sv3asr
As filed with the Securities and Exchange Commission on
May 2, 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
PHARMION CORPORATION
(Exact name of Registrant as
specified in its charter)
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Delaware
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84-1521333
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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2525 28th Street
Boulder, Colorado
80304
(720) 564-9100
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Patrick J. Mahaffy
President and Chief Executive
Officer
Pharmion Corporation
2525
28th Street
Boulder, Colorado
80301
(720) 564-9100
(Name, address, including zip
code, telephone number, including area code, of agent for
service)
with copies to:
Peter H.
Jakes, Esq.
William H.
Gump, Esq.
Willkie Farr &
Gallagher LLP
787 Seventh Avenue
New York, New York
10019
(212) 728-8000
Approximate date of commencement of proposed sale to the
public: From time to time or at one time after
the effective date of this Registration Statement as determined
by the Registrant.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. 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. þ
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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Title of Each Class of
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Amount to be
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Offering
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Aggregate
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Registration
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Securities to be Registered(1)
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Registered(1)(2)
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Price per Unit(1)(2)
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Offering Price(1)(2)
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Fee(3)
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Common Stock, par value
$0.001 per share
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Preferred Stock, par value
$0.001 per share
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Senior Debt Securities(4)
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Subordinated Debt Securities(4)
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Warrants(4)(5)
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Purchase Contracts(4)(6)
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Units(4)(7)
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(1)
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These offered securities may be
sold separately, together or as units with other offered
securities. An indeterminate aggregate initial offering price or
number of securities of each identified class is being
registered as may from time to time be issued at indeterminate
prices. Separate consideration may or may not be received for
securities that are issuable on exercise, conversion or exchange
of other securities or that are issued in units.
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(2)
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This registration statement also
covers an indeterminate amount of the securities that may be
reoffered and resold on an ongoing basis after their initial
sale in market-making transactions by affiliates of the
Registrant.
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(3)
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In accordance with Rule 456(b)
and Rule 457(r), the Registrant is deferring payment of all
of the registration fee.
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(4)
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Also includes such currently
indeterminate number of shares of common stock and preferred
stock of the Registrant as may be issued upon conversion of or
exchange for any securities that provide for conversion or
exchange into such common stock or preferred stock.
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(5)
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There are being registered hereby
such indeterminate number of Warrants as may be issued at
indeterminate prices. Such Warrants may be issued together with
any of the other securities registered hereby. Warrants may be
exercised to purchase any of the other securities registered
hereby or to purchase or sell (i) securities of an entity
unaffiliated with the Registrant, a basket of such securities,
an index or indices of such securities or any combination of the
above, (ii) currencies or (iii) commodities.
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(6)
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There are being registered hereby
such indeterminate number of Purchase Contracts as may be issued
at indeterminate prices. Such Purchase Contracts may be issued
together with any of the other securities being registered
hereby. Purchase Contracts may require the holder thereof to
purchase or sell any of the other securities registered hereby
or to purchase or sell (i) securities of an entity
unaffiliated with the Registrant, a basket of such securities,
an index or indices of such securities or any combination of the
above, (ii) currencies or (iii) commodities.
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(7)
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There are being registered hereby
such indeterminate number of Units as may be issued at
indeterminate prices. Units may consist of any combination of
the securities being registered hereby.
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Prospectus
PHARMION
CORPORATION
COMMON STOCK
PREFERRED STOCK
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
WARRANTS
PURCHASE CONTRACTS
UNITS
We may offer to sell from time to time, separately or together,
in one or more offerings, common stock, preferred stock, senior
debt securities, subordinated debt securities, warrants,
purchase contracts and units comprised of two or more of any of
such securities in any combination. In addition, this prospectus
may be used to offer securities for the account of persons other
than us.
This prospectus describes some of the general terms that may
apply to the offered securities. The specific terms and amounts
of the offered securities will be fully described in supplements
to this prospectus, which may add to, update or change the
information in this prospectus. Please read carefully any
prospectus supplements and this prospectus and any information
incorporated herein or therein by reference carefully before you
invest in any of these securities.
Our common stock is traded on the NASDAQ Global Market under the
symbol PHRM. On May 1, 2007, the last reported
sale price for our common stock on the NASDAQ Global Market was
$30.60 per share.
Investing in our securities involves risks. See
Risk Factors on page 2.
Neither the Securities and Exchange Commission nor any
state securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
We or any selling security holder may offer and sell these
securities to or through one or more underwriters, dealers and
agents, or directly to purchasers, on a continuous or delayed
basis. The names of any underwriters or agents and the terms of
the arrangements with such entities will be stated in an
accompanying prospectus supplement.
The date of this prospectus is
May 2, 2007
TABLE OF CONTENTS
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ABOUT THIS
PROSPECTUS
This prospectus is part of a Registration Statement that we
filed with the Securities and Exchange Commission, or SEC,
utilizing a shelf registration process. Under this
shelf registration process, we or a selling security holder may,
from time to time, sell the securities described in this
prospectus in one or more offerings. We have omitted parts of
the registration statement in accordance with the rules and
regulations of the SEC. This prospectus provides you only with a
general description of the securities we or a selling security
holder may offer. Each time we or a selling security holder sell
securities, we will provide a prospectus supplement or
prospectus supplements containing specific information about the
terms of that offering. The prospectus supplement may also add
to, update or change information contained in this prospectus.
You should read carefully both this prospectus and any
prospectus supplement together with additional information
described under the heading Where You Can Find More
Information and Incorporation by Reference
before purchasing any of our securities.
You should rely only on the information contained or
incorporated by reference in this prospectus or applicable
prospectus supplement or free writing prospectus that we may
authorize to be delivered to you. Incorporated by
reference means that we can disclose important information
to you by referring you to another document filed separately
with the SEC. We have not authorized anyone to provide you with
different or additional information. We are not making an offer
to sell these securities in any jurisdiction where the offer or
sale of these securities is not permitted. You should assume
that the information in this prospectus or any prospectus
supplement, as well as the information incorporated by reference
herein or therein, is accurate only as of the date of the
documents containing the information. Our business, financial
condition, results of operations and prospects may have changed
since those dates.
In this prospectus and any prospectus supplement, unless
otherwise indicated, the terms Pharmion,
we, us and our refer and
relate to Pharmion Corporation and its consolidated subsidiaries.
1
ABOUT THE
REGISTRANT
We are a global pharmaceutical company that acquires, develops
and commercializes innovative products for the treatment of
hematology and oncology patients. We have established our own
research, regulatory, development and sales and marketing
organizations in the United States (U.S.), the European Union
(E.U.) and Australia. We have also developed a distributor
network to reach the hematology and oncology markets in several
additional countries throughout Europe, the Middle East and Asia.
We have established a portfolio of approved products and product
candidates focused on the hematology and oncology markets. These
include our primary commercial products,
Vidaza®
(azacitidine for injection), which we market and sell as an
approved treatment for Myelodysplastic Syndromes (MDS) in the
U.S., Switzerland, Israel and the Philippines and Thalidomide
Pharmion
50mgtm
(Thalidomide Pharmion), a widely used therapy for the treatment
of multiple myeloma and certain other forms of cancer, which we
sell on a compassionate use or named patient basis in certain
countries of Europe. Thalidomide Pharmion is approved in
Australia, New Zealand, Turkey, Israel, South Korea and Thailand
for the treatment of multiple myeloma after the failure of
standard therapies. Together, these products generated total net
sales of $219.7 million in 2006, representing 92% of our
total net sales in 2006.
We were incorporated in Delaware in August 1999 and commenced
operations in January 2000. Our principal executive offices are
located at 2525 28th Street, Boulder, Colorado 80301, and
our telephone number is
(720) 564-9100.
Our website is located at http://www.pharmion.com. We do not
incorporate the information on our website into this prospectus
and you should not consider it a part of this prospectus.
RISK
FACTORS
Investment in the offered securities involves risks. Before
acquiring any offered securities pursuant to this prospectus,
you should carefully consider the information contained or
incorporated by reference in this prospectus or in any
accompanying prospectus supplement, including, without
limitation, the risks of an investment in our company set forth
below and under the captions Item 1A. Risk
Factors and Item 7. Managements
Discussion and Analysis of Financial Condition and Results of
Operations in our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2006, as the same
may be updated from time to time by our future filings with the
SEC. The occurrence of any of these risks might cause you to
lose all or a part of your investment in the offered securities.
Please also refer to the section below entitled
Forward-Looking Statements.
FORWARD-LOOKING
STATEMENTS
This prospectus contains or incorporates forward-looking
statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. Generally, you can
identify these statements because they use words like
anticipates, believes,
expects, future, intends,
plans, and similar terms. These statements are only
our current expectations. Although we do not make
forward-looking statements unless we believe we have a
reasonable basis for doing so, we cannot guarantee their
accuracy, and actual results may differ materially from those we
anticipated due to a number of uncertainties and risks,
including the risks described or incorporated by reference in
this prospectus and other unforeseen risks. You should not place
undue reliance on these forward-looking statements, which apply
only as of the date of this prospectus or the incorporated
documents.
