As Filed with the Securities and Exchange Commission on March 30, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Inhibitex, Inc.
(Exact name of Registrant as specified in its charter)
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Delaware
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74-2708737
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(State or Other Jurisdiction
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(I.R.S. Employer
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of Incorporation or Organization)
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Identification Number)
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9005 Westside Parkway
Alpharetta, GA 30004
(678) 746-1100
(Address Including Zip Code, and Telephone Number,
Including Area Code, of Registrants Principal Executive Offices)
Russell H. Plumb
President and Chief Executive Officer
9005 Westside Parkway
Alpharetta, GA 30009
(678) 746-1100
(Name, Address Including Zip Code and Telephone Number,
Including Area Code of Agent for Service)
Copies to:
David S. Rosenthal, Esq.
Dechert LLP
1095 Avenue of the Americas
New York, New York 10036
(212) 698-3500
Approximate date of commencement of proposed sale to the public:
From time to time
after the effective date of this Registration Statement as determined by the registrant.
If the only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box:
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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 number of the
earlier effective registration statement for the same offering.
o
If this form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box.
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller Reporting Company
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(Do not check if a smaller reporting company)
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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
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Registered (1) (2)
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Price per Unit (2)
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Offering Price (2)
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Fee (3)
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Common Stock, $.001 par value
per share
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Preferred Stock, $.001 par
value per share
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Warrants
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Rights to purchase Common Stock
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Debt Securities
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Units
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Total
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$
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100,000,000
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$
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100,000,000
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$
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100,000,000
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$
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7,130
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(1)
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There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate
principal amount of debt securities, such indeterminate number of warrants and rights to purchase common stock, preferred stock
or debt securities, and such indeterminate number of units of Inhibitex, Inc. as may from time to time be issued at
indeterminate prices. The securities registered hereunder, shall have an aggregate initial offering price for all
securities not to exceed $100,000,000, provided, however, that if any debt securities are issued at an original issue discount,
then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate
initial offering price not to exceed $100,000,000, less the aggregate dollar amount of all securities previously issued
hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder.
The securities registered also include such indeterminate number of shares of common stock and preferred stock and such amount
of debt securities as may be issued upon conversion of or in exchange for common stock, preferred stock or debt securities that
provide for conversion or exchange, upon exercise of warrants or rights or pursuant to the anti-dilution provisions of any such
securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, the shares being registered
hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the
shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
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(2)
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Rule 457(o) under the Securities Act of 1933, as amended, permits the registration fee to be calculated on the
basis of the maximum offering price of all of the securities listed and, therefore, the table does not specify by each class
information as to the amount to be registered, the proposed maximum offering price per unit or the proposed maximum aggregate
offering price. The proposed maximum initial offering price per unit will be determined by the registrant from time to time
in connection with the issuance by the registrant of securities registered hereunder.
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(3)
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Calculated pursuant to Rule 457(o) based on the proposed maximum aggregate offering price.
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The Registrant hereby amends this Registration Statement on such date or dates as may be
necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration
Statement shall become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to completion, dated March 30, 2010
PROSPECTUS
$100,000,0000
Common Stock
Preferred Stock
Warrants
Rights to Purchase Shares of Common Stock
Debt Securities
Units
We may issue, from time to time at prices and on terms to be determined at or prior to the
time of the offering, up to $100,000,000 of any combination of the securities described in this
prospectus, either individually or in units. This prospectus describes the general terms of these
securities and the general manner in which these securities will be offered. We will provide you
with specific terms of any offering in one or more supplements to this prospectus. The prospectus
supplements will also describe the specific manner in which these securities will be offered and
may also supplement, update or amend information contained in this document. You should carefully
read this prospectus and any prospectus supplement, as well as any documents incorporated by
reference into this prospectus or any prospectus supplement, before you invest. Our securities may
be sold directly by us to you, through agents designated from time to time or to or through
underwriters or dealers. For additional information on the methods of sale, you should refer to the
section entitled Plan of Distribution in this prospectus and in the applicable prospectus
supplement. If any underwriters or agents are involved in the sale of our securities with respect
to which this prospectus is being delivered, the names of such underwriters or agents and any
applicable fees, commissions or discounts and over-allotment options will be set forth in a
prospectus supplement. The price to the public of such securities and the net proceeds that we
expect to receive from such sale will also be set forth in a prospectus supplement.
Our Common Stock is quoted on the NASDAQ Capital Market under the symbol INHX. On March 26, 2010,
the last reported sale price for our Common Stock was $1.37.
This prospectus may not be used to consummate sales of securities unless accompanied by a
prospectus supplement.
Investing in our securities involves a high degree of risk. See Risk Factors beginning on Page 5
for information that you should consider before investing in our securities.
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.
The date of this prospectus is March 30, 2010
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 may offer shares of our common stock and preferred stock, various series
of debt securities and/or warrants, or rights to purchase any of such securities, either
individually or in units, in one or more offerings, with a total value of up to $100,000,000. This
prospectus provides you with a general description of the securities we may offer. Each time we
offer a type or series of securities under this prospectus, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The prospectus supplement
may also add, update or change information contained in this prospectus. You should carefully read
both this prospectus and any prospectus supplement together with additional information described
under the heading WHERE YOU CAN FIND MORE INFORMATION before making an investment decision.
We have not authorized any person to give any information or to make any representation in
connection with this offering other than those contained or incorporated by reference in this
prospectus, and, if given or made, such information or representation must not be relied upon as
having been so authorized. This prospectus does not constitute an offer to sell or a solicitation
of an offer to buy by anyone in any jurisdiction in which such offer to sell is not authorized, or
in which the person is not qualified to do so or to any person to whom it is unlawful to make such
offer or solicitation. Neither the delivery of this prospectus and the accompanying prospectus
supplement, nor any sale hereunder and thereunder shall, under any circumstances, create any
implication that there has been no change in our affairs subsequent to the date set forth on the
front of such document, that the information contained herein and the accompanying prospectus
supplement is correct as of any time subsequent to the date set forth on the front of such
document, or that any information incorporated by reference is correct as of any time subsequent to
the date set forth on the front of such document.
Any statement made in this prospectus or in a document incorporated or deemed to be incorporated by
reference in this prospectus will be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in any prospectus supplement or in any other
subsequently filed document that is also incorporated or deemed to be incorporated by reference in
this prospectus modifies or supersedes that statement. Any statement so modified or superseded will
not be deemed, except as so modified or superseded, to constitute a part of this prospectus. See
Incorporation of Certain Documents by Reference in this prospectus.
Unless otherwise specified, references in this prospectus to Inhibitex, the Company, we,
our and us refer to Inhibitex, Inc.
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ABOUT INHIBITEX, INC.
We are a biopharmaceutical company focused on the development of differentiated anti-infective
products to prevent or treat serious infections. Our research and development efforts are currently
focused on small molecule antiviral compounds, and in particular, orally-available therapies to
treat herpes zoster, or shingles, and chronic infections caused by hepatitis C virus, or HCV.
Currently available antiviral therapies have a number of therapeutic limitations that include
inadequate potency, significant adverse side effects, complex dosing schedules, inconvenient
methods of administration, and diminishing efficacy due to the emergence of drug-resistant viruses.
