series and to determine the voting rights and
dividend rights, dividend rates, liquidation preferences, conversion rights,
redemption rights, including sinking fund provisions and redemption prices, and
other
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<PAGE>
terms and rights of each series of preferred stock. We will fix the rights,
preferences, privileges and restrictions of the preferred stock of each series
in the certificate of designation relating to that series. We will incorporate
by reference as an exhibit to the registration statement which includes this
prospectus the form of any certificate of designation which describes the terms
of the series of preferred stock we are offering before the issuance of the
related series of preferred stock. This description will include:
- the title and stated value;
- the number of shares we are offering;
- the liquidation preference per share;
- the purchase price;
- the dividend rate, period and payment date, and method of
calculation for dividends;
- whether dividends will be cumulative or non-cumulative and, if
cumulative, the date from which dividends will accumulate;
- the procedures for any auction and remarketing, if any;
- the provisions for a sinking fund, if any;
- the provisions for redemption or repurchase, if applicable, and
any restrictions on our ability to exercise those redemption and
repurchase rights;
- any listing of the preferred stock on any securities exchange or
market;
- whether the preferred stock will be convertible into our common
stock, and, if applicable, the conversion price, or how it will
be calculated, and the conversion period;
- whether the preferred stock will be exchangeable into debt
securities, and, if applicable, the exchange price, or how it
will be calculated, and the exchange period;
- voting rights, if any, of the preferred stock;
- preemption rights, if any;
- restrictions on transfer, sale or other assignment, if any;
- whether interests in the preferred stock will be represented by
depositary shares;
- a discussion of any material or special United States federal
income tax considerations applicable to the preferred stock;
- the relative ranking and preferences of the preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up
our affairs;
- any limitations on issuance of any class or series of preferred
stock ranking senior to or on a parity with the series of
preferred stock as to dividend rights and rights if we liquidate,
dissolve or wind up our affairs; and
- any other specific terms, preferences, rights or limitations of,
or restrictions on, the preferred stock.
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<PAGE>
When we issue shares of preferred stock under this prospectus, the
shares, when issued, will be fully paid and non-assessable and will not have, or
be subject to, any preemptive or similar rights.
VOTING RIGHTS. The General Corporation Law of Delaware provides that
the holders of preferred stock will have the right to vote separately as a class
on any proposal involving fundamental changes in the rights of holders of that
preferred stock. This right is in addition to any voting rights that may be
provided for in the applicable certificate of designation.
OTHER. The preferred stock could have other rights, including economic
rights senior to our common stock, so that the issuance of the preferred stock
could adversely affect the market value of our common stock. The issuance of the
preferred stock may also have the effect of delaying, deferring or preventing a
change in control of us without any action by the stockholders.
CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
We have shares of common stock and preferred stock available for future
issuance without stockholder approval. We may utilize these additional shares
for a variety of corporate purposes, including future public offerings to raise
additional capital, facilitate corporate acquisitions or payable as a dividend
on the capital stock.
The existence of unissued and unreserved common stock and preferred
stock may enable our board of directors to issue shares to persons friendly to
current management or to issue preferred stock with terms that could render more
difficult or discourage a third-party attempt to obtain control of us by means
of a merger, tender offer, proxy contest or otherwise, thereby protecting the
continuity of our management. In addition, if we issue preferred stock, the
issuance could adversely affect the voting power of holders of common stock and
the likelihood that such holders will receive dividend payments and payments
upon liquidation.
SERIES A PREFERRED STOCK
The following description is a summary of the material terms of our
series A preferred stock. It does not restate all of the terms. We urge you to
read our charter because it, and not this description, defines the rights of
holders of series A preferred stock. A copy of our charter is an exhibit to the
registration statement which includes this prospectus. This summary of our
series A preferred stock is not complete and is qualified by reference to our
charter.
VOTING. Each share of series A preferred stock entitles its holder to
the number of votes equal to the number of shares of common stock into which the
share of series A preferred stock could then be converted. Except as provided
below, the holders of series A preferred stock vote together with the holders of
our common stock as a single class.
For so long as at least 9,000 shares of series A preferred stock remain
outstanding, the holders of series A preferred stock will have the right, voting
separately as a class, to elect one member to our board of directors. Any
director elected by the holders of series A preferred stock may be removed with
or without cause only by the holders of the series A preferred stock. Any
vacancy in the series A preferred stock board seat may be filled only by the
holders of the series A preferred stock. On June 15, 2000, our board of
directors appointed Jonathan S. Leff as the director representing the series A
preferred stock holders.
Without the vote of at least a majority of the outstanding shares of
series A preferred stock, we may not authorize any additional shares of
series A preferred stock or amend, alter or repeal any provisions in our
charter if the change would adversely affect the series A preferred stock.
For purposes of this right, our authorization or issuance of any series of
preferred stock with rights ranking senior to the rights of the series A
preferred stock would be deemed to adversely affect the series A preferred
stock.
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<PAGE>
DIVIDENDS. The holders of series A preferred stock are entitled to
receive dividends equal to those declared on our common stock in an amount equal
to what the holders of series A preferred stock would have received had they
converted their shares of series A preferred stock into common stock immediately
prior to the record date for the dividend.
LIQUIDATION. If we liquidate, dissolve or wind up, then we must pay the
holders of outstanding shares of series A preferred stock, before we make any
payment to the holders of shares of stock ranking junior to the series A
preferred stock, an amount equal to $10,000 per share, plus any declared but
unpaid dividends. For purposes of this liquidation preference, neither the
consolidation, merger or other business combination of us with another entity
nor the sale, conveyance, mortgage, pledge or lease of all or any of our
property, assets or business will be treated as a liquidation, dissolution or
winding up of our company.
