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Under
The Securities Act of 1933
Delaware (State or other jurisdiction of incorporation or organization) | 33-0595156 (I.R.S. Employer Identification Number) |
Fremont, California 94555
(510) 505-2100
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
President and Chief Executive Officer
Ciphergen Biosystems, Inc.
6611 Dumbarton Circle
Fremont, California 94555
(510) 505-2100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Robert A. Claassen, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
SUBJECT TO COMPLETION, DATED JANUARY 17, 2007
the Common Stock Issuable Upon Conversion of the Notes
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EXHIBIT 5.1 | ||||||||
EXHIBIT 23.2 | ||||||||
EXHIBIT 25.1 |
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Securities Offered | $16,500,000 principal amount of 7.00% Convertible Senior Notes due 2011. | |
Maturity Date | September 1, 2011. The notes: | |
Ranking | • will be our senior unsecured obligations; | |
• will rank on parity in right of payment with all of our existing and future senior unsecured debt; and | ||
• will rank senior to all of our existing and future debt that expressly provides that it is subordinated to the notes. | ||
The notes are also effectively subordinated in right of payment to our existing and future secured debt, to the extent of such security, and to our subsidiaries’ liabilities. At September 30, 2006, the aggregate principal amount of liabilities of our subsidiaries was approximately $2.0 million. The indenture under which the notes are issued does not prevent us or our subsidiaries from incurring additional debt or other obligations. | ||
Interest | We will pay 7.00% per annum on the principal amount of notes, payable semiannually on March 1 and September 1, beginning March 1, 2007. If an FDA Approval Event (as defined in this prospectus) occurs, the interest rate on the notes shall be reduced to 4.00% per annum at all times thereafter. | |
For any conversion of any note by a holder prior to October 31, 2008, such holder will receive an amount in cash equal to the difference of (i) the amount of all interest that we would be required to pay on such note from November 15, 2006 through October 31, 2008 and (ii) the amount of interest actually paid on such note by us prior to the time of conversion. | ||
Conversion | The notes are convertible, at your option, at any time on or before the close of business on the business day immediately preceding the maturity date of the notes, unless previously redeemed or repurchased, into shares of our common stock initially at a conversion rate of 500 shares per $1,000 principal amount of notes, which is equal to a conversion price of $2.00 per share. Notwithstanding the foregoing, any holder of a note who (together with such holder’s affiliates) holds more than $10 million in aggregate principal amount of notes shall not have the right to convert its note to the extent that, after giving effect to such conversion, such holder (together with the holder’s affiliates) would beneficially own in excess of 4.99% of the total number of shares of our common stock outstanding immediately after giving effect to such conversion. |
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Conversion Price Adjustments | The conversion price, and hence the conversion rate, are subject to adjustment upon the occurrence of events described in this prospectus, including: | |
• subject to the exceptions described in this prospectus, subdivisions and combinations of our common stock; | ||
• distributions to all holders of our common stock of cash, shares of our common stock, or rights or warrants to purchase (or securities convertible into) our common stock at less than (or having a conversion price less than) the current market price of our common stock; | ||
• subject to the exceptions described in this prospectus, distributions to all holders of our capital stock of evidences of our indebtedness or assets; or | ||
• subject to the exceptions described in this prospectus, purchases of our common stock pursuant to a tender offer or exchange offer made by us or any of our subsidiaries to all holders of our common stock. | ||
Redemption | The notes will not be redeemable before September 1, 2009. We may redeem all or a portion of the notes at our option on or after September 1, 2009 at a redemption price of 100% of the principal amount of the notes called for redemption, plus accrued and unpaid interest, provided that the notes will only be redeemable if the volume-weighted average price per share of our common stock equals or exceeds 200% of the conversion price then in effect for at least 20 trading days within a period of 30 consecutive trading days ending on the trading day before the date of the notice of the optional redemption. You will be able to convert the notes called for redemption up to and including the business day immediately preceding the date of redemption. | |
Change of Control Repurchase | Upon a change of control, as that term is defined in the indenture, each holder of the notes may require us to repurchase some or all of its notes for cash at a purchase price equal to 105% of the principal amount of the notes to be repurchased, plus accrued and unpaid interest. | |
Repurchase After Specified Date | If an FDA Approval Event has not occurred by September 1, 2009, each holder of the notes may require us to repurchase some or all of its notes for cash in an amount equal to 100% of the principal amount of notes surrendered for repurchase, plus accrued and unpaid interest. | |
