sv3
As
filed with the Securities and Exchange Commission on December 26, 2007
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GTx, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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62-1715807 |
(State or Other Jurisdiction of Incorporation or Organization)
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(I.R.S. Employer Identification No.) |
3 N. Dunlap Street
Van Vleet Building
Memphis, TN 38163
(901) 523-9700
(Address, including zip code, and telephone number,
including area code, of Registrants principal executive offices)
MITCHELL S. STEINER, M.D., F.A.C.S.
CHIEF EXECUTIVE OFFICER
GTx, Inc.
3 N. Dunlap Street
Van Vleet Building
Memphis, TN 38163
(901) 523-9700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
SUZANNE SAWOCHKA HOOPER, ESQ.
Cooley Godward Kronish LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
(650) 843-5000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
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. þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Amount of |
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Amount to be |
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Offering Price Per |
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Aggregate Offering |
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Registration Fee |
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Title of Each Class of Securities To Be Registered |
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Registered |
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Unit |
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Price |
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(1) |
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Common Stock, $0.001 par value per share |
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(2) |
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(3) |
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(3) |
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Preferred Stock, $0.001 par value per share |
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(2) |
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(3) |
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(3) |
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Debt Securities |
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(2) |
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(3) |
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(3) |
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Warrants |
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(2) |
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(3) |
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(3) |
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Units |
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(2) |
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(3) |
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(3) |
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Total |
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(2) |
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$100,000,000 |
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$3,070 |
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(1) |
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Calculated pursuant to Rule 457(o) under the Securities Act. |
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(2) |
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There are being registered hereunder such indeterminate number of shares of common stock and
preferred stock, such indeterminate principal amount of debt securities, such indeterminate
number of warrants to purchase common stock, preferred stock and/or debt securities, and such
indeterminate number of units as may be sold by the registrant from time to time, which
together shall have an aggregate initial offering price not to exceed $100,000,000. If any
debt securities are issued at an original issue discount, then the offering price of such debt
securities shall be in such greater principal amount at maturity as shall result in an
aggregate offering price not to exceed $100,000,000, less the aggregate dollar amount of all
securities previously issued hereunder. Any securities registered hereunder may be sold
separately or as units with the other securities registered hereunder. The proposed maximum
offering price per unit will be determined, from time to time, by the registrant in connection
with the issuance by the registrant of the securities registered hereunder. The securities
registered hereunder also include such indeterminate number of shares of common stock and
preferred stock and amount of debt securities as may be issued upon conversion of or exchange
for preferred stock or debt securities that provide for conversion or exchange, upon exercise
of warrants or pursuant to the antidilution provisions of any of such securities. In
addition, pursuant to Rule 416 under the Securities Act, the shares being registered hereunder
include such indeterminate number of shares of common stock and preferred stock as may be
issuable with respect to the shares being registered hereunder as a result of stock splits,
stock dividends or similar transactions. |
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(3) |
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The proposed maximum aggregate offering price per class of security will be determined from
time to time by the registrant in connection with the issuance by the registrant of the
securities registered hereunder and is not specified as to each class of security pursuant to
General Instruction II.D. of Form S-3 under the Securities Act. |
The Registrant hereby amends this Registration Statement on such date or dates as may be
necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
Subject
to Completion, Dated December 26, 2007
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities
and is not soliciting an offer to buy these securities in any state
where the offer or sale is not permitted.
PROSPECTUS
$100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
From time to time, we may offer up to $100,000,000 of any combination of the securities
described in this prospectus, either individually or in units. We may also offer common stock or
preferred stock upon conversion of debt securities, common stock upon conversion of preferred
stock, or common stock, preferred stock or debt securities upon the exercise of warrants.
We will provide the specific terms of these offerings and securities in one or more
supplements to this prospectus. We may also authorize one or more free writing prospectuses to be
provided to you in connection with these offerings. The prospectus supplement and any related free
writing prospectus may also add, update or change information contained in this prospectus. You
should carefully read this prospectus, the applicable prospectus supplement and any related free
writing prospectus, as well as any documents incorporated by reference, before buying any of the
securities being offered.
Our
common stock is traded on the NASDAQ Global Market under the symbol
GTXI. On December 24, 2007, the last reported sale price of our common stock on the NASDAQ Global Market was
$15.23. The applicable prospectus supplement will contain information, where applicable, as to any
other listing, if any, on the NASDAQ Global Market or any securities market or other exchange of
the securities covered by the applicable prospectus supplement.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties
described under the heading Risk Factors contained in the applicable prospectus supplement and any related free
writing prospectus, and under similar headings in the other documents that are incorporated by reference into this
prospectus.
This prospectus may not be used to consummate a sale of any securities unless accompanied by a
prospectus supplement.
The securities may be sold directly by us to investors, through agents designated from time to
time or to or through underwriters or dealers, on a continuous or delayed basis. For additional
information on the methods of sale, you should refer to the section entitled Plan of Distribution
in this prospectus. If any agents or underwriters are involved in the sale of any securities with
respect to which this prospectus is being delivered, the names of such agents or underwriters and
any applicable fees, commissions, discounts and over-allotment options will be set forth in a
prospectus supplement. The price to the public of such securities and the net proceeds that we
expect to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 20 .
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the
Securities and Exchange Commission utilizing a shelf registration process. Under this shelf
registration process, we may offer shares of our common stock and preferred stock, various series
of debt securities and/or warrants to purchase any of such securities, either individually or in
units, in one or more offerings, up to a total dollar amount of $100,000,000. This prospectus
provides you with a general description of the securities we may offer. Each time we offer a type
or series of securities under this prospectus, we will provide a prospectus supplement that will
contain more specific information about the terms of those securities. We may also authorize one
or more free writing prospectuses to be provided to you that may contain material information
relating to these offerings. We may also add, update or change in the prospectus supplement (and
in any related free writing prospectus that we may authorize to be provided to you) any of the
information contained in this prospectus or in the documents that we have incorporated by reference
into this prospectus. We urge you to carefully read this prospectus, any applicable prospectus
supplement and any related free writing prospectus, together with the information incorporated
herein by reference as described under the heading Where You Can Find Additional Information,
before buying any of the securities being offered. THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A
SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
You should rely only on the information that we have provided or incorporated by reference in
this prospectus, any applicable prospectus supplement and any related free writing prospectus that
we may authorize to be provided to you. We have not authorized anyone to provide you with
different information. No dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in this prospectus, any applicable prospectus
supplement or any related free writing prospectus that we may authorize to be provided to you. You
must not rely on any unauthorized information or representation. This prospectus is an offer to
sell only the securities offered hereby, but only under circumstances and in jurisdictions where it
is lawful to do so. You should assume that the information in this prospectus, any applicable
prospectus supplement or any related free writing prospectus is accurate only as of the date on the
front of the document and that any information we have incorporated by reference is accurate only
as of the date of the document incorporated by reference, regardless of the time of delivery of
this prospectus, any applicable prospectus supplement or any related free writing prospectus, or
any sale of a security.
This prospectus contains summaries of certain provisions contained in some of the documents
described herein, but reference is made to the actual documents for complete information. All of
the summaries are qualified in their entirety by the actual documents. Copies of some of the
documents referred to herein have been filed, will be filed or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is a part, and you may obtain
copies of those documents as described below under the heading Where You Can Find Additional
Information.
1
This prospectus and the information incorporated herein by reference includes trademarks,
service marks and trade names owned by us or other companies. All trademarks, service marks and
trade names included or incorporated by reference into this prospectus, any applicable prospectus
supplement or any related free writing prospectus are the property of their respective owners.
Unless otherwise mentioned or unless the context requires otherwise, all references in this
prospectus to GTx, we, our or similar references mean GTx, Inc.
GTx, INC.
We are a biopharmaceutical company dedicated to the discovery, development and
commercialization of small molecules that selectively target hormone pathways to treat cancer,
osteoporosis and bone loss, muscle wasting and other serious medical conditions. We are developing
ACAPODENE (toremifene citrate), a selective estrogen receptor modulator, or SERM, in two separate
clinical programs in men: first, a pivotal Phase III clinical trial for the treatment of multiple
serious side effects of androgen deprivation therapy for advanced prostate cancer, and second, a
pivotal Phase III clinical trial for the prevention of prostate cancer in high risk men with
precancerous prostate lesions called high grade prostatic intraepithelial neoplasia. We have
licensed to Ipsen Limited exclusive rights in the European Union, Switzerland, Norway, Iceland,
Lichtenstein and the Commonwealth of Independent States to develop and commercialize ACAPODENE and
other products containing toremifene in all indications that we have licensed from Orion
Corporation, which include all indications in humans except the treatment and prevention of breast
cancer outside of the United States. We are also developing Ostarine, a selective androgen receptor
modulator, or SARM, which is currently being evaluated in a
Phase II clinical trial for the treatment of muscle loss in
patients with cancer. We have entered into an exclusive license and collaboration agreement with Merck & Co.,
Inc., or Merck, governing our and Mercks joint research, development and global commercialization
of SARMs with the potential to treat age-related muscle loss
(sarcopenia) as well as other musculoskeletal conditions. We also have an extensive preclinical pipeline generated from our own discovery
program. We are evolving into a selective nuclear hormone receptor modulator company that develops
small molecules to target hormone pathways to address a myriad of unmet medical needs in men and
women.
We plan to build specialized sales and marketing capabilities to promote our product
candidates to urologists and medical oncologists in the United States and to seek additional
partners to commercialize our product candidates in broader markets in the United States and in the
rest of the world. We currently market FARESTON (toremifene citrate 60 mg) tablets, which have
been approved by the U.S. Food and Drug Administration, or FDA, for the treatment of metastatic
breast cancer in postmenopausal women in the United States. The active pharmaceutical ingredient in
FARESTON is the same as in ACAPODENE, but at a different dose.
