Filed pursuant to Rule 424(b)(5)
Registration No. 333-181699
PROSPECTUS SUPPLEMENT
(To Prospectus dated
June 8, 2012)
6,452,000 Shares of Common Stock
We are offering 6,452,000 shares of our common stock, par value $.001 per share. Shares of our common stock trade on The NASDAQ Capital Market
under the symbol BGMD. On April 2, 2014, the last reported sale price of our common stock was $1.92 per share.
As of
April 2, 2014, the aggregate market value of our outstanding common stock held by non-affiliates was $38,225,458 based on 27,937,062 shares of outstanding common stock, of which 18,377,624 shares are held by non-affiliates, and a per share
price of $2.08 based on the closing sale price of our common stock as quoted on The NASDAQ Capital Market on March 25, 2014. Excluding the shares to be sold in this offering, and as of the date of this prospectus supplement, we have not sold
any securities pursuant to General Instruction I.B.6 of Form S-3 during the 12 calendar month period that ends on and includes the date of this prospectus supplement.
Investing in our common stock involves significant risks. See Risk Factors beginning on page S-6 of this prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities
or determined if this prospectus supplement or the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
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Per
Share
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Total
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Public offering price
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$
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1.55
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$
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10,000,600
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Underwriting discounts and commissions
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$
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0.093
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$
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600,036
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Proceeds to us (before expenses)
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$
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1.457
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$
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9,400,564
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We estimate the total expenses of this offering payable by us, excluding the underwriting discounts and
commissions, will be approximately $500,000. We have granted the underwriter an option for a period of 30 days from the date of this prospectus supplement to purchase up to 967,800 additional shares of our common stock at the public offering price
per share, less the underwriting discounts and commissions, solely to cover over-allotments, if any.
We anticipate that delivery of the
shares will be made through the facilities of the Depository Trust Company on or about April 8, 2014, subject to customary closing conditions.
Sole Book-Running Manager
LAZARD CAPITAL MARKETS
Prospectus supplement dated April 3, 2014.
TABLE OF CONTENTS
S-i
ABOUT THIS PROSPECTUS SUPPLEMENT
This document is in two parts. The first part is this prospectus supplement, which describes the specific terms of this offering and also adds
to and updates information contained in the accompanying prospectus and the documents incorporated by reference herein. The second part, the accompanying prospectus, provides more general information. Generally, when we refer to this prospectus, we
are referring to both parts of this document combined. To the extent there is a conflict between the information contained in this prospectus supplement and the information contained in the accompanying prospectus or any document incorporated by
reference therein filed prior to the date of this prospectus supplement, you should rely on the information in this prospectus supplement; provided that if any statement in one of these documents is inconsistent with a statement in another document
having a later date for example, a document incorporated by reference in the accompanying prospectus the statement in the document having the later date modifies or supersedes the earlier statement.
We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference herein were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a
representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately
representing the current state of our affairs.
You should rely only on the information contained in this prospectus supplement or the
accompanying prospectus, or incorporated by reference herein. We have not authorized, and the underwriter has not authorized, anyone to provide you with information that is different. The information contained in this prospectus supplement or the
accompanying prospectus, or incorporated by reference herein is accurate only as of the respective dates thereof, regardless of the time of delivery of this prospectus supplement and the accompanying prospectus or of any sale of our common stock. It
is important for you to read and consider all information contained in this prospectus supplement and the accompanying prospectus, including the documents incorporated by reference herein and therein, in making your investment decision. You should
also read and consider the information in the documents to which we have referred you in the sections entitled Where You Can Find More Information and Incorporation of Certain Information by Reference in this prospectus
supplement and in the sections entitled Where You Can Find More Information and Incorporation of Documents by Reference in the accompanying prospectus, respectively.