CONVERSION. Each share of series A preferred stock is convertible at
the option of the holder at any time into the number of shares of common stock
as is determined by dividing $10,000 by the conversion price. The current
conversion price is $28.00. Thus, as of September 30, 2000, the outstanding
shares of series A preferred stock were convertible, in the aggregate, into
approximately 3,571,428 shares of our common stock. The conversion price is
subject to adjustment upon the occurrence of specified future events, which are
more fully described in our charter, and which include stock splits and
combinations, stock dividends and liquidating dividends. In addition, upon any
capital reorganization or reclassification of our capital stock, or any
consolidation or merger in which the holders of our capital stock will hold at
least 51% of the surviving person after giving effect to the consolidation or
merger, in which the holders of common stock are entitled to receive stock,
securities, cash or other property with respect to or in exchange for their
common stock, the holders of series A preferred stock will be entitled to
receive upon conversion of their series A preferred stock the stock, securities,
cash or other property as would have been received had the series A preferred
stock been converted into common stock at the current conversion price
immediately prior to the reorganization, reclassification, consolidation or
merger.
MERGER, CONSOLIDATION, SALE OF ASSETS, ETC. If we are a party to any
merger or consolidation in which the holders of our capital stock will not hold
at least 51% of the surviving person after giving effect to the consolidation or
merger, or any sale of all or substantially all of our assets, the holders of
series A preferred stock will be entitled to receive the stock, securities, cash
or other property payable to holders of common stock as if the holders of series
A preferred stock had converted the series A preferred stock into common stock
immediately prior to the effective date of the consolidation, merger or sale.
REDEMPTION. Beginning on December 15, 2000, at any time we may redeem
all, but not less than all, outstanding shares of series A preferred stock for
$10,000 per share, plus any declared but unpaid dividends, if the average
closing price per share of our common stock for any 20 consecutive trading days
ending within 20 business days of the date on which we give notice of our intent
to redeem shall have been at least $35.00, subject to adjustment for any stock
split or combination or stock dividend or distribution. In addition, at any time
we may redeem the shares of series A preferred stock with the consent of the
holders of at least two-thirds of the outstanding shares of series A preferred
stock.
DELAWARE LAW AND CHARTER AND BY-LAW PROVISIONS
BUSINESS COMBINATIONS. We are subject to the provisions of Section 203
of the General Corporation Law of Delaware. Section 203 prohibits a publicly
held Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner. A "business
combination" includes mergers, asset sales and other transactions resulting in a
financial benefit to the interested stockholder. Subject to specified
exceptions, an "interested stockholder" is a person who, together with
affiliates and associates, owns, or within three years did own, 15% or more of
the corporation's voting stock.
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<PAGE>
LIMITATION OF LIABILITY; INDEMNIFICATION. Our charter contains
provisions permitted under the General Corporation Law of Delaware relating to
the liability of directors. The provisions eliminate a director's liability for
monetary damages for a breach of fiduciary duty, except in circumstances
involving wrongful acts, such as the breach of a director's duty of loyalty or
acts or omissions which involve intentional misconduct or a knowing violation of
law. The limitation of liability described above does not alter the liability of
our directors and officers under federal securities laws. Furthermore, our
charter contains provisions to indemnify our directors and officers to the
fullest extent permitted by the General Corporation Law of Delaware. These
provisions do not limit or eliminate our right or the right of any stockholder
of ours to seek non-monetary relief, such as an injunction or rescission in the
event of a breach by a director or an officer of his duty of care to us. We
believe that these provisions will assist us in attracting and retaining
qualified individuals to serve as directors.
STOCKHOLDER ACTION; SPECIAL MEETING OF STOCKHOLDERS. Our charter also
provides that any action required or permitted to be taken by our stockholders
may be taken only at a duly called annual or special meeting of stockholders. In
addition, our charter provides that special meetings of stockholders may be
called only by the board of directors, our chief executive officer or upon the
request of the holders of a majority of our voting securities. The affirmative
vote of the holders of at least 66 2/3% of our outstanding voting securities is
required to amend either of the provisions discussed in the two preceding
sentences. These provisions could have the effect of delaying until the next
stockholders' meeting stockholder actions which are favored by the holders of a
majority of our outstanding voting securities and do have the effect of limiting
holders of less than a majority of our voting securities from calling a special
meeting of stockholders.
ADVANCE NOTICE REQUIREMENTS FOR STOCKHOLDER PROPOSALS AND DIRECTOR
NOMINATIONS. Our by-laws provide that nominations for election to our board of
directors may be made either by our board of directors or by a stockholder who
complies with specified notice provisions. Our by-laws contain similar advance
notice provisions for stockholder proposals for action at stockholder meetings.
These provisions prevent stockholders from making nominations for directors and
stockholder proposals from the floor at any stockholder meeting and require any
stockholder making a nomination or proposal to submit the name of the nominees
for board seats or the stockholder proposal, together with specified information
about the nominee or any stockholder proposal, prior to the meeting at which
directors are to be elected or action is to be taken. These provisions ensure
that stockholders have adequate time to consider nominations and proposals
before action is required, and they may also have the effect of delaying
stockholder action. Our by-laws require the affirmative vote of the holders of
at least 75% of our outstanding voting securities to amend or repeal these
provisions.
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DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we
include in any applicable prospectus supplements, summarizes the material terms
and provisions of the debt securities that we may offer under this prospectus.
While the terms we have summarized below will apply generally to any future debt
securities we may offer, we will describe the particular terms of any debt
securities that we may offer in more detail in the applicable prospectus
supplement. If we indicate in a prospectus supplement, the terms of any debt
securities we offer under that prospectus supplement may differ from the terms
we describe below.
We will issue the senior notes under the senior indenture which we will
enter into with a trustee to be named in the senior indenture. We will issue the
subordinated notes under the subordinated indenture which we will enter into
with a trustee to be named in the subordinated indenture. We have filed forms of
these documents as exhibits to the registration statement which includes this
prospectus. We use the term "indentures" to refer to both the senior indenture
and the subordinated indenture. The indentures will be qualified under the Trust
Indenture Act. We use the term "trustee" to refer to either the senior trustee
or the subordinated trustee, as applicable.
The following summaries of material provisions of the senior notes, the
subordinated notes and the indentures are subject to, and qualified in their
entirety by reference to, the provisions of the indenture applicable to a
particular series of debt securities. Except as we may otherwise indicate, the
terms of the senior indenture and the subordinated indenture are identical.