We have a limited operating history and may not be able to attain profitability. We have
financed our operations and internal growth primarily through private placements of preferred stock
and our public offerings of common stock. We have incurred losses in each year since our inception
in 1997 and we expect to continue to incur net losses over the next several years as we continue
our clinical development and research and development activities, apply for regulatory approvals,
expand our sales and marketing capabilities and grow our operations.
We were originally incorporated under the name Genotherapeutics, Inc. in Tennessee in
September 1997. We changed our name to GTx, Inc. in 2001, and we reincorporated in Delaware in
2003. Our principal executive office is located at 3 N. Dunlap Street, Van Vleet Building, Memphis,
Tennessee, and our telephone number is (901) 523-9700. Our website address is www.gtxinc.com. The
information contained in, or that can be accessed through, our website is not part of this
prospectus.
RISK FACTORS
Investing in our securities involves a high degree of risk. You should carefully review the
risks and uncertainties described under the heading Risk Factors contained in the applicable
prospectus supplement and any related free writing prospectus, and under similar headings in the
other documents that are incorporated by reference into this prospectus. Additional risks not
presently known to us or that we currently believe are immaterial may also significantly impair our
business operations.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference contain forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. These statements involve known and unknown risks, uncertainties and other
important factors that may cause our actual results, performance or achievements to be
2
materially different from any future results, performances or achievements expressed or
implied by the forward-looking statements. Forward-looking statements include statements about:
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the anticipated progress of our and our collaborators research, development
and clinical programs, including whether future clinical trials will achieve similar
results to clinical trials that we have successfully concluded; |
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potential future licensing fees, milestone payments and royalty payments, including any
milestone payments or royalty payments that we may receive under our collaborative
arrangements with Ipsen Limited and Merck & Co., Inc.; |
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our and our collaborators ability to market, commercialize and achieve market
acceptance for our product candidates or products that we and/or our collaborators may
develop; |
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our and our collaborators ability to generate additional product candidates for
clinical testing; |
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our ability to protect our intellectual property and operate our business without
infringing upon the intellectual property rights of others; and |
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our estimates regarding the sufficiency of our cash resources. |
In some cases, you can identify forward-looking statements by terms such as anticipates,
believes, could, estimates, expects, intends, may, plans, potential, predicts,
projects, should, will, would and similar expressions intended to identify forward-looking
statements. Forward-looking statements reflect our current views with respect to future events, are
based on assumptions and are subject to risks, uncertainties and other important factors. We
discuss many of these risks, uncertainties and other important factors in greater detail under the
heading Risk Factors contained in the applicable prospectus supplement and any related free
writing prospectus, and in our most recent annual report on Form 10-K and in our most recent
quarterly report on Form 10-Q, as well as any amendments thereto reflected in subsequent filings
with the SEC. Given these risks, uncertainties and other important factors, you should not place
undue reliance on these forward-looking statements. Also, these forward-looking statements
represent our estimates and assumptions only as of the date such forward-looking statements are
made. You should carefully read this prospectus, the applicable prospectus supplement and any
related free writing prospectus, together with the information incorporated herein by reference as
described under the heading Where You Can Find Additional Information, completely and with the
understanding that our actual future results may be materially different from what we expect.
Except as required by law, we assume no obligation to update any forward-looking statements
publicly, or to update the reasons why actual results could differ materially from those
anticipated in any forward-looking statements, even if new information becomes available in the
future.
THE SECURITIES WE MAY OFFER
We may offer shares of our common stock and preferred stock, various series of debt securities
and/or warrants to purchase any of such securities, either individually or in units, with a total
value of up to $100,000,000 from time to time under this prospectus at prices and on terms to be
determined by market conditions at the time of any offering. This prospectus provides you with a
general description of the securities we may offer. Each time we offer a type or series of
securities under this prospectus, we will provide a prospectus supplement that will describe the
specific amounts, prices and other important terms of the securities, including, to the extent
applicable:
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designation or classification; |
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aggregate principal amount or aggregate offering price; |
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maturity, if applicable; |
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original issue discount, if any; |
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rates and times of payment of interest or dividends, if any; |
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redemption, conversion, exercise, exchange or sinking fund terms, if any; |
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ranking; |
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restrictive covenants, if any; |
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voting or other rights, if any; |
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conversion prices, if any; and |
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important United States federal income tax considerations. |
The prospectus supplement and any related free writing prospectus that we may authorize to be
provided to you may also add, update or change information contained in this prospectus or in
documents we have incorporated by reference. However, no prospectus supplement or free writing
prospectus will offer a security that is not registered and described in this prospectus at the
time of the effectiveness of the registration statement of which this prospectus is a part.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED
BY A PROSPECTUS SUPPLEMENT.
We may sell the securities directly to investors or to or through agents, underwriters or
dealers. We, and our agents or underwriters, reserve the right to accept or reject all or part of
any proposed purchase of securities. If we do offer securities to or through agents or
underwriters, we will include in the applicable prospectus supplement:
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the names of those agents or underwriters; |
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applicable fees, discounts and commissions to be paid to them; |
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details regarding over-allotment options, if any; and |
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the net proceeds to us. |
Common Stock. We may issue shares of our common stock from time to time. The holders of our
common stock are entitled to one vote for each share held of record on all matters submitted to a
vote of stockholders and do not have cumulative voting rights. Subject to preferences that may be
applicable to any outstanding shares of preferred stock, the holders of our common stock are
entitled to receive ratably such dividends as may be declared by our board of directors out of
legally available funds. Upon our liquidation, dissolution or winding up, holders of our common
stock are entitled to share ratably in all assets remaining after payment of liabilities and the
liquidation preferences of any outstanding shares of preferred stock.
Preferred Stock. We may issue shares of our preferred stock from time to time, in one or more
series. Our board of directors will determine the designations, voting powers, preferences and
rights of the preferred stock, as well as the qualifications, limitations or restrictions thereof,
including dividend rights, conversion rights, preemptive rights, terms of redemption or repurchase,
liquidation preferences, sinking fund terms and the number of shares constituting any series or the
designation of any series. Convertible preferred stock will be convertible into our common stock or
exchangeable for our other securities. Conversion may be mandatory or at your option and would be
at prescribed conversion rates.
If we sell any series of preferred stock under this prospectus, we will fix the designations,
voting powers, preferences and rights of such series of preferred stock, as well as the
qualifications, limitations or restrictions thereof, in the certificate of designation relating to
that series. We will file as an exhibit to the registration statement of which this prospectus is a
part, or will incorporate by reference from reports that we file with the SEC, the form of any
certificate of designation that describes the terms of the series of preferred stock that we are
offering before the issuance of the related series of preferred stock. We urge you to read the
applicable prospectus supplement (and any free writing prospectus that we may authorize to be
provided to you) related to the series of preferred stock being offered, as well as the complete
certificate of designation that contains the terms of the applicable series of preferred stock.
Debt Securities. We may issue debt securities from time to time, in one or more series, as
either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt
securities will rank equally with any other unsecured and unsubordinated debt. The subordinated
debt securities will be subordinate and junior in right of payment, to the extent and in the manner
described in the instrument governing the debt, to all of our senior indebtedness. Convertible debt
securities will be convertible into or exchangeable for our common stock or our other securities.
Conversion may be mandatory or at your option and would be at prescribed conversion rates.
4
The debt securities will be issued under one or more documents called indentures, which are
contracts between us and a national banking association or other eligible party, as trustee. In
this prospectus, we have summarized certain general features of the debt securities. We urge you,
however, to read the applicable prospectus supplement (and any free writing prospectus that we may
authorize to be provided to you) related to the series of debt securities being offered, as well
as the complete indentures that contain the terms of the debt securities. Forms of indentures have
been filed as exhibits to the registration statement of which this prospectus is a part, and
supplemental indentures and forms of debt securities containing the terms of the debt securities
being offered will be filed as exhibits to the registration statement of which this prospectus is a
part or will be incorporated by reference from reports that we file with the SEC.
Warrants. We may issue warrants for the purchase of common stock, preferred stock and/or debt
securities in one or more series. We may issue warrants independently or together with common
stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from
these securities. In this prospectus, we have summarized certain general features of the warrants.
We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus
that we may authorize to be provided to you) related to the particular series of warrants being
offered, as well as the complete warrant agreements and warrant certificates that contain the terms
of the warrants. Forms of the warrant agreements and forms of warrant certificates containing the
terms of the warrants being offered have been filed as exhibits to the registration statement of
which this prospectus is a part, and supplemental warrant agreements and forms of warrant
certificates will be filed as exhibits to the registration statement of which this prospectus is a
part or will be incorporated by reference from reports that we file with the SEC.
We will evidence each series of warrants by warrant certificates that we will issue. Warrants
may be issued under an applicable warrant agreement that we enter into with a warrant agent. We
will indicate the name and address of the warrant agent, if applicable, in the prospectus
supplement relating to the particular series of warrants being offered.
Units. We may issue, in one or more series, units consisting of common stock, preferred
stock, debt securities and/or warrants for the purchase of common stock, preferred stock and/or
debt securities in any combination. In this prospectus, we have summarized certain general features
of the units. We urge you, however, to read the applicable prospectus supplement (and any free
writing prospectus that we may authorize to be provided to you) related to the series of units
being offered, as well as the complete unit agreement that contains the terms of the units. We will
file as exhibits to the registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the SEC, the form of unit agreement and any
supplemental agreements that describe the terms of the series of units we are offering before the
issuance of the related series of units.
We will evidence each series of units by unit certificates that we will issue. Units may be
issued under a unit agreement that we enter into with a unit agent. We will indicate the name and
address of the unit agent, if applicable, in the prospectus supplement relating to the particular
series of units being offered.
RATIO OF EARNINGS TO FIXED CHARGES
Our earnings were insufficient to cover fixed charges for each of the periods presented.
Accordingly, the following table sets forth the deficiency of earnings to fixed charges for each of
the periods presented. Because of the deficiency, ratio information is not applicable. Amounts
shown are in thousands.