We believe that our antiviral drug candidates have the potential to address a number of these
limitations as well as unmet clinical needs in their respective intended indications. In addition
to our antiviral programs, we have also licensed the rights to certain intellectual property from
our MSCRAMM protein platform to Pfizer Inc. for the development of active vaccines to prevent
staphylococcal infections.
Our lead product candidate, FV-100, is an orally available nucleoside analogue prodrug being
developed for the treatment of herpes zoster, which is caused by varicella zoster virus. We have
initiated a Phase II clinical trial of FV-100. The Phase II trial is a well-controlled,
double-blind study comparing two arms of FV-100 to an active control (valacyclovir).
Our preclinical pipeline includes INX-189, the lead compound from our series of nucleotide
polymerase inhibitors, or protides, which we are developing to treat infections caused by HCV. We
have completed the requisite good laboratory practices preclinical studies needed to support the
filing of an investigational new drug application, or IND, for INX-189 with the United States Food
and Drug Administration, or FDA. We anticipate filing an IND for INX-189 shortly, and subject to
FDA review, anticipate initiating a Phase I clinical trial of INX-189 in the first half of 2010.
We have retained all worldwide rights to both FV-100 and INX-189 and intend to establish strategic
collaborations, partnerships and alliances that we believe can accelerate the development and
commercialization of our antiviral product candidates beyond clinical proof of concept by utilizing
the financial, clinical development, manufacturing and commercialization capabilities of a leading
pharmaceutical company.
We have not received regulatory approval to sell or market any of our current or past product
candidates, nor do we have any commercialization capabilities; therefore, it is possible that we
may never successfully derive any commercial revenues from any of our existing or future product
candidates. Inhibitex
®
and MSCRAMM
®
are registered trademarks of Inhibitex, Inc.
Corporate Information
We were incorporated in Delaware in May 1994. Our principal executive offices are located at 9005
Westside Parkway, Alpharetta, Georgia 30009. Our telephone number is (678) 746-1100. Our website is
www.inhibitex.com
. Information contained on our website is not incorporated by reference into and
does not constitute part of this prospectus.
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RISK FACTORS
Investing in our securities involves a high degree of risk. Before making an investment
decision, you should carefully consider the specific risks set forth under the caption Risk
Factors in the applicable prospectus supplement, and under the caption Risk Factors under Item 1
of Part 1 of our Annual Report on Form 10-K for the fiscal year ended December 31, 2009, which is
incorporated by reference into this prospectus, and any other document that is incorporated by
reference into this prospectus or the applicable prospectus supplement.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated herein by reference contain forward-looking
statements. These forward-looking statements involve known and unknown risks, uncertainties and
other factors that may cause actual results, performance or achievements to be materially different
from any future results, performance or achievements expressed or implied by the forward-looking
statements. In some cases, you can identify forward-looking statements by terms such as may,
will, should, could, would, expect, plan, intend, anticipate, believe,
estimate, project, predict, forecast, potential, likely or possible, as well as the
negative of such expressions, and similar expressions intended to identify forward-looking
statements. There may be events in the future that we are unable to predict accurately, or over
which we have no control. Before you purchase our securities, you should read this prospectus and
the documents that we reference or incorporate by reference in this prospectus or registration
statement of which this prospectus is a part, completely and with the understanding that our actual
future results may be materially different from what we expect. Our business, financial condition,
results of operations, and prospects may change. We may not update these forward-looking
statements, even though our situation may change in the future, unless we have obligations under
the federal securities laws to update and disclose material developments related to previously
disclosed information. We qualify all of the information presented or incorporated by reference in
this prospectus, and particularly our forward-looking statements, by these cautionary statements
USE OF PROCEEDS
Unless otherwise provided in the applicable prospectus supplement, we intend to use the net
proceeds from the sale of the securities (including proceeds, if any, received from the exercise of
warrants sold by us) for general corporate purposes, which may include the development and
commercialization of our product candidates, working capital, capital expenditures, licensing
rights to intellectual property and acquisitions of other businesses, technologies and compounds.
When any particular securities are offered, the respective prospectus supplement relating to that
offering will set forth our intended use of the net proceeds received from the sale of those
securities. Our management will have broad discretion in the allocation of the net proceeds of the
offering. Pending the application of the net proceeds for these purposes, we expect to invest such
proceeds in short-term, interest-bearing instruments or other investment-grade securities.
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GENERAL DESCRIPTION OF SECURITIES
We, directly or through agents, dealers or underwriters designated from time to time, may
offer, issue and sell, together or separately, up to $100,000,000 aggregate offering price of:
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shares of our Common Stock, par value $.001 per share; or
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shares of our Preferred Stock, par value $.001 per share; or
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Warrants to purchase our Common Stock; or
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Rights to purchase our Common Stock; or
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Debt securities; or
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any combination of the foregoing, either individually or as units
consisting of one or more of the foregoing, each on terms to be
determined at the time of sale.
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When any particular securities are offered, a supplement to this prospectus will be delivered
with this prospectus which will set forth the terms of the offering and sale of the offered
securities as well as complete descriptions of the security or securities to be offered pursuant to
the prospectus supplement. The summary descriptions of securities included in this prospectus are
not meant to be complete descriptions of each security.
DESCRIPTION OF CAPITAL STOCK
Our certificate of incorporation authorizes the issuance of up to 150,000,000 shares of common
stock, par value $.001 per share, and up to 5,000,000 shares of preferred stock, par value $.001
per share. As of March 25, 2010, we had outstanding 61,562,606 shares of common stock and no
shares of preferred stock.
The following descriptions of our common stock and preferred stock are qualified in their entirety
by reference to our Eighth Amended and Restated Certificate of Incorporation, as amended to date,
and our Amended and Restated By-laws. For information on how to obtain copies of our Amended and
Restated Certificate of Incorporation, as amended to date, and our Amended and Restated By-laws,
see WHERE YOU CAN FIND MORE INFORMATION on page 14 of this prospectus.
Common Stock
Holders of our common stock are entitled to one vote for each share held on all matters submitted
to a vote of stockholders and do not have cumulative voting rights. Accordingly, holders of a
majority of the shares of common stock entitled to vote in any election of directors may elect all
of the directors standing for election. Holders of common stock are entitled to receive
proportionately any dividends as may be declared by our board of directors, subject to any
preferential dividend rights of outstanding preferred stock.
In the event of our liquidation, dissolution or winding up, the holders of common stock are
entitled to proportionately receive our net assets available for distribution after the payment of
all debts and other liabilities and subject to the prior rights of any outstanding preferred stock.
Holders of our common stock have no preemptive, subscription, redemption or conversion rights. The
rights, preferences and privileges of holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of preferred stock that we may
designate and issue in the future.
Preferred Stock
Our certificate of incorporation authorizes us, without further vote or action by the stockholders,
to issue up to an aggregate of 5,000,000 shares of preferred stock in one or more series. Each
series of preferred stock will have such number of shares, designations, preferences, voting
powers, qualifications and special or relative rights or privileges
as shall be determined by our board of directors, which may include, among others, dividend rights,
voting rights, redemption and sinking fund provisions, liquidation preferences, conversion rights
and pre-emptive rights.
