<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 4, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
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 (650) 812-0585 Identification Number)
incorporation or organization)
</TABLE>
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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:
<TABLE>
<S> <C>
ALAN C. MENDELSON, ESQ. LAURA L. GABRIEL, ESQ.
LATHAM & WATKINS LATHAM & WATKINS
135 COMMONWEALTH DRIVE 505 MONTGOMERY STREET, SUITE 1900
MENLO PARK, CALIFORNIA 94025 SAN FRANCISCO, CALIFORNIA 94111
(415) 328-4600 (415) 391-0600
</TABLE>
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. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE OFFERING PRICE AMOUNT OF
SECURITIES TO BE REGISTERED (1) (2) (3) (4) REGISTRATION FEE
<S> <C> <C>
Debt securities (5).........................................
Preferred stock, $0.001 par value (6).......................
Common stock, $0.001 par value (7)..........................
Equity warrants.............................................
Debt warrants...............................................
Total....................................................... $300,000,000 $75,000
Preferred stock purchase rights (8)......................... (8) $200(8)
</TABLE>
(FOOTNOTES ON FOLLOWING PAGE)
<PAGE>
(FOOTNOTES FROM PREVIOUS PAGE)
(1) Not specified as to each class of securities to be registered hereunder
pursuant to General Instruction II(D) to Form S-3 under the Securities Act
of 1933.
(2) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or composite currencies. The proposed maximum offering price per unit will
be determined from time to time by the registrant in connection with the
issuance of the securities registered hereby.
(3) Estimated solely for the purpose of calculating the registration fee. In no
event will the aggregate maximum offering price of all securities issued
under this registration statement exceed $300,000,000 or the equivalent
thereof in one or more foreign currencies or composite currencies or, if any
debt securities are issued with original issue discount, such greater amount
as shall result in proceeds of $300,000,000 to the registrant.
(4) With respect to debt securities, excluding accrued interest and accrued
amortization of discount, if any, to the date of delivery.
(5) Debt securities may be issued in primary offerings, upon exercise of
warrants registered hereby and/or upon conversion of another series of debt
securities and/or other securities registered hereby.
(6) Shares of preferred stock may be issued in primary offerings, upon
conversion of debt securities and/or another series of preferred securities
registered hereby, and/or upon exercise of warrants registered hereby.
(7) Shares of common stock may be issued in primary offerings, upon conversion
of debt securities and/or preferred stock registered hereby, and/or upon
exercise of warrants registered hereby.
(8) Rights to acquire shares of the Registrant's Series A Junior Participating
Preferred Stock are attached to and trade with the common stock of the
Registrant. Value attributable to such rights, if any, is reflected in the
market price of the common stock. Fee paid represents the minimum statutory
fee pursuant to Section 6(b) of the Securities Act of 1933.
------------------------------
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.
PROSPECTUS
SUBJECT TO COMPLETION, DATED JANUARY 4, 2001
$300,000,000
CV THERAPEUTICS, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
EQUITY WARRANTS
DEBT WARRANTS
---------------------
We may, from time to time in one or more offerings, sell up to $300,000,000
in the aggregate of:
- our secured or unsecured debt securities, in one or more series, which may
be either senior, senior subordinated or subordinated debt securities;
- shares of our preferred stock, par value $0.001 per share, in one or more
series;
- shares of our common stock, par value $0.001 per share;
- warrants to purchase our preferred stock or our common stock;
- warrants to purchase our debt securities; or
- any combination of the foregoing.
We will provide the specific terms of these securities in supplements to
this prospectus. You should read this prospectus and any prospectus supplement
carefully before you invest.
------------------------
SEE "RISK FACTORS" BEGINNING ON PAGE 3 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 3, 2001, the last reported sale price for our common stock on
the Nasdaq National Market was $65.1875 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........... 1
AVAILABLE INFORMATION....................................... 1
INCORPORATION BY REFERENCE.................................. 2
RISK FACTORS................................................ 3
THE COMPANY................................................. 3
USE OF PROCEEDS............................................. 3
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS............... 3
GENERAL DESCRIPTION OF SECURITIES........................... 4
DESCRIPTION OF DEBT SECURITIES.............................. 4
DESCRIPTION OF PREFERRED STOCK.............................. 13
DESCRIPTION OF COMMON STOCK................................. 16
DESCRIPTION OF WARRANTS..................................... 16
PLAN OF DISTRIBUTION........................................ 18
LEGAL MATTERS............................................... 19
EXPERTS..................................................... 19
</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.
1
<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; 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.
2
<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 our most recent
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.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratios of earnings to fixed charges for
the periods indicated:
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
FISCAL YEAR ENDED DECEMBER 31 ENDED ENDED
--------------------------------------------------------- -------------- --------------
SEPTEMBER 30, SEPTEMBER 30,
1995 1996 1997 1998 1999 2000 2000
--------- --------- --------- --------- --------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
-- -- -- -- -- -- --
</TABLE>
Earnings for the years ended December 31, 1995, 1996, 1997, 1998, 1999 and
the three and nine months ended September 30, 2000 were insufficient to cover
fixed charges by the amount of the net loss of $16,724,000, $10,365,000,
$11,325,000, $12,602,000, $23,122,000, $10,153,000 and $24,618,000,
respectively.
Our ratios of earnings to fixed charges are computed by dividing earnings
(loss) by fixed charges. Earnings consist of our net loss before income taxes
and fixed charges. Fixed charges consist of interest on all indebtedness,
amortization of debt issuance costs and the portion of rental expense
representative of interest.
3
<PAGE>
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
To date, we have not paid dividends on any shares of preferred stock;
therefore, the ratios of earnings to combined fixed charges and preferred share
dividends are unchanged from the ratios presented in this section.
GENERAL DESCRIPTION OF SECURITIES
We, directly or through agents, dealers or underwriters designated from time
to time, may offer, issue and sell, together or separately, in one or more
offerings, up to $300,000,000 in the aggregate of:
- secured or unsecured debt securities, in one or more series, which may be
either senior debt securities, senior subordinated debt securities or
subordinated debt securities;
- shares of our preferred stock, par value $0.001 per share, in one or more
series;
- shares of our common stock, par value $0.001 per share, and the rights to
acquire our series A junior participating preferred stock that are
attached to and trade with the common stock;
- warrants to purchase our common stock or our preferred stock;
- warrants to purchase our debt securities; or
- any combination of the foregoing, either individually or as units
consisting of one or more of the foregoing, each on terms to be determined
at the time of sale.