We conduct some of our operations through our subsidiaries. Our rights
and the rights of our creditors, including holders of debt securities, to the
assets of any subsidiary of ours upon that subsidiary's liquidation or
reorganization or otherwise would be subject to the prior claims of that
subsidiary's creditors, except to the extent that we may be a creditor with
recognized claims against the subsidiary. Our subsidiaries' creditors would
include trade creditors, debt holders, secured creditors and taxing authorities.
Except as we may provide in a prospectus supplement, neither the debt securities
nor the indentures restrict us or any of our subsidiaries from incurring
indebtedness.
GENERAL
We will describe in the applicable prospectus supplement the following
terms relating to a series of notes:
- the title;
- any limit on the amount that may be issued;
- whether or not we will issue the series of notes in global form,
the terms and who the depository will be;
- the maturity date;
- the annual interest rate, which may be fixed or variable, or the
method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular
record dates for interest payment dates or the method for
determining such dates;
- whether or not the notes will be secured or unsecured, and the
terms of any secured debt;
- the terms of the subordination of any series of subordinated
debt;
- the place where payments will be payable;
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- our right, if any, to defer payment of interest and the maximum
length of any such deferral period;
- the date, if any, after which, and the price at which, we may, at
our option, redeem the series of notes pursuant to any optional
redemption provisions;
- the date, if any, on which, and the price at which we are
obligated, pursuant to any mandatory sinking fund provisions or
otherwise, to redeem, or at the holder's option to purchase, the
series of notes;
- whether the indenture will restrict our ability to pay dividends,
or will require us to maintain any asset ratios or reserves;
- whether we will be restricted from incurring any additional
indebtedness;
- a discussion on any material or special United States federal
income tax considerations applicable to the notes;
- the denominations in which we will issue the series of notes, if
other than denominations of $1,000 and any integral multiple
thereof; and
- any other specific terms, preferences, rights or limitations of,
or restrictions on, the debt securities.
CONVERSION OR EXCHANGE RIGHTS
We will set forth in the applicable prospectus supplement the terms on
which a series of notes may be convertible into or exchangeable for common stock
or other securities of ours. We will include provisions as to whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may
include provisions pursuant to which the number of shares of common stock or
other securities of ours that the holders of the series of notes receive would
be subject to adjustment.
CONSOLIDATION, MERGER OR SALE
The indentures do not contain any covenant which restricts our ability
to merge or consolidate, or sell, convey, transfer or otherwise dispose of all
or substantially all of our assets. However, any successor to or acquirer of
such assets must assume all of our obligations under the indentures or the
notes, as appropriate.
EVENTS OF DEFAULT UNDER THE INDENTURE
The following are events of default under the indentures with respect
to any series of notes that we may issue:
- if we fail to pay interest when due and our failure continues for
90 days and the time for payment has not been extended or
deferred;
- if we fail to pay the principal, or premium, if any, when due and
the time for payment has not been extended or delayed;
- if we fail to observe or perform any other covenant contained in
the notes or the indentures, other than a covenant specifically
relating to another series of notes, and our failure continues
for 90 days after we receive notice from the trustee or holders
of at least 25% in aggregate principal amount of the outstanding
notes of the applicable series; and
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- if specified events of bankruptcy, insolvency or reorganization
occur to us.
If an event of default with respect to notes of any series occurs and
is continuing, the trustee or the holders of at least 25% in aggregate principal
amount of the outstanding notes of that series, by notice to us in writing, and
to the trustee if notice is given by such holders, may declare the unpaid
principal of, premium, if any, and accrued interest, if any, due and payable
immediately.
The holders of a majority in principal amount of the outstanding notes
of an affected series may waive any default or event of default with respect to
the series and its consequences, except defaults or events of default regarding
payment of principal, premium, if any, or interest, unless we have cured the
default or event of default in accordance with the indenture. Any waiver shall
cure the default or event of default.
Subject to the terms of the indentures, if an event of default under an
indenture shall occur and be continuing, the trustee will be under no obligation
to exercise any of its rights or powers under such indenture at the request or
direction of any of the holders of the applicable series of notes, unless such
holders have offered the trustee reasonable indemnity. The holders of a majority
in principal amount of the outstanding notes of any series will have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust or power conferred on the
trustee, with respect to the notes of that series, provided that:
- the direction so given by the holder is not in conflict with any
law or the applicable indenture; and
- subject to its duties under the Trust Indenture Act, the trustee
need not take any action that might involve it in personal
liability or might be unduly prejudicial to the holders not
involved in the proceeding.
A holder of the notes of any series will only have the right to
institute a proceeding under the indentures or to appoint a receiver or trustee,
or to seek other remedies if:
- the holder has given written notice to the trustee of a
continuing event of default with respect to that series;
- the holders of at least 25% in aggregate principal amount of the
outstanding notes of that series have made written request, and
such holders have offered reasonable indemnity to the trustee to
institute the proceeding as trustee; and
- the trustee does not institute the proceeding, and does not
receive from the holders of a majority in aggregate principal
amount of the outstanding notes of that series other conflicting
directions within 60 days after the notice, request and offer.
These limitations do not apply to a suit instituted by a holder of
notes if we default in the payment of the principal, premium, if any, or
interest on, the notes.
We will periodically file statements with the trustee regarding our
compliance with specified covenants in the indentures.
MODIFICATION OF INDENTURE; 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
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- to change anything that does not materially adversely affect the
interests of any holder of notes of any series.
In addition, under the indentures, the rights of holders of a series of
notes may be changed by us and the trustee with the written consent of the
holders of at least a majority in aggregate principal amount of the outstanding
notes of each series that is affected. However, we and the trustee may only make
the following changes with the consent of each holder of any outstanding notes
affected:
- extending the fixed maturity of the series of notes;
- reducing the principal amount, reducing the rate of or extending
the time of payment of interest, or any premium payable upon the
redemption of any notes; or
- reducing the minimum percentage of notes, the holders of which
are required to consent to any amendment.
DISCHARGE
Each indenture provides that we can elect to be discharged from our
obligations with respect to one or more series of debt securities, except for
obligations to:
- register the transfer or exchange of debt securities of the
series;
- replace stolen, lost or mutilated debt securities of the series;
- maintain paying agencies;
- hold monies for payment in trust;
- compensate and indemnify the trustee; and
- appoint any successor trustee.