We are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where offers and sales are permitted. The
distribution of this prospectus supplement and the accompanying prospectus and the offering of the common stock in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus
supplement and the accompanying prospectus must inform themselves about, and observe any restrictions relating to, the offering of the common stock and the distribution of this prospectus supplement and the accompanying prospectus outside the United
States. This prospectus supplement and the accompanying prospectus do not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus supplement and the
accompanying prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
All references in this prospectus supplement and the accompanying prospectus to BG, BG Medicine, the
Company, we, us, our, or similar references refer to BG Medicine, Inc., except where the context otherwise requires or as otherwise indicated.
BG Medicine, the BG Medicine logo, BGM Galectin-3 and CardioSCORE are trademarks and service marks of BG Medicine, Inc. Other
service marks, trademarks and trade names appearing in this prospectus supplement or the accompanying prospectus are the property of their respective owners.
S-1
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights information contained elsewhere or incorporated by reference in this prospectus supplement and
the
accompanying prospectus. This summary does not contain all of the information that you should consider before deciding to invest in our common stock. You should read this entire prospectus supplement and the accompanying prospectus carefully,
including the Risk Factors section contained in this prospectus supplement, our consolidated financial statements and the related notes thereto and the other documents and information incorporated by reference in this prospectus
supplement and the accompanying prospectus and the information included in any free writing prospectus that we have authorized for use in connection with this offering.
Overview
We are developing and commercializing
diagnostic products that may be used to help guide the care and management of patients who suffer from heart failure and related disorders.
Our BGM
Galectin-3
®
Test is our first U.S. Food and Drug Administration, or FDA, cleared and CE Marked diagnostic product. It is currently available as a blood test in the United States and the
European Union, or EU. Our BGM Galectin-3 Test was included in the 2013 American College of Cardiology Foundation and the American Heart Association (ACCF/AHA) Guideline for the Management of Heart Failure.
We market and sell our BGM Galectin-3 Test kits to clinical laboratories, hospitals, and health care providers. We hope to accelerate the clinical and
commercial adoption of galectin-3 testing by generating, publishing and publicizing data derived from clinical research studies that have incorporated our BGM Galectin-3 Test and by expanding our BGM Galectin-3 Tests indications for use. We
have entered into licensing agreements with leading diagnostic instrument manufacturers to develop and commercialize galectin-3 assays that will be performed on automated platforms that have been incorporated into routine practice in laboratories
throughout the world.
We are developing a pipeline of diagnostic products by leveraging our intellectual property and the mining of data generated from a
patient cohort and specimen repository to which we have exclusive access for the development of diagnostic products. Among the products in development is our BGM CardioSCORE Test, a biomarker-based blood test designed as an aid in the
assessment of near-term risk for significant cardiovascular events, such as heart attack and stroke.
Our BGM Galectin-3 Test
Our BGM Galectin-3 Test is our first FDA cleared and CE Marked diagnostic product. It is an
in vitro
diagnostic device that quantitatively measures
galectin-3 in serum or plasma by enzyme linked immunosorbent assay (ELISA) on a microtiter plate platform. Heart failure patients with elevated galectin-3 levels as measured using our BGM Galectin-3 Test have been found to be at significantly
greater risk of adverse outcomes, including death or hospitalization. Measurement of this protein biomarker is intended to be used in conjunction with clinical evaluation.
Galectins are a family of proteins that play many important roles in inflammation, immunity and cancer. Galectin-3, a member of this family of proteins, is a
protein biomarker that has been shown to play an important role in heart failure in both animal and human studies. In animal experiments, administration of galectin-3 to the heart led to the development of cardiac fibrosis, or stiffening, in the
heart muscle, a process that is often referred to as cardiac remodeling. In these animal studies, adverse remodeling reduced the hearts ability to pump normally, causing the animals to develop heart failure. This link between galectin-3 and
cardiac remodeling is significant and suggests that galectin-3 may be a useful biomarker for adverse cardiac remodeling, an important determinant of the clinical outcome of patients suffering from heart failure. We have obtained an exclusive
worldwide license to certain galectin-3 rights that relate to the association of this protein biomarker with heart failure. We have also filed several of our own patent applications related to galectin-3.