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The issuance of preferred stock, while providing desired flexibility in connection with possible
acquisitions and other corporate purposes, could adversely affect the voting power or other rights
of the holders of common stock, and could make it more difficult for a third party to acquire, or
could discourage a third party from attempting to acquire, a majority of our outstanding voting
stock. We cannot determine the actual impact or effect of the issuance of any of this preferred
stock upon the rights of the holders of our common stock until the board issues or determines the
specific rights of this preferred stock.
Anti-Takeover Effects or Provisions of Delaware Law and Our Amended and our Charter Documents
We are subject to the provisions of Section 203 of the Delaware General Corporation Law. Subject to
certain exceptions, Section 203 of the Delaware General Corporation Law prohibits a publicly-held
Delaware corporation, such as us, from engaging in a business combination with an interested
stockholder for a period of three years after the date of the transaction in which the person
became an interested stockholder, unless the interested stockholder attained such status with the
approval of our board of directors or unless the business combination is approved in a prescribed
manner. A business combination is defined to include a merger or asset sale involving the
interested stockholder or any other transaction resulting in a financial benefit to the interested
stockholder. Subject to various exceptions, an interested stockholder is a person who, together
with affiliates and associates, owns, or within the past three years did own, 15% or more of a
corporations voting stock. This statute could prohibit or delay the accomplishment of mergers or
other takeover or change in control attempts with respect to us and, accordingly, may discourage
attempts to acquire us.
In addition, certain provisions of our amended and restated certificate of incorporation and our
amended and restated by-laws may have the effect of delaying, deferring or preventing a tender
offer or takeover attempt that our stockholders might deem to be in their best interests. These
provisions are designed to encourage persons seeking to acquire us to initiate such a transaction
through arms-length negotiations with our board of directors. The existence of these provisions
could adversely affect the prevailing price of our common stock or limit the price that others
might be willing to pay in the future for shares of our common stock. These provisions include:
Stockholder Action; Special Meeting of Stockholders.
Stockholders may not take action by written
consent, but only at a duly called annual or special meeting of our stockholders. Special meetings
of our stockholders may be called only by the chairman of our board of directors, our chief
executive officer, or a majority of our board of directors, and in no event may stockholders call a
special meeting. Thus, without approval by the chairman of the board of directors, our chief
executive officer or a majority of the board of directors, our stockholders may not take action
between annual meetings.
Advance Notice Requirements for Stockholder Proposals and Director Nominations.
A stockholder
seeking to bring business before an annual meeting of our stockholders, or to nominate candidates
for election as directors at an annual meeting of our stockholders, must provide timely notice of
his or her intention in writing. To be timely, a stockholders notice must be delivered to our
secretary, at our principal executive offices, not less than 90 days nor more than 120 days prior
to the first anniversary of the date of the previous years annual meeting of our stockholders.
However, if no annual meeting of stockholders was held in the previous year or the date of the
annual meeting of stockholders has been changed to be more than 30 calendar days from the time of
the previous years annual meeting, then a proposal shall be received no later than the close of
business on the tenth day following the date on which notice of the date of the meeting was mailed
or a public announcement was made. Only our board of directors or a committee thereof may nominate
candidates for election at a special meeting of our stockholders. Our Amended and Restated By-Laws
also specify requirements as to the form and content of a stockholders notice. These provisions
may preclude stockholders from bringing matters before an annual meeting of our stockholders or
from making nominations for directors at an annual or special meeting of our stockholders.
Authorized but Unissued Shares.
Our authorized but unissued shares of common and preferred stock
are available for future issuance without stockholder approval, subject to any limitations imposed
by the NASDAQ Capital Market. These additional shares may be utilized for a variety of corporate
needs, including acquisitions and raising additional funds. The existence of authorized but
unissued and unreserved common and preferred stock could
discourage an attempt by third parties to obtain control of us by means of a proxy contest, tender
offer, merger or otherwise.
Classification of Board Members.
Our board of directors is classified into three different classes
of members, as nearly equal in size as possible, with each class having its own three-year term.
Any one or more, or all, of the
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directors may be removed by the holders of at least a majority of
the shares then entitled to vote at an election of directors only for cause. Any vacancy on our
board of directors, including a vacancy resulting from an enlargement of the board, may only be
filled by vote of a majority of the directors then in office. This classification of our board of
directors, and the limitations on the removal of directors and filling of vacancies, may have the
effect of making it more difficult for a third party to acquire control of us, or of discouraging a
third party from acquiring control of us because at least two annual meetings of stockholders,
instead of one, generally will be required to change the majority of our board of directors.
Transfer Agent and Registrar
American Stock Transfer & Trust Company is the transfer agent and registrar for our common
stock. The transfer agent and registrar for any series of preferred stock will be named and
described in the prospectus supplement for that series.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we include in any applicable
prospectus supplement, summarizes the material terms and provisions of the debt securities that we
may offer under this prospectus and the related indenture. While the terms we have summarized below
will apply generally to any future debt securities we may offer pursuant to this prospectus, we
will describe the particular terms of any debt securities that we may offer in more detail in the
applicable prospectus supplement. If we indicate in a prospectus supplement, the terms of any debt
securities we offer under that prospectus supplement may differ from the terms we describe below.
We may offer debt securities from time to time, in one or more offerings under this prospectus. We
will issue any such debt securities under an indenture that we will enter into with a trustee to be
named in the indenture. We have filed a form of indenture as an exhibit to the registration
statement of which this prospectus is a part. The indenture will be qualified under the Trust
Indenture Act of 1939, as in effect on the date of the indenture. We use the term debenture
trustee to refer to the trustee under the indenture.
The following summaries of material provisions of the debt securities and the indenture are subject
to, and qualified in their entirety by reference to, all the provisions of the indenture applicable
to a particular series of debt securities.
General
The indenture provides that debt securities may be issued from time to time in one or more series.
The indenture does not limit the amount of debt securities that may be issued thereunder, and the
indenture provides that the specific terms of any series of debt securities shall be set forth in,
or determined pursuant to, an authorizing resolution, an officers certificate and/or a
supplemental indenture, if any, relating to such series.
We will describe in each prospectus supplement the following terms relating to a series of debt
securities:
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the title or designation of the debt securities;
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any limit upon the aggregate principal amount of the debt securities;
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the date or dates on which we will pay the principal on the debt securities;
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the interest rate, which may be fixed or variable, or the method for determining the
rate and the date interest will begin to accrue, the date or dates interest will be payable
and the record dates for interest payment dates or the method for determining such dates;
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the manner in which the amounts of payment of principal of, premium or interest on the
debt securities will be determined, if these amounts may be determined by reference to an
index based on a currency or currencies other than that in which the debt securities are
denominated or designated to be payable or by reference to a commodity, commodity index,
stock exchange index or financial index;
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the currency of denomination of the debt securities;
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if payments of principal of, premium or interest on the debt securities will be made in
one or more currencies or currency units other than that or those in which the debt
securities are denominated, the manner in which the exchange rate with respect to these
payments will be determined;
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the place or places where the principal of, premium, and interest on the debt securities
will be payable;
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the terms and conditions upon which we may redeem the debt securities;
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking
fund or analogous provisions or at the option of a holder of debt securities;
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the dates on which and the price or prices at which we will repurchase the debt
securities at the option of the holders of debt securities and other detailed terms and
provisions of these repurchase obligations;
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the denominations in which the debt securities will be issued, if other than
denominations of $1,000 and any integral multiple thereof;
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the portion of principal amount of the debt securities payable upon declaration of
acceleration of the maturity date, if other than the principal amount;
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whether the debt securities are to be issued at any original issuance discount and the
amount of discount with which such debt securities may be issued;
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whether the debt securities will be issued in the form of certificated debt securities
or global debt securities;
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the form of the debt securities;
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the terms and conditions upon which the debt securities will be so convertible or
exchangeable into securities or property of another person, if at all, and any additions or
changes, if any, to permit or facilitate such conversion or exchange;
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whether the debt securities will be subject to subordination and the terms of such
subordination;
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any restriction or condition on the transferability of the debt securities;
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any addition or change in the provisions related to compensation and reimbursement of
the trustee which applies to Securities of such series;
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any addition to or change in the events of default described in this prospectus or in
the indenture with respect to the debt securities and any change in the acceleration
provisions described in this prospectus or in the indenture with respect to the debt
securities;
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any addition to or change in the covenants described in this prospectus or in the
indenture with respect to the debt securities; and
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any other terms of the debt securities, which may modify or delete any provision of the
indenture.