Use of Proceeds | We will not receive any of the proceeds of the resale by the selling securityholders of the notes or common stock into which they may be converted. | |
Registration Rights | We agreed to file this shelf registration statement with the SEC covering the resale of the notes and the underlying common stock. We have also agreed to use our reasonable efforts to keep the shelf registration statement effective, subject to specified black-out periods, until the earlier of |
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the following has occurred: | ||
• the date when the holders of the notes and the shares of our common stock issuable upon conversion of the notes that are transfer restricted securities are able to sell all such securities immediately without restriction pursuant to Rule 144(k) under the Securities Act; | ||
• the date when all of the notes and shares of common stock issuable upon conversion that are transfer restricted securities are registered under the shelf registration statement and disposed of in accordance therewith; or | ||
• November 15, 2008. | ||
Trading | We do not intend to list the notes on any national securities exchange. We provide no assurance as to the liquidity of, or trading markets for, the notes. | |
Nasdaq Capital Market Symbol of our Common Stock | CIPH |
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Nine Months | ||||||||||||||||||||||||
Ended | ||||||||||||||||||||||||
Year Ended December 31, | September 30 | |||||||||||||||||||||||
2001 | 2002 | 2003 | 2004 | 2005 | 2006 | |||||||||||||||||||
Ratio of earnings to fixed charges (1) | N/A (2) | N/A | N/A | N/A | N/A | N/A |
(1) | The ratio of earnings to fixed charges is computed by dividing: |
• | loss before taxes adjusted for fixed charges and minority interest, by | ||
• | fixed charges, which includes interest expense and the portion of interest expense under operating leases deemed by us to be representative of the interest. |
For our fiscal years ended December 31, 2005, 2004, 2003, 2002 and 2001, earnings were inadequate to cover fixed charges by $36.4 million, $36.5 million, $39.0 million, $30.7 million and $24.7 million, respectively. For the nine months ended September 30, 2006, earnings were inadequate to cover fixed charges by $20.0 million. | ||
(2) | N/A – Not applicable as Ciphergen has had operating losses each year from 2001 through 2005 and the nine months ended September 30,2006. |
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• | our ability to convince the medical community of the safety and clinical efficacy of our products and their advantages over existing diagnostic products; | ||
• | our ability to further establish business relationships with other diagnostic companies that can assist in the commercialization of these products; and | ||
• | the agreement by Medicare and third-party payers to provide full or partial reimbursement coverage for our products, the scope and extent of which will affect patients’ willingness to pay for our products and will likely heavily influence physicians’ decisions to recommend our products. |
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• | make it difficult for us to make payments on the notes; | ||
• | make it difficult for us to obtain financing for working capital, acquisitions or other purposes on favorable terms, if at all; | ||
• | make us more vulnerable to industry downturns and competitive pressures; and | ||
• | limit our flexibility in planning for, or reacting to, changes in our business. |
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• | actual or anticipated period-to-period fluctuations in financial results; | ||
• | litigation or threat of litigation; | ||
• | failure to achieve, or changes in, financial estimates by securities analysts; | ||
• | announcements of new products or services or technological innovations by us or our competitors; | ||
• | publicity regarding actual or potential discoveries of biomarkers by others; | ||
• | comments or opinions by securities analysts or major stockholders; |
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• | conditions or trends in the pharmaceutical, biotechnology and life science industries; | ||
• | announcements by us of significant acquisitions and divestitures, strategic partnerships, joint ventures or capital commitments; | ||
• | developments regarding our patents or other intellectual property or that of our competitors; | ||
• | litigation or threat of litigation; | ||
• | additions or departures of key personnel; | ||
• | sales of our common stock; | ||
• | limited daily trading volume; and | ||
• | economic and other external factors or disasters or crises. |
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• | the timing and success of our product development efforts; | ||
• | the realization of benefits from our strategic relationships; | ||
• | competing technologies, R&D investments, products and other competitive factors; | ||
• | disruptions in general economic activity due to worsening global business and geopolitical conditions; and | ||
• | the unpredictability of the economy and other factors beyond our control. |
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• | limited to $16,500,000 aggregate principal amount; | ||
• | general, unsecured, senior obligations, and are effectively subordinated to all our secured debt, to the extent of the security, and liabilities of our subsidiaries; | ||