We may issue the debt securities as exchangeable for and/or convertible into
shares of common stock, preferred stock and/or other securities. The preferred
stock may also be exchangeable for and/or convertible into shares of common
stock, another series of preferred stock or other securities. The debt
securities, the preferred stock, the common stock and the warrants are
collectively referred to herein as the securities. When a particular series of
securities is offered, a supplement to this prospectus will be delivered with
this prospectus, which will set forth the terms of the offering and sale of the
offered securities.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of our debt
securities. When we offer to sell a particular series of debt securities, we
will describe the specific terms of the series in a supplement to this
prospectus. The following description of debt securities will apply to the debt
securities offered by this prospectus unless we provide otherwise in the
applicable prospectus supplement, as established under a supplement to the
indenture, a board resolution or an officers' certificate delivered pursuant to
the indenture. The applicable prospectus supplement for a particular series of
debt securities may specify different or additional terms.
We may offer under this prospectus up to $300,000,000 aggregate principal
amount of secured or unsecured debt securities, or if debt securities are issued
at a discount, or in a foreign currency or composite currency, such principal
amount as may be sold for an initial public offering price of up to
$300,000,000. The debt securities may be either senior debt securities, senior
subordinated debt securities or subordinated debt securities.
The debt securities offered hereby will be issued under an indenture between
us and a trustee, as trustee. We have filed a copy of the form indenture as an
exhibit to the registration statement and you should read the indenture for
provisions that may be important to you. We have summarized select portions of
the indenture below. The summary is not complete. In the summary below, we have
included parenthetical cross-references to the section numbers of the indenture
so that you can easily locate these provisions. Capitalized terms used in the
summary below have the meanings specified in the indenture.
4
<PAGE>
GENERAL
The terms of each series of debt securities will be established by or
pursuant to a resolution of our Board of Directors and detailed or determined in
the manner provided in a Board of Directors resolution, an officers' certificate
or by a supplemental indenture. (Section 2.2) The particular terms of each
series of debt securities will be described in a prospectus supplement relating
to the series, including any pricing supplement.
We can issue an unlimited amount of debt securities under the indenture that
may be in one or more series with the same or various maturities, at par, at a
premium or at a discount. We will set forth in a prospectus supplement
(including any pricing supplement) relating to any series of debt securities
being offered, the initial offering price, the aggregate principal amount and
the following terms of the debt securities:
- the title of the debt securities;
- the price or prices (expressed as a percentage of the aggregate principal
amount) at which we will sell the debt securities;
- any limit on the aggregate principal amount of the debt securities;
- the date or dates on which we will pay the principal on the debt
securities;
- the rate or rates (which may be fixed or variable) per annum or the method
used to determine the rate or rates (including any commodity, commodity
index, stock exchange index or financial index) at which the debt
securities will bear interest, the date or dates from which interest will
accrue, the date or dates on which interest will commence and be payable
and any regular record date for the interest payable on any interest
payment date;
- the place or places where the principal of, premium, and interest on the
debt securities will be payable;
- the terms and conditions upon which we may redeem the debt securities;
- any obligation we have to redeem or purchase the debt securities pursuant
to any sinking fund or analogous provisions or at the option of a holder
of debt securities;
- the dates on which and the price or prices at which we will repurchase the
debt securities at the option of the holders of debt securities and other
detailed terms and provisions of these repurchase obligations;
- the denominations in which the debt securities will be issued, if other
than denominations of $1,000 and any integral multiple thereof;
- whether the debt securities will be issued in the form of certificated
debt securities or global debt securities;
- the portion of principal amount of the debt securities payable upon
declaration of acceleration of the maturity date, if other than the
principal amount;
- the currency of denomination of the debt securities;
- the designation of the currency, currencies or currency units in which
payment of principal of, premium and interest on the debt securities will
be made;
- if payments of principal of, premium or interest on the debt securities
will be made in one or more currencies or currency units other than that
or those in which the debt securities are denominated, the manner in which
the exchange rate with respect to these payments will be determined;
5
<PAGE>
- the manner in which the amounts of payment of principal of, premium or
interest on the debt securities will be determined, if these amounts may
be determined by reference to an index based on a currency or currencies
other than that in which the debt securities are denominated or designated
to be payable or by reference to a commodity, commodity index, stock
exchange index or financial index;
- any provisions relating to any security provided for the debt securities;
- any addition to or change in the Events of Default described in this
prospectus or in the indenture with respect to the debt securities and any
change in the acceleration provisions described in this prospectus or in
the indenture with respect to the debt securities;
- any addition to or change in the covenants described in this prospectus or
in the indenture with respect to the debt securities;
- any other terms of the debt securities, which may modify or delete any
provision of the indenture as it applies to that series; and
- any depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to the debt securities.
(Section 2.2)
We may issue debt securities that provide for an amount less than their
stated principal amount to be due and payable upon declaration of acceleration
of their maturity pursuant to the terms of the indenture. We will provide you
with information on the federal income tax considerations and other special
considerations applicable to any of these debt securities in the applicable
prospectus supplement.
If we denominate the purchase price of any of the debt securities in a
foreign currency or currencies or a foreign currency unit or units, or if the
principal of and any premium and interest on any series of debt securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
we will provide you with information on the restrictions, elections, general tax
considerations, specific terms and other information with respect to that issue
of debt securities and such foreign currency or currencies or foreign currency
unit or units in the applicable prospectus supplement.
PAYMENT OF INTEREST AND EXCHANGE
Each debt security will be represented by either one or more global
securities registered in the name of The Depository Trust Company, as
Depositary, or a nominee of the Depositary (we will refer to any debt security
represented by a global debt security as a book-entry debt security), or a
certificate issued in definitive registered form (we will refer to any debt
security represented by a certificated security as a certificated debt
security), as described in the applicable prospectus supplement. Except as
described under "Global Debt Securities and Book-Entry System" below, book-entry
debt securities will not be issuable in certificated form.