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Nine Months Ended |
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Year Ended December 31, |
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September 30, 2007 |
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2006 |
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2005 |
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2004 |
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2003 |
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2002 |
Deficiency of earnings available to cover fixed charges |
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$ |
(27,569 |
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$ |
(35,510 |
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$ |
(36,839 |
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$ |
(22,348 |
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$ |
(14,194 |
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$ |
(11,866 |
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For purposes of computing the deficiency of earnings available to cover fixed charges, fixed
charges represent that portion of rental expense that is considered by us to be representative of
interest. Earnings consists of loss before income taxes plus fixed charges.
USE OF PROCEEDS
Except as described in any prospectus supplement or in any related free writing prospectus
that we may authorize to be provided to you, we currently intend to use the net proceeds from the
sale of the securities offered hereby for research and development and general corporate purposes.
We may also use a portion of the net proceeds to acquire or invest in businesses, products and
technologies that are complementary to our own, as well as for capital expenditures. Pending these
uses, we expect to invest the net proceeds in short-term, investment-grade securities.
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DESCRIPTION OF CAPITAL STOCK
General
Our authorized capital stock consists of 60,000,000 shares of common stock, $0.001 par value
per share, and 5,000,000 shares of preferred stock, $0.001 par value per share. As of December 18,
2007, there were 36,216,263 shares of our common stock outstanding and no shares of preferred stock
outstanding.
The following summary description of our capital stock is based on the provisions of our
certificate of incorporation and bylaws and the applicable provisions of the Delaware General
Corporation Law. This information is qualified entirely by reference to the applicable provisions
of our certificate of incorporation, bylaws and the Delaware General Corporation Law. For
information on how to obtain copies of our certificate of incorporation and bylaws, which are
exhibits to the registration statement of which this prospectus is a part, see Where You Can Find
Additional Information.
Common Stock
The holders of our common stock are entitled to one vote for each share held of record on all
matters submitted to a vote of stockholders. The holders of our common stock do not have cumulative
voting rights in the election of directors. Subject to preferences that may be applicable to any
outstanding shares of preferred stock, the holders of common stock are entitled to receive ratably
such dividends as may be declared by our board of directors out of legally available funds. Upon
our liquidation, dissolution or winding up, holders of our common stock are entitled to share
ratably in all assets remaining after payment of liabilities and the liquidation preferences of any
outstanding shares of preferred stock. Holders of common stock have no preemptive rights and no
right to convert their common stock into any other securities. There are no redemption or sinking
fund provisions applicable to our common stock.
The rights of the holders of our common stock are subject to, and may be adversely affected
by, the rights of holders of shares of any preferred stock that we may designate and issue in the
future.
Preferred Stock
Pursuant to our certificate of incorporation, our board of directors has the authority,
without further action by the stockholders (unless such stockholder action is required by
applicable law or NASDAQ rules), to designate and issue up to 5,000,000 shares of preferred stock
in one or more series, to establish from time to time the number of shares to be included in each
such series, to fix the designations, voting powers, preferences and rights of the shares of each
wholly unissued series, and any qualifications, limitations or restrictions thereof, and to
increase or decrease the number of shares of any such series, but not below the number of shares of
such series then outstanding.
We will fix the designations, voting powers, preferences and rights of the preferred stock of
each series, as well as the qualifications, limitations or restrictions thereof, in the certificate
of designation relating to that series. We will file as an exhibit to the registration statement of
which this prospectus is a part, or will incorporate by reference from reports that we file with
the SEC, the form of any certificate of designation that describes the terms of the series of
preferred stock we are offering before the issuance of that series of preferred stock. This
description will include:
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the title and stated value; |
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the number of shares we are offering; |
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the liquidation preference per share; |
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the purchase price; |
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the dividend rate, period and payment date and method of calculation for dividends; |
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from
which dividends will accumulate; |
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the procedures for any auction and remarketing, if any; |
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the provisions for a sinking fund, if any; |
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the provisions for redemption or repurchase, if applicable, and any restrictions on our
ability to exercise those redemption and repurchase rights; |
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any listing of the preferred stock on any securities exchange or market; |
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whether the preferred stock will be convertible into our common stock, and, if
applicable, the conversion price, or how it will be calculated, and the conversion period; |
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whether the preferred stock will be exchangeable into debt securities, and, if
applicable, the exchange price, or how it will be calculated, and the exchange period; |
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voting rights, if any, of the preferred stock; |
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preemptive rights, if any; |
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restrictions on transfer, sale or other assignment, if any; |
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whether interests in the preferred stock will be represented by depositary shares; |
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a discussion of any material United States federal income tax considerations applicable
to the preferred stock; |
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the relative ranking and preferences of the preferred stock as to dividend rights and
rights if we liquidate, dissolve or wind up our affairs; |
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any limitations on the issuance of any class or series of preferred stock ranking senior
to or on a parity with the series of preferred stock as to dividend rights and rights if we
liquidate, dissolve or wind up our affairs; and |
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any other specific terms, preferences, rights or limitations of, or restrictions on, the
preferred stock. |
The General Corporation Law of the State of Delaware, the state of our incorporation, provides
that the holders of preferred stock will have the right to vote separately as a class (or, in some
cases, as a series) on an amendment to our certificate of incorporation if the amendment would
change the par value or, unless the certificate of incorporation provided otherwise, the number of
authorized shares of the class or change the powers, preferences or special rights of the class or
series so as to adversely affect the class or series, as the case may be. This right is in addition
to any voting rights that may be provided for in the applicable certificate of designation.
Our board of directors may authorize the issuance of preferred stock with voting or conversion
rights that could adversely affect the voting power or other rights of the holders of our common
stock. Preferred stock could be issued quickly with terms designed to delay or prevent a change in
control of our company or make removal of management more difficult. Additionally, the issuance of
preferred stock may have the effect of decreasing the market price of our common stock.
Registration Rights
J.R. Hyde, III, and Oracle Partners, L.P., two of our largest stockholders, and their
affiliates, are entitled to certain rights with respect to the registration of approximately 10.9
million shares of our common stock under the Securities Act of 1933, based on shares held as of
December 18, 2007. If we propose to register any of our securities under the Securities Act, either
for our own account or for the account of others, the holders of these shares are entitled to
notice of the registration and are entitled to include, at our expense, their shares of common
stock in the registration and any related underwriting, provided, among other conditions, that the
underwriters may limit the number of shares to be included in the registration. These holders have
waived these registration rights in connection with the filing of, and any offerings that might be
made pursuant to, the registration statement of which this prospectus is a part. In addition, the
holders of these shares may require us, at our expense and subject to certain limitations, to file
a registration statement under the Securities Act with respect to their shares of our common stock.
We have also entered into a registration rights agreement with Merck & Co., Inc., or Merck,
pursuant to which we agreed to file and keep effective a shelf registration statement under the
Securities Act registering the resale from time to time thereunder of the 1,285,347 shares of
common stock that we issued to Merck in December 2007.
Anti-Takeover Effects of Provisions of Delaware Law and Our Charter Documents
Delaware Takeover Statute. We are subject to the provisions of Section 203 of the Delaware
General Corporation Law. In general, the statute prohibits a publicly-held Delaware corporation
such as us from engaging in a business combination with an interested stockholder for a period of
three years after the date of the transaction in which the person became an interested stockholder,
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unless the business combination is approved in a prescribed manner. For purposes of
Section 203, a business combination includes a merger, asset or stock sale or other transaction
resulting in a financial benefit to the interested stockholder, and an interested stockholder is a
person who, together with affiliates and associates, owns, or within three years prior, did own,
15% or more of our voting stock. Section 203 of the Delaware General Corporation Law will generally
have an anti-takeover effect for transactions not approved in advance by our board of directors,
including discouraging attempts that might result in a premium over the market price for the shares
of common stock held by our stockholders.
Charter Documents. Our certificate of incorporation and bylaws provide that our board of
directors be divided into three classes of directors, with each class serving a staggered
three-year term. The classification system of electing directors may tend to discourage a third
party from making a tender offer or otherwise attempting to obtain control of us and may maintain
the composition of our current board of directors, as the classification of the board of directors
generally increases the difficulty of replacing a majority of directors. In addition, our
certificate of incorporation and bylaws:
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provide that any action required or permitted to be taken by our stockholders must be
effected at a duly called annual or special meeting of stockholders and may not be effected
by any consent in writing; |
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establish advance notice requirements for nominations for election to our board of
directors or for proposing matters that can be acted upon at a stockholder meeting; |
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provide that the authorized number of directors may be changed only by resolution of the
board of directors; and |
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provide that special meetings of our stockholders may be called only by the chairman of
our board of directors, our chief executive officer or our board of directors pursuant to a
resolution adopted by a majority of the total number of authorized directors. |
The Delaware corporate law statute provides generally that the affirmative vote of a majority
of the shares entitled to vote is required to amend a corporations bylaws, unless a corporations
certificate of incorporation requires a greater percentage or also confers the power upon the
corporations directors. Our bylaws may be amended or repealed by:
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the affirmative vote of a majority of our directors then in office; or |
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the affirmative vote of the holders of at least 66-2/3% of the voting power of all
then-outstanding shares of our capital stock entitled to vote generally in the election of
directors. |
The provisions described in the preceding paragraph that are included in our certificate of
incorporation may only be amended or repealed by the affirmative vote of a majority of our
directors and the affirmative vote of the holders of at least 66-2/3% of the voting power of all
then-outstanding shares of our capital stock entitled to vote generally in the election of
directors.