Our BGM Galectin-3 Test is currently available as a blood test in the United States and the EU. The following table summarizes the current indications for use
and commercial status of our BGM Galectin-3 Test:
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Test / Disease Area
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Indications
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Regulatory and Commercial Status
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BGM Galectin-3 Test
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An aid in assessing the prognosis of chronic heart failure
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- Marketed in the U.S. and Europe
- FDA 510(k)
cleared November 2010
- CE Mark obtained October 2009
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An aid in assessing the prognosis of acute heart failure
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- Marketed in Europe
- CE Mark obtained October
2009
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Test / Disease Area
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Indications
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Regulatory and Commercial Status
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An aid to identify adults at elevated risk of developing heart failure
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- Marketed in Europe
- CE Mark obtained May
2012
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Automated Testing For Galectin-3
Overview
We believe that automation of our
galectin-3 test will broaden its acceptance by laboratory customers and, as a result, accelerate its clinical adoption. To that end, we have entered into licensing and commercialization agreements with four leading diagnostic instrument
manufacturers to develop and commercialize automated instrument versions of our galectin-3 test. We have entered into worldwide license, development and commercialization agreements with Abbott Laboratories, or Abbott, bioMérieux SA, or
bioMérieux, Siemens Healthcare Diagnostics Inc., or Siemens, and Alere Inc., or Alere. These diagnostic instrument manufacturers account for a significant percentage of the automated laboratory testing instruments that are used throughout the
world. The installed customer base of these automated partners reflects all major segments of the diagnostics market, including hospital laboratories, national reference laboratories, regional laboratories and others.
Progress to Date
In January 2013,
bioMérieux obtained a CE Mark for its VIDAS
®
Galectin-3 assay and initiated its commercial launch in the EU. The VIDAS
®
Galectin-3 assay was developed by bioMérieux for the quantitative measurement of galectin-3 levels in blood using the bioMérieux VIDAS
®
automated and multiparametric immunoassay
testing system.
In April 2013, Abbott obtained a CE mark for its ARCHITECT
®
Galectin-3 assay and
initiated its commercial launch in the EU. Abbott is offering the ARCHITECT
®
Galectin-3 assay on its ARCHITECT
®
immunoassay platform.
In the United States, Fujirebio Diagnostics, Incorporated, or Fujirebio, on behalf of Abbott, is the first of our automated partners to have filed for 510(k) regulatory clearance of an automated version of the galectin-3 test. Fujirebio is
developing the test for use on Abbotts ARCHITECT
®
immunochemistry instrument platform. Fujirebio initially submitted its 510(k) to the FDA in July 2012. Subsequently, Fujirebio received
a letter from the FDA requesting additional information on various matters, including the geographic composition of the patient cohort that provided the blood samples used to support the 510(k) submission. Due to the nature of the additional
information requested and the time required to address the FDAs questions, Fujirebio was unable to submit a complete response to the FDA by the FDA-designated deadline on February 25, 2013 and withdrew the submission. Fujirebio submitted
its new 510(k) to the FDA in February 2014.
Recognition of Galectin-3 Testing in U.S. Guideline for the Management of Heart Failure
In June 2013, galectin-3 testing was recognized for the first time in the newly issued 2013 American College of Cardiology Foundation and the American Heart
Association Guideline for the Management of Heart Failure. The ACCF/AHA Guideline is designed to assist clinicians in selecting the best management strategy for individual patients and provides expert analysis of data on prevention, diagnosis, risk
stratification, and treatment. Galectin-3 testing has been assigned a Level of Evidence of A, multiple populations evaluated, and a Class of Recommendation corresponding to May Be Considered for the purpose of additive risk
stratification of acute heart failure patients, and a Level of Evidence of B, limited populations evaluated, and a Class of Recommendation of May Be Considered for risk stratification of ambulatory heart failure patients. The
guideline further notes that testing for galectin-3 is predictive of risk of adverse outcomes in heart failure, including hospitalization, and is additive to BNP and NT-proBNP testing for heart failure patient risk stratification. The American
College of Cardiology Foundation and the American Heart Association have jointly produced guidelines in the area of cardiovascular disease since 1980. The ACCF/AHA Task Force on Practice Guidelines is charged with developing, updating and revising
practice guidelines for cardiovascular diseases and procedures. Writing committees are charged with regularly reviewing and evaluating all available evidence to develop balanced, patient-centric recommendations for clinical practice. The guidelines
for heart failure management were last revised in 2009.