We believe it is important to communicate our expectations to
our investors. There may be events in the future, however, that
we are unable to predict accurately or over which we have no
control. The factors listed in the section titled Risk
Factors, as well as any cautionary language in or
incorporated by reference in this prospectus, provide examples
of risks, uncertainties and events that may cause our actual
results to differ materially from the expectations we describe
in our forward-looking statements. Before you invest in our
securities, you should be aware that the occurrence of the
events described in the risk factors and elsewhere in this
prospectus and in the documents incorporated by reference herein
could negatively impact our business, operating results,
financial condition and stock price.
2
You should not rely upon forward-looking statements as
predictions of future events. We cannot assure you that the
events and circumstances reflected in the forward-looking
statements will be achieved or occur and actual results could
differ materially from those projected in the forward-looking
statements.
USE OF
PROCEEDS
Unless otherwise indicated in a prospectus supplement, the net
proceeds from the sale of securities offered by this prospectus
will be used for general corporate purposes, including, without
limitation, the funding of clinical studies in connection with
the development of our products and product candidates, future
acquisitions of additional products and product candidates to
augment our current portfolio, capital expenditures, the
repayment and the refinancing of indebtedness and working
capital. If net proceeds from a specific offering will be used
to repay indebtedness, the applicable prospectus supplement will
describe the relevant terms of the debt to be repaid. Until we
apply the proceeds from a sale of securities to their intended
purposes, we may invest those proceeds in short-term
investments, including repurchase agreements, some or all of
which may not be investment grade. We will not receive proceeds
from sales of securities by persons other than us except as may
otherwise be stated in an applicable prospectus supplement.
FINANCIAL
RATIOS
The following table shows our historical ratio of earnings to
fixed charges and ratio of earnings to combined fixed charges
and preference dividends for each of the five most recent fiscal
years.
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Year Ended December 31,
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2002
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2003
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2004
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2005
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2006
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Ratio of earnings to fixed charges
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10.72
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Ratio of earnings to combined
fixed charges and preference dividends
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10.72
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For these ratios, earnings consist of net income before income
taxes, plus fixed charges. Fixed charges consist of interest
expensed, plus the portion of rent expense under operating
leases deemed by us to be representative of the interest factor.
We had deficiencies of earnings to fixed charges of $34,592,000
for 2002, $48,773,000 for 2003, $9,684,000 for 2004 and
$83,238,000 for 2006. We had deficiencies of earnings to
combined fixed charges and preference dividends of $43,168,000
for 2002, $58,864,000 for 2003, $9,684,000 for 2004 and
$83,238,000 for 2006.
DESCRIPTION OF
COMMON STOCK
We may issue, either separately or together with other
securities, shares of our common stock. Under our amended and
restated certificate of incorporation, we are authorized to
issue up to 100,000,000 shares of our common stock. A
prospectus supplement relating to an offering of common stock,
or other securities convertible or exchangeable for, or
exercisable into, common stock, will describe the relevant
terms, including the number of shares offered, any initial
offering price, and market price and dividend information, as
well as, if applicable, information on other related securities.
As of March 31, 2007, there were
32,150,648 shares of common stock outstanding. As of
March 31, 2007, we had approximately 2,400 record
holders of our common stock. In addition, as of March 31,
2007, 6,404,402 shares of our common stock were reserved
for issuance under our stock option and incentive plans, of
which 3,530,317 shares were subject to options to purchase
common stock and non-vested restricted stock unit awards
outstanding on that date.
The following description of our common stock and related
provisions of our certificate of incorporation and bylaws are
summaries of all of their material terms and provisions and are
qualified by reference to our amended and restated certificate
of incorporation and bylaws, copies of which have been filed
with the SEC.
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General
We are authorized to issue one class of common stock.
Stockholders are entitled to one vote for each share of our
common stock held of record on all matters on which stockholders
are entitled or permitted to vote. Our common stock does not
have cumulative voting rights in the election of directors. As a
result, holders of a majority of the shares of our common stock
voting for the election of directors can elect all the directors
standing for election. Holders of our common stock are entitled
to receive dividends out of legally available funds when, as and
if declared from time to time by our board of directors. In the
event of our liquidation, dissolution or winding up, the holders
of our common stock will be entitled to share ratably in all
assets remaining after payment of liabilities, subject to the
rights of any then outstanding preferred stock. Our common stock
does not have preemptive, subscription or conversion rights, and
there are no redemption or sinking fund provisions in our
amended and restated certificate of incorporation. The rights,
preferences and privileges of holders of our common stock are
subject to, and may be adversely affected by, the rights of
holders of shares of any series of preferred stock that we may
designate and issue in the future.
Description
of Provisions of our Certificate of Incorporation and Bylaws and
Delaware Law
A number of provisions in our amended and restated certificate
of incorporation and bylaws and under the Delaware General
Corporation Law may make it more difficult to acquire control of
us, each of which certificate of incorporation provisions can
only be amended or repealed upon the consent of 80% of our
outstanding shares. These provisions could deprive the
stockholders of opportunities to realize a premium on the shares
of common stock owned by them. In addition, these provisions may
adversely affect the prevailing market price of the common
stock. The provisions are intended to:
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enhance the likelihood of continuity and stability in the
composition of our board of directors;
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discourage some types of transactions that may involve an actual
or threatened change in control of us;
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discourage various tactics that may be used in proxy fights;
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ensure that our board of directors will have sufficient time to
act in what the board believes to be in the best interest of us
and our stockholders; and
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encourage persons seeking to acquire control of us to consult
first with our board to negotiate the terms of any proposed
business combination or offer.
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Classified
Board of Directors
Our amended and restated certificate of incorporation and bylaws
provide that the number of our directors shall be fixed from
time to time by a resolution of a majority of our board of
directors. Our amended and restated certificate of incorporation
and bylaws also provide that the board of directors shall be
divided into three classes of directors of the same or nearly
the same number. The members of each class of directors will
serve for staggered three-year terms. In accordance with the
Delaware General Corporation Law, directors serving on
classified boards may only be removed from office for cause. The
classification of the board has the effect of requiring at least
two annual stockholder meetings, instead of one, to replace a
majority of the members of the board. Subject to the right of
the holders of any outstanding class or series of preferred
stock, vacancies on the board of directors may be filled only by
a majority of the remaining directors, or by the sole remaining
director, or by the stockholders if the vacancy was caused by
removal of the director by the stockholders. The provision could
prevent a stockholder from obtaining majority representation on
the board by enlarging the board of directors and filling the
new directorships with its own nominees.
Stockholder
Meetings and Proposals
Our amended and restated certificate of incorporation and bylaws
provide that special meetings of stockholders generally can be
called only by the chairman of the board, the chief executive
officer, or our board of directors. Our bylaws provide for
advance notice procedures for the nomination, other than by or
at the direction of the board of directors, of candidates for
election as directors as well as for other stockholder
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proposals to be considered at annual stockholder meetings. In
general, notice of intent to nominate a director or raise
business at annual meetings must be received by us not less than
90 nor more than 120 days before the meeting. The notice
must contain specific information concerning the person to be
nominated or the matters to be brought before the meeting and
concerning the stockholder submitting the proposal. These
provisions may preclude a nomination for the election of
directors or preclude the conduct of business at a particular
annual meeting if the proper procedures are not followed.
Furthermore, these provisions may discourage or deter a third
party from conducting a solicitation of proxies to elect its own
slate of directors or otherwise attempting to obtain control of
the company, even if the conduct of the solicitation or attempt
might be beneficial to us and our stockholders.
Stockholder
Action
Our amended and restated certificate of incorporation does not
allow stockholders to act by written consent without a meeting.
The effect of this provision is to restrict stockholders
ability to circumvent the notice requirements relating to an
annual or special meeting.
Business
Combinations Under Delaware Law
We are subject to Section 203 of the Delaware General
Corporation Law, which regulates corporate acquisitions.
Section 203 prohibits a publicly held Delaware corporation
from engaging in a business combination with an
interested stockholder for a period of three years
following the date the person became an interested stockholder,
unless:
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the board of directors approved the transaction in which the
stockholder became an interested stockholder prior to the date
the interested stockholder attained that status;
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upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of our voting stock outstanding
at the time the transaction commenced, excluding shares owned by
persons who are directors and also officers; or
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on or subsequent to that date, the business combination is
approved by our board of directors and authorized at an annual
or special meeting of stockholders by the holders of at least
two-thirds of the outstanding voting stock that is not owned by
the interested stockholder.
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Generally, a business combination includes a merger, asset or
stock sale, or other transaction resulting in a financial
benefit to the interested stockholder. Generally, an interested
stockholder is a person who, together with affiliates and
associates, owns or, within three years prior to the
determination of interested stockholder status, did own, 15% or
more of our voting stock.
Transfer
Agent and Registrar
Our transfer agent and registrar for our common stock is
American Stock Transfer & Trust Company.
