As filed with the Securities and Exchange Commission on October 24, 2001
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
MEDAREX, INC.
(Exact name of registrant as specified in its charter)
New Jersey 22-2822175
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
707 State Road, Suite 206 08540
Princeton, New Jersey (Zip Code)
(Address of Principal Executive Offices)
MEDAREX, INC. 2001 STOCK OPTION PLAN
(Full title of the plan)
Donald L. Drakeman
Medarex, Inc.
707 State Road
Suite 206
Princeton, New Jersey 08540
(Name and address of agent for service)
(609) 430-2880
(Telephone number, including area code, of agent for service)
Copies to:
W. Bradford Middlekauff, Esq. Dwight A. Kinsey, Esq.
Senior Vice President, General Counsel and Secretary Satterlee Stephens Burke & Burke LLP
Medarex, Inc. 230 Park Avenue
707 State Road, Suite 206 New York, New York 10169
Princeton, New Jersey 08540 (212) 818-9200
(609) 430-2880
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed maximum Proposed maximum
Title of Securities to be Amount to be offering price per aggregate offering Amount of
registered registered (1) share (2) price (2) registration fee
--------------------------------------------------------------------------------------------------------------------
Common Stock, $ .01 par 3,500,000
value per share shares $19.90 $69,650,000 $17,413
====================================================================================================================
(1) The registration statement also includes an indeterminable number of
additional shares that may become issuable as a result of the anti-dilution
adjustment provisions of the Plan.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) and based upon the average of the high and
low sale prices of the Company's Common Stock as reported by the Nasdaq
National Market as of October 22, 2001.
PART II
Item 3. Incorporation of Documents by Reference.
------- ---------------------------------------
The following documents filed with the Securities and Exchange Commission
are hereby incorporated by reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31, 2000;
(b) Quarterly Reports of the Registrant on Form 10-Q for the three month periods
ended March 31, 2001 and June 30, 2001; (c) Proxy Statement dated April 16, 2001
for Annual Meeting of Shareholders held on May 23, 2001; and (d) the description
of the Registrant's Common Stock set forth in the Registrant's Registration
Statement on Form S-3 (File No. 333-52696), including any amendments or reports
filed for the purpose of updating such description.
All reports and other documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the filing hereof and prior to a filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such reports and documents. Any statement contained herein or in
any document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequent filed document which also is or is deemed to be incorporated by
reference herein modified or superseded such statement. Any such statement so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement, except as so modified or superseded.
Item 4. Description of Securities.
------- -------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
------- --------------------------------------
Dwight A. Kinsey, Esq., a partner of Satterlee Stephens Burke & Burke LLP,
owns 6,000 shares of the Registrant's Common Stock. Mr. Kinsey also holds
options to purchase 40,000 shares of the Registrant's Common Stock which he
received for services rendered as Assistant Secretary of the Registrant. No
other partner or associate of the firm owns shares or holds options to purchase
shares of the Registrant having a fair market value either individually or in
the aggregate in excess of $50,000.
Item 6. Indemnification of Directors and Officers.
------- -----------------------------------------
Section 14A:3-5 of The New Jersey Business Corporation Act (the "NJBCA")
empowers a New Jersey corporation to indemnify any person who is or was a
director, officer, employee or agent of the indemnifying corporation or of any
constituent corporation absorbed by the indemnifying corporation in a
consolidation or merger and any person who is or was a director, officer,
trustee, employee or agent of any other enterprise, serving as such at the
request of the indemnifying corporation, or of any such constituent corporation,
or legal representative of any such director, officer, trustee, employee or
agent (a "corporate agent"), against his expenses and liabilities incurred in
connection with any proceeding involving the corporate agent, other than a
proceeding by or in the right of the corporation, if (a) such corporate agent
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and (b) with respect to any
criminal proceeding, such corporate agent had no reason to believe
II-1
that his conduct was unlawful. In addition, a corporation may indemnify such
corporate agent against his expenses in connection with any proceeding by or in
the right of the corporation to procure a judgment in its favor which involves
such corporate agent by reason of his having been such corporate agent, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation. However, in such proceeding no
indemnification shall be provided in respect of any claim, issue or matter as to
which such corporate agent shall have been adjudged to be liable to the
corporation, unless and only to the extent that the Superior Court of the State
of New Jersey or the court in which such proceeding was brought shall determine
upon application that despite the adjudication of liability, but in view of all
circumstances of the case, such corporate agent is fairly and reasonably
entitled to indemnity for such expenses as the Superior Court or such other
court shall deem proper.
Under the NJBCA, a corporation shall indemnify a corporate agent against
expenses to the extent that such corporate agent has been successful on the
merits or otherwise in any proceeding referred to above or in defense of any
claim, issue or matter therein.