CERTIFICATED DEBT SECURITIES. You may transfer or exchange certificated
debt securities at the trustee's office or paying agencies in accordance with
the terms of the indenture. No service charge will be made for any transfer or
exchange of certificated debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
with a transfer or exchange.
You may transfer certificated debt securities and the right to receive the
principal of, premium and interest on certificated debt securities only by
surrendering the old certificate representing those certificated debt securities
and either we or the trustee will reissue the old certificate to the new holder
or we or the trustee will issue a new certificate to the new holder.
6
<PAGE>
GLOBAL DEBT SECURITIES AND BOOK-ENTRY SYSTEM. Each global debt security
representing book-entry debt securities will be deposited with, or on behalf of,
the Depositary, and registered in the name of the Depositary or a nominee of the
Depositary.
The Depositary has indicated it intends to follow the following procedures
with respect to book-entry debt securities.
Ownership of beneficial interests in book-entry debt securities will be
limited to persons that have accounts with the Depositary for the related global
debt security (we shall refer to these persons as participants) or persons that
may hold interests through participants. Upon the issuance of a global debt
security, the Depositary will credit, on its book-entry registration and
transfer system, the participants' accounts with the respective principal
amounts of the book-entry debt securities represented by the global debt
security beneficially owned by such participants. The accounts to be credited
will be designated by any dealers, underwriters or agents participating in the
distribution of the book-entry debt securities. Ownership of book-entry debt
securities will be shown on, and the transfer of the ownership interests will be
effected only through, records maintained by the Depositary for the related
global debt security (with respect to interests of participants) and on the
records of participants (with respect to interests of persons holding through
participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form. These
laws may impair the ability to own, transfer or pledge beneficial interests in
book-entry debt securities.
So long as the Depositary for a global debt security, or its nominee, is the
registered owner of that global debt security, the Depositary or its nominee, as
the case may be, will be considered the sole owner or holder of the book-entry
debt securities represented by such global debt security for all purposes under
the indenture. Except as described herein, beneficial owners of book-entry debt
securities will not be entitled to have securities registered in their names,
will not receive or be entitled to receive physical delivery of a certificate in
definitive form representing securities and will not be considered the owners or
holders of those securities under the indenture. Accordingly, to exercise any
rights of a holder under the indenture, each person beneficially owning
book-entry debt securities must rely on the procedures of the Depositary for the
related global debt security and, if that person is not a participant, on the
procedures of the participant through which that person owns its interest.
We understand, however, that under existing industry practice, the
Depositary will authorize the persons on whose behalf it holds a global debt
security to exercise certain rights of holders of debt securities, and the
indenture provides that we, the trustee and our respective agents will treat as
the holder of a debt security the persons specified in a written statement of
the Depositary with respect to that global debt security for purposes of
obtaining any consents or directions required to be given by holders of the debt
securities pursuant to the indenture. (Section 2.14.6)
We will make payments of principal of, and premium and interest on
book-entry debt securities to the Depositary or its nominee, as the case may be,
as the registered holder of the related global debt security. (Section 2.14.5)
We, the trustee and any other agent of ours or agent of the trustee will not
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a global debt
security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
We expect that the Depositary, upon receipt of any payment of principal of,
premium or interest on a global debt security, will immediately credit
participants' accounts with payments in amounts proportionate to the respective
amounts of book-entry debt securities held by each participant as shown on the
records of the Depositary. We also expect that payments by participants to
owners of beneficial interests in book-entry debt securities held through those
participants will be governed by standing customer instructions and customary
practices, as is now the case with the securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of those participants.
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We will issue certificated debt securities in exchange for each global debt
security if the Depositary is at any time unwilling or unable to continue as
Depositary or ceases to be a clearing agency registered under the Securities
Exchange Act, and a successor Depositary registered as a clearing agency under
the Securities Exchange Act is not appointed by us within 90 days. In addition,
we may at any time and in our sole discretion determine not to have any of the
book-entry debt securities of any series represented by one or more global debt
securities and, in that event, we will issue certificated debt securities in
exchange for the global debt securities of that series. Global debt securities
will also be exchangeable by the holders for certificated debt securities if an
event of default with respect to the book-entry debt securities represented by
those global debt securities has occurred and is continuing. Any certificated
debt securities issued in exchange for a global debt security will be registered
in such name or names as the Depositary shall instruct the trustee. We expect
that such instructions will be based upon directions received by the Depositary
from participants with respect to ownership of book-entry debt securities
relating to such global debt security.
We have obtained the foregoing information in this section concerning the
Depositary and the Depositary's book-entry system from sources we believe to be
reliable, but we take no responsibility for the accuracy of this information.
NO PROTECTION IN THE EVENT OF A CHANGE OF CONTROL
Unless we provide otherwise in the applicable prospectus supplement, the
debt securities will not contain any provisions which may afford holders of the
debt securities protection in the event we have a change in control or in the
event of a highly leveraged transaction (whether or not such transaction results
in a change in control).