DESCRIPTION OF
PREFERRED STOCK
We may issue, either separately or together with other
securities, shares of our preferred stock. Under our amended and
restated certificate of incorporation, we are authorized to
issue up to 10,000,000 shares of our preferred stock. A
prospectus supplement relating to an offering of preferred
stock, or other securities convertible or exchangeable for, or
exercisable into, common stock, will describe the relevant
terms, including the designation of the series, the number of
shares offered, the initial offering price and any voting,
dividend and liquidation preference rights, and any general
terms described in this section that will not apply to those
shares of preferred stock. As of May 1, 2007, there were no
shares of preferred stock outstanding.
General
The summary set forth below does not purport to be complete and
is subject to and qualified in its entirety by reference to our
amended and restated certificate of incorporation and the
certificate of designation
5
relating to the applicable series of preferred stock that we
will file with the SEC, each of which is or will be filed or
incorporated by reference as an exhibit to the registration
statement of which this prospectus is a part and incorporated
herein by reference.
Under our amended and restated certificate of incorporation, our
board of directors has the authority, without action by our
stockholders, to issue up to 10,000,000 shares of preferred
stock in one or more series and to designate the rights,
preferences, privileges and restrictions of each series, any or
all of which may be greater than the rights of our common stock.
It is not possible to state the actual effect of the issuance of
any shares of preferred stock upon the rights of holders of our
voting common stock until our board of directors determines the
specific rights of the holders of preferred stock. However, the
effects might include, among other things, restricting dividends
on the common stock, diluting the voting power of the common
stock, impairing the liquidation rights of the common stock and
delaying or preventing a change in control of our common stock
without further action by our stockholders.
The preferred stock will have the rights described in this
section unless the applicable prospectus supplement provides
otherwise. You should read the prospectus supplement relating to
the particular series of the preferred stock being offered for
specific terms, including some or all of the following:
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the description of the shares of preferred stock;
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the number of shares of preferred stock offered;
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the voting rights, if any, of the holders of the shares of
preferred stock; the offering price of the shares of preferred
stock;
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the distribution rate, when distributions will be paid, or the
method of determining the distribution rate if it is based on a
formula or not otherwise fixed;
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the date from which distributions on the shares of preferred
stock shall accumulate;
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the provisions for any auctioning or remarketing, if any, of the
shares of preferred stock;
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the provision, if any, for redemption or a sinking fund;
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the liquidation preference per share;
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any listing of the shares of preferred stock on a securities
exchange;
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whether the shares of preferred stock will be convertible or
exchangeable and, if so, the security into which they are
convertible or exchangeable and the terms and conditions of
conversion or exchange, including the conversion price or
exchange rate or the manner of determining it;
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the federal income tax consequences of owning the preferred
stock;
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the relative ranking and preferences of the shares of preferred
stock as to distribution and liquidation rights;
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any limitations on issuance of any shares of preferred stock
ranking senior to or on a parity with the series of preferred
stock being offered as to distribution and liquidation rights;
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any limitations on direct or beneficial ownership and
restrictions on transfer; and
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any other terms of the preferred stock.
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We will have the right to reopen a previous issue of
a series of preferred stock by issuing additional preferred
stock of such series.
The transfer agent, registrar, dividend disbursing agent and
redemption agent for shares of each series of preferred stock
will be named in the prospectus supplement relating to such
series.
6
Ranking
Unless our Board of Directors otherwise determines and we so
specify in the applicable prospectus supplement, we expect that
the shares of preferred stock will, with respect to distribution
rights and rights upon liquidation or dissolution, rank senior
to all shares of our common stock.
Dividends
Holders of shares of preferred stock of each series will be
entitled to receive dividends at the rates and on the dates
shown in the applicable prospectus supplement if, as and when
authorized and declared by our Board of Directors out of assets
legally available therefor. We will pay each dividend to holders
of record as they appear on our share transfer books on the
record dates fixed by our Board of Directors.
Dividends on any series of preferred stock may be cumulative or
noncumulative, as provided in the applicable prospectus
supplement. We refer to each particular series, for ease of
reference, as the applicable series. Cumulative dividends will
be cumulative from and after the date shown in the applicable
prospectus supplement. If our Board of Directors fails to
authorize a dividend on any applicable series that is
noncumulative, the holders will have no right to receive, and we
will have no obligation to pay, a dividend in respect of the
applicable dividend period, whether or not dividends on that
series are declared payable in the future.
If the applicable series is entitled to a cumulative dividend,
we may not declare, or pay or set aside for payment, a dividend
on any other series of preferred stock ranking, as to dividends
on a parity with or junior to the applicable series, unless we
declare, and either pay or set aside for payment, full
cumulative dividends on the applicable series for all past
dividends periods and the then current dividend period. If the
applicable series does not have a cumulative dividend, we must
declare, and pay or set aside for payment, full dividends for
the then current dividend period only. When dividends are not
paid, or set aside for payment, in full on any applicable series
and the shares of any other series ranking on a parity as to
dividends with the applicable series, we must declare, and pay
or set aside for payment, all dividends upon the applicable
series and any other parity series proportionately, in
accordance with accrued and unpaid dividends of the several
series. For these purposes, accrued and unpaid dividends do not
include unpaid dividend periods on noncumulative shares of
preferred stock. No interest will be payable in respect of any
dividend payment that may be in arrears.
Except as provided in the immediately preceding paragraph,
unless we declare, and pay or set aside for payment, full
cumulative dividends, including for the then current period, on
any applicable series entitled to a cumulative dividend, we may
not declare, or pay or set aside for payment, any dividends on
common stock or any other equity securities ranking junior to or
on a parity with the applicable series as to dividends or upon
liquidation. The foregoing restriction does not apply to
dividends paid in common stock or other equity securities
ranking junior to the applicable series as to dividends and upon
liquidation. If the applicable series does not have cumulative
dividends, we need only declare, and pay or set aside for
payment, the dividend for the then current period before
declaring dividends on shares of common stock or junior or
parity securities. In addition, under the circumstances in which
we could not declare a dividend, we may not redeem, purchase or
otherwise acquire for any consideration any shares of common
stock or other parity or junior equity securities, except upon
conversion into or exchange for shares of common stock or other
junior equity securities. We may, however, make purchases and
redemptions otherwise prohibited pursuant to certain redemptions
or pro rata offers to purchase the outstanding shares of the
applicable series and any other parity series of preferred stock.
We will credit any dividend payment made on an applicable series
first against the earliest accrued but unpaid dividend due with
respect to the series.
Redemption
We may have the right or may be required to redeem the
applicable series, as a whole or in part, in each case upon the
terms, if any, and at the times and at the redemption prices
shown in the applicable prospectus supplement.
7
If the applicable series is subject to mandatory redemption, we
will specify in the applicable prospectus supplement the number
of shares we are required to redeem, when those redemptions
start, the redemption price, and any other terms and conditions
affecting the redemption. The redemption price will include all
accrued and unpaid dividends, except in the case of
noncumulative preferred stock. The redemption price may be
payable in cash or other property, as specified in the
applicable prospectus supplement. If the redemption price for
the applicable series is payable only from the net proceeds of
our issuance of capital stock, the terms of the preferred stock
may provide that, if no shares of capital stock shall have been
issued or to the extent the net proceeds from any issuance are
insufficient to pay in full the aggregate redemption price then
due, the shares of preferred stock will automatically and
mandatorily be converted into shares of capital stock pursuant
to conversion provisions specified in the applicable prospectus
supplement.
Liquidation
Preference
The applicable prospectus supplement will describe the
liquidation preference of the applicable series. Upon our
voluntary or involuntary liquidation, before any distribution
may be made to the holders of shares of our common stock or any
other shares of capital stock ranking junior to the applicable
series in the distribution of assets upon liquidation, the
holders of that series will be entitled to receive, out of
assets legally available therefor, liquidating distributions in
the amount of the liquidation preference, plus an amount equal
to all accrued and unpaid distributions. If the applicable
series does not have a cumulative dividend, accrued and unpaid
dividends include only the then current dividend period. After
payment of the full amount of the liquidating distributions to
which they are entitled, the holders of shares of the applicable
series will have no right or claim to any of our remaining
asset, and our remaining assets will be distributed among the
holders of any other shares of capital stock ranking junior to
the applicable series upon liquidation, according to their
rights and preferences.
If, upon any voluntary or involuntary liquidation, our available
assets are insufficient to pay the amount of the liquidating
distributions on all outstanding shares of any series and the
corresponding amounts payable on all shares of capital stock
ranking on a parity in the distribution of assets with that
series, then the holders of that series and all other equally
ranking shares of capital stock shall share ratably in the
distribution in proportion to the full liquidating distributions
to which they would otherwise be entitled.
Voting
Rights
Holders of shares of the applicable series will not have any
voting rights, except as otherwise from time to time required by
law or as specified in the applicable prospectus supplement.
Conversion
Rights
We will describe in the applicable prospectus supplement the
terms and conditions, if any, upon which you may, or we may
require you to, convert shares of the applicable series into
shares of common stock or any other class or series of shares of
capital stock. The terms will include the number of shares of
common stock or other securities into which the shares of the
applicable series are convertible, the conversion price (or the
manner of determining it), the conversion period, provisions as
to whether conversion will be at the option of the holders of
the series or at our option, the events requiring an adjustment
of the conversion price, and provisions affecting conversion
upon the redemption of shares of the series.