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We may issue debt securities that provide for an amount less than their stated principal amount to
be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the
indenture. We will provide you with information on the federal income tax considerations and other
special considerations applicable to any of these debt securities in the applicable prospectus
supplement.
Conversion or Exchange Rights
We will set forth in the prospectus supplement the terms, if any, on which a series of debt
securities may be convertible into or exchangeable for our common stock or our other securities. We
will include provisions as to whether conversion or exchange is mandatory, at the option of the
holder or at our option. We may include provisions pursuant to which the number of shares of our
common stock or our other securities that the holders of the series of debt securities receive
would be subject to adjustment.
Consolidation, Merger or Sale; No Protection in Event of a Change of Control or Highly Leveraged
Transaction
The indenture provides that we may not merge or consolidate with or into another entity, or sell
other than for cash or lease all or substantially all our assets to another entity, or purchase all
or substantially all the assets of another entity unless we are the surviving entity or, if we are
not the surviving entity, the successor, transferee or lessee entity expressly assumes all of our
obligations under the indenture or the debt securities, as appropriate.
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not
contain any provisions that may afford holders of the debt securities additional protection in the
event we have a change of control or in the event of a highly leveraged transaction (whether or not
such transaction results in a change of control), which could adversely affect holders of debt
securities.
9
Events of Default Under the Indenture
The following are events of default under the indenture with respect to any series of debt
securities that we may issue:
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if we fail to pay interest when due and our failure continues for 90 days and the time
for payment has not been extended or deferred;
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if we fail to pay the principal, or premium, if any, when due whether by maturity or
called for redemption;
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if we fail to pay a sinking fund installment, if any, when due and our failure
continues for 30 days;
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if we fail to observe or perform any other covenant relating to such series contained
in the debt securities of such series or the indenture, other than a covenant specifically
relating to and for the benefit of holders of another series of debt securities, and our
failure continues for 90 days after we receive written notice from the debenture trustee
or holders of not less than a majority in aggregate principal amount of the outstanding
debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur as to us.
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No event of default with respect to a particular series of debt securities (except as to certain
events of bankruptcy, insolvency or reorganization) necessarily constitutes an event of default
with respect to any other series of debt securities. The occurrence of an event of default may
constitute an event of default under any bank credit agreements we may have in existence from time
to time. In addition, the occurrence of certain events of default or an acceleration under the
indenture may constitute an event of default under certain of our other indebtedness outstanding
from time to time.
If an event of default with respect to debt securities of any series at the time outstanding occurs
and is continuing, then the trustee or the holders of not less than a majority in principal amount
of the outstanding debt securities of that series may, by a notice in writing to us (and to the
debenture trustee if given by the holders), declare to be due and payable immediately the principal
(or, if the debt securities of that series are discount securities, that portion of the principal
amount as may be specified in the terms of that series) of and premium and accrued and unpaid
interest, if any, on all debt securities of that series. Before a judgment or decree for payment of
the money due has been obtained with respect to debt securities of any series, the holders of a
majority in principal amount of the outstanding debt securities of that series (or, at a meeting of
holders of such series at which a quorum is present, the holders of a majority in principal amount
of the debt securities of such series represented at such meeting) may rescind and annul the
acceleration if all events of default, other than the non-payment of accelerated principal,
premium, if any, and interest, if any, with respect to debt securities of that series, have been
cured or waived as provided in the applicable indenture (including payments or deposits in respect
of principal, premium or interest that had become due other than as a result of such acceleration).
We refer you to the prospectus supplement relating to any series of debt securities that are
discount securities for the particular provisions relating to acceleration of a portion of the
principal amount of such discount securities upon the occurrence of an event of default.
Subject to the terms of the indenture, if an event of default under the indenture shall occur and
be continuing, the debenture trustee will be under no obligation to exercise any of its rights or
powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the debenture trustee reasonable
indemnity. The holders of a majority in principal amount of the outstanding debt securities of any
series will have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the debenture trustee, or exercising any trust or power conferred on the
debenture trustee, with respect to the debt securities of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable
indenture; and
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subject to its duties under the Trust Indenture Act, the debenture trustee need not
take any action that might involve it in personal liability or might be unduly prejudicial
to the holders not involved in the proceeding.
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A holder of the debt securities of any series will only have the right to institute a proceeding
under the indenture or to appoint a receiver or trustee, or to seek other remedies if:
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the holder previously has given written notice to the debenture trustee of a continuing
event of default with respect to that series;
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the holders of at least a majority in aggregate principal amount of the outstanding
debt securities of that series have made written request, and such holders have offered
reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and
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the debenture trustee does not institute the proceeding, and does not receive from the
holders of a majority in aggregate principal amount of the outstanding debt securities of
that series (or at a meeting of holders of such series at which a quorum is present, the
holders of a majority in principal amount of the debt securities of such series
represented at such meeting) other conflicting directions within 60 days after the notice,
request and offer.
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These limitations do not apply to a suit instituted by a holder of debt securities if we default in
the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the applicable debenture trustee regarding our compliance
with specified covenants in the applicable indenture.
Modification of Indenture; Waiver
The debenture trustee and we may change the applicable indenture without the consent of any holders
with respect to specific matters, including:
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to fix any ambiguity, defect or inconsistency in the indenture; and
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to change anything that does not materially adversely affect the interests of any
holder of debt securities of any series issued pursuant to such indenture.
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In addition, under the indenture, the rights of holders of a series of debt securities may be
changed by us and the debenture trustee with the written consent of the holders of at least a
majority in aggregate principal amount of the outstanding debt securities of each series (or, at a
meeting of holders of such series at which a quorum is present, the holders of a majority in
principal amount of the debt securities of such series represented at such meeting) that is
affected. However, the debenture trustee and we may make the following changes only with the
consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of the series of debt securities;
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reducing the principal amount, reducing the rate of or extending the time of payment of
interest, or any premium payable upon the redemption of any debt securities;
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reducing the principal amount of discount securities payable upon acceleration of
maturity;
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making the principal of or premium or interest on any debt security payable in currency
other than that stated in the debt security;
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impairing the right to institute suit for the enforcement of any payment on or after
the fixed maturity date of any series of debt securities;
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materially adversely affect the economic terms of any right to convert or exchange any
debt securities; and
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reducing the percentage of debt securities, the holders of which are required to
consent to any amendment or waiver; or modifying, without the written consent of the
trustee, the rights, duties or immunities of the trustee.