COVENANTS
Unless we provide otherwise in the applicable prospectus supplement, the
debt securities will not contain any restrictive covenants, including covenants
restricting us or any of our subsidiaries from incurring, issuing, assuming or
guarantying any indebtedness secured by a lien on any of our or our
subsidiaries' property or capital stock, or restricting us or any of our
subsidiaries from entering into any sale and leaseback transactions.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Unless we provide otherwise in the applicable prospectus supplement, we may
not consolidate with or merge into, or convey, transfer or lease all or
substantially all of our properties and assets to, any person (a "successor
person"), and we may not permit any person to merge into, or convey, transfer or
lease its properties and assets substantially as an entirety to us, unless:
- the successor person is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any U.S. domestic
jurisdiction and expressly assumes our obligations on the debt securities
and under the indenture;
- immediately after giving effect to the transaction, no event of default,
and no event which, after notice or lapse of time, or both, would become
an event of default, shall have occurred and be continuing under the
indenture; and
- certain other conditions are met. (Section 5.1)
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EVENTS OF DEFAULT
Unless we provide otherwise in the applicable prospectus supplement, "event
of default" means with respect to any series of debt securities, any of the
following:
- default in the payment of any interest upon any debt security of that
series when it becomes due and payable, and continuance of that default
for a period of 90 days (unless the entire amount of such payment is
deposited by us with the trustee or with a paying agent prior to the
expiration of the 90-day period);
- default in the payment of principal of or premium on any debt security of
that series when due and payable;
- default in the deposit of any sinking fund payment, when and as due in
respect of any debt security of that series;
- default in the performance or breach of any other covenant or warranty by
us in the indenture (other than a covenant or warranty that has been
included in the indenture solely for the benefit of a series of debt
securities other than that series), which default continues uncured for a
period of 60 days after we receive written notice from the trustee or we
and the trustee receive written notice from the holders of at least 51% in
principal amount of the outstanding debt securities of that series as
provided in the indenture;
- certain events of our bankruptcy, insolvency or reorganization; and
- any other event of default provided with respect to debt securities of
that series that is described in the applicable prospectus supplement
accompanying this prospectus.
No event of default with respect to a particular series of debt securities
(except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an event of default with respect to any other series of
debt securities. (Section 6.1) An event of default may also be an event of
default under our bank credit agreements or other debt securities in existence
from time to time and under certain guaranties by us of any subsidiary
indebtedness. In addition, certain Events of Default or an acceleration under
the indenture may also be an event of default under some of our other
indebtedness outstanding from time to time.
Unless we provide otherwise in the applicable prospectus supplement, if an
event of default with respect to debt securities of any series at the time
outstanding occurs and is continuing (other than certain events of our
bankruptcy, insolvency or reorganization), then the trustee or the holders of
not less than 51% in principal amount of the outstanding debt securities of that
series may, by written notice to us (and to the trustee if given by the
holders), declare to be due and payable immediately the principal (or, if the
debt securities of that series are discount securities, that portion of the
principal amount as may be specified in the terms of that series) and premium of
all debt securities of that series. In the case of an event of default resulting
from certain events of bankruptcy, insolvency or reorganization, the principal
(or such specified amount) and premium of all outstanding debt securities will
become and be immediately due and payable without any declaration or other act
by the trustee or any holder of outstanding debt securities. At any time after a
declaration of acceleration with respect to debt securities of any series has
been made, but before the trustee has obtained a judgment or decree for payment
of the money due, the holders of a majority in principal amount of the
outstanding debt securities of that series may, subject to our having paid or
deposited with the trustee a sum sufficient to pay overdue interest and
principal which has become due other than by acceleration and certain other
conditions, rescind and annul such acceleration if all Events of Default, other
than the non-payment of accelerated principal and premium with respect to debt
securities of that series, have been cured or waived as provided in the
indenture. (Section 6.2) For information as to waiver of defaults see the
discussion under "Modification and Waiver" below. We refer you to the prospectus
supplement relating
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to any series of debt securities that are discount securities for the particular
provisions relating to acceleration of a portion of the principal amount of the
discount securities upon the occurrence of an event of default and the
continuation of an event of default.
The indenture provides that the trustee will be under no obligation to
exercise any of its rights or powers under the indenture at the request of any
holder of outstanding debt securities, unless the trustee receives indemnity
satisfactory to it against any loss, liability or expense. (Section 7.1(e))
Subject to certain rights of the trustee, the holders of a majority in principal
amount of the outstanding debt securities of any series shall 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 debt securities of that series. (Section 6.12)
Unless we provide otherwise in the applicable prospectus supplement, no
holder of any debt security of any series will have any right to institute any
proceeding, judicial or otherwise, with respect to the indenture or for the
appointment of a receiver or trustee, or for any remedy under the indenture,
unless:
- that holder has previously given to the trustee written notice of a
continuing event of default with respect to debt securities of that
series; and
- the holders of at least 51% in principal amount of the outstanding debt
securities of that series have made written request, and offered
reasonable indemnity, to the trustee to institute such proceeding as
trustee, and the trustee shall not have received from the holders of a
majority in principal amount of the outstanding debt securities of that
series a direction inconsistent with that request and has failed to
institute the proceeding within 60 days. (Section 6.7)
Notwithstanding the foregoing, the holder of any debt security will have an
absolute and unconditional right to receive payment of the principal of, premium
and any interest on that debt security on or after the due dates expressed in
that debt security and to institute suit for the enforcement of payment.
(Section 6.8)
The indenture requires us, within 90 days after the end of our fiscal year,
to furnish to the trustee a certificate as to compliance with the indenture.
(Section 4.3) The indenture provides that the trustee may withhold notice to the
holders of debt securities of any series of any default or event of default
(except in payment on any debt securities of that series) with respect to debt
securities of that series if it in good faith determines that withholding notice
is in the interest of the holders of those debt securities. (Section 7.5)
MODIFICATION AND WAIVER
Unless we provide otherwise in the applicable prospectus supplement, we and
the trustee may modify and amend the indenture with the consent of the holders
of at least a majority in principal amount of the outstanding debt securities of
each series affected by the modifications or amendments. We and the trustee may
not make any modification or amendment without the consent of the holder of each
affected debt security then outstanding if that amendment will:
- change the amount of debt securities whose holders must consent to an
amendment or waiver;
- reduce the rate of or extend the time for payment of interest (including
default interest) on any debt security;
- reduce the principal of or premium on or change the fixed maturity of any
debt security or reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous obligation with respect to any
series of debt securities;
- reduce the principal amount of discount securities payable upon
acceleration of maturity;
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- waive a default in the payment of the principal of, premium or interest on
any debt security (except a rescission of acceleration of the debt
securities of any series by the holders of at least a majority in
aggregate principal amount of the then outstanding debt securities of that
series and a waiver of the payment default that resulted from that
acceleration);
- make the principal of or premium or interest on any debt security payable
in currency other than that stated in the debt security;
- make any change to certain provisions of the indenture relating to, among
other things, the right of holders of debt securities to receive payment
of the principal of, premium and interest on those debt securities, the
right of holders to institute suit for the enforcement of the payment or
the right of holders to waive past defaults or to amend the limitations
described in this bullet point; or
- waive a redemption payment with respect to any debt security or change any
of the provisions with respect to the redemption of any debt securities.