Our
Exchange Rights
We will describe in the applicable prospectus supplement the
terms and conditions, if any, upon which we can require you to
exchange shares of the applicable series for debt securities. If
an exchange is required, you will receive debt securities with a
principal amount equal to the liquidation preference of the
applicable series. The other terms and provisions of the debt
securities will not be materially less favorable to you than
those of the series of preferred stock being exchanged.
8
DESCRIPTION OF
DEBT SECURITIES
We may issue, either separately or together with other
securities, debt securities. The prospectus supplement relating
to any offering of debt securities will describe more specific
terms of the debt securities being offered, including the
designation of the series, the aggregate principal amount being
offered, the initial offering price, the interest rate and any
redemption, purchase or conversion rights and any general terms
described in this section that will not apply to those debt
securities.
The summary set forth below does not purport to be complete and
is subject to and qualified in its entirety by reference to the
applicable base indenture referred to below and the supplemental
indenture (including the form of debt security) relating to the
applicable series of debt securities, the form of each of which
is or will be filed or incorporated by reference as an exhibit
to the registration statement of which this prospectus is a part
and incorporated herein by reference.
The debt securities will be our direct unsecured general
obligations and may include debentures, notes, bonds
and/or other
evidences of indebtedness. The debt securities may be senior or
subordinated and will be issued under one or more indentures
among us and U.S. Bank National Association, as the initial
trustee, which we refer to herein as base indentures. The base
indentures do not limit the aggregate principal amount of debt
securities that may be issued thereunder.
Senior debt securities will be issued under a senior indenture,
in one or more series established pursuant to a supplemental
indenture or a resolution duly adopted by our Board of Directors
or a duly authorized committee thereof. Subordinated debt
securities will be issued under a subordinated indenture, in one
or more series established pursuant to a supplemental indenture
or a resolution duly adopted by our Board of Directors or a duly
authorized committee thereof. We refer to the senior indenture
and the subordinated indenture (together with each applicable
supplemental indenture or resolution establishing the applicable
series of debt securities) collectively in this prospectus as
the indentures. The indentures will be subject to and governed
by the Trust Indenture Act of 1939, as amended.
General
Each indenture provides that there may be more than one trustee
under that indenture, each with respect to one or more series of
debt securities. Any trustee under an indenture may resign or be
removed with respect to one or more series of debt securities
issued under that indenture, and a successor trustee may be
appointed to act with respect to that series.
If two or more persons are acting as trustee with respect to
different series of debt securities issued under the same
indenture, each of those trustees will be a trustee of a trust
under that indenture separate and apart from the trust
administered by any other trustee. In that case, except as
otherwise indicated in this prospectus, any action described in
this prospectus to be taken by the trustee may be taken by each
of those trustees only with respect to the one or more series of
debt securities for which it is trustee.
The applicable prospectus supplement will describe the specific
terms of each series of debt securities being offered, including
some or all of the following:
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the title of the debt securities;
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any limit on the aggregate principal amount of the debt
securities;
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the purchase price of the debt securities, expressed as a
percentage of the principal amount;
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the date or dates on which the principal of and any premium on
the debt securities will be payable or the method for
determining the date or dates;
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if the debt securities will bear interest, the interest rate or
rates or the method by which the rate or rates will be
determined;
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if the debt securities will bear interest, the date or dates
from which any interest will accrue, the interest payment dates
on which any interest will be payable, the record dates for
those interest payment dates
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and the basis upon which interest shall be calculated if other
than that of a
360-day year
of twelve
30-day
months;
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the place or places where payments on the debt securities will
be made and the debt securities may be surrendered for
registration of transfer or exchange;
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if we will have the option to redeem all or any portion of the
debt securities, the terms and conditions upon which the debt
securities may be redeemed;
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the terms and conditions of any sinking fund or any similar
provisions obligating us or permitting a holder to require us to
redeem or purchase all or any portion of the debt securities
prior to final maturity;
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the currency or currencies in which the debt securities are
denominated and payable if other than U.S. dollars and the
manner of determining the equivalent of those amounts in
U.S. dollars;
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whether the amount of any payments on the debt securities may be
determined with reference to an index, formula or other method
and the manner in which such amounts are to be determined;
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any additions or changes to the events of default in the
applicable base indenture;
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the portion of the principal payable upon acceleration of
maturity, if other than the entire principal amount;
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any additions or changes with respect to the other covenants in
the applicable base indenture;
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the terms and conditions, if any, upon which the debt securities
may be convertible into common stock or preferred stock;
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whether the debt securities will be issued in certificated or
book-entry form and, if the latter, the securities depositary;
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whether the debt securities will be issued in denominations
other than $1,000 and any integral multiple of $1,000; the
applicability of the defeasance and covenant defeasance
provisions of the applicable base indenture;
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the trustee, the paying agent, the exchange agent and other
agents for that series of debt securities, if other than
U.S. Bank National Association; and
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any other terms of the debt securities.
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Debt securities may be issued as original issue discount
securities to be offered and sold at substantial discount from
their stated principal amount. Special U.S. federal income
tax, accounting and other considerations applicable to original
issue discount securities will be described in the applicable
prospectus supplement.
Unless otherwise provided with respect to a series of debt
securities, the debt securities will be issued only in
registered form, without coupons, in denominations of $1,000 and
integral multiples of $1,000.
Certificated
Debt Securities
Except as otherwise provided in the applicable prospectus
supplement, debt securities will not be issued in certificated
form. If, however, debt securities are to be issued in
certificated form, no service charge will be made for any
transfer or exchange of any of those debt securities, but we may
require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
Book-Entry
Debt Securities
The debt securities of a series may be issued in whole or in
part in the form of one or more global securities that will be
deposited with the depositary identified in the applicable
prospectus supplement. Unless it is exchanged in whole or in
part for debt securities in definitive form, a global security
may not be
10
transferred. However, transfers of the whole security between
the depositary for that global security and its nominees or
their respective successors are permitted.
Unless otherwise provided in the applicable prospectus
supplement, The Depository Trust Company, New York, New
York, which we refer to in this prospectus as DTC, will act as
depositary for each series of global securities. Beneficial
interests in global securities will be shown on, and transfers
of global securities will be effected only through, records
maintained by DTC and its participants.
DTC has provided the following information to us. DTC is a:
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limited-purpose trust company organized under the New York
Banking Law;
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banking organization within the meaning of the New York Banking
Law;
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member of the U.S. Federal Reserve System;
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clearing corporation within the meaning of the New York Uniform
Commercial Code; and
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clearing agency registered under the provisions of
Section 17A of the Securities Exchange Act.
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DTC holds securities that its direct participants deposit with
DTC. DTC also facilitates the settlement among direct
participants of securities transactions, in deposited securities
through electronic computerized book-entry changes in the direct
participants accounts. This eliminates the need for
physical movement of securities certificates. Direct
participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its direct
participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc. Access to DTCs book-entry system
is also available to indirect participants such as securities
brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a direct
participant. The rules applicable to DTC and its direct and
indirect participants are on file with the Commission.
Principal and interest payments on global securities registered
in the name of DTCs nominee will be made in immediately
available funds to DTCs nominee as the registered owner of
the global securities. We and the trustee will treat DTCs
nominee as the owner of the global securities for all other
purposes as well. Accordingly, we, the trustee and any paying
agent will have no direct responsibility or liability to pay
amounts due on the global securities to owners of beneficial
interests in the global securities. It is DTCs current
practice, upon receipt of any payment of principal or interest,
to credit direct participants accounts on the payment date
according to their respective holdings of beneficial interests
in the global securities. These payments will be the
responsibility of the direct and indirect participants and not
of DTC, the trustee or us.
Debt securities represented by a global security will be
exchangeable for debt securities in definitive form of like
amount and terms in authorized denominations only if:
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DTC notifies us that it is unwilling or unable to continue as
depositary;
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DTC ceases to be a registered clearing agency and a successor
depositary is not appointed by us within 120 days; or
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we determine not to require all of the debt securities of a
series to be represented by a global security and notify the
applicable trustee of our decision.
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Merger
We generally may not consolidate with, or sell, assign,
transfer, convey, lease (other than to an unaffiliated operator
in the ordinary course of business) or otherwise dispose of all
or substantially all of our and our restricted subsidiaries
properties or assets or merge with or into, any other person or
entity unless:
either:
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we are the surviving corporation; or
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if we are not the surviving corporation, the successor person or
entity is organized or existing under the laws of the United
States, any state of the United States or the District of
Columbia and such successor person or entity expressly assumes
all payments on all of the debt securities and the performance
and observance of all the covenants and conditions of the
applicable indenture; and
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neither we nor the successor person or entity is in default
immediately after the transaction under the applicable indenture.
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The restrictions on our ability to sell, assign, transfer,
convey or otherwise dispose of all or substantially all of our
properties or assets does not apply to sales, assignments,
transfers, conveyances or dispositions between us and our
restricted subsidiaries. If and when a successor person or
entity were to assume all our obligations under the applicable
indenture and the debt securities following a consolidation or
merger, or any sale, assignment, transfer, conveyance, transfer
or other disposition of all or substantially all of our assets
in accordance with the foregoing provisions, we shall be
released from those obligations.