Reimbursement for Galectin-3 Testing
Approximately 70% of heart failure patients in the United States are of Medicare age. Therefore, reimbursement by Medicare is of considerable interest to our
laboratory customers. In the United States, for the 2014 calendar year, the Centers for Medicare and Medicaid Services (CMS) published a 2014 Medicare national limitation amount for the galectin-3 blood test (analyte-specific CPT
®
Code 82777) at the amount of a crosswalked test (analyte-specific CPT
®
Code 84244) whose 2014 national limitation amount is $30.01. This
national limitation replaces the galectin-3 blood tests national limitation amount of $17.80 that was effective in 2013. The 2014 national limitation amount applies across the U.S. except in Ohio and West
S-3
Virginia where rates of $23.99 and $26.40, respectively, will apply. In Europe, the Companys sales efforts are currently directed to hospital situated emergency departments whose
reimbursement is covered under the hospital budgeting process.
Our Product Pipeline
New Clinical Claims and Indications for the BGM Galectin-3 Test
We believe that the clinical and commercial value of our BGM Galectin-3 Test may extend beyond its current indications for use. We expect to pursue new
clinical claims and indications for its use in assessing heart failure, as well as, in related disorders. Expansion of the product label to include new clinical claims and indications for use will require additional clinical studies and clearance,
or approval, by regulatory bodies, such as the FDA, and inclusion in our CE Mark for use in the EU.
CardioSCORE Test
Our CardioSCORE test is a multi-analyte biomarker-based blood test that is designed as an aid in the assessment of near-term risk for significant
atherothrombotic cardiovascular events, such as heart attack and ischemic stroke. The CardioSCORE test is a proprietary in vitro diagnostic multi-analyte assay in which the levels of multiple biomarkers are measured in blood and the results are
mathematically integrated to yield a single numerical score that is predictive of an individuals near-term atherothrombotic cardiovascular risk. Our development work indicates that the CardioSCORE test has the potential to offer significant
improvement over conventional risk factor-based diagnostics, such as the Framingham Risk Score, to identify near-term cardiovascular risk.
In December
2012, we obtained a CE Mark for the CardioSCORE test, which will enable us to market the test in Europe and other countries that recognize CE Mark. However, as a result of our decision to focus our efforts on increasing the adoption and sales of our
galectin-3 test, we have decided to redirect investments from a launch of the CardioSCORE test in Europe to support our galectin-3 efforts. We may move forward with a European launch in test markets, when and if appropriate partnership opportunities
arise.
In December 2011, we submitted a 510(k) to the FDA in order to obtain regulatory clearance to market the CardioSCORE test in the United States as
an aid in the assessment of near-term risk for significant cardiovascular events, such as heart attack and stroke. In response to this submission, FDA requested that we engage an independent committee of physicians to conduct a medical review and
adjudication of clinical endpoints reported in the submission. Due to the time involved in responding to this request, we withdrew the 510(k) on August 8, 2012. Our medical review also included the assessment of sample stability and the
evaluation of other technical issues raised by the FDA. We are currently analyzing the results of the medical review. When completed, the results obtained from our analysis of data collected from the medical review will guide our go-forward
regulatory, commercial and investment strategy for the CardioSCORE test in the United States.