In order to exercise our rights to be discharged, we must deposit with
the trustee money or government obligations sufficient to pay all the principal
of, any premium, if any, and interest on, the debt securities of the series on
the dates payments are due.
FORM, EXCHANGE AND TRANSFER
We will issue the notes of each series only in fully registered form
without coupons and, unless we otherwise specify in the applicable prospectus
supplement, in denominations of $1,000 and any integral multiple thereof. The
indentures provide that we may issue notes of a series in temporary or permanent
global form and as book-entry securities that will be deposited with, or on
behalf of, The Depository Trust Company or another depository named by us and
identified in a prospectus supplement with respect to that series. See "Legal
Ownership of Securities" for a further description of the terms relating to any
book-entry securities.
At the option of the holder, subject to the terms of the indentures and
the limitations applicable to global securities described in the applicable
prospectus supplement, the holder of the notes of any series can exchange the
notes for other notes of the same series, in any authorized denomination and of
like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable
to global securities set forth in the applicable prospectus supplement, holders
of the notes may present the notes for exchange or for registration of transfer,
duly endorsed or with the form of transfer endorsed thereon duly executed if so
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required by us or the security registrar, at the office of the security
registrar or at the office of any transfer agent designated by us for this
purpose. Unless otherwise provided in the notes that the holder presents for
transfer or exchange, we will not require any payment for any registration of
transfer or exchange, but we may require payment of any taxes or other
governmental charges.
We will name in the applicable prospectus supplement the security
registrar, and any transfer agent in addition to the security registrar, that we
initially designate for any notes. We may at any time designate additional
transfer agents or rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts, except that we will
be required to maintain a transfer agent in each place of payment for the notes
of each series.
If we elect to redeem the notes of any series, we will not be required
to:
- issue, register the transfer of, or exchange any notes of that
series during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of any
notes that may be selected for redemption and ending at the close
of business on the day of the mailing; or
- register the transfer of or exchange any notes so selected for
redemption, in whole or in part, except the unredeemed portion of
any notes we are redeeming in part.
INFORMATION CONCERNING THE TRUSTEE
The trustee, other than during the occurrence and continuance of an
event of default under an indenture, undertakes to perform only those duties as
are specifically set forth in the applicable indenture. Upon an event of default
under an indenture, the trustee must use the same degree of care as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, the trustee is under no obligation to exercise any of the
powers given it by the indentures at the request of any holder of notes unless
it is offered reasonable security and indemnity against the costs, expenses and
liabilities that it might incur.
PAYMENT AND PAYING AGENTS
Unless we otherwise indicate in the applicable prospectus supplement,
we will make payment of the interest on any notes on any interest payment date
to the person in whose name the notes, or one or more predecessor securities,
are registered at the close of business on the regular record date for the
interest.
We will pay principal of and any premium and interest on the notes of a
particular series at the office of the paying agents designated by us, except
that unless we otherwise indicate in the applicable prospectus supplement, will
we make interest payments by check which we will mail to the holder. Unless we
otherwise indicate in a prospectus supplement, we will designate the corporate
trust office of the trustee in The City of New York as our sole paying agent for
payments with respect to notes of each series. We will name in the applicable
prospectus supplement any other paying agents that we initially designate for
the notes of a particular series. We will maintain a paying agent in each place
of payment for the notes of a particular series.
All money we pay to a paying agent or the trustee for the payment of
the principal of or any premium or interest on any notes which remains unclaimed
at the end of two years after such principal, premium or interest has become due
and payable will be repaid to us, and the holder of the security thereafter may
look only to us for payment thereof.
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GOVERNING LAW
The indentures and the notes will be governed by and construed in
accordance with the laws of the State of New York, except to the extent that the
Trust Indenture Act is applicable.
SUBORDINATION OF SUBORDINATED NOTES
The subordinated notes will be unsecured and will be subordinate and
junior in priority of payment to certain of our other indebtedness to the extent
described in a prospectus supplement. The subordinated indenture does not limit
the amount of subordinated notes which we may issue. It also does not limit us
from issuing any other secured or unsecured debt.
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DESCRIPTION OF WARRANTS
The following description, together with the additional information we
may include in any applicable prospectus supplements, summarizes the material
terms and provisions of the warrants that we may offer under this prospectus and
the related warrant agreements and warrant certificates. While the terms
summarized below will apply generally to any warrants that we may offer, we will
describe the particular terms of any series of warrants in more detail in the
applicable prospectus supplement. If we indicate in the prospectus supplement,
the terms of any warrants offered under that prospectus supplement may differ
from the terms described below. Specific warrant agreements will contain
additional important terms and provisions and will be incorporated by reference
as an exhibit to the registration statement which includes this prospectus.
GENERAL
We may issue warrants for the purchase of common stock, preferred stock
or debt securities in one or more series. We may issue warrants independently or
together with common stock, preferred stock and debt securities, and the
warrants may be attached to or separate from these securities.
We will evidence each series of warrants by warrant certificates that
we will issue under a separate agreement. We will enter into the warrant
agreement with a warrant agent. Each warrant agent will be a bank that we select
which has its principal office in the United States and a combined capital and
surplus of at least $50,000,000. We will indicate the name and address of the
warrant agent in the applicable prospectus supplement relating to a particular
series of warrants.
We will describe in the applicable prospectus supplement the terms of
the series of warrants, including:
- the offering price and aggregate number of warrants offered;
- the currency for which the warrants may be purchased;
- if applicable, the designation and terms of the securities with
which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such
security;
- if applicable, the date on and after which the warrants and the
related securities will be separately transferable;
- in the case of warrants to purchase debt securities, the
principal amount of debt securities purchasable upon exercise of
one warrant and the price at, and currency in which, this
principal amount of debt securities may be purchased upon such
exercise;
- in the case of warrants to purchase common stock or preferred
stock, the number of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant
and the price at which these shares may be purchased upon such
exercise;
- the effect of any merger, consolidation, sale or other
disposition of our business on the warrant agreement and the
warrants;
- the terms of any rights to redeem or call the warrants;
- any provisions for changes to or adjustments in the exercise
price or number of securities issuable upon exercise of the
warrants;
- the dates on which the right to exercise the warrants will
commence and expire;
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- the manner in which the warrant agreement and warrants may be
modified;
- federal income tax consequences of holding or exercising the
warrants;
- the terms of the securities issuable upon exercise of the
warrants; and
- any other specific terms, preferences, rights or limitations of
or restrictions on the warrants.