Events of
Default, Notice and Waiver
Each base indenture provides that the following are events of
default with respect to any series of debt securities issued
thereunder unless the applicable prospectus supplement states
otherwise:
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default for 30 days in the payment of any interest on any
debt security of that series;
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default in the payment of the principal or premium, if any, on
any debt security of that series when due and payable; default
in the making of any sinking fund payment required for any debt
security of that series when due;
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failure to timely file periodic reports with the SEC that
continues for 180 days after written notice;
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default in the performance of any of our other covenants in the
applicable indenture that continues for 90 days after
written notice, other than default in a covenant included in
that indenture solely for the benefit of another series of debt
securities;
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certain events of bankruptcy, insolvency or reorganization; and
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any other event of default provided with respect to that
particular series of debt securities and described in the
applicable prospectus supplement.
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The applicable trustee generally may withhold notice to the
holders of any series of debt securities of any default with
respect to that series if it considers the withholding to be in
the interest of those holders. However, the applicable trustee
may not withhold notice of any default in the payment of the
principal of, or premium, if any, or interest on any debt
security of that series or in the payment of any sinking fund
installment in respect of any debt security of that series.
If an event of default with respect to any series of debt
securities occurs and is continuing, the applicable trustee or
the holders of not less than 25% in principal amount of the
outstanding debt securities of that series may declare the
entire principal amount of all of the debt securities of that
series immediately due and payable. Subject to certain
conditions, the holders of a majority in principal amount of
outstanding debt securities of that series may rescind and annul
that acceleration. However, they may only do so if all events of
default, other than the non-payment of accelerated principal or
a specified portion of accelerated principal, with respect to
debt securities of that series have been cured or waived.
Holders of a majority in principal amount of any series of
outstanding debt securities may, subject to some limitations,
waive any past default with respect to that series and the
consequences of the default (including without limitation
waivers obtained in connection with the purchase of, or tender
offer or exchange offer for, such debt securities). The
prospectus supplement relating to any series of debt securities
which are original issue discount securities will describe the
particular provisions relating to acceleration of a portion of
the principal amount of those original issue discount securities
upon the occurrence and continuation of an event of default.
Within 120 days after the close of each fiscal year, we
must file with the applicable trustee a statement, signed by
certain of its officers, certifying that to their knowledge we
and any applicable
12
subsidiaries are in compliance with the applicable indenture and
related debt securities, or else specifying any default.
Except with respect to its duties in case of default, the
applicable trustee is not obligated to exercise any of its
rights or powers at the request or direction of any holders of
any series of outstanding debt securities, unless those holders
have offered the trustee reasonable security or indemnity.
Subject to those indemnification provisions and limitations
contained in each indenture, the holders of 25% of the aggregate
principal amount of any series of the outstanding debt
securities issued thereunder may direct any proceeding for any
remedy available to the applicable trustee, or the exercising of
any of the trustees trusts or powers, unless holders of a
majority of the aggregate principal amount of such series of
outstanding debt securities objects.
Modification
of the Indentures
Modifications and amendments of each indenture may be made only,
subject to some exceptions, with the consent of the holders of a
majority in aggregate principal amount of all outstanding debt
securities issued under that indenture which are affected by the
modification or amendment (including without limitation consents
obtained in connection with the purchase of, or tender offer or
exchange offer for, such debt securities). However, unless the
applicable prospectus supplement states otherwise, the holder of
each affected debt security must consent to any modification or
amendment of the applicable indenture that:
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reduces the principal amount of debt securities of that series
whose holders must consent to a modification or an amendment;
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reduces the principal of or changes the fixed maturity of that
debt security or alters the provisions with respect to the
redemption of that debt security;
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reduces the rate of or changes the time for payment of interest
on that debt security;
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reduces the amount of principal of an original issue discount
security that would be due and payable upon declaration of
acceleration of its maturity or would be provable in bankruptcy;
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waives a default or event of default in the payment of principal
of, or interest or premium, or additional amounts, if any, on,
the debt securities (except a rescission of acceleration of the
debt securities by the holders of at least a majority in
aggregate principal amount of the then outstanding debt
securities affected thereby and a waiver of the payment default
that resulted from such acceleration);
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makes that debt security payable in a currency other than that
stated in that debt security;
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makes any change in the provisions of that indenture relating to
waivers of past defaults or the rights of holders of debt
securities to receive payments of principal of, or interest or
premium, or additional amounts, if any, on the debt securities;
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makes any change in the amendment and waiver provisions set
forth above; or
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in the case of subordinated debt securities, subordinates the
indebtedness evidenced by that debt security to any of our other
indebtedness other than the senior indebtedness.
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We and the applicable trustee may amend each indenture without
the consent of the holders of any debt securities in certain
limited circumstances, such as:
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to evidence the succession of another entity to us and the
assumption by the successor of our covenants contained in the
applicable indenture;
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to secure the debt securities issued under the applicable
indenture; and
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to cure any ambiguity or defect or to correct or supplement any
provision in the applicable indenture which may be inconsistent
with any other provision of that indenture.
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Defeasance
and Covenant Defeasance
When we establish a series of debt securities, they may provide
that the debt securities of that series are subject to the
defeasance and discharge provisions of the applicable indenture.
If those provisions are made applicable, we may elect either:
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to defease and be legally released from, subject to some
limitations, all of its respective obligations with respect to
the debt securities of that series; or
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to be released from the obligations to comply with specified
covenants and eliminate certain events of default relating to
the debt securities of that series as described in the
applicable prospectus supplement.
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To effect defeasance or covenant defeasance, we must irrevocably
deposit in trust with the applicable trustee an amount in any
combination of funds or government obligations, which, through
the payment of principal and interest in accordance with their
terms, will provide money sufficient to make payments on the
debt securities of that series and any mandatory sinking fund or
analogous payments on the debt securities of that series.
Upon such defeasance, we will not be released from obligations:
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to pay additional amounts, if any, on the debt securities of
that series upon the occurrence of some events;
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to register the transfer or exchange of the debt securities of
that series;
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to replace some of the debt securities of that series;
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to maintain an office relating to the debt securities of that
series; or
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to hold moneys for payment in trust.
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To establish such a trust, we must, among other things, deliver
to the applicable trustee an opinion of counsel to the effect
that the holders of the debt securities of that series:
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will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of the defeasance or covenant
defeasance; and
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will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if the defeasance or covenant defeasance had not
occurred.
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In the case of defeasance, the opinion of counsel must be based
upon a ruling of the Internal Revenue Service or a change in
applicable U.S. federal income tax law occurring after the
date of the applicable indenture.
Government obligations generally mean securities which are:
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direct obligations of the U.S. or of the government which
issued the foreign currency in which the debt securities of a
particular series are payable, in each case, where the issuer
has pledged its full faith and credit to pay the
obligations; or
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obligations of an agency or instrumentality of the U.S. or
of the government which issued the foreign currency in which the
debt securities of that series are payable, the payment of which
is unconditionally guaranteed as a full faith and credit
obligation by the U.S. or that other government.
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In any case, the issuer of government obligations cannot have
the option to call or redeem the obligations. In addition,
government obligations include, subject to certain
qualifications, a depository receipt issued by a bank or trust
company as custodian with respect to any government obligation
or a specific payment of interest on or principal of any such
government obligation held by the custodian for the account of a
depository receipt holder.
14
If we effect a covenant defeasance with respect to the debt
securities of any series, the amount on deposit with the
applicable trustee will be sufficient to pay amounts due on the
debt securities of that series at the time of their stated
maturity. However, the debt securities of that series may become
due and payable prior to their stated maturity if there is an
event of default with respect to a covenant from which we have
not been released. In that event, the amount on deposit may not
be sufficient to pay all amounts due on the debt securities of
that series at the time of the acceleration and the holders of
those debt securities will be required to look to us for
repayment of any shortfall.
The applicable prospectus supplement may further describe the
provisions, if any, permitting defeasance or covenant
defeasance, including any modifications to the provisions
described above.
Ranking
Each series of senior debt securities will constitute senior
indebtedness and will rank equally with each other series of
senior debt securities and other senior indebtedness and senior
to all subordinated indebtedness, including, but not limited to,
all subordinated debt securities. Each series of subordinated
debt securities will constitute subordinated indebtedness and
will rank equally with each other series of subordinated debt
securities but subordinate to all senior indebtedness.
Payments on the subordinated debt securities will be
subordinated to our senior indebtedness whether outstanding on
the date of the subordinated indenture or incurred after that
date. The prospectus supplement relating to each issuance of
subordinated debt securities will specify the aggregate amount
of our outstanding indebtedness as of the most recent
practicable date that would rank senior to the subordinated debt
securities.