• | convertible into our common stock at an initial rate of 500 shares per $1,000 principal amount of notes, which is equal to a conversion price of $2.00 per share, subject to adjustment upon certain events as described under “Conversion Rights”; | ||
• | redeemable at our option, from time to time and in whole or in part, on or after September 1, 2009 at a redemption price equal to 100% of the principal amount of the notes called for redemption and subject to the conditions described under the caption “Optional Redemption,” plus accrued and unpaid interest to, but excluding, the redemption date; | ||
• | subject to repurchase by us at your option if an FDA Approval Event (as defined below) has not occurred by September 1, 2009; | ||
• | subject to repurchase by us at your option if a change of control, as defined in this prospectus, occurs; and | ||
• | due on September 1, 2011, unless earlier converted, redeemed by us at our option or repurchased by us at your option. |
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• | definitive notes having an aggregate principal amount of $5,000,000 or less by check mailed to the holders of these notes; and | ||
• | definitive notes having an aggregate principal amount of more than $5,000,000 by wire transfer in immediately available funds at the election of the holders of these notes. |
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• | complete and execute the conversion notice on the back of the note (or a facsimile thereof); | ||
• | deliver the completed conversion notice and the notes to be converted to the specified office of the conversion agent; | ||
• | pay all funds required, if any, relating to interest on the notes to be converted to which you are not entitled, as described in the second preceding paragraph; and | ||
• | pay all taxes or duties, if any, as described in the preceding paragraph. |
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(1) | issuances of our common stock as a dividend or distribution on our common stock; | ||
(2) | certain subdivisions and combinations of our common stock; | ||
(3) | issuances to all holders of our common stock of certain rights or warrants to purchase our common stock (or securities convertible into our common stock) at less than (or having a conversion price per share less than) the current market price of our common stock; | ||
(4) | distributions to all holders of our common stock of shares of our capital stock (other than the rights and warrants referred to in clause (3) or our common stock), evidences of our indebtedness or assets (including securities, but excluding: |
(A) | any dividends and distributions in connection with a reclassification, consolidation, merger, combination, sale or conveyance resulting in a change in the conversion consideration pursuant to the second succeeding paragraph or | ||
(B) | any dividends or distributions paid exclusively in cash); |
(5) | distributions consisting exclusively of cash to all holders of our common stock; and | ||
(6) | purchases of our common stock pursuant to a tender or exchange offer made by us to all holders of our common stock or any of our subsidiaries to the extent that the same involves an aggregate consideration that, together with any cash and the fair market value of any other consideration paid in any other tender or exchange offer by us or any of our subsidiaries for our common stock made to all holders of our common stock expiring within the 12 months preceding such tender offer for which no adjustment has been made exceeds 10% of our market capitalization on the expiration of such tender or exchange offer. |
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• | reclassify or change our common stock (other than changes resulting from a subdivision or combination but including as a result of a compulsory share exchange), or | ||
• | consolidate or combine with or merge into any person or sell or convey to another person all or substantially all of our property and assets, and the holders of our common stock receive stock, other securities or other property or assets (including cash or any combination thereof) with respect to or in exchange for their common stock, |
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• | any “person,” including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act of 1934, acquires beneficial ownership, directly or indirectly, of shares of our capital stock entitling that person to exercise more than 50% of the total voting power of all shares of our capital stock entitled to vote generally in elections of directors, other than any acquisition by us, any of our subsidiaries or any of our employee benefit plans, or | ||
• | we (1) consolidate with or merge into any other corporation or business entity or convey or transfer or lease all or substantially all of our assets to any other person, corporation or business |
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entity or any other corporation or business entity merges into us, and (2) our shareholders immediately before the such transaction own, directly or indirectly, less than 50% of the combined voting power of the outstanding voting securities of the corporation or business entity resulting from such transaction, |
• | the closing price per share of the common stock for any five trading days within the period of 10 consecutive trading days commencing immediately after the announcement of such change of control shall equal or exceed 105% of the conversion price of the notes in effect on each trading day; or | ||