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Except for certain specified provisions, the holders of at least a majority in principal amount of
the outstanding debt securities of any series (or, at a meeting of holders of such series at which
a quorum is present, the holders of a majority in principal amount of the debt securities of such
series represented at such meeting) may on behalf of the holders of all debt securities of that
series waive our compliance with provisions of the indenture. The holders of a majority in
principal amount of the outstanding debt securities of any series may on behalf of the holders of
all the debt securities of such series waive any past default under the indenture with respect to
that series and its consequences, except a default in the payment of the principal of, premium or
any interest on any debt security of that series or in respect of a covenant or provision, which
cannot be modified or amended without the consent of the holder of each outstanding debt security
of the series affected;
provided, however,
that the holders of a majority in principal amount of
the outstanding debt securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from the acceleration.
Discharge
Each indenture provides that we can elect to be discharged from our obligations with respect to one
or more series of debt securities, except for obligations to:
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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In order to exercise our rights to be discharged with respect to a series, we must deposit with the
trustee money or government obligations sufficient to pay all the principal of, the premium, if
any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange, and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and,
unless we otherwise specify in the applicable prospectus supplement, in denominations of $1,000 and
any integral multiple thereof. The indenture provides that we may issue debt securities of a series
in temporary or permanent global form and as book-entry securities that will be deposited with, or
on behalf of, The Depository Trust Company or another depositary named by us and identified in a
prospectus supplement with respect to that series.
At the option of the holder, subject to the terms of the indenture and the limitations applicable
to global securities described in the applicable prospectus supplement, the holder of the debt
securities of any series can exchange the debt securities for other debt securities of the same
series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the limitations applicable to global securities set forth
in the applicable prospectus supplement, holders of the debt securities may present the debt
securities for exchange or for registration of transfer, duly endorsed or with the form of transfer
endorsed thereon duly executed if so required by us or the security registrar, at the office of the
security registrar or at the office of any transfer agent designated by us for this purpose. Unless
otherwise provided in the debt securities that the holder presents for transfer or exchange or in
the indenture, we will make no service charge for any registration of transfer or exchange, but we
may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent
in addition to the security registrar, that we initially designate for any debt securities. We may
at any time designate additional transfer agents or rescind the designation of any transfer agent
or approve a change in the office through which any transfer agent acts, except that we will be
required to maintain a transfer agent in each place of payment for the debt securities of each
series.
If we elect to redeem the debt securities of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a
period beginning at the opening of business 15 days before the day of mailing of a notice
of redemption of any debt securities that may be selected for redemption and ending at the
close of business on the day of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in
whole or in part, except the unredeemed portion of any debt securities we are redeeming in
part.
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Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence and continuance of an event of default
under the indenture, undertakes to perform only those duties as are specifically set forth in the
indenture. Upon an event of default under the indenture, the debenture trustee must use the same
degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Subject to this provision, the debenture trustee is under no obligation to exercise any of the
powers given it by the indenture at the request of any holder of debt securities unless it is
offered reasonable security and indemnity against the costs, expenses and liabilities that it might
incur.
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Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the
interest on any debt securities on any interest payment date to the person in whose name the debt
securities, or one or more predecessor securities, are registered at the close of business on the
regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series
at the office of the paying agents designated by us, except that unless we otherwise indicate in
the applicable prospectus supplement, will we make interest payments by check which we will mail to
the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the
corporate trust office of the debenture trustee our sole paying agent for payments with respect to
debt securities of each series. We will name in the applicable prospectus supplement any other
paying agents that we initially designate for the debt securities of a particular series. We will
maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the debenture trustee for the payment of the principal of or
any premium or interest on any debt securities which remains unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be repaid to us, and the
holder of the security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt securities will be governed and construed in accordance with the laws of
the State of New York.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in
one or more series. We may issue warrants independently or together with common stock, preferred
stock and/or debt securities, and the warrants may be attached to or separate from these
securities. While the terms summarized below will apply generally to any warrants that we may
offer, we will describe the particular terms of any series of warrants in more detail in the
applicable prospectus supplement. The terms of any warrants offered under a prospectus supplement
may differ from the terms described below.
We will file as exhibits to the registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the SEC, the form of warrant agreement,
including a form of warrant certificate, that describes the terms of the particular series of
warrants we are offering before the issuance of the related series of warrants. The following
summaries of material provisions of the warrants and the warrant agreements are subject to, and
qualified in their entirety by reference to, all the provisions of the warrant agreement and
warrant certificate applicable to the particular series of warrants that we may offer under this
prospectus. We urge you to read the applicable prospectus supplements related to the particular
series of warrants that we may offer under this prospectus, as well as the complete warrant
agreements and warrant certificates that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the terms of the series of warrants being
offered, including:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are
issued and the number of warrants issued with each such security or each principal amount
of such security;
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if applicable, the date on and after which the warrants and the related securities will
be separately transferable;
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in the case of warrants to purchase debt securities, the principal amount of debt
securities purchasable upon exercise of one warrant and the price at, and currency in
which, this principal amount of debt securities may be purchased upon such exercise;
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in the case of warrants to purchase common stock or preferred stock, the number of
shares of common stock or preferred stock, as the case may be, purchasable upon the
exercise of one warrant and the price at which these shares may be purchased upon such
exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on
the warrant agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of
securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreements and warrants may be modified;
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a discussion of any material or special United States federal income tax consequences of
holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the
warrants.
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Before exercising their warrants, holders of warrants will not have any of the rights of holders of
the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the right to receive payments of
principal of, or premium, if any, or interest on, the debt securities purchasable upon
exercise or to enforce covenants in the applicable indenture; or
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in the case of warrants to purchase common stock or preferred stock, the right to
receive dividends, if any, or payments upon our liquidation, dissolution or winding up or
to exercise voting rights, if any.
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Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the applicable
prospectus supplement at the exercise price that we describe in the applicable prospectus
supplement. Holders of the warrants may exercise the warrants at any time up to the specified time
on the expiration date that we set forth in the applicable prospectus supplement. After the close
of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information, and paying the
required amount to the warrant agent in immediately available funds, as provided in the applicable
prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the
applicable prospectus supplement the information that the holder of the warrant will be required to
deliver to the warrant agent.
Upon receipt of the required payment and the warrant certificate properly completed and duly
executed at the corporate trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the securities purchasable upon such
exercise. If fewer than all of the warrants represented by the warrant certificate are exercised,
then we will issue a new warrant certificate for the remaining amount of warrants. If we so
indicate in the applicable prospectus supplement, holders of the warrants may surrender securities
as all or part of the exercise price for warrants.