Before exercising their warrants, holders of warrants will not have any
of the rights of holders of the securities purchasable upon such exercise,
including:
- in the case of warrants to purchase debt securities, the right to
receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce
covenants in the applicable indenture; or
- in the case of warrants to purchase common stock or preferred
stock, the right to receive dividends, if any, or, payments upon
our liquidation, dissolution or winding up or to exercise voting
rights, if any.
EXERCISE OF WARRANTS
Each warrant will entitle the holder to purchase the securities that we
specify in the applicable prospectus supplement at the exercise price that we
describe in the applicable prospectus supplement. Unless we otherwise specify in
the applicable prospectus supplement, holders of the warrants may exercise the
warrants at any time up to 5:00 P.M. eastern standard time on the expiration
date that we set forth in the applicable prospectus supplement. After the close
of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the
warrant certificate representing the warrants to be exercised together with
specified information, and paying the required amount to the warrant agent in
immediately available funds, as provided in the applicable prospectus
supplement. We will set forth on the reverse side of the warrant certificate and
in the applicable prospectus supplement the information that the holder of the
warrant will be required to deliver to the warrant agent.
Upon receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the applicable prospectus
supplement, we will issue and deliver the securities purchasable upon such
exercise. If fewer than all of the warrants represented by the warrant
certificate are exercised, then we will issue a new warrant certificate for the
remaining amount of warrants. If we so indicate in the applicable prospectus
supplement, holders of the warrants may surrender securities as all or part of
the exercise price for warrants.
ENFORCEABILITY OF RIGHTS BY HOLDERS OF WARRANTS
Each warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or relationship of agency
or trust with any holder of any warrant. A single bank or trust company may act
as warrant agent for more than one issue of warrants. A warrant agent will have
no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate
any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder
of any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, its warrants.
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LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or
more global securities. We describe global securities in greater detail below.
We refer to those persons who have securities registered in their own names on
the books that we or any applicable trustee maintain for this purpose as the
"holders" of those securities. These persons are the legal holders of the
securities. We refer to those persons who, indirectly through others, own
beneficial interests in securities that are not registered in their own names,
as "indirect holders" of those securities. As we discuss below, indirect holders
are not legal holders, and investors in securities issued in book-entry form or
in street name will be indirect holders.
BOOK-ENTRY HOLDERS
We may issue securities in book-entry form only, as we will specify in
the applicable prospectus supplement. This means securities may be represented
by one or more global securities registered in the name of a financial
institution that holds them as depositary on behalf of other financial
institutions that participate in the depositary's book-entry system. These
participating institutions, which are referred to as participants, in turn, hold
beneficial interests in the securities on behalf of themselves or their
customers.
Only the person in whose name a security is registered is recognized as
the holder of that security. Securities issued in global form will be registered
in the name of the depositary or its participants. Consequently, for securities
issued in global form, we will recognize only the depositary as the holder of
the securities, and we will make all payments on the securities to the
depositary. The depositary passes along the payments it receives to its
participants, which in turn pass the payments along to their customers who are
the beneficial owners. The depositary and its participants do so under
agreements they have made with one another or with their customers; they are not
obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities
directly. Instead, they will own beneficial interests in a global security,
through a bank, broker or other financial institution that participates in the
depositary's book-entry system or holds an interest through a participant. As
long as the securities are issued in global form, investors will be indirect
holders, and not holders, of the securities.
STREET NAME HOLDERS
We may terminate a global security or issue securities in non-global
form. In these cases, investors may choose to hold their securities in their own
names or in "street name." Securities held by an investor in street name would
be registered in the name of a bank, broker or other financial institution that
the investor chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that institution.
For securities held in street name, we will recognize only the
intermediary banks, brokers and other financial institutions in whose names the
securities are registered as the holders of those securities, and we will make
all payments on those securities to them. These institutions pass along the
payments they receive to their customers who are the beneficial owners, but only
because they agree to do so in their customer agreements or because they are
legally required to do so. Investors who hold securities in street name will be
indirect holders, not holders, of those securities.
LEGAL HOLDERS
Our obligations, as well as the obligations of any applicable trustee
and of any third parties employed by us or a trustee, run only to the legal
holders of the securities. We do not have obligations to investors who hold
beneficial interests in global securities, in street name or by any other
indirect means. This will be the case whether an investor chooses to be an
indirect holder of a security or has no choice because we are issuing the
securities only in global form.
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For example, once we make a payment or give a notice to the holder, we
have no further responsibility for the payment or notice even if that holder is
required, under agreements with depositary participants or customers or by law,
to pass it along to the indirect holders but does not do so. Similarly, we may
want to obtain the approval of the holders to amend an indenture, to relieve us
of the consequences of a default or of our obligation to comply with a
particular provision of the indenture or for other purposes. In such an event,
we would seek approval only from the holders, and not the indirect holders, of
the securities. Whether and how the holders contact the indirect holders is up
to the holders.
SPECIAL CONSIDERATIONS FOR INDIRECT HOLDERS
If you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you should check with
your own institution to find out:
- how it handles securities payments and notices;
- whether it imposes fees or charges;
- how it would handle a request for the holders' consent, if ever
required;
- whether and how you can instruct it to send you securities
registered in your own name so you can be a holder, if that is
permitted in the future;
- how it would exercise rights under the securities if there were a
default or other event triggering the need for holders to act to
protect their interests; and
- if the securities are in book-entry form, how the depositary's
rules and procedures will affect these matters.
GLOBAL SECURITIES
A global security is a security held by a depositary which represents
one or any other number of individual securities. Generally, all securities
represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global
security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we
select for this purpose is called the depositary. Unless we specify otherwise in
the applicable prospectus supplement, The Depository Trust Company, New York,
New York, known as DTC, will be the depositary for all securities issued in
book-entry form.
