<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 12, 2001
REGISTRATION NO. 333-53206
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
CV THERAPEUTICS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 3172 PORTER DRIVE 43-1570294
(State or other jurisdiction PALO ALTO, CALIFORNIA 94304 (I.R.S. Employer
of incorporation or (650) 812-0585 Identification Number)
organization) (Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
</TABLE>
LOUIS G. LANGE, M.D., PH.D.
CHIEF EXECUTIVE OFFICER
CV THERAPEUTICS, INC.
3172 PORTER DRIVE
PALO ALTO, CALIFORNIA 94304
(650) 812-0585
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
------------------------------
COPIES TO:
ALAN C. MENDELSON, ESQ.
LATHAM & WATKINS
135 COMMONWEALTH DRIVE MENLO PARK, CALIFORNIA 94025
(415) 328-4600
AND
LAURA L. GABRIEL, ESQ.
LATHAM & WATKINS 505 MONTGOMERY STREET, SUITE 1900
SAN FRANCISCO, CALIFORNIA 94111
(415) 391-0600
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO
TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT, AS DETERMINED BY
THE REGISTRANT.
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 of 1933, 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 of 1933, 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
under the Securities Act of 1933, please check the following box. / /
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE>
THE INFORMATION CONTAINED 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>
PROSPECTUS
SUBJECT TO COMPLETION, DATED JANUARY 12, 2001
$100,000,000
CV THERAPEUTICS, INC.
COMMON STOCK
This prospectus will allow us to issue, from time to time in one or more
offerings, up to $100,000,000 in the aggregate of our common stock and the
rights to acquire our series A junior participating preferred stock that are
attached to and trade with the common stock. This means:
- we will provide a prospectus supplement each time we issue common stock;
- the prospectus supplement will inform you about the specific terms of that
offering and may also add, update or change information contained in this
document; and
- you should read this prospectus and any prospectus supplement carefully
before you invest.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DISCUSSION OF MATERIAL RISKS
THAT YOU SHOULD CONSIDER BEFORE YOU INVEST IN OUR SECURITIES BEING SOLD WITH
THIS PROSPECTUS.
Our common stock is traded on the Nasdaq National Market under the symbol
"CVTX." On January 11, 2001, the last reported sale price for our common stock
on the Nasdaq National Market was $44.00 per share.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is , 2001.
<PAGE>
We have not authorized any dealer, salesperson or other person to give any
information or to make any representation other than those contained or
incorporated by reference in this prospectus and the accompanying prospectus
supplement. You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or the accompanying
prospectus supplement as if we had authorized it. This prospectus and the
accompanying prospectus supplement do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor does this prospectus and the accompanying
prospectus supplement constitute an offer to sell or the solicitation of an
offer to buy securities in any jurisdiction to any person to whom it is unlawful
to make such offer or solicitation in such jurisdiction. You should not assume
that the information contained in this prospectus and the accompanying
prospectus supplement is correct on any date after their respective dates, even
though this prospectus or a prospectus supplement is delivered or securities are
sold on a later date.
TABLE OF CONTENTS
<TABLE>
<S> <C>
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS........... 2
AVAILABLE INFORMATION....................................... 2
INCORPORATION BY REFERENCE.................................. 3
RISK FACTORS................................................ 4
THE COMPANY................................................. 4
USE OF PROCEEDS............................................. 4
PLAN OF DISTRIBUTION........................................ 4
LEGAL MATTERS............................................... 5
EXPERTS..................................................... 5
</TABLE>
i
<PAGE>
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes or incorporates by reference 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. These statements relate to
future events or our future clinical or product development or financial
performance. In some cases, you can identify forward-looking statements by
terminology such as "may," "will," "should," "expects," "plans," "anticipates,"
"believes," "estimates," "predicts," "potential" or "continue" or the negative
of those terms and other comparable terminology.