(Section 9.3)
Except for certain specified provisions, the holders of at least a majority
in principal amount of the outstanding debt securities of any series may, on
behalf of the holders of all debt securities of that series, waive our
compliance with provisions of the indenture. (Section 9.2) The holders of a
majority in principal amount of the outstanding debt securities of any series
may, on behalf of the holders of all the debt securities of that series, waive
any past default under the indenture with respect to that series and its
consequences, except a default in the payment of the principal of, premium or
any interest on any debt security of that series; PROVIDED, HOWEVER, that the
holders of a majority in principal amount of the outstanding debt securities of
any series may rescind an acceleration and its consequences, including any
related payment default that resulted from the acceleration. (Section 6.13)
DEFEASANCE OF DEBT SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
LEGAL DEFEASANCE. The indenture provides that, unless the terms of the
applicable series of debt securities provide otherwise, we may be discharged
from any and all obligations in respect of the debt securities of any series
(except for certain obligations to register the transfer or exchange of debt
securities of the series, to replace stolen, lost or mutilated debt securities
of the series, and to maintain paying agencies and certain provisions relating
to the treatment of funds held by paying agents). We will be so discharged upon
the deposit with the trustee, in trust, of money and/or U.S. government
obligations or, in the case of debt securities denominated in a single currency
other than U.S. dollars, foreign government obligations (as described at the end
of this section), that, through the payment of interest and principal in
accordance with their terms, will provide money in an amount sufficient in the
opinion of a nationally recognized firm of independent public accountants to pay
and discharge each installment of principal, premium and interest on and any
mandatory sinking fund payments in respect of the debt securities of that series
on the stated maturity of such payments in accordance with the terms of the
indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to
the trustee an officers' certificate and an opinion of counsel stating that we
have received from, or there has been published by, the United States Internal
Revenue Service a ruling or, since the date of execution of the indenture, there
has been a change in the applicable United States federal income tax law, in
either case to the effect that holders of the debt securities of such series
will not recognize income, gain or loss for United States federal income tax
purposes as a result of the deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times as would have been the case if the deposit,
defeasance and discharge had not occurred. (Section 8.3)
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DEFEASANCE OF CERTAIN COVENANTS. The indenture provides that, unless the
terms of the applicable series of debt securities provide otherwise, upon
compliance with certain conditions, we may omit to comply with the restrictive
covenants contained in Sections 4.2 (SEC Reports), 4.3 through 4.6 (Compliance
Certificate; Stay, Extension and Usury Laws; Corporate Existence; Taxes) and 5.1
(When We May Merge, Etc.) of the indenture, as well as any additional covenants
contained in a supplement to the indenture, a board resolution or an officers'
certificate delivered pursuant to the indenture. The conditions include:
- depositing with the trustee money and/or U.S. government obligations or,
in the case of debt securities denominated in a single currency other than
U.S. dollars, foreign government obligations, that, through the payment of
interest and principal in accordance with their terms, will provide money
in an amount sufficient in the opinion of a nationally recognized firm of
independent public accountants to pay principal, premium and interest on
and any mandatory sinking fund payments in respect of the debt securities
of that series on the stated maturity of those payments in accordance with
the terms of the indenture and those debt securities; and
- delivering to the trustee an opinion of counsel to the effect that the
holders of the debt securities of that series will not recognize income,
gain or loss for United States federal income tax purposes as a result of
the deposit and related covenant defeasance and will be subject to United
States federal income tax in the same amount and in the same manner and at
the same times as would have been the case if the deposit and related
covenant defeasance had not occurred. (Section 8.4)
COVENANT DEFEASANCE AND EVENTS OF DEFAULT. In the event we exercise our
option, as described above, not to comply with certain covenants of the
indenture with respect to any series of debt securities and the debt securities
of that series are declared due and payable because of the occurrence of any
event of default, the amount of money and/or U.S. government obligations or
foreign government obligations on deposit with the trustee will be sufficient to
pay amounts due on the debt securities of that series at the time of their
stated maturity but may not be sufficient to pay amounts due on the debt
securities of that series at the time of the acceleration resulting from the
event of default. However, we will remain liable for those payments.
"Foreign government obligations" means, with respect to debt securities of
any series that are denominated in a currency other than U.S. dollars:
- direct obligations of the government that issued or caused to be issued
such currency for the payment of which obligations its full faith and
credit is pledged, which are not callable or redeemable at the option of
the issuer thereof; or
- obligations of a person controlled or supervised by or acting as an agency
or instrumentality of that government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by that
government, which are not callable or redeemable at the option of the
issuer thereof.
CONVERSION AND EXCHANGE RIGHTS
The debt securities may be exchanged for and/or converted into shares of
common stock, shares of preferred stock or other securities. The terms, if any,
on which the debt securities may be exchanged for and/or converted will be set
forth in the applicable prospectus supplement. Such terms may include provisions
for conversion, either mandatory, at the option of the holder or at our option,
in which case the number of shares of common stock, preferred stock or other
securities to be received by the holders of the debt securities would be
calculated as of a time and in the manner stated in the prospectus supplement.
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GOVERNING LAW
The indenture and the debt securities will be governed by, and construed in
accordance with, the internal laws of the State of New York. (Section 10.10)
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the preferred stock sets forth
certain general terms and provisions of the preferred stock to which any
prospectus supplement may relate and will apply to the preferred stock offered
by this prospectus unless we provide otherwise in the applicable prospectus
supplement. The applicable prospectus supplement for a particular series of
preferred stock may specify different or additional terms. The description of
certain provisions of the preferred stock set forth below and in any prospectus
supplement does not purport to be complete and is subject to and qualified in
its entirety by reference to our certificate of incorporation and the
certificate of designations relating to each series of the preferred stock,
which will be filed with the Securities and Exchange Commission and incorporated
by reference in the registration statement of which this prospectus is a part at
or prior to the time of the issuance of such series of the preferred stock.