• | at least 90% of the consideration in the change of control transaction consists of shares of common stock traded on a national securities exchange, including the Nasdaq Global Market, the Nasdaq Global Select Market and the Nasdaq Capital Market, and as a result the notes become convertible solely into such common stock. |
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Effective | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Date | $1.10 | $2.00 | $ 2.20 | $ 2.40 | $ 2.80 | $ 2.90 | $ 3.00 | $3.20 | $ 3.40 | $ 3.60 | $ 3.80 | $ 4.00 | $ 5.00 | $ 6.00 | $ 7.00 | $ 8.00 | ||||||||||||||||||||||||||||||||||||||||||||||||
11/15/06 | 409.091 | 195.384 | 169.406 | 148.498 | 117.210 | 111.005 | 105.304 | 95.207 | 86.564 | 79.106 | 72.621 | 66.946 | 46.915 | 35.085 | 27.492 | 22.311 | ||||||||||||||||||||||||||||||||||||||||||||||||
11/15/07 | 408.069 | 159.890 | 135.679 | 116.501 | 88.470 | 83.028 | 78.068 | 69.386 | 62.071 | 55.856 | 50.536 | 45.950 | 30.390 | 21.791 | 16.578 | 13.192 | ||||||||||||||||||||||||||||||||||||||||||||||||
11/15/08 | 397.842 | 109.647 | 88.006 | 71.561 | 49.002 | 44.877 | 41.202 | 34.986 | 29.986 | 25.929 | 22.610 | 19.874 | 11.603 | 7.826 | 5.854 | 4.701 | ||||||||||||||||||||||||||||||||||||||||||||||||
09/15/09 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 | 0.000 |
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• | are our senior unsecured obligations; | ||
• | rank on parity in right of payment with all of our existing and future senior unsecured debt; and | ||
• | rank senior to all of our existing and future debt that expressly provides that it is subordinated to the notes. |
(1) | our failure to pay when due the principal of or premium, if any, on any of the notes at maturity, upon redemption or exercise of a repurchase right or otherwise; | ||
(2) | our failure to pay an installment of interest (or liquidated damages, if any, as defined in the registration rights agreement discussed below) on any of the notes for 30 days after the date when due; | ||
(3) | our failure to perform or observe any other term, covenant or agreement contained in the notes or the indenture for a period of 60 days after written notice of such failure, requiring us to remedy the same, shall have been given to us by the trustee or to us and the trustee by the holders of at least 25% in aggregate principal amount of the notes then outstanding; |
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(4) | our failure to comply with the provision in the indenture limiting our indebtedness, as described in “Limitation on Indebtedness” below, where such failure continues for a period of 30 consecutive days from the date on which we first fail to comply with such provision; | ||
(5) | a default under any indebtedness for money borrowed by us or any of our subsidiaries that is a “significant subsidiary” (within the meaning of Rule 1-02 of Regulation S-X promulgated by the Securities and Exchange Commission), the aggregate outstanding principal amount of which is in an amount in excess of $10 million, which default: |
(6) | certain events of bankruptcy or reorganization with respect to us or any of our subsidiaries that is a significant subsidiary; and | ||
(7) | our failure to provide notice required upon a change of control. |
• | the holders of at least 25% in aggregate principal amount of the outstanding notes have made a written request to the trustee to pursue the relevant remedy; and | ||
• | the holders of a majority in aggregate principal amount of the outstanding notes have not given the trustee a direction inconsistent with that request within 60 days after receipt of that request. |
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• | we are the resulting, surviving or transferee person (the “Successor Company”) or the Successor Company is a corporation organized and existing under the laws of the United States or any state thereof or the District of Columbia, and the Successor Company (if not Ciphergen) expressly assumes by a supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of our obligations under the indenture and the notes, including the conversion rights; | ||
• | immediately after giving effect to such transaction no event of default has happened and is continuing; and | ||
• | we deliver to the trustee an officers’ certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, comply with the indenture and the notes. |
• | adding to our covenants for the benefit of the holders of notes; | ||
• | surrendering any right or power conferred upon us; | ||
• | providing for conversion rights of holders of notes if any reclassification or change of our common stock or any consolidation, merger or sale of all or substantially all of our assets occurs; | ||
• | providing for the assumption of our obligations to the holders of notes in the case of a merger, consolidation, conveyance, transfer or lease; | ||
• | reducing the conversion price, provided that the reduction will not adversely affect the interests of the holders of notes; | ||
• | complying with the requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended; | ||
• | making any changes or modifications necessary in connection with the registration of the notes under the Securities Act of 1933 as contemplated in the registration rights agreement; provided that such change or modification does not, in the good faith opinion of our board of directors and the trustee, adversely affect the interests of the holders of notes in any material respect; | ||