These and other provisions contained in our certificate of incorporation and bylaws could
delay or discourage some types of transactions involving an actual or potential change in our
control or change in our management, including transactions in which stockholders might otherwise
receive a premium for their shares over then current prices, and may limit the ability of
stockholders to remove current management or approve transactions that stockholders may deem to be
in their best interests and, therefore, could adversely affect the price of our common stock.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A. Its
address is 150 Royall Street, Canton, MA 02021. The transfer agent for any series of preferred
stock that we may offer under this prospectus will be named and described in the prospectus
supplement for that series.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities, in one or more series, as either senior or subordinated debt or
as senior or subordinated convertible debt. While the terms we have summarized below will apply
generally to any debt securities that we may offer under this prospectus, we will describe the
particular terms of any debt securities that we may offer in more detail in the applicable
prospectus supplement. The terms of any debt securities offered under a prospectus supplement may
differ from the terms described below. Unless the context
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requires otherwise, whenever we refer to the indentures, we also are referring to any
supplemental indentures that specify the terms of a particular series of debt securities.
We will issue the senior debt securities under the senior indenture that we will enter into
with the trustee named in the senior indenture. We will issue the subordinated debt securities
under the subordinated indenture that we will enter into with the trustee named in the subordinated
indenture. The indentures will be qualified under the Trust Indenture Act of 1939. We use the term
debenture trustee to refer to either the trustee under the senior indenture or the trustee under
the subordinated indenture, as applicable. We have filed forms of indentures to the registration
statement of which this prospectus is a part, and supplemental indentures and forms of debt
securities containing the terms of the debt securities being offered will be filed as exhibits to
the registration statement of which this prospectus is a part or will be incorporated by reference
from reports that we file with the SEC.
The following summaries of material provisions of the senior debt securities, the subordinated
debt securities and the indentures are subject to, and qualified in their entirety by reference to,
all of the provisions of the indenture applicable to a particular series of debt securities. We
urge you to read the applicable prospectus supplements and any related free writing prospectuses
related to the debt securities that we may offer under this prospectus, as well as the complete
indentures that contains the terms of the debt securities. Except as we may otherwise indicate, the
terms of the senior indenture and the subordinated indenture are identical.
General
We will describe in the applicable prospectus supplement the terms of the series of debt
securities being offered, including:
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the title; |
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the principal amount being offered, and if a series, the total amount authorized and the
total amount outstanding; |
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any limit on the amount that may be issued; |
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whether or not we will issue the series of debt securities in global form, the terms and
who the depositary will be; |
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the maturity date; |
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whether and under what circumstances, if any, we will pay additional amounts on any debt
securities held by a person who is not a United States person for tax purposes, and whether
we can redeem the debt securities if we have to pay such additional amounts; |
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the annual interest rate, which may be fixed or variable, or the method for determining
the rate and the date interest will begin to accrue, the dates interest will be payable and
the regular record dates for interest payment dates or the method for determining such
dates; |
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whether or not the debt securities will be secured or unsecured, and the terms of any
secured debt; |
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the terms of the subordination of any series of subordinated debt; |
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the place where payments will be payable; |
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restrictions on transfer, sale or other assignment, if any; |
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our right, if any, to defer payment of interest and the maximum length of any such
deferral period; |
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the date, if any, after which, and the price at which, we may, at our option, redeem the
series of debt securities pursuant to any optional or provisional redemption provisions and
the terms of those redemption provisions; |
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the date, if any, on which, and the price at which we are obligated, pursuant to any
mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the
holders option to purchase, the series of debt securities and the currency or currency
unit in which the debt securities are payable; |
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whether the indenture will restrict our ability and/or the ability of our subsidiaries
to: |
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incur additional indebtedness; |
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issue additional securities; |
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create liens; |
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pay dividends and make distributions in respect of our capital stock and the capital
stock of our subsidiaries; |
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redeem capital stock; |
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place restrictions on our subsidiaries ability to pay dividends, make distributions
or transfer assets; |
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make investments or other restricted payments; |
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sell or otherwise dispose of assets; |
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enter into sale-leaseback transactions; |
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engage in transactions with stockholders and affiliates; |
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issue or sell stock of our subsidiaries; or |
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effect a consolidation or merger; |
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whether the indenture will require us to maintain any interest coverage, fixed charge,
cash flow-based, asset-based or other financial ratios; |
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a discussion of any material United States federal income tax considerations applicable
to the debt securities; |
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information describing any book-entry features; |
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provisions for a sinking fund purchase or other analogous fund, if any; |
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the applicability of the provisions in the indenture on discharge; |
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whether the debt securities are to be offered at a price such that they will be deemed
to be offered at an original issue discount as defined in paragraph (a) of Section 1273
of the Internal Revenue Code; |
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the denominations in which we will issue the series of debt securities, if other than
denominations of $1,000 and any integral multiple thereof; |
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the currency of payment of debt securities if other than U.S. dollars and the manner of
determining the equivalent amount in U.S. dollars; and |
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any other specific terms, preferences, rights or limitations of, or restrictions on, the
debt securities, including any additional events of default or covenants provided with
respect to the debt securities, and any terms that may be required by us or advisable under
applicable laws or regulations. |
Conversion or Exchange Rights
We will set forth in the prospectus supplement the terms on which a series of debt securities
may be convertible into or exchangeable for our common stock or our other securities. We will
include provisions as to whether conversion or exchange is mandatory, at the option of the holder
or at our option. We may include provisions pursuant to which the number of shares of our common
stock or our other securities that the holders of the series of debt securities receive would be
subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable to a particular series of
debt securities, the indentures will not contain any covenant that restricts our ability to merge
or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our
assets. However, any successor to or acquirer of such assets must assume all of our obligations
under the indentures or the debt securities, as appropriate. If the debt securities are convertible
into or exchangeable for our other securities or securities of other entities, the person with whom
we consolidate or merge or to whom we sell all of our property must make provisions for the
conversion of the debt securities into securities that the holders of the debt securities would
have received if they had converted the debt securities before the consolidation, merger or sale.
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Events of Default Under the Indenture
Unless we provide otherwise in the prospectus supplement applicable to a particular series of
debt securities, the following are events of default under the indentures with respect to any
series of debt securities that we may issue:
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if we fail to pay interest when due and payable and our failure continues for 90 days
and the time for payment has not been extended or deferred; |
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if we fail to pay the principal, premium or sinking fund payment, if any, when due and
payable and the time for payment has not been extended or delayed; |
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if we fail to observe or perform any other covenant contained in the debt securities or
the indentures, other than a covenant specifically relating to another series of debt
securities, and our failure continues for 90 days after we receive notice from the
debenture trustee or holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the applicable series; and |
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if specified events of bankruptcy, insolvency or reorganization occur. |
If an event of default with respect to debt securities of any series occurs and is continuing,
other than an event of default specified in the last bullet point above, the debenture trustee or
the holders of at least 25% in aggregate principal amount of the outstanding debt securities of
that series, by notice to us in writing, and to the debenture trustee if notice is given by such
holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due
and payable immediately. If an event of default specified in the last bullet point above occurs
with respect to us, the principal amount of and accrued interest, if any, of each issue of debt
securities then outstanding shall be due and payable without any notice or other action on the part
of the debenture trustee or any holder.
The holders of a majority in principal amount of the outstanding debt securities of an
affected series may waive any default or event of default with respect to the series and its
consequences, except defaults or events of default regarding payment of principal, premium, if any,
or interest, unless we have cured the default or event of default in accordance with the indenture.
Any waiver shall cure the default or event of default.
Subject to the terms of the indentures, if an event of default under an indenture shall occur
and be continuing, the debenture trustee will be under no obligation to exercise any of its rights
or powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the debenture trustee reasonable
indemnity. The holders of a majority in principal amount of the outstanding debt securities of any
series will have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the debenture trustee, or exercising any trust or power conferred on the
debenture trustee, with respect to the debt securities of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable
indenture; and |
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subject to its duties under the Trust Indenture Act of 1939, the debenture trustee need
not take any action that might involve it in personal liability or might be unduly
prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities of any series will have the right to institute a proceeding
under the indentures or to appoint a receiver or trustee, or to seek other remedies only if:
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the holder has given written notice to the debenture trustee of a continuing event of
default with respect to that series; |
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the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series have made written request, and such holders have offered
reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and |
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the debenture trustee does not institute the proceeding, and does not receive from the
holders of a majority in aggregate principal amount of the outstanding debt securities of
that series other conflicting directions within 90 days after the notice, request and
offer. |
These limitations do not apply to a suit instituted by a holder of debt securities if we
default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the debenture trustee regarding our compliance with
specified covenants in the indentures.
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Modification of Indenture; Waiver
We and the debenture trustee may change an indenture without the consent of any holders with
respect to specific matters:
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to fix any ambiguity, defect or inconsistency in the indenture; |
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to comply with the provisions described above under Description of Debt
SecuritiesConsolidation, Merger or Sale; |
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to comply with any requirements of the SEC in connection with the qualification of any
indenture under the Trust Indenture Act of 1939; |
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to add to, delete from or revise the conditions, limitations, and restrictions on the
authorized amount, terms, or purposes of issue, authentication and delivery of debt
securities, as set forth in the indenture; |
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to provide for the issuance of and establish the form and terms and conditions of the
debt securities of any series as provided under Description of Debt SecuritiesGeneral to
establish the form of any certifications required to be furnished pursuant to the terms of
the indenture or any series of debt securities, or to add to the rights of the holders of
any series of debt securities; |
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to evidence and provide for the acceptance of appointment hereunder by a successor
trustee; |
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to provide for uncertificated debt securities in addition to or in place of certificated
debt securities and to make all appropriate changes for such purpose; |
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to add to our covenants such new covenants, restrictions, conditions or provisions for
the protection of the holders, and to make the occurrence, or the occurrence and the
continuance, of a default in any such additional covenants, restrictions, conditions or
provisions an event of default; or |
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to change anything that does not materially adversely affect the interests of any holder
of debt securities of any series. |
In addition, under the indentures, the rights of holders of a series of debt securities may be
changed by us and the debenture trustee with the written consent of the holders of at least a
majority in aggregate principal amount of the outstanding debt securities of each series that is
affected. However, unless we provide otherwise in the prospectus supplement applicable to a
particular series of debt securities, we and the debenture trustee may make the following changes
only with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of the series of debt securities; |
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reducing the principal amount, reducing the rate of or extending the time of payment of
interest, or reducing any premium payable upon the redemption of any debt securities; or |
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reducing the percentage of debt securities, the holders of which are required to consent
to any amendment, supplement, modification or waiver. |
Discharge
Each indenture provides that we can elect to be discharged from our obligations with respect
to one or more series of debt securities, except for specified obligations, including obligations
to:
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register the transfer or exchange of debt securities of the series; |
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replace stolen, lost or mutilated debt securities of the series; |
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maintain paying agencies; |
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hold monies for payment in trust; |
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recover excess money held by the debenture trustee; |
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compensate and indemnify the debenture trustee; and |
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appoint any successor trustee. |
In order to exercise our rights to be discharged, we must deposit with the debenture trustee
money or government obligations sufficient to pay all the principal of, any premium, if any, and
interest on, the debt securities of the series on the dates payments are due.