A global security may not be transferred to or registered in the name
of anyone other than the depositary, its nominee or a successor depositary,
unless special termination situations arise. We describe those situations below
under "--Special Situations When a Global Security Will Be Terminated." As a
result of these arrangements, the depositary, or its nominee, will be the sole
registered owner and holder of all securities represented by a global security,
and investors will be permitted to own only beneficial interests in a global
security. Beneficial interests must be held by means of an account with a
broker, bank or other financial institution that in turn has an account with the
depositary or with another institution that does. Thus, an investor whose
security is represented by a global security will not be a holder of the
security, but only an indirect holder of a beneficial interest in the global
security.
If the prospectus supplement for a particular security indicates that
the security will be issued in global form only, then the security will be
represented by a global security at all times unless and until the global
security is terminated. If termination occurs, we may issue the securities
through another book-entry clearing system or decide that the securities may no
longer be held through any book-entry clearing system.
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SPECIAL CONSIDERATIONS FOR GLOBAL SECURITIES
As an indirect holder, an investor's rights relating to a global
security will be governed by the account rules of the investor's financial
institution and of the depositary, as well as general laws relating to
securities transfers. We do not recognize an indirect holder as a holder of
securities and instead deal only with the depositary that holds the global
security.
If securities are issued only in the form of a global security, an
investor should be aware of the following:
- an investor cannot cause the securities to be registered in his
or her name, and cannot obtain non-global certificates for his or
her interest in the securities, except in the special situations
we describe below;
- an investor will be an indirect holder and must look to his or
her own bank or broker for payments on the securities and
protection of his or her legal rights relating to the securities,
as we describe under "Legal Ownership of Securities;"
- an investor may not be able to sell interests in the securities
to some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry form;
- an investor may not be able to pledge his or her interest in a
global security in circumstances where certificates representing
the securities must be delivered to the lender or other
beneficiary of the pledge in order for the pledge to be
effective;
- the depositary's policies, which may change from time to time,
will govern payments, transfers, exchanges and other matters
relating to an investor's interest in a global security. We and
any applicable trustee have no responsibility for any aspect of
the depositary's actions or for its records of ownership
interests in a global security. We and the trustee also do not
supervise the depositary in any way;
- the depositary may, and we understand that DTC will, require that
those who purchase and sell interests in a global security within
its book-entry system use immediately available funds, and your
broker or bank may require you to do so as well; and
- financial institutions that participate in the depositary's
book-entry system, and through which an investor holds its
interest in a global security, may also have their own policies
affecting payments, notices and other matters relating to the
securities. There may be more than one financial intermediary in
the chain of ownership for an investor. We do not monitor and are
not responsible for the actions of any of those intermediaries.
SPECIAL SITUATIONS WHEN A GLOBAL SECURITY WILL BE TERMINATED
In a few special situations described below, the global security will
terminate and interests in it will be exchanged for physical certificates
representing those interests. After that exchange, the choice of whether to hold
securities directly or in street name will be up to the investor. Investors must
consult their own banks or brokers to find out how to have their interests in
securities transferred to their own name, so that they will be direct holders.
We have described the rights of holders and street name investors above.
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The global security will terminate when the following special
situations occur:
- if the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary for that global
security and we do not appoint another institution to act as
depositary within 90 days;
- if we notify any applicable trustee that we wish to terminate
that global security; or
- if an event of default has occurred with regard to securities
represented by that global security and has not been cured or
waived.
The prospectus supplement may also list additional situations for
terminating a global security that would apply only to the particular series of
securities covered by the prospectus supplement. When a global security
terminates, the depositary, and not we or any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial direct
holders.
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PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more of the
following ways from time to time:
- through agents to the public or to investors;
- to underwriters for resale to the public or to investors; or
- directly to investors.
We will set forth in a prospectus supplement the terms of the offering
of securities, including:
- the name or names of any agents or underwriters;
- the purchase price of the securities being offered and the
proceeds we will receive from the sale;
- any over-allotment options under which underwriters may purchase
additional securities from us;
- any agency fees or underwriting discounts and other items
constituting agents' or underwriters' compensation;
- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to
dealers; and
- any securities exchanges on which such securities may be listed.
AGENTS
We may designate agents who agree to use their reasonable efforts to
solicit purchases for the period of their appointment or to sell securities on a
continuing basis.
UNDERWRITERS
If we use underwriters for a sale of securities, the underwriters will
acquire the securities for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will be subject
to the conditions set forth in the applicable underwriting agreement. The
underwriters will be obligated to purchase all the securities of the series
offered if they purchase any of the securities of that series. We may change
from time to time any initial public offering price and any discounts or
concessions the underwriters allow or reallow or pay to dealers. We may use
underwriters with whom we have a material relationship. We will describe in the
prospectus supplement naming the underwriter the nature of any such
relationship.
DIRECT SALES
We may also sell securities directly to one or more purchasers without
using underwriters or agents.
Underwriters, dealers and agents that participate in the distribution
of the securities may be underwriters as defined in the Securities Act and any
discounts or commissions they receive from us and
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<PAGE>
any profit on their resale of the securities may be treated as underwriting
discounts and commissions under the Securities Act. We will identify in the
applicable prospectus supplement any underwriters, dealers or agents and will
describe their compensation. We may have agreements with the underwriters,
dealers and agents to indemnify them against specified civil liabilities,
including liabilities under the Securities Act. Underwriters, dealers and agents
may engage in transactions with or perform services for us or our subsidiaries
in the ordinary course of their businesses.
TRADING MARKETS AND LISTING OF SECURITIES
Unless otherwise specified in the applicable prospectus supplement,
each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is listed on the Nasdaq
National Market. We may elect to list any other class or series of securities on
any exchange, but we are not obligated to do so. It is possible that one or more
underwriters may make a market in a class or series of securities, but the
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot give any assurance as to the
liquidity of the trading market for any of the securities.