GENERAL
We have authority to issue 5,000,000 shares of preferred stock, 300,000 of
which are designated series A junior participating preferred stock and are
reserved for issuance pursuant to our First Amended and Restated Rights
Agreement, dated as of July 19, 2000. As of the date of this prospectus, no
shares of our preferred stock are outstanding.
Under our certificate of incorporation, our board of directors is authorized
without further stockholder action to provide for the issuance of up to
5,000,000 shares of our preferred stock, in one or more series, with such voting
powers, full or limited, and with such designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as shall be stated in the resolution or resolutions
providing for the issue of a series of such stock adopted, at any time or from
time to time, by our board of directors. As used herein, the term "board of
directors" includes any duly authorized committee thereof. The issuance of the
preferred stock could adversely affect the voting power of holders of our common
stock and the likelihood that such holders will receive dividend payments and
payments upon liquidation and could have the effect of delaying, deferring or
preventing a change in control.
The preferred stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless we provide otherwise in a prospectus
supplement relating to a particular series of the preferred stock. Reference is
made to the prospectus supplement relating to the particular series of the
preferred stock offered thereby for specific terms, including:
- the designation and stated value per share of such preferred stock and the
number of shares offered;
- the amount of liquidation preference per share;
- the initial public offering price at which such preferred stock will be
issued;
- the dividend rate (or method of calculation), the dates on which dividends
shall be payable and the dates from which dividends shall commence to
cumulate, if any;
- any redemption or sinking fund provisions;
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- any conversion or exchange rights; and
- any additional voting, dividend, liquidation, redemption, sinking fund and
other rights, preferences, privileges, limitations and restrictions.
The preferred stock will, if and when issued, be fully paid and
nonassessable and will have no preemptive rights. The rights of the holders of
each series of the preferred stock will be subordinate to those of our general
creditors.
DIVIDEND RIGHTS
Holders of the preferred stock of each series will be entitled to receive,
when, as and if declared by our board of directors, out of our funds legally
available therefor, cash dividends on such dates and at such rates as set forth
in, or as are determined by the method described in, the prospectus supplement
relating to such series of the preferred stock. Such rate may be fixed or
variable or both. Each such dividend will be payable to the holders of record as
they appear on our stock books on such record dates, fixed by our board of
directors, as specified in the prospectus supplement relating to such series of
preferred stock.
Such dividends may be cumulative or noncumulative, as provided in the
prospectus supplement relating to such series of preferred stock. If our board
of directors fails to declare a dividend payable on a dividend payment date on
any series of preferred stock for which dividends are noncumulative, then the
right to receive a dividend in respect of the dividend period ending on such
dividend payment date will be lost, and we will have no obligation to pay any
dividend for such period, whether or not dividends on such series are declared
payable on any future dividend payment dates. Dividends on the shares of each
series of preferred stock for which dividends are cumulative will accrue from
the date on which we initially issue shares of such series.
Bank credit agreements that we may enter into from time to time and debt
securities that we may issue from time to time may restrict our ability to
declare or pay dividends on our capital stock.
Unless otherwise specified in the applicable prospectus supplement, so long
as the shares of any series of the preferred stock are outstanding, unless:
- full dividends (including if such preferred stock is cumulative, dividends
for prior dividend periods) have been paid or declared and set apart for
payment on all outstanding shares of the preferred stock of such series
and all other classes and series of our preferred stock, other than junior
stock, as defined below and
- we are not in default or in arrears with respect to the mandatory or
optional redemption or mandatory repurchase or other mandatory retirement
of, or with respect to any sinking or other analogous funds for, any
shares of preferred stock of such series or any shares of any of our other
preferred stock of any class or series, other than junior stock, as
defined below,
we may not declare any dividends on any shares of our common stock or any of our
other stock ranking as to dividends or distributions of assets junior to such
series of preferred stock (we refer to this common stock and any such other
stock as junior stock), or make any payment on account of, or set apart money
for, the purchase, redemption or other retirement of, or for a sinking or other
analogous fund for, any shares of junior stock or make any distribution in
respect of any shares of junior stock, whether in cash or property or in
obligations of our stock, other than in junior stock which is neither
convertible into, nor exchangeable or exercisable for, any of our securities
other than junior stock.
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LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable prospectus supplement, in the
event of our liquidation, dissolution or winding up, whether voluntary or
involuntary, the holders of each series of the preferred stock will be entitled
to receive out of our assets available for distribution to stockholders, before
any distribution of assets is made to the holders of common stock or any other
shares of our stock ranking junior as to such distribution to such series of the
preferred stock, the amount set forth in the prospectus supplement relating to
such series of the preferred stock. If, upon our voluntary or involuntary
liquidation, dissolution or winding up, the amounts payable with respect to the
preferred stock of any series and any other shares of our preferred stock,
including any other series of the preferred stock, ranking as to any such
distribution on a parity with such series of the preferred stock are not paid in
full, the holders of the preferred stock of such series and of such other shares
of our preferred stock will share ratably in any such distribution of our assets
in proportion to the full respective preferential amounts to which they are
entitled. After payment to the holders of the preferred stock of each series of
the full preferential amounts of the liquidating distribution to which they are
entitled, unless we provide otherwise in the applicable prospectus supplement,
the holders of each such series of the preferred stock will be entitled to no
further participation in any distribution of our assets.
REDEMPTION
A series of the preferred stock may be redeemable, in whole or from time to
time in part, at our option, and may be subject to mandatory redemption pursuant
to a sinking fund or otherwise, in each case upon terms, at the times and at the
redemption prices set forth in the prospectus supplement relating to such
series. Shares of the preferred stock redeemed by us will be restored to the
status of authorized but unissued shares of our preferred stock.
In the event that fewer than all of the outstanding shares of a series of
the preferred stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or pro
rata, subject to rounding to avoid fractional shares, as may be determined by us
or by any other method as may be determined by us in our sole discretion to be
equitable. From and after the redemption date, unless default is made by us in
providing for the payment of the redemption price plus accumulated and unpaid
dividends, if any, dividends will cease to accumulate on the shares of the
preferred stock called for redemption and all rights of the holders thereof,
except the right to receive the redemption price plus accumulated and unpaid
dividends, if any, will cease.