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Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons
and, unless we provide otherwise in the applicable prospectus supplement, in denominations of
$1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be
deposited with, or on behalf of, The Depository Trust Company or another depositary named by us and
identified in a prospectus supplement with respect to that series. See Legal Ownership of
Securities for a further description of the terms relating to any book-entry securities.
At the option of the holder, subject to the terms of the indentures and the limitations
applicable to global securities described in the applicable prospectus supplement, the holder of
the debt securities of any series can exchange the debt securities for other debt securities of the
same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable to global securities set
forth in the applicable prospectus supplement, holders of the debt securities may present the debt
securities for exchange or for registration of transfer, duly endorsed or with the form of transfer
endorsed thereon duly executed if so required by us or the security registrar, at the office of the
security registrar or at the office of any transfer agent designated by us for this purpose. Unless
otherwise provided in the debt securities that the holder presents for transfer or exchange, we
will impose no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer
agent in addition to the security registrar, that we initially designate for any debt securities.
We may at any time designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts, except that we will
be required to maintain a transfer agent in each place of payment for the debt securities of each
series.
If we elect to redeem the debt securities of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a
period beginning at the opening of business 15 days before the day of mailing of a notice
of redemption of any debt securities that may be selected for redemption and ending at the
close of business on the day of the mailing; or |
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register the transfer of or exchange any debt securities so selected for redemption, in
whole or in part, except the unredeemed portion of any debt securities we are redeeming in
part. |
Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence and continuance of an event of default
under an indenture, undertakes to perform only those duties as are specifically set forth in the
applicable indenture. Upon an event of default under an indenture, the debenture trustee must use
the same degree of care as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of
the powers given it by the indentures at the request of any holder of debt securities unless it is
offered reasonable security and indemnity against the costs, expenses and liabilities that it might
incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of
the interest on any debt securities on any interest payment date to the person in whose name the
debt securities, or one or more predecessor securities, are registered at the close of business on
the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular
series at the office of the paying agents designated by us, except that unless we otherwise
indicate in the applicable prospectus supplement, we will make interest payments by check that we
will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the
applicable prospectus supplement, we will designate the corporate trust office of the debenture
trustee in the City of New York as our sole paying agent for payments with respect to debt
securities of each series. We will name in the applicable prospectus supplement any other paying
agents that we initially designate for the debt securities of a particular series. We will maintain
a paying agent in each place of payment for the debt securities of a particular series.
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All money we pay to a paying agent or the debenture trustee for the payment of the principal
of or any premium or interest on any debt securities that remains unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be repaid to us, and the
holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt securities will be governed by and construed in accordance with
the laws of the State of New York, except to the extent that the Trust Indenture Act of 1939 is
applicable.
Subordination of Subordinated Debt Securities
The subordinated debt securities will be unsecured and will be subordinate and junior in
priority of payment to certain of our other indebtedness to the extent described in a prospectus
supplement. The subordinated indenture does not limit the amount of subordinated debt securities
that we may issue, nor does it limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common stock, preferred stock and/or debt securities
in one or more series. We may issue warrants independently or together with common stock, preferred
stock and/or debt securities, and the warrants may be attached to or separate from these
securities. While the terms summarized below will apply generally to any warrants that we may
offer, we will describe the particular terms of any series of warrants in more detail in the
applicable prospectus supplement. The terms of any warrants offered under a prospectus supplement
may differ from the terms described below.
We have filed forms of the warrant agreements and forms of warrant certificates containing the
terms of the warrants being offered as exhibits to the registration statement of which this
prospectus is a part. We will file as exhibits to the registration statement of which this
prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the
form of warrant agreement, including a form of warrant certificate, that describes the terms of the
particular series of warrants we are offering before the issuance of the related series of
warrants. The following summaries of material provisions of the warrants and the warrant agreements
are subject to, and qualified in their entirety by reference to, all the provisions of the warrant
agreement and warrant certificate applicable to the particular series of warrants that we may offer
under this prospectus. We urge you to read the applicable prospectus supplements related to the
particular series of warrants that we may offer under this prospectus, as well as any related free
writing prospectuses, and the complete warrant agreements and warrant certificates that contain the
terms of the warrants.
General
We will describe in the applicable prospectus supplement the terms of the series of warrants
being offered, including:
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the offering price and aggregate number of warrants offered; |
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the currency for which the warrants may be purchased; |
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if applicable, the designation and terms of the securities with which the warrants are
issued and the number of warrants issued with each such security or each principal amount
of such security; |
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if applicable, the date on and after which the warrants and the related securities will
be separately transferable; |
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in the case of warrants to purchase debt securities, the principal amount of debt
securities purchasable upon exercise of one warrant and the price at, and currency in
which, this principal amount of debt securities may be purchased upon such exercise; |
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in the case of warrants to purchase common stock or preferred stock, the number of
shares of common stock or preferred stock, as the case may be, purchasable upon the
exercise of one warrant and the price at which these shares may be purchased upon such
exercise; |
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the effect of any merger, consolidation, sale or other disposition of our business on
the warrant agreements and the warrants; |
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the terms of any rights to redeem or call the warrants; |
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any provisions for changes to or adjustments in the exercise price or number of
securities issuable upon exercise of the warrants; |
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the dates on which the right to exercise the warrants will commence and expire; |
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the manner in which the warrant agreements and warrants may be modified; |
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a discussion of any material or special United States federal income tax consequences of
holding or exercising the warrants; |
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the terms of the securities issuable upon exercise of the warrants; and |
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any other specific terms, preferences, rights or limitations of or restrictions on the
warrants. |
Before exercising their warrants, holders of warrants will not have any of the rights of
holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the right to receive payments of
principal of, or premium, if any, or interest on, the debt securities purchasable upon
exercise or to enforce covenants in the applicable indenture; or |
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in the case of warrants to purchase common stock or preferred stock, the right to
receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or
to exercise voting rights, if any. |
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the
applicable prospectus supplement at the exercise price that we describe in the applicable
prospectus supplement. Holders of the warrants may exercise the warrants at any time up to the
specified time on the expiration date that we set forth in the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information, and paying the
required amount to the warrant agent in immediately available funds, as provided in the applicable
prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the
applicable prospectus supplement the information that the holder of the warrant will be required to
deliver to the warrant agent.
Upon receipt of the required payment and the warrant certificate properly completed and duly
executed at the corporate trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the securities purchasable upon such
exercise. If fewer than all of the warrants represented by the warrant certificate are exercised,
then we will issue a new warrant certificate for the remaining amount of warrants. If we so
indicate in the applicable prospectus supplement, holders of the warrants may surrender securities
as all or part of the exercise price for warrants.
Governing Law
Unless we provide otherwise in the applicable prospectus supplement, the warrants and warrant
agreements will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the applicable warrant agreement and
will not assume any obligation or relationship of agency or trust with any holder of any warrant. A
single bank or trust company may act as warrant agent for more than one issue of warrants. A
warrant agent will have no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at
law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent
of the related warrant agent or the holder of any other warrant, enforce by appropriate legal
action its right to exercise, and receive the securities purchasable upon exercise of, its
warrants.
DESCRIPTION OF UNITS
We may issue, in one more series, units consisting of common stock, preferred stock, debt
securities and/or warrants for the purchase of common stock, preferred stock and/or debt securities
in any combination. While the terms we have summarized below
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will apply generally to any units that we may offer under this prospectus, we will describe
the particular terms of any series of units in more detail in the applicable prospectus supplement.
The terms of any units offered under a prospectus supplement may differ from the terms described
below.
We will file as exhibits to the registration statement of which this prospectus is a part, or
will incorporate by reference from reports that we file with the SEC, the form of unit agreement
that describes the terms of the series of units we are offering, and any supplemental agreements,
before the issuance of the related series of units. The following summaries of material terms and
provisions of the units are subject to, and qualified in their entirety by reference to, all the
provisions of the unit agreement and any supplemental agreements applicable to a particular series
of units. We urge you to read the applicable prospectus supplements related to the particular
series of units that we may offer under this prospectus, as well as any related free writing
prospectuses and the complete unit agreement and any supplemental agreements that contain the terms
of the units.
General
Each unit will be issued so that the holder of the unit is also the holder of each security
included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder
of each included security. The unit agreement under which a unit is issued may provide that the
securities included in the unit may not be held or transferred separately, at any time or at any
time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units
being offered, including:
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the designation and terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may be held or transferred
separately; |
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any provisions of the governing unit agreement that differ from those described below;
and |
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any provisions for the issuance, payment, settlement, transfer or exchange of the units
or of the securities comprising the units. |
The provisions described in this section, as well as those described under Description of
Capital Stock, Description of Debt Securities and Description of Warrants will apply to each
unit and to any common stock, preferred stock, debt security or warrant included in each unit,
respectively.
Issuance in Series
We may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not
assume any obligation or relationship of agency or trust with any holder of any unit. A single bank
or trust company may act as unit agent for more than one series of units. A unit agent will have no
duty or responsibility in case of any default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at law or otherwise, or to make
any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the
holder of any other unit, enforce by appropriate legal action its rights as holder under any
security included in the unit.