These statements reflect only management's current expectations. Important
factors that could cause actual results to differ materially from the
forward-looking statements we make or incorporate by reference in this
prospectus are set forth under the heading "Risk Factors" in the section
entitled "Management's Discussion and Analysis of Financial Condition and
Results of Operations" in our most recent Annual Report on Form 10-K and
Quarterly Report on Form 10-Q, as may be updated from time to time by our future
filings under the Securities Exchange Act, and elsewhere in the documents
incorporated by reference in this prospectus. If one or more of these risks or
uncertainties materialize, or if any underlying assumptions prove incorrect, our
actual results, performance or achievements may vary materially from any future
results, performance or achievements expressed or implied by these
forward-looking statements. We undertake no obligation to publicly update any
forward-looking statements, whether as a result of new information, future
events or otherwise.
AVAILABLE INFORMATION
We are subject to the information requirements of the Securities Exchange
Act and we therefore file periodic reports, proxy statements and other
information with the Securities and Exchange Commission relating to our
business, financial statements and other matters. The reports, proxy statements
and other information we file may be inspected and copied at prescribed rates at
the Securities and Exchange Commission's Public Reference Room at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549 and should be available for
inspection and copying at the Securities and Exchange Commission's regional
offices located at 7 World Trade Center, Suite 1375, New York, New York 10048
and at 44 Montgomery Street, Suite 1100, San Francisco, California 94104. You
may obtain information on the operation of the Securities and Exchange
Commission's Public Reference Room by calling the Securities and Exchange
Commission at 1-800-SEC-0330. The Securities and Exchange Commission also
maintains an Internet site that contains reports, proxy statements and other
information regarding issuers like us that file electronically with the
Securities and Exchange Commission. The address of the Securities and Exchange
Commission's Internet site is http://www.sec.gov.
This prospectus constitutes part of a registration statement on Form S-3
filed under the Securities Act with respect to the securities. As permitted by
the Securities and Exchange Commission's rules, this prospectus omits some of
the information, exhibits and undertakings included in the registration
statement. You may read and copy the information omitted from this prospectus
but contained in the registration statement, as well as the periodic reports and
other information we file with the Securities and Exchange Commission, at the
public reference facilities maintained by the Securities and Exchange Commission
in Washington, D.C., New York, New York and San Francisco, California.
Statements contained in this prospectus as to the contents of any contract
or other document are not necessarily complete, and in each instance we refer
you to the copy of the contract or document filed as an exhibit to the
registration statement, each such statement being qualified in all respects by
such reference.
2
<PAGE>
INCORPORATION BY REFERENCE
We have elected to "incorporate by reference" certain information into this
prospectus. By incorporating by reference, we can disclose important information
to you by referring you to another document we have filed separately with the
Securities and Exchange Commission. The information incorporated by reference is
deemed to be part of this prospectus, except for information incorporated by
reference that is superseded by information contained in this prospectus. This
prospectus incorporates by reference the documents set forth below that we have
previously filed with the Securities and Exchange Commission:
- Annual Report on Form 10-K for the fiscal year ended December 31, 1999,
including information specifically incorporated by reference into our
Form 10-K from our definitive proxy statement for our 2000 Annual Meeting
of Stockholders, filed with the Securities and Exchange Commission on
April 6, 2000;
- Quarterly Report on Form 10-Q for the quarterly period ending March 31,
2000;
- Quarterly Report on Form 10-Q for the quarterly period ending June 30,
2000;
- Quarterly Report on Form 10-Q for the quarterly period ending
September 30, 2000;
- Current Report on Form 8-K, filed with the Securities and Exchange
Commission on February 25, 2000;
- Current Report on Form 8-K, filed with the Securities and Exchange
Commission on March 1, 2000;
- Current Report on Form 8-K, filed with the Securities and Exchange
Commission on August 16, 2000;
- Current Report on Form 8-K, filed with the Securities and Exchange
Commission on January 5, 2001; and
- the description of our common stock contained in our Registration
Statement on Form 8-A (File No. 000-21643), filed with the Securities and
Exchange Commission on October 30, 1996.
We are also incorporating by reference all other reports that we file with
the Securities and Exchange Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act between the date of this prospectus and the
termination of the offering.