Unless otherwise specified in the applicable prospectus supplement, so long
as any dividends on shares of any series of the preferred stock or any other
series of our preferred stock ranking on a parity as to dividends and
distribution of assets with such series of the preferred stock are in arrears,
no shares of any such series of the preferred stock or such other series of our
preferred stock will be redeemed, whether by mandatory or optional redemption,
unless all such shares are simultaneously redeemed, and we will not purchase or
otherwise acquire any such shares; PROVIDED, HOWEVER, that the foregoing will
not prevent the purchase or acquisition of such shares pursuant to a purchase or
exchange offer made on the same terms to holders of all such shares outstanding.
CONVERSION AND EXCHANGE RIGHTS
The terms, if any, on which shares of the preferred stock of any series may
be exchanged for or converted into shares of common stock, another series of the
preferred stock or any other security will be set forth in the applicable
prospectus supplement. Such terms may include provisions for conversion, either
mandatory, at the option of the holder or at our option, in which case the
number of shares of common stock, the shares of another series of the preferred
stock or the amount of any other securities
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to be received by the holders of the preferred stock would be calculated as of a
time and in the manner stated in the prospectus supplement.
VOTING RIGHTS
Except as indicated in a prospectus supplement relating to a particular
series of the preferred stock, or except as required by applicable law, the
holders of the preferred stock will not be entitled to vote for any purpose.
DESCRIPTION OF COMMON STOCK
We have authority to issue 85,000,000 shares of common stock. As of December
31, 2000, 19,523,045 shares of our common stock were outstanding. Attached to
and trading with each share of common stock are the rights to acquire our
series A junior participating preferred stock. Each share of common stock
carries with it one right to purchase 1/100th of a share of our series A junior
participating preferred stock.
The holders of common stock are entitled to one vote per share on all
matters to be voted on by stockholders, including the election of directors.
Stockholders are not entitled to cumulative voting rights, and, accordingly, the
holders of a majority of the shares voting for the election of directors can
elect our entire board of directors if they choose to do so and, in that event,
the holders of the remaining shares will not be able to elect any person to our
board of directors.
The holders of common stock are entitled to receive ratably such dividends,
if any, as may be declared from time to time by our board of directors, in its
discretion, from funds legally available therefor and subject to prior dividend
rights of holders of any shares of preferred stock which may be outstanding.
Bank credit agreements that we may enter into from time to time and debt
securities that we may issue from time to time may restrict our ability to
declare or pay dividends on our common stock. Upon our liquidation, dissolution
or winding up, subject to prior liquidation rights of the holders of preferred
stock, the holders of common stock are entitled to receive on a pro rata basis
our remaining assets available for distribution. Holders of common stock have no
preemptive or other subscription rights, and there are no conversion rights or
redemption or sinking fund provisions with respect to such shares. All
outstanding shares of common stock are, and all shares being offered by this
prospectus will be, fully paid and not liable to further calls or assessment by
us.
DESCRIPTION OF WARRANTS
We may issue debt warrants to purchase debt securities, as well as equity
warrants to purchase preferred stock or common stock. The warrants may be issued
independently or together with any securities and may be attached to or separate
from the securities. The warrants are to be issued under warrant agreements to
be entered into between us and a bank or trust company, as warrant agent, all as
shall be set forth in the prospectus supplement relating to warrants being
offered pursuant to such prospectus supplement. The following description of
warrants will apply to the warrants offered by this prospectus unless we provide
otherwise in the applicable prospectus supplement. The applicable prospectus
supplement for a particular series of warrants may specify different or
additional terms.
DEBT WARRANTS
The applicable prospectus supplement will describe the terms of debt
warrants offered, the warrant agreement relating to the debt warrants and the
debt warrant certificates representing the debt warrants, including the
following:
- the title of the debt warrants;
- the aggregate number of the debt warrants;
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- the price or prices at which the debt warrants will be issued;
- the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants, and the
procedures and conditions relating to the exercise of the debt warrants;
- the designation and terms of any related debt securities with which the
debt warrants are issued, and the number of the debt warrants issued with
each debt security;
- the date, if any, on and after which the debt warrants and the related
debt securities will be separately transferable;
- the principal amount of debt securities purchasable upon exercise of each
debt warrant;
- the date on which the right to exercise the debt warrants will commence,
and the date on which this right will expire;
- the maximum or minimum number of debt warrants which may be exercised at
any time;
- a discussion of any material federal income tax considerations; and
- any other terms of the debt warrants and terms, procedures and limitations
relating to the exercise of debt warrants.
Debt warrant certificates will be exchangeable for new debt warrant
certificates of different denominations, and debt warrants may be exercised at
the corporate trust office of the warrant agent or any other office indicated in
the prospectus supplement. Prior to the exercise of their debt warrants, holders
of debt warrants will not have any of the rights of holders of the debt
securities purchasable upon exercise and will not be entitled to payment of
principal of or any premium, if any, or interest on the debt securities
purchasable upon exercise.
EQUITY WARRANTS
The applicable prospectus supplement will describe the following terms of
equity warrants offered:
- the title of the equity warrants;
- the securities (i.e., preferred stock or common stock) for which the
equity warrants are exercisable;
- the price or prices at which the equity warrants will be issued;
- if applicable, the designation and terms of the preferred stock or common
stock with which the equity warrants are issued, and the number of equity
warrants issued with each share of preferred stock or common stock;
- if applicable, the date on and after which the equity warrants and the
related preferred stock or common stock will be separately transferable;
- if applicable, a discussion of any material federal income tax
considerations; and
- any other terms of the equity warrants, including terms, procedures and
limitations relating to the exchange and exercise of equity warrants.
Holders of equity warrants will not be entitled, by virtue of being such
holders, to vote, consent, receive dividends, receive notice as stockholders
with respect to any meeting of stockholders for the election of our directors or
any other matter, or to exercise any rights whatsoever as our stockholders.