• | curing any ambiguity or correcting or supplementing any defective provision contained in the indenture; provided that such modification or amendment does not, in the good faith opinion of our board of directors and the trustee, adversely affect the interests of the holders of notes in any material respect; or | ||
• | adding or modifying any other provisions with respect to matters or questions arising under the indenture which we and the trustee may deem necessary or desirable and which will not adversely affect the interests of the holders of notes. |
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• | with the written consent of the holders of at least a majority in aggregate principal amount of the notes then outstanding; or | ||
• | by the adoption of a resolution at a meeting of holders by at least a majority in aggregate principal amount of the notes represented at such meeting. The quorum at any meeting called to adopt a resolution will be persons holding or representing a majority in aggregate principal amount of the notes at the time outstanding. |
• | change the maturity of the principal of or any installment of interest on any note (including any payment of liquidated damages); | ||
• | reduce the principal amount of, or any premium or interest on (including any payment of liquidated damages), any note; | ||
• | change the currency of payment of any note or interest thereon; | ||
• | impair the right to institute suit for the enforcement of any payment on or with respect to any note; | ||
• | modify our obligations to maintain an office or agency in New York City; | ||
• | amend the repurchase option of holders upon a change of control after the occurrence of a change of control or the conversion rights of holders of the notes in a manner adverse to the holders; provided, however, that the execution of a supplemental indenture solely to permit a successor company to assume the Company’s obligations under the Notes shall not be deemed to be adverse to the holders; | ||
• | modify the redemption provisions of the indenture in a manner adverse to the holders of notes; | ||
• | reduce the percentage in aggregate principal amount of notes outstanding necessary to modify or amend the indenture or to waive any past default; | ||
• | reduce the percentage in aggregate principal amount of notes outstanding required for the adoption of a resolution or the quorum required at any meeting of holders of notes at which a resolution is adopted; or | ||
• | modify in any manner the calculation of the make-whole premium. |
• | by delivering to the trustee for cancellation all outstanding notes, or | ||
• | by depositing with the trustee, after the notes have become due and payable, whether at stated maturity or any other redemption date, or upon conversion or otherwise, cash or common stock (as applicable under the terms of the indenture) sufficient to pay all of the outstanding notes and all other sums payable by us under the indenture. |
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• | the date when the holders of the notes and the shares of our common stock issuable upon conversion of the notes that are transfer restricted securities are able to sell all such securities immediately without restriction pursuant to Rule 144(k) under the Securities Act; | ||
• | the date when all of the notes and shares of common stock issuable upon conversion that are transfer restricted securities are registered under the shelf registration statement and disposed of in accordance therewith; or | ||
• | November 15, 2008. |
• | exceed an aggregate of 30 days for all suspensions in any 90-day period; or | ||
• | exceed an aggregate of 60 days for all suspensions in any 360-day period. |
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• | be named as a selling securityholder in the related prospectus; | ||
• | deliver a prospectus to purchasers; and | ||
• | be subject to the provisions of the registration rights agreement, including indemnification provisions. |
• | pay all expenses of the shelf registration statement; | ||
• | provide each registered holder copies of the prospectus; | ||
• | notify holders when the shelf registration statement has become effective; and | ||
• | take other reasonable actions as are legally required to permit unrestricted resales of the registrable securities in accordance with the terms and conditions of the registration rights agreement. |
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• | not be entitled to have certificates registered in their names; | ||
• | not receive physical delivery of certificates in definitive registered form; and | ||
• | not be considered holders of the note. |
• | for the records relating to, or payments made on account of, beneficial ownership interests in a note; or | ||
• | for maintaining, supervising or reviewing any records relating to the beneficial ownership interests. |
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• | a limited purpose trust company organized under the laws of the State of New York, and a member of the Federal Reserve System; | ||
• | a “clearing corporation” within the meaning of the Uniform Commercial Code; and | ||
• | a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. |
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plans to issue any shares of preferred stock.