Governing Law
Unless we provide otherwise in the applicable prospectus supplement, the warrants and warrant
agreements will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
The warrant agent will act solely as our agent under the applicable warrant agreement and will not
assume any obligation or relationship of agency or trust with any holder of any warrant. A single
bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent
will have no duty or responsibility in case of any default by us under the applicable warrant
agreement or warrant, including any duty or responsibility to initiate any proceedings at law or
otherwise, or to make any demand upon us. Any holder of a warrant may, without the
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consent of the related warrant agent or the holder of any other warrant, enforce by appropriate
legal action its right to exercise, and receive the securities purchasable upon exercise of, its
warrants.
Outstanding Warrants
As of March 25, 2010, we had warrants outstanding to purchase 14,047,015 shares of our Common
Stock.
DESCRIPTION OF RIGHTS
We may issue rights to our stockholders to purchase shares of our common stock, preferred stock or
the other securities described in this prospectus. We may offer rights separately or together with
one or more additional rights, debt securities, preferred stock, common stock, warrants, or any
combination of those securities, as described in the applicable prospectus supplement. Each series
of rights will be issued under a separate rights agreement to be entered into between us and a bank
or trust company, as rights agent. The rights agent will act solely as our agent in connection with
the certificates relating to the rights of the series of certificates and will not assume any
obligation or relationship of agency or trust for or with any holders of rights certificates or
beneficial owners of rights. The following description sets forth certain general terms and
provisions of the rights that we may offer. The terms of any rights offered under a prospectus
supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the SEC, the form of rights agreement,
including a form of rights certificate, that describes the terms of the particular rights we are
offering before the issuance of the related rights. The following summaries of material provisions
of the rights and the rights agreements are subject to, and qualified in their entirety by
reference to, all the provisions of the rights agreement and rights certificate applicable to the
particular rights that we may offer under this prospectus. We urge you to read the applicable
prospectus supplements related to the rights that we may offer under this prospectus, as well as
the complete rights agreements and rights certificates that contain the terms of the rights.
We will describe in the applicable prospectus supplement the terms of the rights being offered,
including:
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the date of determining the stockholders entitled to the rights distribution;
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the aggregate number of shares of common stock, preferred stock or other securities
purchasable upon exercise of the rights;
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the exercise price;
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the aggregate number of rights issued;
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the date, if any, on and after which the rights will be separately transferable;
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the date on which the right to exercise the rights will commence, and the date on which
the right to exercise the rights will expire;
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the method by which holders of rights will be entitled to exercise;
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the conditions to the completion of the offering, if any;
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the withdrawal, termination and cancellation rights, if any;
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whether the rights are transferrable;
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whether there are any backstop or standby purchaser or purchasers and the terms of their
commitment, if any;
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whether stockholders are entitled to oversubscription rights, if any;
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any applicable federal income tax considerations; and
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any other terms of the rights, including terms, procedures and limitations relating to
the distribution, exchange and exercise of the rights, as applicable.
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Exercise of Rights
Each right will entitle the holder of rights to purchase for cash the principal amount of shares of
common stock, preferred stock or other securities at the exercise price provided in the applicable
prospectus supplement. Rights may be exercised at any time up to the close of business on the
expiration date for the rights provided in the applicable prospectus supplement.
Holders may exercise rights as described in the applicable prospectus supplement. Upon receipt of
payment and the rights certificate properly completed and duly executed at the corporate trust
office of the rights agent or any other
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office indicated in the prospectus supplement, we will, as soon as practicable, forward the shares
of common stock, preferred stock or other securities, as applicable, purchasable upon exercise of
the rights. If less than all of the rights issued in any rights offering are exercised, we may
offer any unsubscribed securities directly to persons other than stockholders, to or through
agents, underwriters or dealers or through a combination of such methods, including pursuant to
standby arrangements, as described in the applicable prospectus supplement.
Governing Law
Unless we provide otherwise in the applicable prospectus supplement, the rights and rights
agreements will be governed by and construed in accordance with the laws of the State of New York.
DESCRIPTION OF UNITS
We may issue, in one more series, units consisting of common stock, preferred stock, debt
securities and/or warrants for the purchase of common stock, preferred stock and/or debt securities
in any combination. While the terms we have summarized below will apply generally to any units that
we may offer under this prospectus, we will describe the particular terms of any series of units in
more detail in the applicable prospectus supplement. The terms of any units offered under a
prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the SEC, the form of unit agreement that
describes the terms of the series of units we are offering, and any supplemental agreements, before
the issuance of the related series of units. The following summaries of material terms and
provisions of the units are subject to, and qualified in their entirety by reference to, all the
provisions of the unit agreement and any supplemental agreements applicable to a particular series
of units. We urge you to read the applicable prospectus supplements related to the particular
series of units that we may offer under this prospectus, as well as any related free writing
prospectuses and the complete unit agreement and any supplemental agreements that contain the terms
of the units.
General
Each unit will be issued so that the holder of the unit is also the holder of each security
included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder
of each included security. The unit agreement under which a unit is issued may provide that the
securities included in the unit may not be held or transferred separately, at any time or at any
time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units being
offered, including:
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the designation and terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may be held or transferred
separately;
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|
any provisions of the governing unit agreement that differ from those described below;
and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units
or of the securities comprising the units.
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The provisions described in this section, as well as those described under DESCRIPTION OF CAPITAL
STOCK, DESCRIPTION OF DEBT SECURITIES and DESCRIPTION OF WARRANTS will apply to each unit and
to any common stock, preferred stock, debt security or warrant included in each unit, respectively.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not
assume any obligation or relationship of agency or trust with any holder of any unit. A single bank
or trust company may act as unit agent for more than one series of units. A unit agent will have no
duty or responsibility in case of any default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at law or otherwise, or to make
any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the
holder of any other unit, enforce by appropriate legal action its rights as holder under any
security included in the unit.
16
PLAN OF DISTRIBUTION
We may sell the securities to one or more underwriters for public offering and sale by them and may
also sell the securities to investors directly or through agents, or through a combination of such
methods. Any such underwriter or agent involved in the offer and sale of securities will be named
in the applicable prospectus supplement. We have reserved the right to sell securities directly to
investors on our own behalf in those jurisdictions where and in such manner as we are authorized to
do so.
The distribution of the securities may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at market prices prevailing at
the time of sale, at prices related to prevailing market prices, or at negotiated prices. Sales of
Common Stock may be effected from time to time in one or more transactions on the NASDAQ or in
negotiated transactions or a combination of those methods. We may also, from time to time,
authorize dealers, acting as our agents, to offer and sell securities upon the terms and conditions
as are set forth in the applicable prospectus supplement. In connection with the sale of
securities, underwriters or agents may receive compensation from us in the form of fees,
underwriting discounts or commissions and may also receive commissions from purchasers of the
securities for whom they may act as agent. Underwriters may sell securities to or through dealers,
and those dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may act as agent. Unless
otherwise indicated in a prospectus supplement, an agent will be acting on a reasonable efforts
basis and a dealer will purchase securities as a principal, and may then resell such securities at
varying prices to be determined by the dealer.
Any fees or underwriting compensation paid by us to underwriters or agents in connection with
the offering of securities, and any discounts, concessions or commissions allowed by underwriters
to participating dealers, will be set forth in the applicable prospectus supplement. Dealers and
agents participating in the distribution of securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on resale of the
securities may be deemed to be underwriting discounts and commissions. Underwriters, dealers and
agents may be entitled, under agreements entered into with us, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the Securities Act, and
to reimbursement by us for expenses. The terms of any indemnification provisions will be set forth
in a prospectus supplement.