The indemnification and advancement of expenses provided by or granted
pursuant to the NJBCA shall not exclude any other rights, including the right to
be indemnified against liabilities and expenses incurred in proceedings by or in
the right of the corporation, to which a corporate agent may be entitled under a
certificate of incorporation, bylaw, agreement, vote of shareholders, or
otherwise; provided that no indemnification shall be made to or on behalf of a
corporate agent if a judgment or other final adjudication adverse to the
corporate agent establishes that his acts or omissions (a) were in breach of his
duty of loyalty to the corporation or its shareholders, (b) were not in good
faith or involved a knowing violation of law or (c) resulted in receipt by the
corporate agent of an improper personal benefit.
The Restated Certificate of Incorporation, as amended, and Article XIII of
the Registrant's Amended and Restated By-Laws provide for the indemnification of
its Officers and Directors under certain circumstances and are incorporated
herein by reference.
Item 7. Exemption from Registration Claimed.
------- -----------------------------------
Not applicable.
II-2
Item 8. Exhibits.
------- --------
Exhibit No. Description
----------- -----------
4(b) Restated Certificate of Incorporation, of
Medarex, Inc. (Incorporated by reference to
Exhibit 4(b) to the Registrant's
Registration Statement on Form S-8, File No.
333-39084) as amended by Registrant's
Certificate of Amendment of the Restated
Certificate of Incorporation (Incorporated
by reference to Exhibit 3.1 to the
Registrant's Form 8-K filed on June 26,
2001).
4(c) Medarex, Inc. Amended and Restated By-Laws
(Incorporated by reference to Exhibit 4.2 to
the Registrant's Form 8-K filed on May 25,
2001).
5 Opinion of Satterlee Stephens Burke &
Burke LLP as to legality of the securities being
registered
10.1 Medarex, Inc. 2001 Stock Option Plan
15 Not Applicable
23(a) Consent of Ernst & Young LLP
23(b) Consent of Satterlee Stephens Burke & Burke
LLP (included in opinion filed as Exhibit 5)
24 Power of Attorney (accompanies signature
pages to the Registration Statement)
27 Not Applicable
28 Not Applicable
99 Not Applicable
Item 9. Undertakings.
------- ------------
The undersigned Registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
II-3
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in aggregate,
represent a fundamental change in the information set forth in this
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
-------- -------
above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Securities and Exchange Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at the time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) To deliver or cause to be delivered with the prospectus, to each person
to whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Exchange Act; and, where interim financial information required to be presented
by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(6) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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-8 and has duly caused this registration
statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Township of Princeton, State of New Jersey, on
this 19th day of October, 2001.
MEDAREX, INC.
By:/s/Irwin Lerner
-------------------------------------
Irwin Lerner-Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Medarex, Inc., a New
Jersey corporation, do hereby constitute and appoint Donald L. Drakeman and
Christian S. Schade, and either of them, the lawful attorney and agent, with
power and authority to do any and all acts and things and to execute any and all
instruments which said attorney and agent, determine may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power of authority,
the powers granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments (including any post-effective
amendments) and supplements thereof, and to any and all instruments or documents
filed as part of or in connection with such Registration Statement, and each of
the undersigned hereby certifies and confirms all that said attorney and agent,
shall do or cause to be done by virtue hereof. The Power of Attorney may be
signed in several counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Power of Attorney as
of the dates indicated below.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Irwin Lerner Chairman of the Board October 19, 2001
---------------------------------------
Irwin Lerner
/s/ Donald L. Drakeman President, Chief Executive Officer and October 19, 2001
---------------------------------------
Donald L. Drakeman Director (Principal Executive Officer)
/s/ Michael A. Appelbaum Executive Vice President and Director October 19, 2001
---------------------------------------
Michael A. Appelbaum
/s/ Christian S. Schade Senior Vice President, Treasurer and Chief October 19, 2001
---------------------------------------
Christian S. Schade Financial Officer (Principal Financial and
Accounting Officer)
/s/ Michael W. Fanger Director October 19, 2001
---------------------------------------
Michael W. Fanger
/s/ Julius A. Vida Director October 19, 2001
---------------------------------------
Julius A. Vida
/s/ Charles R. Schaller Director October 19, 2001
---------------------------------------
Charles R. Schaller
/s/ W. Leigh Thompson, Jr. Director October 19, 2001
---------------------------------------
W. Leigh Thompson, Jr.
/s/ Frederick B. Craves Director October 19, 2001
---------------------------------------
Frederick B. Craves
/s/ Ronald J. Saldarini Director October 19, 2001
---------------------------------------
Ronald J. Saldarini
INDEX TO EXHIBITS
Exhibit No. Description
----------- -----------
5 Opinion of Satterlee Stephens Burke & Burke
LLP as to legality of the securities being
registered
10.1 Medarex, Inc. 2001 Stock Option Plan
23(a) Consent of Ernst & Young LLP