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• | owns, actually or constructively, shares of our stock representing at least 10% of the total combined voting power of all classes of our stock entitled to vote; | ||
• | is a bank that acquired the notes in consideration for an extension of credit made pursuant to a loan agreement entered into in the ordinary course of business; |
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• | is a “controlled foreign corporation” that is related, directly or indirectly, to us through sufficient stock ownership; or | ||
• | is engaged in the conduct of a trade or business in the United States to which such interest payments are effectively connected (see the discussion under “—Non-U.S. Holders—Income or Gains Effectively Connected with a U.S. Trade or Business” below). |
• | the gain is effectively connected with the conduct by the Non-U.S. Holder of a U.S. trade or business (and, generally, if an income tax treaty applies, the gain is attributable to a U.S. permanent establishment maintained by the Non-U.S. Holder), in which case the gain would be subject to tax as described below under “—Non-U.S. Holders—Income or Gains Effectively Connected with a U.S. Trade or Business”; | ||
• | the Non-U.S. Holder was a citizen or resident of the United States and is subject to certain special rules that apply to expatriates; | ||
• | subject to certain exceptions, the Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the year of disposition, in which case, except as otherwise provided by an applicable income tax treaty, the gain, which may be offset by U.S. source capital losses, would be subject to a flat 30% tax, even though the individual is not considered a resident of the United States; or |
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• | the rules of the Foreign Investment in Real Property Tax Act (or FIRPTA) (described below) treat the gain as effectively connected with a U.S. trade or business. |
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Principal | ||||||||||||||||||||||||
Amount at | Shares of | Number of | Number of | |||||||||||||||||||||
Maturity of Notes | Common Stock | Shares of | Shares of | |||||||||||||||||||||
Beneficially | Percentage of | Beneficially | Percentage of | Common Stock | Common Stock | |||||||||||||||||||
Owned and | Notes | Owned Prior to | Common Stock | Hereby Offered | owned after the | |||||||||||||||||||
Name | Offered Hereby | Outstanding | the Offering | Outstanding (2) | (1) | Offering | ||||||||||||||||||
Highbridge International LLC (3) | $ | 11,100,000 | 67.3 | % | 5,550,000 | 15.4 | % | 5,550,000 | 0 | |||||||||||||||
Deerfield International Limited (4) | $ | 1,560,000 | 9.5 | % | 780,000 | 2.2 | % | 780,000 | 0 | |||||||||||||||
Deerfield Partners, L.P. (4) | $ | 1,440,000 | 8.7 | % | 720,000 | 2.0 | % | 720,000 | 0 | |||||||||||||||
Bruce Fund, Inc. | $ | 1,800,000 | 10.9 | % | 900,000 | 2.5 | % | 900,000 | 0 | |||||||||||||||
Professional Life & Casualty Co. | $ | 600,000 | 3.6 | % | 300,000 | .1 | % | 300,000 | 0 |
(1) | Assumes conversion of all of the holder’s notes at a conversion rate of 500 shares per $1,000 principal amount of the notes (representing an initial conversion price of $2.00 per share of common stock). However, this conversion price will be subject to adjustment as described above under “Description of the Notes—Conversion Rights.” As a result, the amount of common stock issuable upon conversion of the notes may increase or decrease in the future. | |
(2) | Calculated based on Rule 13d-3(i), using 36,083,612 shares of common stock outstanding as of October 31, 2006. In calculating the amount for each holder, we treated as outstanding the number of shares of common stock issuable upon conversion of all of that holder’s notes, but we did not assume conversion of any other notes. | |
(3) | Highbridge Capital Management, LLC is the trading manager of Highbridge International LLC and has voting control and investment discretion over securities held by Highbridge International LLC. Glenn Dubin and Henry Swieca control Highbridge Capital Management, LLC. Each of Highbridge Capital Management, LLC, Glenn Dubin and Henry Swieca disclaim beneficial ownership of the securities held by Highbridge International LLC. | |
(4) | James Flynn has voting and investment power over these securities |
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• | directly by the selling securityholders or their pledgees, donees, transferees or any successors in interest (all of whom may be selling securityholders); or | ||
• | through underwriters, broker-dealers or agents who may receive compensation in the form of discounts, concessions or commissions from the selling securityholders or the purchasers of the notes and underlying common stock. |
• | fixed prices; | ||
• | prevailing market prices at the time of sale; | ||
• | varying prices determined at the time of sale; or | ||
• | negotiated prices. |