If any of the following events occur, the holders of senior
indebtedness must receive payment of the full amount due on the
senior indebtedness, or that payment must be duly provided for,
before we may make payments on the subordinated debt securities:
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any distribution of our assets upon our liquidation,
reorganization or other similar transaction except for a
distribution in connection with a merger or other transaction
complying with the covenant described above under
Merger;
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the occurrence and continuation of a payment default on any
senior indebtedness; or
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a declaration of the principal of any series of subordinated
debt securities, or, in the case of original issue discount
securities, the portion of the principal amount specified under
their terms, as due and payable, that has not been rescinded and
annulled.
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However, if the event is the acceleration of any series of
subordinated debt securities, only the holders of senior
indebtedness outstanding at the time of the acceleration of
those subordinated debt securities, or, in the case of original
issue discount securities, that portion of the principal amount
specified under their terms, must receive payment of the full
amount due on that senior indebtedness, or such payment must be
duly provided for, before we make payments on the subordinated
debt securities.
As a result of the subordination provisions, some of our general
creditors, including holders of senior indebtedness, may recover
more, ratably, than the holders of the subordinated debt
securities in the event of insolvency.
For purposes of the subordinated indenture, senior
indebtedness means the following indebtedness or
obligations:
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the principal of and premium, if any, and unpaid interest on
indebtedness for money borrowed;
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purchase money and similar obligations;
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obligations under capital leases;
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guarantees, assumptions or purchase commitments relating to, or
other transactions as a result of which we are responsible for
the payment of, the indebtedness of others;
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15
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renewals, extensions and refundings of the foregoing
indebtedness;
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interest or obligations in respect of the foregoing indebtedness
accruing after the commencement of any insolvency or bankruptcy
proceedings; and
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obligations associated with derivative products.
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However, indebtedness or obligations do not constitute senior
indebtedness if the instrument by which we become obligated for
that indebtedness or those obligations expressly provides that
such indebtedness or those obligations are junior in right of
payment to any of our other indebtedness or obligations, as
applicable.
DESCRIPTION OF
WARRANTS
We may issue, either separately or together with other
securities, warrants entitling the holder to purchase from or
sell to us, or to receive from us the cash value of the right to
purchase or sell, debt securities, preferred stock or common
stock. The prospectus supplement relating to the offering of the
warrants will describe more specific terms of the warrants being
offered, including the number of warrants offered, the initial
offering price and the terms of the underlying securities and
any general terms outlined in this section that will not apply
to those warrants.
The summary set forth below does not purport to be complete and
is subject to and qualified in its entirety by reference to the
applicable warrant agreement (including the warrant
certificate), the form of which is or will be filed or
incorporated by reference as an exhibit to the registration
statement of which this prospectus is a part and incorporated
herein by reference.
We will enter a warrant agreement governing the issuance of the
warrants with a warrant agent, who will act solely as our agent
in connection with the warrants and will not assume any
obligation or relationship of agency or trust for or with any
holders or beneficial owners of warrants.
The applicable prospectus supplement will describe the terms of
each series of warrants being offered including some or all of
the following:
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the offering price;
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the number of warrants offered;
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the securities underlying the warrants;
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the exercise price, the procedures for exercise of the warrants
and the circumstances, if any, that will cause the warrants to
be automatically exercised;
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the date on which the warrants will expire;
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the federal income tax consequences of owning the warrants;
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the rights, if any, we have to redeem the warrants;
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the name of the warrant agent; and
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any other terms of the warrants.
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Warrants may be exercised at the appropriate office of the
warrant agent or any other office indicated in the applicable
prospectus supplement. Before the exercise of warrants, holders
will not have any of the rights of holders of the securities
underlying the warrants and will not be entitled to payments
made to holders of those securities.
We and the applicable warrant agent may amend or supplement the
warrant agreement without the consent of the affected holders of
warrants to effect changes that are not inconsistent with the
provisions of the warrants and that do not adversely affect the
interests of the holders of the warrants. However, any amendment
that materially and adversely alters the rights of the holders
of warrants will not be effective unless the holders of at least
a majority of the applicable warrants then outstanding approve
the amendment.
16
Every holder of an outstanding warrant at the time any amendment
becomes effective, by continuing to hold the warrant, will be
bound by the applicable warrant agreement, as amended thereby.
The applicable prospectus supplement may provide that certain
provisions of the warrants, including the securities for which
they may be exercisable, the exercise price and the expiration
date, may not be altered without the consent of the holder of
each warrant.
DESCRIPTION OF
PURCHASE CONTRACTS
We may issue purchase contracts for the purchase or sale of debt
or equity securities issued by us or securities of third
parties, a basket of such securities, an index or indices of
such securities or any combination of the above as specified in
the applicable prospectus supplement.
Each purchase contract will entitle the holder thereof to
purchase or sell, and obligate us to sell or purchase, on
specified dates, such securities, currencies or commodities at a
specified purchase price, which may be based on a formula, all
as set forth in the applicable prospectus supplement. We may,
however, satisfy our obligations, if any, with respect to any
purchase contract by delivering the cash value of such purchase
contract or the cash value of the property otherwise deliverable
or, in the case of purchase contracts on underlying currencies,
by delivering the underlying currencies, as set forth in the
applicable prospectus supplement. The applicable prospectus
supplement will also specify the methods by which the holders
may purchase or sell such securities, currencies or commodities
and any acceleration, cancellation or termination provisions or
other provisions relating to the settlement of a purchase
contract.
The purchase contracts may require us to make periodic payments
to the holders thereof or vice versa, which payments may be
deferred to the extent set forth in the applicable prospectus
supplement, and those payments may be unsecured or prefunded on
some basis. The purchase contracts may require the holders
thereof to secure their obligations in a specified manner to be
described in the applicable prospectus supplement.
Alternatively, purchase contracts may require holders to satisfy
their obligations thereunder when the purchase contacts are
issued. Our obligation to settle such pre-paid purchase contacts
on the relevant settlement date may constitute indebtedness.
Accordingly, pre-paid purchase contracts will be issued under
either the senior indenture or the subordinated indenture.
DESCRIPTION OF
UNITS
We may issue units consisting of one or more purchase contracts,
warrants, debt securities, common stock, preferred stock, other
equity securities or any combination of such securities. The
applicable prospectus supplement will describe:
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the terms of the units and of the purchase contracts, warrants,
debt securities, common stock, preferred stock and other equity
securities comprising the units, including whether and under
what circumstances the securities comprising the units may be
traded separately;
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a description of the terms of any unit agreement governing the
units; and
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a description of the provisions for the payment, settlement,
transfer or exchange of the units.
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TAXATION
The material U.S. federal income tax consequences relating
to the purchase, ownership and disposition of any of the
securities offered by this prospectus will be set forth in the
prospectus supplement offering those securities.
17
PLAN OF
DISTRIBUTION
We or any selling security holder may offer and sell the offered
securities in any one or more of the following ways from time to
time on a delayed or continuous basis:
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to or through underwriters;
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to or through dealers;
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through agents; or
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directly to purchasers, including our affiliates.
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The prospectus supplement with respect to any offering of our
securities will set forth the terms of the offering, including:
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the name or names of any underwriters, dealers or agents;
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the purchase price of the securities and the proceeds to us from
the sale;
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any underwriting discounts and commissions or agency fees and
other items constituting underwriters or agents
compensation; and
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any delayed delivery arrangements.
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The distribution of the securities may be effected from time to
time in one or more transactions at a fixed price or prices,
which may be changed, at market prices prevailing at the time of
sale, at prices related to the prevailing market prices or at
negotiated prices.
If securities are sold by means of an underwritten offering, we
will execute an underwriting agreement with an underwriter or
underwriters, and the names of the specific managing underwriter
or underwriters, as well as any other underwriters, and the
terms of the transaction, including commissions, discounts and
any other compensation of the underwriters and dealers, if any,
will be set forth in the prospectus supplement which will be
used by the underwriters to sell the securities. If underwriters
are utilized in the sale of the securities, the securities will
be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices or at
varying prices determined by the underwriters at the time of
sale.
Our securities may be offered to the public either through
underwriting syndicates represented by managing underwriters or
directly by the managing underwriters. If any underwriter or
underwriters are utilized in the sale of the securities, unless
otherwise indicated in the prospectus supplement, the
underwriting agreement will provide that the obligations of the
underwriters are subject to conditions precedent and that the
underwriters with respect to a sale of securities will be
obligated to purchase all of those securities if they purchase
any of those securities.
We may grant to the underwriters options to purchase additional
securities to cover over-allotments, if any, at the public
offering price with additional underwriting discounts or
commissions. If we grant any over-allotment option, the terms of
any over-allotment option will be set forth in the prospectus
supplement relating to those securities.
If a dealer is utilized in the sales of securities in respect of
which this prospectus is delivered, we will sell those
securities to the dealer as principal. The dealer may then
resell those securities to the public at varying prices to be
determined by the dealer at the time of resale. Any reselling
dealer may be deemed to be an underwriter, as the term is
defined in the Securities Act of 1933, as amended, of the
securities so offered and sold. The name of the dealer and the
terms of the transaction will be set forth in the related
prospectus supplement.