To facilitate an offering of a series of securities, persons participating in the offering may
engage in transactions that stabilize, maintain, or otherwise affect the market price of the
securities. This may include over-allotments or short sales of the securities, which involves the
sale by persons participating in the offering of more securities than have been sold to them by us.
In those circumstances, such persons would cover such over-allotments or short positions by
purchasing in the open market or by exercising the over-allotment option granted to those persons.
In addition, those persons may stabilize or maintain the price of the securities by bidding for or
purchasing securities in the open market or by imposing penalty bids, whereby selling concessions
allowed to underwriters or dealers participating in any such offering may be reclaimed if
securities sold by them are repurchased in connection with stabilization transactions. The effect
of these transactions may be to stabilize or maintain the market price of the securities at a level
above that which might otherwise prevail in the open market. Such transactions, if commenced, may
be discontinued at any time. We make no representation or prediction as to the direction or
magnitude of any effect that the transactions described above, if implemented, may have on the
price of our securities. The underwriters, dealers and agents may engage in transactions with us,
or perform services for us, in the ordinary course of business.
Each series of securities will be a new issue of securities and may have no established trading
market (other than our common stock). Any common stock sold pursuant to a prospectus supplement
will be eligible for trading on the NASDAQ Capital Market, subject, if required, to official notice
of issuance, or such other trading market as specified in a prospectus supplement. Any securities
sold pursuant to a prospectus supplement, other than our common stock, may or may not be listed on
a national securities exchange or approved for trading on any other trading market.
17
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the
Securities and Exchange Commission, or SEC. You may read and copy any document we file with the SEC
at the public reference room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549.
Copies may also be obtained from the Public Reference Section of the SEC at 100 F Street, N.E.,
Washington, D.C. 20549 at prescribed rates. You may obtain information on the operation of the
public reference room by calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains an
Internet site (http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding registrants who file electronically with the SEC.
This prospectus is part of a registration statement that we filed with the SEC. The registration
statement contains more information than this prospectus regarding us and our securities, including
certain exhibits and schedules. You can obtain a copy of the registration statement from the SEC at
the address listed above or from the SECs Internet site (http://www.sec.gov).
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference information that we file with it, which means that
we can disclose important information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we will make with the SEC under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, or the Exchange Act, after the
date of the prospectus but before the termination of any offering made under this prospectus and
accompanying prospectus supplement:
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our annual report on Form 10-K for the fiscal year ended December 31, 2009, filed with
the SEC on March 26, 2010;
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our definitive proxy statement filed with the SEC on April 27, 2009;
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our current reports on Form 8-K, filed with the SEC on January 11, 2010, February 5,
2010, February 22, 2010 and March 23, 2010; and
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the description of our Common Stock and Preferred Stock contained in the registration
statement on Form 8-A, filed on May 21, 2004, and all amendments and reports updating such
description.
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Upon oral or written request and at no cost to the requester, we will provide to any person,
including a beneficial owner, to whom a prospectus is delivered, a copy of any or all the
information that has been incorporated by reference in this prospectus but not delivered with this
prospectus. All requests should be made to: Inhibitex, Inc., 9005 Westside Parkway, Alpharetta, GA
30009, Attn: Corporate Secretary. You should rely only on the information incorporated by reference
or provided in this prospectus. We have not authorized anyone to provide you with different
information. You should not assume that the information in this prospectus or the documents
incorporated by reference is accurate as of any date other than the date on the front of this
prospectus or those documents.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for us by Dechert LLP, New York,
New York.
EXPERTS
The consolidated financial statements of Inhibitex, Inc. incorporated by reference in the Inhibitex
Inc. Annual Report (Form 10-K) for the year ended December 31, 2009, have been audited by Ernst &
Young LLP, independent registered public accounting firm, as set forth in their report thereon,
incorporated by reference therein, and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
18
$100,000,000
Common Stock
Preferred Stock
Warrants
Rights to Purchase Shares of Common Stock
Debt Securities
Units
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution.
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The following table sets forth the estimated costs and expenses payable by us in connection with
the distribution of the securities being registered are set forth:
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SEC registration fee
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$
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7,130.00
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Accountants fees and expenses
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12,000.00
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Legal fees and expenses
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10,000.00
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Printing and engraving expenses
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Miscellaneous
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2,000.00
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Total expenses
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$
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31,130.00
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Item 15.
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Indemnification of Directors and Officers
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Section 145 of the General Corporation Law of the State of Delaware permits a corporation,
under specified circumstances, to indemnify its directors, officers, employees or agents against
expenses (including attorneys fees), judgments, fines and amounts paid in settlements actually and
reasonably incurred by them in connection with any threatened, pending or completed action, suit or
proceeding in which any such person is made a party by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation, if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. In a derivative action, i.e., one by or in the right of
the corporation, indemnification may be made only for expenses actually and reasonably incurred by
a director, officer, employee or agent in connection with the defense or settlement of an action or
suit, and only with respect to a matter as to which they shall have acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation, unless and only to the extent
that the Delaware Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication but in light of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem reasonable.
Our amended and restated certificate of incorporation provides that we shall indemnify our
directors, officers and employees (and those serving at our request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise or
as a trustee or administrator under an employee benefit plan) against all expenses (including
attorneys fees), liability and loss in any action, suit or proceeding arising out of his or her
status as a director, officer, employee or agent or activities in any of those capacities. We shall
pay expenses incurred by a director, officer, employee or agent in defending an action, suit or
proceeding, or appearing as a witness at a time when he or she has not been named as a defendant or
a respondent, in advance of the final disposition of the action, suit or proceeding upon receipt of
an undertaking by or on behalf of the director, officer, employee or agent to repay the amount if
it shall ultimately be determined that he or she is not entitled to be indemnified by us.
We have entered into separate, but identical, indemnity agreements with each of our directors and
executive officers and we expect to enter into similar indemnity agreements with persons who become
directors or executive officers in the future. These indemnity agreements provide that we will
indemnify our directors or executive officers, or the indemnitees, against any amounts that he or
she becomes legally obligated to pay in connection with any claim against him or her based upon any
act, omission, neglect or breach of duty that he or she may commit, omit or suffer while acting in
his or her capacity as a director and/or officer of Inhibitex; provided that such claim: (i) is not
based upon the indemnitees gaining any personal profit or advantage to which he or she is not
legally entitled; (ii) is not for an accounting of profits made from the purchase or sale by the
indemnitee of our securities within the meaning of Section 16(b) of the Exchange Act or similar
provisions of any state law; and (iii) is not based upon the indemnitees knowingly fraudulent,
deliberately dishonest or willful misconduct. The indemnity agreements also provide that all costs
and expenses incurred by the indemnitee in defending or investigating any such claim shall be
II-1
paid by us in advance of the final disposition thereof unless a majority of our directors who are not
parties to the action, independent legal counsel in a written opinion, our stockholders or a court
of competent jurisdiction in a final, unappealable adjudication determine that: (i) the indemnitee
did not act in good faith and in a manner that he or she reasonably believed to be in or not
opposed to our best interests or (ii) in the case of any criminal action or proceeding, the
indemnitee had reasonable cause to believe his or her conduct was unlawful. Each indemnitee has
undertaken to repay us for any costs or expenses so advanced if it shall ultimately be determined
by a court of competent jurisdiction in a final, non-appealable adjudication that he or she is not
entitled to indemnification under the indemnity agreements. We also carry liability insurance
covering each of our directors and officers.