This prospectus may not be used to consummate sales of offered securities
unless accompanied by a prospectus supplement. The delivery of this prospectus
together with a prospectus supplement relating to particular offered securities
in any jurisdiction shall not constitute an offer in the jurisdiction of any
other securities covered by this prospectus.
We will provide to each person, including any beneficial owner, to whom this
prospectus is delivered a copy of any or all of the information that we have
incorporated by reference into this prospectus but not delivered with this
prospectus. To receive a free copy of any of the documents incorporated by
reference in this prospectus, other than exhibits, unless they are specifically
incorporated by reference in those documents, call or write to CV
Therapeutics, Inc., Attention: Investor Relations, 3172 Porter Drive, Palo Alto,
California 94304 (telephone (650) 812-0585). The information relating to us
contained in this prospectus does not purport to be comprehensive and should be
read together with the information contained in the documents incorporated or
deemed to be incorporated by reference in this prospectus.
3
<PAGE>
RISK FACTORS
Before you decide whether to purchase any of our securities, in addition to
the other information in this prospectus, you should carefully consider the risk
factors set forth under the heading "Risk Factors" in the section entitled
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" in our most recent Annual Report on Form 10-K and Quarterly Report
on Form 10-Q, which are incorporated by reference into this prospectus, as the
same may be updated from time to time by our future filings under the Securities
Exchange Act. For more information, see the section entitled "Incorporation by
Reference."
THE COMPANY
CV Therapeutics was incorporated in Delaware in December 1990, and in
June 1992 we changed our name to CV Therapeutics, Inc. We are a
biopharmaceutical company engaged in the discovery and development of new small
molecule drugs to treat cardiovascular disease, the leading cause of death in
the United States.
Our executive offices are located at 3172 Porter Drive, Palo Alto,
California 94304, and our telephone number is (650) 812-0585. CV
Therapeutics, Inc. and the CV Therapeutics logo are our service marks. All other
service marks and all brand names or trademarks appearing in this prospectus are
the property of their respective holders.
USE OF PROCEEDS
Except as otherwise provided in the applicable prospectus supplement, we
will use the net proceeds from the sale of the securities for general corporate
purposes, which may include funding research, development and product
manufacturing, increasing our working capital, reducing indebtedness,
acquisitions or investments in businesses, products or technologies that are
complementary to our own, and capital expenditures. Pending the application of
the net proceeds, we expect to invest the proceeds in investment-grade,
interest-bearing securities.
PLAN OF DISTRIBUTION
We may sell shares of common stock offered pursuant to this registration
statement to one or more underwriters for public offering and sale by them and
may also sell the shares to investors directly or through agents. We have
reserved the right to sell the shares directly to investors on our own behalf in
those jurisdictions where and in such manner as we are authorized to do so.
The distribution of the shares may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, or at negotiated prices. Sales of common stock offered pursuant
to this registration statement may be effected from time to time in one or more
transactions on the Nasdaq National Market or in negotiated transactions or a
combination of these methods. We may also, from time to time, authorize dealers,
acting as our agents, to offer and sell securities upon the terms and conditions
as are set forth in the applicable prospectus supplement. In connection with the
sale of securities, underwriters may receive compensation from us in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of the securities for whom they may act as agent.
Underwriters may sell the shares to or through dealers and they may pay the
dealers compensation in the form of discounts, concessions or commissions. Any
purchasers may also pay the dealers commissions. Dealers and agents
participating in the distribution of the shares may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the shares may be deemed to be underwriting
discounts and commissions. Unless we provide
4
<PAGE>
otherwise in a prospectus supplement, an agent will be acting on a best efforts
basis and a dealer will purchase the shares as a principal, and may then resell
the shares at varying prices to be determined by the dealer.
We will identify any underwriter, dealer or agent involved in the offer and
sale of the shares of our common stock and set forth any compensation that we
paid to underwriters or agents in connection with the offering of the shares,
and any discounts, concessions or commissions allowed by underwriters to
participating dealers, in the applicable prospectus supplement.
We may enter into agreements with underwriters, dealers and agents which may
entitle them to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Exchange Act, and to
reimbursement by us for certain expenses.