The exercise price payable and the number of shares of common stock or
preferred stock purchasable upon the exercise of each equity warrant will be
subject to adjustment in certain events,
17
<PAGE>
including the issuance of a stock dividend to holders of common stock or
preferred stock or a stock split, reverse stock split, combination, subdivision
or reclassification of common stock or preferred stock. In lieu of adjusting the
number of shares of common stock or preferred stock purchasable upon exercise of
each equity warrant, we may elect to adjust the number of equity warrants. No
adjustments in the number of shares purchasable upon exercise of the equity
warrants will be required until cumulative adjustments require an adjustment of
at least 1% thereof. We may, at our option, reduce the exercise price at any
time. No fractional shares will be issued upon exercise of equity warrants, but
we will pay the cash value of any fractional shares otherwise issuable.
Notwithstanding the foregoing, in case of any consolidation, merger, or sale or
conveyance of our property as an entirety or substantially as an entirety, the
holder of each outstanding equity warrant shall have the right to the kind and
amount of shares of stock and other securities and property, including cash,
receivable by a holder of the number of shares of common stock or preferred
stock into which the equity warrant was exercisable immediately prior to such
transaction.
EXERCISE OF WARRANTS
Each warrant will entitle the holder to purchase for cash such principal
amount of securities or shares of stock at such exercise price as shall in each
case be set forth in, or be determinable as set forth in, the prospectus
supplement relating to the warrants offered thereby. Warrants may be exercised
at any time up to the close of business on the expiration date set forth in the
prospectus supplement relating to the warrants offered thereby. After the close
of business on the expiration date, unexercised warrants will become void.
The warrants may be exercised as set forth in the prospectus supplement
relating to the warrants offered. Upon receipt of 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 prospectus supplement,
we will, as soon as practicable, forward the securities purchasable upon such
exercise. If less than all of the warrants represented by such warrant
certificate are exercised, a new warrant certificate will be issued for the
remaining warrants.
PLAN OF DISTRIBUTION
We may sell securities to one or more underwriters for public offering and
sale by them and may also sell securities to investors directly or through
agents. We have reserved the right to sell securities 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 securities 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 securities 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 securities 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 securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the securities may be deemed to be underwriting
discounts and commissions. Unless we
18
<PAGE>
provide otherwise in a prospectus supplement, an agent will be acting on a best
efforts basis and a dealer will purchase securities as a principal, and may then
resell the securities at varying prices to be determined by the dealer.
We will identify any underwriter, dealer or agent involved in the offer and
sale of securities and set forth any compensation that we paid to underwriters
or agents in connection with the offering of securities, 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 a series of securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the price of the securities. This may include
over-allotments or short sales of the securities, which involves the sale by
persons participating in the offering of more securities 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 the securities by bidding for or purchasing
securities in the open market or by imposing penalty bids, whereby selling
concessions allowed to dealers participating in any such offering may be
reclaimed if securities 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 securities 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 securities offered hereby 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.
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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...................... $ 75,200
*Rating Agency Fees......................................... $150,000
*Legal Fees and Expenses.................................... $175,000
*Accounting Fees and Expenses............................... $ 7,500
*Printing Expenses.......................................... $ 30,000
*Blue Sky Fees.............................................. $ 10,000
*Trustee/Issuing & Paying Agent Fees and Expenses........... $ 40,000
*Transfer Agent Fees & Expenses............................. $ 5,000
*Miscellaneous.............................................. $ 7,300
--------
*Total.................................................. $500,000
========
</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
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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 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 that 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 executive 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.
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 Indenture.
4.6* Form of Debt Securities.
4.7* Form of Warrant Agreement, including form of Warrant.
</TABLE>
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<PAGE>
<TABLE>
<C> <S>
4.8 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.
4.9* Form of Preferred Stock Certificate.
5.1 Opinion of Latham & Watkins.
12.1 Statement regarding Computation of Ratios.
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).
25.1** Statement of Eligibility of trustee on Form T-1.
</TABLE>
------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K.
** To be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act.
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;
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.
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<PAGE>
(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.
(j) 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 (the "Act") in accordance with the
rules and regulations prescribed by the Securities and Exchange Commission under
Section 305(b)(2) of the Act.
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<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 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 4, 2001.
<TABLE>
<S> <C> <C>
CV THERAPEUTICS, INC.
By: /s/ DANIEL K. SPIEGELMAN
-----------------------------------------
Daniel K. Spiegelman
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
</TABLE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Louis G. Lange and Daniel K.
Spiegelman, and each of them, with full power of substitution and full power to
act without the other, his true and lawful attorney-in-fact and agent to act for
him in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration statement
and any related registration statement filed pursuant to Rule 462(b) under the
Securities Exchange Act, and to file this registration statement, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in order to effectuate
the same as fully, to all intents and purposes, as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
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
/s/ LOUIS G. LANGE, M.D., PH.D. Chief Executive Officer
------------------------------------------- (Principal Executive January 2, 2001
Louis G. Lange, M.D., Ph.D. Officer)
Senior Vice President and
/s/ DANIEL K. SPIEGELMAN Chief Financial Officer
------------------------------------------- (Principal Financial and January 4, 2001
Daniel K. Spiegelman Accounting Officer)
/s/ THOMAS L. GUTSHALL
------------------------------------------- Director January 2, 2001
Thomas L. Gutshall
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ BARBARA J. MCNEIL, M.D., PH.D.
------------------------------------------- Director January 2, 2001
Barbara J. McNeil, M.D., Ph.D.
/s/ COSTA G. SEVASTOPOULOS, PH.D.
------------------------------------------- Director January 2, 2001
Costa G. Sevastopoulos, Ph.D.
------------------------------------------- Director
J. Leighton Read, M.D.
/s/ R. SCOTT GREER
------------------------------------------- Director January 2, 2001
R. Scott Greer
/s/ PETER BARTON HUTT
------------------------------------------- Director January 4, 2001
Peter Barton Hutt
</TABLE>
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<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 Indenture.
4.6* Form of Debt Securities.
4.7* Form of Warrant Agreement, including form of Warrant.
4.8 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.
4.9* Form of Preferred Stock Certificate.
5.1 Opinion of Latham & Watkins.
12.1 Statement regarding Computation of Ratios.
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).
25.1** Statement of Eligibility of trustee on Form T-1.
</TABLE>
------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K.
** To be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act.