Our amended and restated certificate of incorporation states that our directors will not have
personal liability for monetary damages for any breach of fiduciary duty as a director, except for
liability (i) for any breach of the directors duty of loyalty to us or our stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, which
makes directors liable for unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal benefit.
Exhibits
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Exhibit No.
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Description
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1.1
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(1)
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Form of Underwriting Agreement.
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4.1
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Eighth Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.3 of the Quarterly
Report on Form 10-Q filed with the Securities and Exchange
Commission on August 12, 2009).
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4.2
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Amended and Restated By-laws (incorporated by reference to
Exhibit 99.1 of the Current Report on Form 8-K filed with the
Securities and Exchange Commission on December 10, 2007).
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4.3
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Specimen certificate evidencing the Common Stock (incorporated
by reference to Exhibit 10.2 of Amendment No. 2 to the
Registration Statement on Form S-1 filed with the Securities and
Exchange Commission on May 6, 2004).
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4.4
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(1)
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Form of Certificate of Designations of Preferred Stock
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4.5
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Form of Indenture
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4.6
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(1)
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Form of Note
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4.7
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(1)
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Form of Common Stock Warrant Agreement and Warrant Certificate
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4.8
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(1)
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Form of Preferred Stock Warrant Agreement and Warrant Certificate
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4.9
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(1)
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Form of Debt Securities Warrant Agreement and Warrant Certificate
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4.10
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(1)
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Form of Rights Agreement and Rights Certificate
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4.11
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(1)
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Form of Unit Agreement
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5.1
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Opinion of Dechert LLP.
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8.1
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(1)
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Opinion regarding Tax Matters
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23.1
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Consent of Ernst & Young LLP.
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23.2
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Consent of Dechert LLP (included in Exhibit 5.1).
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24.1
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Power of Attorney (included on signature page).
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25.1
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(1)
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Statement of Eligibility of Trustee under the Indenture
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(1)
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To be filed by amendment or by a report filed under the Exchange Act and incorporated herein
by reference, if applicable.
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II-2
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period during which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or any 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 end or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee table in the effective
registration statement;
(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 periodic reports filed with or furnished to the SEC by the registrant pursuant to
section 13 or section 15(d) of the Exchange Act 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 a part of the Registration Statement.
(2) That, for purposes of determining liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities to be offered therein, and the offering of such securities at that time shall be deemed
to be an initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which shall remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability of the registrant under the Securities Act
to any purchaser in the initial distribution of the securities, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the registrants annual report pursuant to section 13(a)
or section 15(d) of the Exchange Act (and,
II-3
where applicable, each filing of an employee benefit
plans annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial
bona fide
offering thereof.
(c) The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration
of the subscription period, to set forth the results of the subscription offer, the transactions by
the underwriters during the subscription period, the amount of unsubscribed securities to be
purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public
offering by the underwriters is to be made on terms differing from those set forth on the cover
page of the prospectus, a post-effective amendment will be filed to set forth the terms of such
offering.
(d) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that, in the opinion of the SEC, such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(e) The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as part of this registration statement in reliance under
Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1)
or (4), or 497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial
bona fide
offering thereof.
(f) 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 SEC under section
305(b)2 of the Trust Indenture Act.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has
reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Alpharetta, State of Georgia, on March 30, 2010.
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I
nhibitex
, I
nc
.
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By:
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/s/ Russell H. Plumb
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Russell H. Plumb
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President and Chief Executive Officer
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KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose signature appears below
constitutes and appoints Russell H. Plumb, his or her true and lawful attorneys-in-fact, with full
power of substitution and resubstitution for him or her and on his or her behalf, and in his or her
name, place and stead, in any and all capacities to execute and sign any and all amendments or
post-effective amendments to this registration statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-fact or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof and the Company
hereby confers like authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been
signed by the following persons in the capacity 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/
russell h. plumb
Russell H. Plumb
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President and Chief Executive Officer and
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
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March 30, 2010
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/s
/ michael a. henos
Michael A. Henos
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Chairman of the Board of Directors
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March 30, 2010
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/s/
m. james barrett, ph.d
M. James Barrett, Ph.D.
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Director
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March 30, 2010
|
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/s/
chris mccguigan
Chris McGuigan
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Director
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March 30, 2010
|
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/s/
Gabriele M. Cerrone
Gabriele Cerrone
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Director
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|
March 30, 2010
|
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/s/
russell m. medford, m.d., ph.d.
Russell M. Medford, M.D., Ph.D.
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Director
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March 30, 2010
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/s
/ marc l. preminger
Marc L. Preminger
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Director
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March 30, 2010
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/s/
A. Keith
willard
A. Keith Willard
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Director
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March 30, 2010
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II-5
EXHIBIT INDEX
|
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Exhibit No.
|
|
Description
|
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1.1
|
(1)
|
|
Form of Underwriting Agreement.
|
|
|
|
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|
4.1
|
|
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Eighth Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.3 of the Quarterly
Report on Form 10-Q filed with the Securities and Exchange
Commission on August 12, 2009).
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|
|
|
|
|
|
4.2
|
|
|
Amended and Restated By-laws (incorporated by reference to
Exhibit 99.1 of the Current Report on Form 8-K filed with the
Securities and Exchange Commission on December 10, 2007).
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|
|
|
|
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4.3
|
|
|
Specimen certificate evidencing the Common Stock (incorporated
by reference to Exhibit 10.2 of Amendment No. 2 to the
Registration Statement on Form S-1 filed with the Securities and
Exchange Commission on May 6, 2004).
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|
|
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4.4
|
(1)
|
|
Form of Certificate of Designations of Preferred Stock
|
|
|
|
|
|
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4.5
|
|
|
Form of Indenture
|
|
|
|
|
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4.6
|
(1)
|
|
Form of Note
|
|
|
|
|
|
|
4.7
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(1)
|
|
Form of Common Stock Warrant Agreement and Warrant Certificate
|
|
|
|
|
|
|
4.8
|
(1)
|
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate
|
|
|
|
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4.9
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(1)
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate
|
|
|
|
|
|
|
4.10
|
(1)
|
|
Form of Rights Agreement and Rights Certificate
|
|
|
|
|
|
|
4.11
|
(1)
|
|
Form of Unit Agreement
|
|
|
|
|
|
|
5.1
|
|
|
Opinion of Dechert LLP.
|
|
|
|
|
|
|
8.1
|
(1)
|
|
Opinion regarding Tax Matters
|
|
|
|
|
|
|
23.1
|
|
|
Consent of Ernst & Young LLP.
|
|
|
|
|
|
|
23.2
|
|
|
Consent of Dechert LLP (included in Exhibit 5.1).
|
|
|
|
|
|
|
24.1
|
|
|
Power of Attorney (included on signature page).
|
|
|
|
|
|
|
25.1
|
(1)
|
|
Statement of Eligibility of Trustee under the Indenture
|
|
|
|
(1)
|
|
To be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as
amended, and incorporated herein by reference, if applicable.
|
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