To facilitate an offering of the shares of common stock, certain persons
participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the price of the shares. This may include
over-allotments or short sales of the shares, which involves the sale by persons
participating in the offering of more shares than we have sold to them. In such
circumstances, such persons would cover the over-allotments or short positions
by purchasing in the open market or by exercising the over-allotment option
granted to such persons. In addition, such persons may stabilize or maintain the
price of our common stock by bidding for or purchasing shares of our common
stock in the open market or by imposing penalty bids, whereby selling
concessions allowed to dealers participating in any such offering may be
reclaimed if shares that they sold are repurchased in connection with
stabilization transactions. The effect of these transactions may be to stabilize
or maintain the market price of the shares at a level above that which might
otherwise prevail in the open market. Such transactions, if commenced, may be
discontinued at any time.
LEGAL MATTERS
Certain legal matters with respect to the shares of our common stock offered
pursuant to this registration statement will be passed upon for us by Latham &
Watkins, Menlo Park, California. Certain legal matters will be passed upon for
any agents or underwriters by counsel for such agents or underwriters identified
in the applicable prospectus supplement.
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
consolidated financial statements are incorporated by reference in reliance on
Ernst & Young LLP's report, given on their authority as experts in accounting
and auditing.
5
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses to be paid by us in connection with the distribution of the
securities being registered are as set forth in the following table:
<TABLE>
<S> <C>
Securities and Exchange Commission Fee...................... $ 25,200
*Legal Fees and Expenses.................................... $100,000
*Accounting Fees and Expenses............................... $ 7,500
*Printing Expenses.......................................... $ 30,000
*Blue Sky Fees.............................................. $ 10,000
*Transfer Agent Fees & Expenses............................. $ 5,000
*Miscellaneous.............................................. $ 2,300
--------
*Total.................................................... $180,000
========
</TABLE>
------------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
We are a Delaware corporation. Subsection (b)(7) of Section 102 of the
Delaware General Corporation Law enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of the director's fiduciary duty, except (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
Delaware General Corporation Law (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which the director derived an improper personal
benefit.
Subsection (a) of Section 145 of the Delaware General Corporation Law
empowers a corporation to indemnify any present or former director, officer,
employee or agent of the corporation, or any individual serving at the
corporation's request as a director, officer, employee or agent of another
organization, who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding provided that
such director, officer, employee or agent acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding, provided
further that such director, officer, employee or agent had no reasonable cause
to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
present or former director, officer, employee or agent who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such
action or suit provided that such director, officer, employee or agent acted in
good faith and in a manner reasonably believed to be in, or not opposed to, the
best interests of the corporation, except that no indemnification may be made in
respect to any claim, issue or matter as to which such director, officer,
employee or agent shall have been adjudged to be liable to the
II-1
<PAGE>
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all of the
circumstances of the case, such director or officer is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification and advancement of expenses provided
for, by, or granted pursuant to, Section 145 shall not be deemed exclusive of
any other rights to which the indemnified party may be entitled; and empowers
the corporation to purchase and maintain insurance on behalf of a present or
former director, officer, employee or agent of the corporation, or any
individual serving at the corporation's request as a director, officer or
employee of another organization, against any liability asserted against him or
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Our Amended and Restated Certificate of Incorporation, as amended by
Amendment No. 1 to the Amended and Restated Certificate of Incorporation,
provides our directors shall not be personally liable to us or our stockholders
for monetary damages for breach of fiduciary duty as a director, to the fullest
extent permitted by the Delaware General Corporation Law. Our Restated Bylaws
provide for indemnification of officers and directors to the full extent and in
the manner permitted by Delaware General Corporation Law. Section 145 of the
Delaware General Corporation Law makes provision for such indemnification in
terms sufficiently broad to cover officers and directors under certain
circumstances for liabilities arising under the Securities Act.
We have entered into indemnification agreements with substantially all of
our officers and directors which provide indemnification under certain
circumstances for acts and omissions which may not be covered by any directors'
and officers' liability insurance.
II-2
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement.
4.1 Amended and Restated Certificate of Incorporation of CV
Therapeutics, Inc. filed as Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 and incorporated herein by reference.