STABILIZATION ACTIVITIES
Any underwriter may engage in over-allotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with Regulation M
under the Securities Exchange Act of 1934. Over-allotment involves sales in
excess of the offering size, which create a short position. Stabilizing
transactions permit bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. Short covering transactions
involve purchases of the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the underwriters to
reclaim a selling concession from a dealer when the securities originally sold
by the dealer are purchased in a covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than it
would otherwise be. If commenced, the underwriters may discontinue any of the
activities at any time.
PASSIVE MARKET MARKING
Any underwriters who are qualified market markers on the Nasdaq
National Market may engage in passive market making transactions in the
securities on the Nasdaq National Market in accordance with Rule 103 of
Regulation M, during the business day prior to the pricing of the offering,
before the commencement of offers or sales of the securities. Passive market
markers must comply with applicable volume and price limitations and must be
identified as passive market makers. In general, a passive market marker must
display its bid at a price not in excess of the highest independent bid for the
security; if all independent bids are lowered below the passive market maker's
bid, however, the passive market maker's bid then must be lowered when certain
purchase limits are exceeded.
VALIDITY OF SECURITIES
The validity of the securities offered hereby will be passed upon for
us by Hale and Dorr LLP, Boston, Massachusetts.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our
consolidated financial statements included in our Annual Report on Form 10-K
for the year 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.
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<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other documents with the
Securities and Exchange Commission. You may read and copy any document we file
with the SEC at the public reference facilities the SEC maintains at:
Room 1024, Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
and at the SEC's Regional Offices located at:
Northwestern Atrium Center
Suite 1400
500 West Madison Street
Chicago, Illinois 60661
and
Seven World Trade Center
13th Floor
New York, New York 10048
and you may also obtain copies of these materials by mail from the Public
Reference Section of the SEC at:
450 Fifth Street, N.W.
Washington, D.C. 20549
at prescribed rates. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms.
The SEC also maintains a web site, the address of which is
http://www.sec.gov. That site also contains our annual, quarterly and special
reports, proxy statements, information statements and other information.
This prospectus is part of a registration statement that we filed with
the SEC. The registration statement contains more information than this
prospectus regarding us and the securities, including exhibits and schedules.
You can obtain a copy of the registration statement from the SEC at any address
listed above or from the SEC's web site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate" into this prospectus information
that we file with the SEC in other documents. This means that we can disclose
important information to you by referring to other documents that contain that
information. Any information that we incorporate by reference is considered part
of this prospectus. The documents and reports that we list below are
incorporated by reference into this prospectus. In addition, all documents and
reports which we file pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act after the date of this prospectus are incorporated by
reference in this prospectus as of the respective filing dates of these
documents and reports. Statements contained in documents that we file with the
SEC and that are incorporated by reference in this prospectus will automatically
update and supersede information contained in this prospectus, including
information in previously filed documents or reports that have been incorporated
by reference in this prospectus, to the extent the new information differs from
or is inconsistent with the old information.
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<PAGE>
We have filed the following documents with the SEC. These documents are
incorporated herein by reference as of their respective dates of filing:
(1) Our Annual Report on Form 10-K for the year ended December 31,
1999;
(2) Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2000;
(3) Our Quarterly Report on Form 10-Q for the quarter ended June 30,
2000;
(4) Our Quarterly Report on Form 10-Q for the quarter ended September
30, 2000;
(5) Our Current Report on Form 8-K filed with the SEC on April 28,
2000;
(6) Our Current Report on Form 8-K filed with the SEC on May 19,
2000;
(7) Our Current Report on Form 8-K filed with the SEC on June 12,
2000;
(8) Our Current Report on Form 8-K filed with the SEC on June 16,
2000;
(9) Our Current Report on Form 8-K filed with the SEC on July 31,
2000;
(10) Our Current Report on Form 8-K filed with the SEC on November 22,
2000;
(11) Our Current Report on Form 8-K filed with the SEC on December 12,
2000;
(12) All our filings pursuant to the Securities Exchange Act after the
date of filing the initial registration statement and prior to
the effectiveness of the registration statement; and
(13) The description of our common stock contained in our registration
statement on Form 8-A filed with the SEC on October 4, 1996,
including any amendments or reports filed for the purpose of
updating that description.
You may request, orally or in writing, a copy of these documents, which
will be provided to you at no cost, by contacting:
Transkaryotic Therapies, Inc.
195 Albany Street
Cambridge, Massachusetts 02139
Attention: Corporate Communications
Telephone: (617) 349-0200
You should rely only on the information contained in this prospectus,
including information incorporated by reference as described above, or any
prospectus supplement or that we have specifically referred you to. We have not
authorized anyone else to provide you with different information. You should not
assume that the information in this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front of those documents or
that any document incorporated by reference is accurate as of any date other
than its filing date. You should not consider this prospectus to be an offer or
solicitation relating to the securities in any jurisdiction in which such an
offer or solicitation relating to the securities is not authorized. Furthermore,
you should not consider this prospectus to be an offer or solicitation relating
to the securities if the person making the offer or solicitation is not
qualified to do so, or if it is unlawful for you to receive such an offer or
solicitation.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses to be incurred in
connection with the registration of the securities being registered hereby, all
of which will be borne by Transkaryotic Therapies. All amounts shown are
estimates except the SEC registration fee.
SEC registration fee . . ................... $132,000
Transfer agent's, trustee's and
depository's fees and expenses........... 50,000
Printing and engraving expenses............. 50,000
Legal fees and expenses..................... 50,000
Accounting fees and expenses................ 5,000
Miscellaneous............................... 38,000
--------------
Total expenses..................... $325,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VII of our Amended and Restated Certificate of Incorporation
provides that no director of our company shall be personally liable for any
monetary damages for any breach of fiduciary duty as a director, except to the
extent that the Delaware General Corporation Law prohibits the elimination or
limitation of liability of directors for breach of fiduciary duty.