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• | on any national securities exchange or quotation service on which the notes and underlying common stock may be listed or quoted at the time of the sale, including the Nasdaq Capital Market in the case of the common stock; | ||
• | in the over-the-counter market; | ||
• | in transactions otherwise than on such exchanges or services or in the over-the-counter market | ||
• | through the writing of options,whether such options are listed on an options exchange of otherwise; or | ||
• | any other method permitted pursuant to applicable law. |
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• | Our annual report on Form 10-K for our fiscal year ended December 31, 2005. | ||
• | Our quarterly reports on Form 10-Q for our fiscal quarters ended March 31, 2006, June 30, 2006 and September 30, 2006. | ||
• | Our definitive proxy statement filed with the Securities and Exchange Commission for our Annual Meeting of Stockholders held on June 7, 2006. | ||
• | Our definitive proxy statement filed with the Securities and Exchange Commission for our Special Meeting of Stockholders held on October 26, 2006. | ||
• | Our reports on Form 8-K filed on January 6, 2006, January 13, 2006, March 23, 2006, May 26, 2006, May 31, 2006, June 13, 2006, June 30, 2006, August 18, 2006, August 25, 2006, November 6, 2006, November 14, 2006 and November 21, 2006. | ||
• | Our reports on Form 8 K/A filed on December 15, 2006. |
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6611 Dumbarton Circle
Fremont, California 94555
(510) 505-2100
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SEC registration fee | $ | 1,766 | ||
Accounting fees and expenses | 75,000 | |||
Trustee’s fees and expenses | 10,000 | |||
Legal fees and expenses | 100,000 | |||
Miscellaneous | 13,234 | |||
Total | $ | 200,000 | ||
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Exhibit | ||||
Number | Notes | Description | ||
4.1 | Indenture (1) | |||
5.1 | Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation | |||
10.1 | Registration Rights Agreement (2) | |||
12.1 | Computation of Ratio of Earnings to Fixed Charges.* | |||
23.1 | Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1) | |||
23.2 | Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm | |||
24.1 | Power of Attorney (contained on Page II-5 of the initial filing of the Form S-3)* | |||
25.1 | Form of T-1 Statement of Eligibility of Trustee for Indenture Under the Trust Indenture Act of 1939 | |||
* | Previously filed | |
(1) | Incorporated by reference to Exhibit 4.1 the Company’s Current Report on Form 8-K, dated as of November 21, 2006. | |
(2) | Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on November 21, 2006. |
(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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; | ||
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; |
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(i) | each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and | ||
(ii) | 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 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. |
(i) | Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; | ||
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; |
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(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and | ||
(iv) | Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
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CIPHERGEN BIOSYSTEMS, INC. | ||||
By: | /s/ Gail S. Page | |||
Gail S. Page | ||||
President and Chief Executive Officer | ||||
Signature | Title | Date | ||
/s/ Gail S. Page | President and Chief Executive Officer, and Director (Principal Executive Officer) | January 17, 2007 | ||
/s/ Debra A. Young | Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | January 17, 2007 | ||
* | Director | January 17, 2007 | ||
* | Director | January 17, 2007 | ||
* | Director | January 17, 2007 | ||
* | Director | January 17, 2007 | ||
* | Director | January 17, 2007 | ||
* | Director | January 17, 2007 | ||
* | Director | January 17, 2007 | ||
*By: | /s/ Debra A. Young | ||
Debra A. Young | |||
(Attorney-in-Fact) |
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Exhibit | ||||
Number | Notes | Description | ||
4.1 | Indenture (1) | |||
5.1 | Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation | |||
10.1 | Registration Rights Agreement (2) | |||
12.1 | Computation of Ratio of Earnings to Fixed Charges* | |||
23.1 | Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1) | |||
23.2 | Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm | |||
24.1 | Power of Attorney (contained on Page II-5 of the initial filing of this Form S-3)* | |||
25.1 | Form of T-1 Statement of Eligibility of Trustee for Indenture Under the Trust Indenture Act of 1939 | |||
* | Previously filed | |
(1) | Incorporated by reference to Exhibit 4.1 the Company’s Current Report on Form 8-K, dated as of November 21, 2006. | |
(2) | Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on November 21, 2006. |