Offers to purchase securities may be solicited by agents
designated by us from time to time. Any agent involved in the
offer or sale of the securities in respect of which this
prospectus is delivered will be named, and any commissions
payable by us to the agent will be set forth, in the applicable
prospectus supplement. Unless otherwise indicated in the
prospectus supplement, any agent will be acting on a reasonable
best efforts
18
basis for the period of its appointment. Any agent may be deemed
to be an underwriter, as that term is defined in the Securities
Act of 1933, as amended, of the securities so offered and sold.
Offers to purchase securities may be solicited directly by us
and the sale of those securities may be made by us directly to
institutional investors or others, who may be deemed to be
underwriters within the meaning of the Securities Act of 1933,
as amended, with respect to any resale of those securities. The
terms of any sales of this type will be described in the related
prospectus supplement.
Underwriters, dealers, agents and remarketing firms may be
entitled under relevant agreements entered into with us to
indemnification by us against certain civil liabilities,
including liabilities under the Securities Act of 1933, as
amended, that may arise from any untrue statement or alleged
untrue statement of a material fact or any omission or alleged
omission to state a material fact in this prospectus, any
supplement or amendment hereto, or in the registration statement
of which this prospectus forms a part, or to contribution with
respect to payments which the agents, underwriters or dealers
may be required to make.
If so indicated in the prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit
offers by institutions to purchase securities from us pursuant
to contracts providing for payments and delivery on a future
date. Institutions with which contracts of this type may be made
include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable
institutions and others, but in all cases those institutions
must be approved by us. The obligations of any purchaser under
any contract of this type will be subject to the condition that
the purchase of the securities shall not at the time of delivery
be prohibited under the laws of the jurisdiction to which the
purchaser is subject. The underwriters and other persons acting
as our agents will not have any responsibility in respect of the
validity or performance of those contracts.
One or more firms, referred to as remarketing firms,
may also offer or sell the securities, if the prospectus
supplement so indicates, in connection with a remarketing
arrangement upon their purchase. Remarketing firms will act as
principals for their own accounts or as our agents. These
remarketing firms will offer or sell the securities in
accordance with a redemption or repayment pursuant to the terms
of the securities. The prospectus supplement will identify any
remarketing firm and the terms of its agreement, if any, with us
and will describe the remarketing firms compensation.
Remarketing firms may be deemed to be underwriters in connection
with the securities they remarket. Remarketing firms may be
entitled under our agreements to indemnification by us against
certain civil liabilities, including liabilities under the
Securities Act of 1933, as amended, and may engage in
transactions with or perform services for us in the ordinary
course of business.
Disclosure in the prospectus supplement of our use of delayed
delivery contracts will include the commission that underwriters
and agents soliciting purchases of the securities under delayed
contracts will be entitled to receive in addition to the date
when we will demand payment and delivery of the securities under
the delayed delivery contracts. These delayed delivery contracts
will be subject only to the conditions that we describe in the
prospectus supplement.
In connection with the offering of securities, persons
participating in the offering, such as any underwriters, may
purchase and sell securities in the open market. These
transactions may include over-allotment and stabilizing
transactions and purchases to cover syndicate short positions
created in connection with the offering. Stabilizing
transactions consist of bids or purchases for the purpose of
preventing or retarding a decline in the market price of the
securities, and syndicate short positions involve the sale by
underwriters of a greater number of securities than they are
required to purchase from any issuer in the offering.
Underwriters also may impose a penalty bid, whereby selling
concessions allowed to syndicate members or other broker-dealers
in respect of the securities sold in the offering for their
account may be reclaimed by the syndicate if the securities are
repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or
otherwise affect the market price of the securities, which may
be higher than the price that might prevail in the open market,
and these activities, if commenced, may be discontinued at any
time.
19
Any underwriters or agents to or through which securities are
sold by us may make a market in the securities, but these
underwriters or agents will not be obligated to do so and any of
them may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of or
trading market for any securities sold by us.
Any lockup arrangements will be set forth in a prospectus
supplement.
Underwriters, dealers and agents may engage in transactions
with, or perform services for, us and our affiliates in the
ordinary course of business. Underwriters have from time to time
in the past provided, and may from time to time in the future
provide, investment banking services to us for which they have
in the past received, and may in the future receive, customary
fees.
This prospectus and the accompanying prospectus supplement or
supplements may be made available in electronic format on the
Internet sites of, or through online services maintained by, the
underwriter, dealer, agent
and/or
selling group members participating in connection with any
offering, or by their affiliates. In those cases, prospective
investors may view offering terms online and, depending upon the
particular underwriter, dealer, agent or selling group member,
prospective investors may be allowed to place orders online. The
underwriter, dealer or agent may agree with us to allocate a
specific number of shares for sale to online brokerage account
holders. Any such allocation for online distributions will be
made by the underwriter, dealer or agent on the same basis as
other allocations.
Other than this prospectus and accompanying prospectus
supplement or supplements in electronic format, the information
on the underwriters, dealers, agents or any
selling group members web site and any information
contained in any other web site maintained by the underwriter,
dealer, agent or any selling group member is not part of this
prospectus, the prospectus supplement or supplements or the
registration statement of which this prospectus forms a part,
has not been approved
and/or
endorsed by us or the underwriters, dealers, agents or any
selling group member in its capacity as underwriter, dealer,
agent or selling group member and should not be relied upon by
investors.
LEGAL
MATTERS
In connection with particular offerings of the securities in the
future, and if stated in the applicable prospectus supplement,
the validity of those securities may be passed upon for us by
Willkie Farr & Gallagher LLP, New York, New York and
for any underwriters or agents by counsel named in the
applicable prospectus supplement. Peter H. Jakes, a partner at
Willkie Farr & Gallagher LLP, owns 9,202 shares of
our common stock, as a joint tenant with his spouse.
EXPERTS
The consolidated financial statements of Pharmion Corporation
appearing in Pharmion Corporations Annual Report
(Form 10-K)
for the year ended December 31, 2006 (including the
schedule appearing therein), and Pharmion Corporation
managements assessment of the effectiveness of internal
control over financial reporting as of December 31, 2006
included therein, have been audited by Ernst & Young
LLP, independent registered public accounting firm, as set forth
in their reports thereon, included therein, and incorporated
herein by reference. Such consolidated financial statements and
managements assessment are, and audited financial
statements and Pharmion Corporation managements
assessments of the effectiveness of internal control over
financial reporting to be included in subsequently filed
documents will be, incorporated herein in reliance upon the
reports of Ernst & Young LLP pertaining to such financial
statements and managements assessments (to the extent
covered by consents with the Securities and Exchange Commission)
given on the authority of such firm as experts in accounting and
auditing.
WHERE YOU CAN
FIND MORE INFORMATION
We are required to file annual, quarterly and current reports,
proxy statements and other information with the SEC. You may
read and copy any document that we file with the SEC at the
SECs Public Reference
20
Room at 100 F Street, N.E., Washington, D.C. 20549. You may
obtain information about the Public Reference Room by calling
the SEC for more information at
1-800-SEC-0330.
Our SEC filings are also available at the SECs web site at
http://www.sec.gov.
Our common stock is listed on the NASDAQ Global Market under the
symbol PHRM and we are required to file reports,
proxy statements and other information with NASDAQ. You may read
any document we file with NASDAQ at the offices of the NASDAQ
Stock Market, Inc. For further information about obtaining
copies of our public filings from the NASDAQ Global Market,
please call
(212) 401-8700.
Information about us is also available on our website at
http://www.pharmion.com. Such information on our website is not
part of this prospectus.
INCORPORATION BY
REFERENCE
The rules of the SEC allow us to incorporate by reference
information into this prospectus. The information incorporated
by reference is considered to be a part of this prospectus, and
information that we file later with the SEC will automatically
update and supersede this information.
The following documents filed with the SEC are incorporated by
reference in this prospectus:
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Our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2006;
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Our Current Report on
Form 8-K
dated February 9, 2007; and
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The description of our common stock contained in our
Registration Statement on
Form 8-A,
filed on October 30, 2003, including any amendment or
report filed for the purpose of updating such description.
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All reports and other documents filed by us pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, subsequent to the date hereof
and prior to the filing of a post-effective amendment which
indicates that all the securities offered hereby have been sold
or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this prospectus and
to be part of this prospectus from the date of filing of such
reports and documents.
Any statement contained in a document incorporated or deemed to
be incorporated by reference shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that a
statement in this prospectus or in any other subsequently filed
document which is incorporated or deemed to be incorporated by
reference modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this
prospectus.
You may request a copy of these filings at no cost, by writing
or telephoning us at the following address:
Pharmion Corporation
2525
28th Street
Boulder, CO 80301
(720) 564-9100
Attn: Investor Relations
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PART II
INFORMATION NOT
REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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An estimate (other than the SEC registration fee) of the fees
and expenses of issuance and distribution (other than
underwriting discounts and commissions) of the securities
offered hereby (all of which will be paid by Pharmion
Corporation (Pharmion)) is as follows:
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SEC registration fee
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$
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-0-
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*
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Trustees fees and expenses
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$
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5,000
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NASD fee
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$
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5,000
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Blue Sky fees and expenses
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$
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5,000
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Legal fees and expenses
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$
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185,000
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Accounting fees and expenses
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$
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100,000
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Printing expenses
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$
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50,000
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Miscellaneous fees and expenses
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$
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50,000
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Total
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$
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400,000
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*
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Deferred in accordance with
Rules 456(b) and 457(r).