Article VIII of our Certificate of Incorporation provides that a
director or officer of our company (a) shall be indemnified by us against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement incurred in connection with any litigation or other legal proceeding
(other than an action by or in the right of our company) brought against him by
virtue of his position as a director or officer of our company if he acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of our company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful and (b)
shall be indemnified by our company against all expenses (including attorneys'
fees) and amounts paid in settlement incurred in connection with any action by
or in the right of our company brought against him by virtue of his position as
a director or officer of our company if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of our
company, except that no indemnification shall be made with respect to any matter
as to which such person shall have been adjudged to be liable to us, unless a
court determines that, despite such adjudication but in view of all of the
circumstances, he is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has been
successful, on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, he is required to be indemnified by us
against all expenses (including attorneys' fees) incurred in connection
therewith. Expenses shall be advanced to a director or officer at his request,
provided that he undertakes to repay the amount advanced if it is ultimately
determined that he is not entitled to indemnification for such expenses.
Indemnification is required to be made unless we determine that the
applicable standard of conduct required for indemnification has not been met. In
the event of a determination by us that the director or officer did not meet the
applicable standard of conduct required for indemnification, or if we fail to
make an indemnification payment within 60 days after such payment is claimed by
such person, such person is permitted to petition the court to make an
independent determination as to whether such person is entitled to
indemnification. As a condition precedent to the right of indemnification, the
director or officer must give us notice of the action for which indemnity is
sought and we have the right to participate in such action or assume the defense
thereof.
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<PAGE>
Article VIII of our Certificate of Incorporation further provides that
the indemnification provided therein is not exclusive, and provides that in the
event that the Delaware General Corporation Law is amended to expand the
indemnification permitted to directors or officers we must indemnify those
persons to the fullest extent permitted by such law as so amended.
Article VIII, Section 8 of our By-Laws provides that we shall indemnify
any and all of our directors or officers to the fullest extent permitted by the
Delaware General Corporation Law.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
We maintain a general liability insurance policy which covers certain
liabilities of directors and officers of our company arising out of claims based
on acts or omissions in their capacities as directors or officers.
In the Underwriting Agreements the underwriters will agree to
indemnify, under certain conditions, us, our directors, certain of our officers
and persons who control us within the meaning of the Securities Act, against
certain liabilities.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT NUMBER DESCRIPTION
1.1 The form of equity underwriting agreement will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference
1.2 The form of debt underwriting agreement will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference
3.1* Amended and Restated Certificate of Incorporation of the
Registrant
3.2*** Certificate of Amendment of Amended and Restated Certificate of
Incorporation of the Registrant dated June 15, 2000
3.3*** Certificate of Designation, Number, Voting Powers, Preferences
and Rights of Series A Convertible Preferred Stock of the
Registrant dated June 9, 2000
3.4** Amended and Restated By-Laws of the Registrant
3.5*** Amendment No. 1 to the Registrant's Amended and Restated By-Laws
4.1 Form of senior indenture
4.2 Form of subordinated indenture
4.3**** Specimen common stock certificate
4.4 The form of any senior note with respect to each particular
series of senior notes issued hereunder will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference
4.5 The form of any subordinated note with respect to each particular
series of subordinated notes issued hereunder will be filed as an
exhibit to a Current Report on the Registrant of Form 8-K and
incorporated hereby by reference
4.6 The form of any certificate of designation with respect to any
preferred stock issued hereunder and the related form of
preferred stock certificate will be filed as exhibits to a
Current Report of the Registrant on Form 8-K and incorporated
herein by reference
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5.1 Opinion of Hale and Dorr LLP
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-5 of this Registration Statement)
25.1 The Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of the Trustee under the
Senior Indenture will be incorporated herein by reference from a
subsequent filing in accordance with Section 305(b)(2) of the
Trust Indenture Act of 1939
25.2 The Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of the Trustee under the
Subordinated Indenture will be incorporated herein by reference
from a subsequent filing in accordance with Section 305(b)(2) of
the Trust Indenture Act of 1939
* Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q for the quarter ended September 30, 1996.
** Incorporated by reference to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1997.
*** Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q for the quarter ended June 30, 2000.
**** Incorporated by reference to the Registrant's Amendment No. 2 to
Registration Statement on Form S-1 filed with the SEC on September 4,
1996 (File No. 333-10845).
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act that are incorporated by reference in this Registration
Statement.
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<PAGE>
(2) That, for the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the time shall be deemed
to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act) that is incorporated
by reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at the time shall be deemed to be the initial BONA
FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the indemnification provisions described herein, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
Subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cambridge, Commonwealth of Massachusetts, on
December 13, 2000.
TRANSKARYOTIC THERAPIES, INC.
By: /s/ Richard F Selden
-----------------------------------------
Richard F Selden
President and Chief Executive Officer
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Transkaryotic Therapies,
Inc., hereby severally constitute and appoint Richard F Selden, Daniel E.
Geffken, Michael J. Astrue and David E. Redlick and each of them singly, our
true and lawful attorneys with full power to any of them, and to each of them
singly, to sign for us and in our names in the capacities indicated below the
Registration Statement on Form S-3 filed herewith and any and all pre-effective
and post-effective amendments to said Registration Statement and any subsequent
registration statement filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and to file the same with all exhibits thereto, and the other
documents in connection therewith, with the Securities and Exchange Commission,
and generally to do all such things in our name and behalf in our capacities as
officers and directors to enable Transkaryotic Therapies, Inc. to comply with
the provisions of the Securities Act of 1933, as amended, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Richard F Selden
---------------------------- President, Chief Executive Officer and Director December 13, 2000
Richard F Selden (Principal Executive Officer)
/s/ Daniel E. Geffken
---------------------------- Vice President, Finance and Chief Financial December 13, 2000
Daniel E. Geffken Officer (Principal Financial and Accounting
Officer)
/s/ Walter Gilbert
---------------------------- Director December 13, 2000
Walter Gilbert
/s/ Jonathan S. Leff
---------------------------- Director December 13, 2000
Jonathan S. Leff
/s/ William R. Miller
---------------------------- Director December 13, 2000
William R. Miller
/s/ Rodman W. Moorhead, III
---------------------------- Director December 13, 2000
Rodman W. Moorhead, III
/s/ James E. Thomas
---------------------------- Director December 13, 2000
James E. Thomas
/s/ Wayne P. Yetter
---------------------------- Director December 13, 2000
Wayne P. Yetter
</TABLE>
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