Title
We, and any unit agent and any of their agents, may treat the registered holder of any unit
certificate as an absolute owner of the units evidenced by that certificate for any purpose and as
the person entitled to exercise the rights attaching to the units so requested, despite any notice
to the contrary. See Legal Ownership of Securities below.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities. We
describe global securities in greater detail below. We refer to those persons who have securities
registered in their own names on the books that we or any applicable
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trustee, depositary or warrant agent maintain for this purpose as the holders of those
securities. These persons are the legal holders of the securities. We refer to those persons who,
indirectly through others, own beneficial interests in securities that are not registered in their
own names, as indirect holders of those securities. As we discuss below, indirect holders are not
legal holders, and investors in securities issued in book-entry form or in street name will be
indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify in the applicable
prospectus supplement. This means securities may be represented by one or more global securities
registered in the name of a financial institution that holds them as depositary on behalf of other
financial institutions that participate in the depositarys book-entry system. These participating
institutions, which are referred to as participants, in turn, hold beneficial interests in the
securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that
security. Securities issued in global form will be registered in the name of the depositary or its
participants. Consequently, for securities issued in global form, we will recognize only the
depositary as the holder of the securities, and we will make all payments on the securities to the
depositary. The depositary passes along the payments it receives to its participants, which in turn
pass the payments along to their customers who are the beneficial owners. The depositary and its
participants do so under agreements they have made with one another or with their customers; they
are not obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities directly. Instead,
they will own beneficial interests in a global security, through a bank, broker or other financial
institution that participates in the depositarys book-entry system or holds an interest through a
participant. As long as the securities are issued in global form, investors will be indirect
holders, and not holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in non-global form. In these cases,
investors may choose to hold their securities in their own names or in street name. Securities
held by an investor in street name would be registered in the name of a bank, broker or other
financial institution that the investor chooses, and the investor would hold only a beneficial
interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we will recognize only the intermediary banks, brokers and
other financial institutions in whose names the securities are registered as the holders of those
securities, and we will make all payments on those securities to them. These institutions pass
along the payments they receive to their customers who are the beneficial owners, but only because
they agree to do so in their customer agreements or because they are legally required to do so.
Investors who hold securities in street name will be indirect holders, not holders, of those
securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee and of any third parties
employed by us or a trustee, run only to the legal holders of the securities. We do not have
obligations to investors who hold beneficial interests in global securities, in street name or by
any other indirect means. This will be the case whether an investor chooses to be an indirect
holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the holder, we have no further
responsibility for the payment or notice even if that holder is required, under agreements with
depositary participants or customers or by law, to pass it along to the indirect holders but does
not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to
relieve us of the consequences of a default or of our obligation to comply with a particular
provision of the indenture or for other purposes. In such an event, we would seek approval only
from the holders, and not the indirect holders, of the securities. Whether and how the holders
contact the indirect holders is up to the holders.
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Special Considerations For Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in
book-entry form or in street name, you should check with your own institution to find out:
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how it handles securities payments and notices; |
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whether it imposes fees or charges; |
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how it would handle a request for the holders consent, if ever required; |
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whether and how you can instruct it to send you securities registered in your own name
so you can be a holder, if that is permitted in the future; |
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how it would exercise rights under the securities if there were a default or other event
triggering the need for holders to act to protect their interests; and |
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if the securities are in book-entry form, how the depositarys rules and procedures will
affect these matters. |
Global Securities
A global security is a security that represents one or any other number of individual
securities held by a depositary. Generally, all securities represented by the same global
securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we
deposit with and register in the name of a financial institution or its nominee that we select. The
financial institution that we select for this purpose is called the depositary. Unless we specify
otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New
York, known as DTC, will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the
depositary, its nominee or a successor depositary, unless special termination situations arise. We
describe those situations below under Special Situations When a Global Security Will Be
Terminated. As a result of these arrangements, the depositary, or its nominee, will be the sole
registered owner and holder of all securities represented by a global security, and investors will
be permitted to own only beneficial interests in a global security. Beneficial interests must be
held by means of an account with a broker, bank or other financial institution that in turn has an
account with the depositary or with another institution that does. Thus, an investor whose security
is represented by a global security will not be a holder of the security, but only an indirect
holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the security will be
issued in global form only, then the security will be represented by a global security at all times
unless and until the global security is terminated. If termination occurs, we may issue the
securities through another book-entry clearing system or decide that the securities may no longer
be held through any book-entry clearing system.
Special Considerations For Global Securities
The rights of an indirect holder relating to a global security will be governed by the account
rules of the investors financial institution and of the depositary, as well as general laws
relating to securities transfers. We do not recognize an indirect holder as a holder of securities
and instead deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor should be aware of
the following:
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an investor cannot cause the securities to be registered in his or her name, and cannot
obtain non-global certificates for his or her interest in the securities, except in the
special situations we describe below; |
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an investor will be an indirect holder and must look to his or her own bank or broker
for payments on the securities and protection of his or her legal rights relating to the
securities, as we describe above; |
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an investor may not be able to sell interests in the securities to some insurance
companies and to other institutions that are required by law to own their securities in
non-book-entry form; |
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an investor may not be able to pledge his or her interest in a global security in
circumstances where certificates representing the securities must be delivered to the
lender or other beneficiary of the pledge in order for the pledge to be effective; |
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the depositarys policies, which may change from time to time, will govern payments,
transfers, exchanges and other matters relating to an investors interest in a global
security; |
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we and any applicable trustee have no responsibility for any aspect of the depositarys
actions or for its records of ownership interests in a global security, nor do we or any
applicable trustee supervise the depositary in any way; |
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the depositary may, and we understand that DTC will, require that those who purchase and
sell interests in a global security within its book-entry system use immediately available
funds, and your broker or bank may require you to do so as well; and |
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financial institutions that participate in the depositarys book-entry system, and
through which an investor holds its interest in a global security, may also have their own
policies affecting payments, notices and other matters relating to the securities. |
There may be more than one financial intermediary in the chain of ownership for an investor.
We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, the global security will terminate and interests
in it will be exchanged for physical certificates representing those interests. After that
exchange, the choice of whether to hold securities directly or in street name will be up to the
investor. Investors must consult their own banks or brokers to find out how to have their interests
in securities transferred to their own name, so that they will be direct holders. We have described
the rights of holders and street name investors above.
Unless we provide otherwise in the applicable prospectus supplement, the global security will
terminate when the following special situations occur:
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if the depositary notifies us that it is unwilling, unable or no longer qualified to
continue as depositary for that global security and we do not appoint another institution
to act as depositary within 90 days; |
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if we notify any applicable trustee that we wish to terminate that global security; or |
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if an event of default has occurred with regard to securities represented by that global
security and has not been cured or waived. |
The prospectus supplement may also list additional situations for terminating a global
security that would apply only to the particular series of securities covered by the applicable
prospectus supplement. When a global security terminates, the depositary, and not we or any
applicable trustee, is responsible for deciding the names of the institutions that will be the
initial direct holders.
PLAN OF DISTRIBUTION
We may sell the securities from time to time pursuant to underwritten public offerings,
negotiated transactions, block trades or a combination of these methods. We may sell the securities
to or through underwriters or dealers, through agents, or directly to one or more purchasers. We
may distribute securities from time to time in one or more transactions:
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at a fixed price or prices, which may be changed; |
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at market prices prevailing at the time of sale; |
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at prices related to such prevailing market prices; or |
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at negotiated prices. |
A prospectus supplement or supplements will describe the terms of the offering of the
securities, including:
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the name or names of the underwriters, if any; |
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the purchase price of the securities and the proceeds we will receive from the sale; |
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any over-allotment options under which underwriters may purchase additional securities
from us; |
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any agency fees or underwriting discounts and other items constituting agents or
underwriters compensation; |
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any public offering price; |
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any discounts or concessions allowed or reallowed or paid to dealers; and |
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any securities exchange or market on which the securities may be listed. |
Only underwriters named in the prospectus supplement will be underwriters of the securities
offered by the prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account
and may resell the securities from time to time in one or more transactions at a fixed public
offering price or at varying prices determined at the time of sale. The obligations of the
underwriters to purchase the securities will be subject to the conditions set forth in the
applicable underwriting agreement. We may offer the securities to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to
certain conditions, the underwriters will be obligated to purchase all of the securities offered by
the prospectus supplement, other than securities covered by any over-allotment option. Any public
offering price and any discounts or concessions allowed or reallowed or paid to dealers may change
from time to time. We may use underwriters with whom we have a material relationship. We will
describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly or through agents we designate from time to time. We will name
any agent involved in the offering and sale of securities and we will describe any commissions we
will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise,
our agent will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types of institutional
investors to purchase securities from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified
date in the future. We will describe the conditions to these contracts and the commissions we must
pay for solicitation of these contracts in the prospectus supplement.
We may provide agents and underwriters with indemnification against civil liabilities,
including liabilities under the Securities Act, or contribution with respect to payments that the
agents or underwriters may make with respect to these liabilities. Agents and underwriters may
engage in transactions with, or perform services for, us in the ordinary course of business.
All securities we may offer, other than common stock, will be new issues of securities with no
established trading market. Any underwriters may make a market in these securities, but will not be
obligated to do so and may discontinue any market making at any time without notice. We cannot
guarantee the liquidity of the trading markets for any securities.
Any underwriter may engage in over-allotment, stabilizing transactions, short-covering
transactions and penalty bids in accordance with Regulation M under the Exchange Act.
Over-allotment involves sales in excess of the offering size, which create a short position.
Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing
bids do not exceed a specified maximum price. Syndicate-covering or other short-covering
transactions involve purchases of the securities, either through exercise of the over-allotment
option or in the open market after the distribution is completed, to cover short positions. Penalty
bids permit the underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short
positions. Those activities may cause the price of the securities to be higher than it would
otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters that are qualified market makers on the NASDAQ Global Market may engage in
passive market making transactions in the common stock on the NASDAQ Global Market in accordance
with Regulation M under the Exchange Act, during the business day prior to the pricing of the
offering, before the commencement of offers or sales of the common stock. Passive market makers
must comply with applicable volume and price limitations and must be identified as passive market
makers. In general, a passive market maker must display its bid at a price not in excess of the
highest independent bid for such security; if all independent bids are lowered below the passive
market makers bid, however, the passive market makers bid must then be lowered when certain
purchase limits are exceeded. Passive market making may stabilize the market price of the
securities at a level above that which might otherwise prevail in the open market and, if
commenced, may be discontinued at any time.
In compliance with guidelines of the Financial Industry Regulatory Authority, or FINRA, the
maximum consideration or discount to be received by any FINRA member or independent broker dealer
may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and
any applicable prospectus supplement.
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LEGAL MATTERS
The validity of the securities being offered by this prospectus will be passed upon by Cooley
Godward Kronish LLP, Palo Alto, California.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our financial
statements included in our Annual Report on Form 10-K for the year ended December 31, 2006, and
managements assessment of the effectiveness of our internal control over financial reporting as of
December 31, 2006, as set forth in their reports, which are incorporated by reference in this
prospectus and elsewhere in the registration statement. Our financial statements and managements
assessment are incorporated by reference in reliance on Ernst & Young LLPs reports, given on their
authority as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and other information with the
SEC. You may read and copy any document we file at the SECs Public Reference Room at 100 F Street,
N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more information about the
operation of the public reference room. The SEC maintains an Internet site that contains reports,
proxy and information statements, and other information regarding issuers that file electronically
with the SEC, including GTx, Inc. The SECs Internet site can be found at www.sec.gov.
The SEC allows us to incorporate by reference the information we file with it, which means
that we can disclose important information to you by referring you to another document that we have
filed separately with the SEC. You should read the information incorporated by reference because it
is an important part of this prospectus. We incorporate by reference the following information or
documents that we have filed with the SEC (Commission File No. 0-50549):
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our current report on Form 8-K filed with the SEC on February 26, 2007; |
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our annual report on Form 10-K for the year ended December 31, 2006 filed with the SEC
on March 9, 2007 (the 2006 10-K); |
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the information specifically incorporated by reference into our 2006 Form 10-K from our
definitive proxy statement on Schedule 14A filed with the SEC on March 14, 2007; |
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our current report on Form 8-K filed with the SEC on April 17, 2007; |
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our quarterly report on Form 10-Q for the quarter ended March 31, 2007 filed with the
SEC on May 7, 2007; |
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our current report on Form 8-K filed with the SEC on July 3, 2007; |
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our current report on Form 8-K filed with the SEC on July 12, 2007; |
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our current report on Form 8-K filed with the SEC on July 26, 2007; |
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our current report on Form 10-Q for the quarter ended June 30, 2007 filed with the SEC
on August 1, 2007; |
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our current reports on Form 8-K filed with the SEC on November 6, 2007 (except for the
information furnished under Item 2.02 or any related exhibit); |
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our current report on Form 10-Q for the quarter ended September 30, 2007 filed with the
SEC on November 9, 2007; |
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our current report on Form 8-K filed with the SEC on December 13, 2007; |
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our current report on Form 8-K filed with the SEC on December 18, 2007; and |
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the description of our common stock, which is registered under Section 12 of the
Exchange Act, in our registration statement on Form 8-A, filed with the SEC on January 13,
2004, including any amendments or reports filed for the purpose of updating such
description. |
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Any information in any of the foregoing documents will automatically be deemed to be modified
or superseded to the extent that information in this prospectus or in a later filed document that
is incorporated or deemed to be incorporated herein by reference modifies or replaces such
information.
We also incorporate by reference any future filings (other than current reports furnished
under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such
items) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, until
we file a post-effective amendment that indicates the termination of the offering of the securities
made by this prospectus. Information in such future filings updates and supplements the information
provided in this prospectus. Any statements in any such future filings will automatically be deemed
to modify and supersede any information in any document we previously filed with the SEC that is
incorporated or deemed to be incorporated herein by reference to the extent that statements in the
later filed document modify or replace such earlier statements.
We will provide to each person, including any beneficial owner, to whom a prospectus is
delivered, without charge upon written or oral request, a copy of any or all of the documents that
are incorporated by reference into this prospectus but not delivered with the prospectus, including
exhibits which are specifically incorporated by reference into such documents. Requests should be
directed to: GTx, Inc., Attention: Corporate Secretary, 3 N. Dunlap Street, Van Vleet Building,
Memphis, TN 38163, telephone (901) 523-9700.
22
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs and expenses, other than underwriting
discounts and commissions, payable by the registrant in connection with the offering of the
securities being registered. All the amounts shown are estimates, except for the SEC registration
fee.
|
|
|
|
|
SEC registration fee |
|
$ |
3,070 |
|
NASDAQ Global Market listing fee |
|
|
45,000 |
|
Accounting fees and expenses |
|
|
150,000 |
|
Legal fees and expenses |
|
|
175,000 |
|
Transfer Agent fees and expenses |
|
|
5,000 |
|
Trustee fees and expenses |
|
|
15,000 |
|
Printing and miscellaneous expenses |
|
|
25,000 |
|
|
|
|
|
Total |
|
$ |
418,070 |
|
|
|
|
|
Item 15. Indemnification of Directors and Officers.
The registrants certificate of incorporation contains provisions permitted under Delaware law
relating to the liability of directors. These provisions eliminate a directors personal liability
for monetary damages resulting from a breach of fiduciary duty, except in circumstances involving
wrongful acts, such as:
|
|
|
any breach of the directors duty of loyalty to the registrant or its stockholders; |
|
|
|
|
any act or omission not in good faith or that involves intentional misconduct or a
knowing violation of the law; |
|
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|
|
any act related to unlawful stock repurchases, redemptions or other distribution or
payments of dividends; or |
|
|
|
|
any transaction from which the director derived an improper personal benefit. |
These provisions do not limit or eliminate the registrants rights or any stockholders rights
to seek non-monetary relief, such as an injunction or rescission, in the event of a breach of a
directors fiduciary duty. These provisions will not alter a directors liability under federal
securities laws.
As permitted by Section 145 of the Delaware General Corporation Law, the registrants bylaws
require the registrant to indemnify its directors and executive officers to the fullest extent not
prohibited by the Delaware law. The registrant may expand the extent of such indemnification by
individual contracts with the registrants directors and executive officers. Further, the
registrant may decline to indemnify any director or executive officer in connection with any
proceeding initiated by such person or any proceeding by such person against the registrant or its
directors, officers, employees or other agents, unless such indemnification is expressly required
to be made by law or the proceeding was authorized by the registrants board of directors.
The registrant has entered into indemnity agreements with each of its current directors and
its executive officers to give such directors and officers additional contractual assurances
regarding the scope of the indemnification set forth in the registrants certificate of
incorporation and bylaws and to provide additional procedural protections. At present, there is no
pending litigation or proceeding involving any of the registrants directors, officers or employees
for which indemnification is sought, nor is the registrant aware of any threatened litigation that
may result in claims for indemnification.
The registrant has the power to indemnify its other officers, employees and other agents, as
permitted by Delaware law, but the registrant is not required to do so.
The registrant has a directors and officers insurance and registrant reimbursement policy.
The policy insures the registrants directors and officers against unindemnified losses arising
from certain wrongful acts in their capacities as directors and officers and reimburses the
registrant for those losses for which the registrant has lawfully indemnified the directors and
officers. The policy contains various exclusions, none of which apply to any offerings pursuant to
this registration statement.
II- 1
The underwriting agreement that the registrant might enter into (Exhibit 1.1) will provide for
indemnification by any underwriters of the registrant, its directors, its officers who sign the
registration statement and the registrants controlling persons for some liabilities, including
liabilities arising under the Securities Act of 1933.
Item 16. Exhibits.
|
|
|
Exhibit |
|
|
Number |
|
Description of the Document |
|
|
|
1.1
|
|
Form of Underwriting Agreement (1) |
|
|
|
3.1
|
|
Restated Certificate of Incorporation (2) |
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|
|
3.2
|
|
Amended and Restated Bylaws (3) |
|
|
|
4.1
|
|
Reference is made to Exhibits 3.1 and 3.2 |
|
|
|
4.2
|
|
Specimen Common Stock Certificate (4) |
|
|
|
4.3
|
|
Amended and Restated Registration Rights Agreement between Registrant and Oracle Partners, L.P.
dated August 7, 2003 (4) |
|
|
|
4.4
|
|
Amended and Restated Registration Rights Agreement between Registrant and J. R. Hyde, III dated
August 7, 2003 (4) |
|
|
|
4.5
|
|
Consent, Waiver and Amendment between the Registrant and Oracle Partners, L.P., Oracle Investment
Management, Inc. and Oracle Institutional Partners, L.P. dated November 29, 2007 |
|
|
|
4.6
|
|
Consent, Waiver and Amendment between Registrant and J. R. Hyde, III and Pittco Associates, L.P.
dated December 3, 2007 |
|
|
|
4.7
|
|
Registration Rights Agreement between Registrant and Merck & Co., Inc. dated December 18, 2007 (5) |
|
|
|
4.8
|
|
Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock (1) |
|
|
|
4.9
|
|
Form of Senior Debt Indenture, between Registrant and one or more trustees to be named |
|
|
|
4.10
|
|
Form of Subordinated Debt Indenture, between Registrant and one or more trustees to be named |
|
|
|
4.11
|
|
Form of Senior Note (1) |
|
|
|
4.12
|
|
Form of Subordinated Note (1) |
|
|
|
4.13
|
|
Form of Common Stock Warrant Agreement and Warrant Certificate |
|
|
|
4.14
|
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate |
|
|
|
4.15
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate |
|
|
|
4.16
|
|
Form of Unit Agreement (1) |
|
|
|
5.1
|
|
Opinion of Cooley Godward Kronish LLP |
|
|
|
12.1
|
|
Statement of Computation of Ratio of Earnings to Fixed Charges |
|
|
|
23.1
|
|
Consent of Independent Registered Public Accounting Firm |
|
|
|
23.2
|
|
Consent of Cooley Godward Kronish LLP (included in Exhibit 5.1) |
|
|
|
24.1
|
|
Power of Attorney (included on signature page) |
|
|
|
25.1
|
|
Statement of Eligibility of Trustee under the Senior Debt Indenture (1) |
|
|
|
25.2
|
|
Statement of Eligibility of Trustee under the Subordinated Debt Indenture (1) |
|
|
|
(1) |
|
To be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as
amended, and incorporated herein by reference, if applicable. |
|
(2) |
|
Filed as Exhibit 4.1 to the registrants registration statement on Form S-3 (File No.