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Item 15.
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Indemnification
of Directors and Officers
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Our amended and restated certificate of incorporation provides
that we will indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to an action or
proceeding, by reason of the fact that he is or was a director
or officer of Pharmion, against all expenses (including
attorneys fees), judgments, and amounts paid in settlement
actually and reasonably incurred by or on behalf of such person
in connection with the action or proceeding and any related
appeal. Reference is made to Section 145 of the Delaware
General Corporate Law for a full statement of these
indemnification rights.
We also maintain a directors and officers insurance policy
pursuant to which our directors and officers are insured against
liability for actions in their capacity as directors and
officers.
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Exhibit No.
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Description of
Document
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1
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.1*
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Form of Underwriting Agreement
(common stock).
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1
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.2*
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Form of Underwriting Agreement
(preferred stock).
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1
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.3*
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Form of Underwriting Agreement
(debt securities).
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1
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.4*
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Form of Underwriting Agreement
(warrants).
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1
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.5*
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Form of Underwriting Agreement
(purchase contracts).
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1
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.6*
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Form of Underwriting Agreement
(units).
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4
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.1
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Fourth Amended and Restated
Certificate of Incorporation of Pharmion Corporation
(incorporated herein by reference to Exhibit 3.1 to
Pharmion Corporations Registration Statement on
Form S-1
(File
No. 333-108122)
and amendments thereto, declared effective November 5,
2003).
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4
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.2
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Third Amended and Restated Bylaws
of Pharmion Corporation (incorporated herein by reference to
Exhibit 3.2 to Pharmion Corporations Registration
Statement on
Form S-1
(File
No. 333-108122)
and amendments thereto, declared effective November 5,
2003).
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4
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.3*
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Form of Certificate of Designation
of Pharmion Corporation preferred stock, including specimen
preferred stock certificate.
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4
|
.4
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Form of Indenture for Senior Debt
Securities.
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4
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.5
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Form of Indenture for Subordinated
Debt Securities.
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II-1
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Exhibit No.
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|
Description of
Document
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4
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.6*
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Form of Warrant Agreement,
including form of Pharmion Corporation warrant.
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4
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.7
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Specimen Common Stock Certificate
(incorporated herein by reference to Exhibit 4.1 to
Pharmion Corporations Registration Statement on
Form S-1
(File
No. 333-108122)
and amendments thereto, declared effective November 5,
2003).
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4
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.8*
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Form of Purchase Contract
Agreement.
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5
|
.1
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Opinion of Willkie Farr &
Gallagher LLP.
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12
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.1
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Statement Regarding Computation of
Ratios.
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23
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.1
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Consent of Independent Registered
Public Accounting Firm
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23
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.2
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Consent of Willkie Farr &
Gallagher LLP (included in Exhibit 5.1).
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24
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.1
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Power of Attorney (included in
Signature Page).
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25
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.1
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Statement of Eligibility of
Trustee on
Form T-1
under the Trust Indenture Act of 1939, as amended, of the
trustee under the Indenture for the Senior Debt Securities.
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25
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.2
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Statement of Eligibility of
Trustee on
Form T-1
under the Trust Indenture Act of 1939, as amended, of the
trustee under the Indenture for Subordinated Debt Securities.
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(*)
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To be filed by amendment or
incorporated by reference in connection with the offering of any
securities, as appropriate.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act 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
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that Paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) of this section 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 or 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.
II-2
(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:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrants 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,
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; or
(ii) If the registrant is subject to Rule 430C, each
prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be
deemed to be part of and included in the registration statement
as of the date it is first used after effectiveness. 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, as to a purchaser with a time of
contract of sale prior to such first use, 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 date of first use.
(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 an 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 an
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 an undersigned registrant or used or
referred to by an undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
an undersigned registrant or its securities provided by or on
behalf of an undersigned registrant; and
II-3
(iv) any other communication that is an offer in the
offering made by an undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes 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 Section 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
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) 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, each 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 a 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 of 1933 and will be
governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) 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; and
(2) For purposes 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.
(e) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of section 310
of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under
section 305(b)(2) of the Trust Indenture Act.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement on
Form S-3
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boulder, State of Colorado on
May 2, 2007.
PHARMION CORPORATION
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By:
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/s/ Patrick
J. Mahaffy
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Name: Patrick J. Mahaffy
Title: President and Chief Executive Officer
The undersigned officers and directors of Pharmion Corporation
hereby severally constitute and appoint Patrick J. Mahaffy and
Erle T. Mast and each of them,
attorneys-in-fact
for the undersigned, in any and all capacities, with the power
of substitution, to sign any amendments to this registration
statement (including post-effective amendments) and any
subsequent registration statement for the same offering which
may be filed under Rule 462(b) under the Securities Act of
1933, as amended, and to file the same with exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said
attorneys-in-fact,
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 and about the premises, as fully and to all interests and
purposes as he might or could do in person, hereby ratifying and
confirming all that each said
attorney-in-fact,
or his substitute or substitutes, may do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Patrick
J. Mahaffy
Patrick
J. Mahaffy
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President and Chief Executive
Officer; Director (Principal Executive Officer)
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May 2, 2007
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/s/ Erle
T. Mast
Erle
T. Mast
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Chief Financial Officer (Principal
Financial Officer and Principal Accounting Officer)
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May 2, 2007
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/s/ Brian
G. Atwood
Brian
G. Atwood
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Director
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May 2, 2007
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/s/ James
Blair
James
Blair
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Director
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May 2, 2007
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/s/ M.
James Barrett
M.
James Barrett
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Director
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May 2, 2007
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/s/ Cam
L. Garner
Cam
L. Garner
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Director
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May 2, 2007
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II-5
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Signature
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Title
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Date
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/s/ Edward
J. McKinley
Edward
J. McKinley
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Director
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May 2, 2007
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/s/ John
C. Reed
John
C. Reed
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Director
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May 2, 2007
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/s/ Thorlef
Spickschen
Thorlef
Spickschen
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Director
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May 2, 2007
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II-6
INDEX TO
EXHIBITS
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Exhibit No.
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Description of
Document
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1
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.1*
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Form of Underwriting Agreement
(common stock).
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1
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.2*
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Form of Underwriting Agreement
(preferred stock).
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1
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.3*
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Form of Underwriting Agreement
(debt securities).
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1
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.4*
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Form of Underwriting Agreement
(warrants).
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1
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.5*
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Form of Underwriting Agreement
(purchase contracts).
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1
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.6*
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Form of Underwriting Agreement
(units).
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4
|
.1
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Fourth Amended and Restated
Certificate of Incorporation of Pharmion Corporation
(incorporated herein by reference to Exhibit 3.1 to
Pharmion Corporations Registration Statement on
Form S-1
(File
No. 333-108122)
and amendments thereto, declared effective November 5,
2003).
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4
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.2
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Third Amended and Restated Bylaws
of Pharmion Corporation (incorporated herein by reference to
Exhibit 3.2 to Pharmion Corporations Registration
Statement on
Form S-1
(File
No. 333-108122)
and amendments thereto, declared effective November 5,
2003).
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4
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.3*
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Form of Certificate of Designation
of Pharmion Corporation preferred stock, including specimen
preferred stock certificate.
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4
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.4
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Form of Indenture for Senior Debt
Securities.
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4
|
.5
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Form of Indenture for Subordinated
Debt Securities.
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4
|
.6*
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Form of Warrant Agreement,
including form of Pharmion Corporation warrant.
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4
|
.7
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Specimen Common Stock Certificate
(incorporated herein by reference to Exhibit 4.1 to
Pharmion Corporations Registration Statement on
Form S-1
(File
No. 333-108122)
and amendments thereto, declared effective November 5,
2003).
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4
|
.8*
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Form of Purchase Contract
Agreement.
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5
|
.1
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Opinion of Willkie Farr &
Gallagher LLP.
|
|
12
|
.1
|
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Statement Regarding Computation of
Ratios.
|
|
23
|
.1
|
|
Consent of Independent Registered
Public Accounting Firm.
|
|
23
|
.2
|
|
Consent of Willkie Farr &
Gallagher LLP (included in Exhibit 5.1).
|
|
24
|
.1
|
|
Power of Attorney (included in
Signature Page).
|
|
25
|
.1
|
|
Statement of Eligibility of
Trustee on
Form T-1
under the Trust Indenture Act of 1939, as amended, of the
trustee under the Indenture for the Senior Debt Securities.
|
|
25
|
.2
|
|
Statement of Eligibility of
Trustee on
Form T-1
under the Trust Indenture Act of 1939, as amended, of the
trustee under the Indenture for Subordinated Debt Securities.
|
|
|
|
(*)
|
|
To be filed by amendment or
incorporated by reference in connection with the offering of any
securities, as appropriate.
|