4.2** Amendment No. 1 to the Amended and Restated Certificate of
Incorporation of CV Therapeutics, Inc.
4.3 Certificate of Designation of CV Therapeutics, Inc.
establishing the terms of the Company's Series A Junior
Participating Preferred Stock filed as Exhibit 10.78 to the
Company's Quarterly Report on Form 10-Q for the quarterly
period ending June 30, 2000 and incorporated herein by
reference.
4.4 Restated ByLaws of CV Therapeutics, Inc., as amended, filed
as Exhibit 3.5 to the Company's Registration Statement on
Form S-1, File No. 333-12675, and incorporated herein by
reference.
4.5 Form of Common Stock Certificate, filed as Exhibit 4.2 to
the Company's Registration Statement on Form S-1, File
No. 333-12675, and incorporated herein by reference.
5.1** Opinion of Latham & Watkins.
23.1** Consent of Ernst & Young LLP, Independent Auditors.
23.2** Consent of Latham & Watkins (included in Exhibit 5.1).
24.1** Powers of Attorney (contained on signature page of this
Registration Statement).
</TABLE>
------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K.
** Previously filed.
ITEM 17. UNDERTAKINGS.
(a) 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 the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
II-3
<PAGE>
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(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
Securities and Exchange Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned 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 (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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE
offering thereof.
(h) 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 foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in 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.
(i) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial BONA FIDE offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 amendment No. 1 to
the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Palo Alto, State of California, on
January 12, 2001.
<TABLE>
<S> <C> <C>
CV THERAPEUTICS, INC.
By: /s/ DANIEL K. SPIEGELMAN
------------------------------------------------
Daniel K. Spiegelman
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this amendment
No. 1 to the registration statement has been signed by each of the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Chairman of the Board and Chief
------------------------------------ Executive Officer (Principal January 12, 2001
Louis G. Lange, M.D., Ph.D. Executive Officer)
/s/ DANIEL K. SPIEGELMAN Senior Vice President and Chief
------------------------------------ Financial Officer (Principal January 12, 2001
Daniel K. Spiegelman Financial and Accounting Officer)
*
------------------------------------ Director January 12, 2001
Thomas L. Gutshall
*
------------------------------------ Director January 12, 2001
Barbara J. McNeil, M.D., Ph.D.
*
------------------------------------ Director January 12, 2001
Costa G. Sevastopoulos, Ph.D.
------------------------------------ Director
J. Leighton Read, M.D.
*
------------------------------------ Director January 12, 2001
R. Scott Greer
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
*
------------------------------------ Director January 12, 2001
Peter Barton Hutt
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ DANIEL K. SPIEGELMAN
--------------------------------------
Daniel K. Spiegelman
ATTORNEY-IN-FACT
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement.
4.1 Amended and Restated Certificate of Incorporation of CV
Therapeutics, Inc. filed as Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 and incorporated herein by reference.
4.2** Amendment No. 1 to the Amended and Restated Certificate of
Incorporation of CV Therapeutics, Inc.
4.3 Certificate of Designation of CV Therapeutics, Inc.
establishing the terms of the Company's Series A Junior
Participating Preferred Stock filed as Exhibit 10.78 to the
Company's Quarterly Report on Form 10-Q for the quarterly
period ending June 30, 2000 and incorporated herein by
reference.
4.4 Restated ByLaws of CV Therapeutics, Inc., as amended, filed
as Exhibit 3.5 to the Company's Registration Statement on
Form S-1, File No. 333-12675, and incorporated herein by
reference.
4.5 Form of Common Stock Certificate, filed as Exhibit 4.2 to
the Company's Registration Statement on Form S-1, File
No. 333-12675, and incorporated herein by reference.
5.1** Opinion of Latham & Watkins.
23.1** Consent of Ernst & Young LLP, Independent Auditors.
23.2** Consent of Latham & Watkins (included in Exhibit 5.1).
24.1** Powers of Attorney (contained on signature page of this
Registration Statement).
</TABLE>
------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K.
** Previously filed.