333-127175), filed with the SEC on August 4, 2005, and incorporated herein by reference. |
|
(3) |
|
Filed as the like numbered Exhibit to the registrants Current Report on Form 8-K (File No.
000-50549), filed with the Securities and Exchange Commission on July 26, 2007, and
incorporated herein by reference. |
II- 2
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|
|
(4) |
|
Filed as the like numbered Exhibit to the registrants registration statement on Form S-1 or
amendments thereto (File No. 333-109700), originally filed with the Securities and Exchange
Commission on October 15, 2003, as amended, and incorporated herein by reference. |
|
(5) |
|
Filed as the like numbered Exhibit to the registrants Current Report on Form 8-K (File No.
000-50549), filed with the Securities and Exchange Commission on December 18, 2007, and
incorporated herein by reference. |
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
|
(1) |
|
To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement: |
|
(i) |
|
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
|
|
(ii) |
|
To reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be reflected in the form
of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20% change
in the maximum aggregate offering price set forth in the Calculation of Registration
Fee table in the effective registration statement; and |
|
|
(iii) |
|
To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such
information in the registration statement; |
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the
information required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 and Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
|
(2) |
|
That, for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. |
|
|
(3) |
|
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering. |
|
|
(4) |
|
That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser: |
|
(A) |
|
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and |
|
|
(B) |
|
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or (b)(7) as part of a registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the
date of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, |
II- 3
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|
as to a purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date. |
|
(5) |
|
That, for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will
be a seller to the purchaser and will be considered to offer or sell such securities to
such purchaser: |
|
(i) |
|
Any preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424; |
|
|
(ii) |
|
Any free writing prospectus relating to the offering prepared by or on behalf of
the undersigned registrant or used or referred to by the undersigned registrant; |
|
|
(iii) |
|
The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and |
|
|
(iv) |
|
Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser. |
|
(6) |
|
That, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrants annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 the
securities at that time shall be deemed to be the initial bona fide offering thereof. |
|
|
(7) |
|
That, for purposes of determining any liability under the Securities Act of 1933, 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. |
|
|
(8) |
|
That, for the purpose of determining any liability under the Securities Act of 1933,
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. |
|
|
(9) |
|
To file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 of 1933 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 Exchange Act and will be governed by the
final adjudication of such issue.
II- 4
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 Memphis, State of Tennessee, on December 21, 2007.
|
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|
GTx, Inc. |
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|
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|
By:
|
|
/s/ Mitchell S. Steiner |
|
|
|
|
|
|
|
|
|
|
|
|
|
Mitchell S. Steiner, M.D., F.A.C.S.
|
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|
Chief Executive Officer |
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|
II- 5
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Mitchell S. Steiner, Marc S. Hanover, Henry P. Doggrell and Mark E. Mosteller, and
each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective amendments) to this
Registration Statement and to sign any and all additional registration statements relating to the
Registration Statement and filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended,
and to file the same, 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 connection therewith, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his or her substitutes or substitute, 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 below by the following persons in the capacities and on the dates indicated.
|
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|
|
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Mitchell S. Steiner
|
|
Chief Executive Officer, Vice-Chairman and Director,
|
|
December 21, 2007 |
|
|
|
|
|
Mitchell S. Steiner, M.D., F.A.C.S.
|
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Mark E. Mosteller
|
|
Chief Financial Officer (Principal Accounting and
|
|
December 21, 2007 |
|
|
|
|
|
Mark E. Mosteller
|
|
Financial Officer) |
|
|
|
|
|
|
|
/s/ J.R. Hyde, III
|
|
Chairman of the Board of Directors
|
|
December 21, 2007 |
|
|
|
|
|
J.R. Hyde, III |
|
|
|
|
|
|
|
|
|
/s/ Marc S. Hanover
|
|
Director
|
|
December 21, 2007 |
|
|
|
|
|
Marc S. Hanover |
|
|
|
|
|
|
|
|
|
/s/ Michael G. Carter, M.D.
|
|
Director
|
|
December 21, 2007 |
|
|
|
|
|
Michael G. Carter, M.D. |
|
|
|
|
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|
|
/s/ Andrew M. Clarkson
|
|
Director
|
|
December 21, 2007 |
|
|
|
|
|
Andrew M. Clarkson |
|
|
|
|
|
|
|
|
|
/s/ J. Kenneth Glass
|
|
Director
|
|
December 21, 2007 |
|
|
|
|
|
J. Kenneth Glass |
|
|
|
|
|
|
|
|
|
/s/ Robert W. Karr
|
|
Director
|
|
December 21, 2007 |
|
|
|
|
|
Robert W. Karr, M.D. |
|
|
|
|
|
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|
|
/s/ Rosemary Mazanet
|
|
Director
|
|
December 21, 2007 |
|
|
|
|
|
Rosemary Mazanet, M.D., Ph.D. |
|
|
|
|
|
|
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|
|
/s/ John H. Pontius
|
|
Director
|
|
December 21, 2007 |
|
|
|
|
|
John H. Pontius |
|
|
|
|
|
|
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|
|
/s/ Timothy R. G. Sear
|
|
Director
|
|
December 21, 2007 |
|
|
|
|
|
Timothy R. G. Sear |
|
|
|
|
II- 6
EXHIBIT INDEX
|
|
|
Exhibit |
|
|
Number |
|
Description of the Document |
|
|
|
1.1
|
|
Form of Underwriting Agreement (1) |
|
|
|
3.1
|
|
Restated Certificate of Incorporation (2) |
|
|
|
3.2
|
|
Amended and Restated Bylaws (3) |
|
|
|
4.1
|
|
Reference is made to Exhibits 3.1 and 3.2 |
|
|
|
4.2
|
|
Specimen Common Stock Certificate (4) |
|
|
|
4.3
|
|
Amended and Restated Registration Rights Agreement between Registrant and Oracle Partners, L.P.
dated August 7, 2003 (4) |
|
|
|
4.4
|
|
Amended and Restated Registration Rights Agreement between Registrant and J. R. Hyde, III dated
August 7, 2003 (4) |
|
|
|
4.5
|
|
Consent, Waiver and Amendment between the Registrant and Oracle Partners, L.P., Oracle Investment
Management, Inc. and Oracle Institutional Partners, L.P. dated November 29, 2007 |
|
|
|
4.6
|
|
Consent, Waiver and Amendment between Registrant and J. R. Hyde, III and Pittco Associates, L.P.
dated December 3, 2007 |
|
|
|
4.7
|
|
Registration Rights Agreement between Registrant and Merck & Co., Inc. dated December 18, 2007 (5) |
|
|
|
4.8
|
|
Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock (1) |
|
|
|
4.9
|
|
Form of Senior Debt Indenture, between Registrant and one or more trustees to be named |
|
|
|
4.10
|
|
Form of Subordinated Debt Indenture, between Registrant and one or more trustees to be named |
|
|
|
4.11
|
|
Form of Senior Note (1) |
|
|
|
4.12
|
|
Form of Subordinated Note (1) |
|
|
|
4.13
|
|
Form of Common Stock Warrant Agreement and Warrant Certificate |
|
|
|
4.14
|
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate |
|
|
|
4.15
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate |
|
|
|
4.16
|
|
Form of Unit Agreement (1) |
|
|
|
5.1
|
|
Opinion of Cooley Godward Kronish LLP |
|
|
|
12.1
|
|
Statement of Computation of Ratio of Earnings to Fixed Charges |
|
|
|
23.1
|
|
Consent of Independent Registered Public Accounting Firm |
|
|
|
23.2
|
|
Consent of Cooley Godward Kronish LLP (included in Exhibit 5.1) |
|
|
|
24.1
|
|
Power of Attorney (included on signature page) |
|
|
|
25.1
|
|
Statement of Eligibility of Trustee under the Senior Debt Indenture (1) |
|
|
|
25.2
|
|
Statement of Eligibility of Trustee under the Subordinated Debt Indenture (1) |
|
|
|
(1) |
|
To be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as
amended, and incorporated herein by reference, if applicable. |
|
(2) |
|
Filed as Exhibit 4.1 to the registrants registration statement on Form S-3 (File No.
333-127175), filed with the SEC on August 4, 2005, and incorporated herein by reference. |
|
(3) |
|
Filed as the like numbered Exhibit to the registrants Current Report on Form 8-K (File No.
000-50549), filed with the Securities and Exchange Commission on July 26, 2007, and
incorporated herein by reference. |
|
(4) |
|
Filed as the like numbered Exhibit to the registrants registration statement on Form S-1 or
amendments thereto (File No. 333-109700), originally filed with the Securities and Exchange
Commission on October 15, 2003, as amended, and incorporated herein by reference. |
|
(5) |
|
Filed as the like numbered Exhibit to the registrants Current Report on Form 8-K (File No.
000-50549), filed with the Securities and Exchange Commission on December 18, 2007, and
incorporated herein by reference. |