BioImage Study Patient Cohort and Banked Specimens
We have exclusive rights to diagnostic inventions arising from our analysis of a proprietary observational and community-based cohort of over
6,800 individuals who have been followed since 2009. Baseline blood serum, plasma, DNA, and RNA samples collected from all participants have been stored and are available for our analysis. In addition, insurance claims data, including information
regarding diagnoses, procedures, and therapies related to over 1,200 non-fatal cardiovascular events that were experienced by participants in the cohort over the more than four years since follow-up was initiated is available to us for data mining.
We believe that this asset provides us with a unique and proprietary platform from which we may develop new diagnostic products.
Company information
We maintain our operations at 880 Winter Street, Suite 210, Waltham, Massachusetts 02451, and our phone number is (781) 890-1199.
Our Internet website address is www.bg-medicine.com. The information contained on our website and any other website is not incorporated by reference into this prospectus supplement or the accompanying prospectus, and does not constitute a part of
this prospectus supplement or the accompanying prospectus. We have included our website address as a factual reference and do not intend it to be an active link to our website.
S-4
THE OFFERING
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Common stock offered by us in this offering
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6,452,000 shares
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Over-allotment option
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967,800 shares
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Common stock to be outstanding after this offering
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34,389,062 shares (or 35,356,862 shares if the underwriter exercises in full its over-allotment option to purchase additional shares)
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Use of proceeds
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We intend to use any net proceeds from the sale of securities under this prospectus for our operations, including but not limited to, the commercialization of our cardiovascular diagnostic tests in the United States and Europe
and developing new clinical claims and indications to expand our product pipeline and for other general corporate purposes including capital expenditures, licensing of intellectual property, repayment of indebtedness and working capital. See
Use of proceeds.
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Risk factors
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You should read the Risk Factors section of this prospectus supplement beginning on page S-6 for a discussion of factors to consider before deciding to purchase shares of our common stock.
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NASDAQ Capital Market symbol
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BGMD
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The number of shares of common stock to be outstanding after this offering is based on 27,937,062 shares
outstanding as of February 28, 2014, and excludes as of such date:
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3,207,554 shares of our common stock issuable upon exercise of stock options outstanding under our stock plans, at a weighted average exercise price of $3.04 per share;
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864,555 shares of common stock issuable upon the exercise of outstanding warrants as of February 28, 2014, with a weighted-average exercise price of $1.04 per share;
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806,949 shares of our common stock available for future grant or issuance pursuant to our stock plan and employee stock purchase plan; and
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3,973,328 shares of our common stock available for issuance pursuant to our common stock purchase agreement with Aspire Capital.
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Unless we specifically state otherwise, all information in this prospectus supplement assumes that the underwriter does not exercise its
over-allotment option.
S-5
RISK FACTORS
Investing in our common stock involves significant risks. In addition to the risk factors described below and the other information
included or incorporated by reference in this prospectus supplement and the accompanying prospectus, you should carefully consider the risks described in Part I. Item 1A. Risk Factors in our Annual Report on Form 10-K for
the year ended December 31, 2013, which we filed with the Securities and Exchange Commission, or the SEC, on March 27, 2014, and which is incorporated by reference herein, before making an investment decision. In addition, please read
Special Note Regarding Forward-Looking Statements in this prospectus supplement, where we describe additional uncertainties associated with our business and the forward-looking statements included or incorporated by reference in this
prospectus supplement and the accompanying prospectus. Please note that additional risks not currently known to us or that we currently deem immaterial also may adversely affect our business, operations results of operations, financial condition and
prospects.
We caution you that the risks and uncertainties we have described, among others, could cause our actual results to
differ materially from those expressed in forward-looking statements made by us or on our behalf in filings with the SEC, press releases, communications with investors and oral statements. Any or all such forward-looking statements we make may turn
out to be wrong. They can be affected by inaccurate assumptions we might make or by known or unknown risks and uncertainties. Consequently, no results expressed by our forward-looking statements can be guaranteed. Actual future results may differ
materially from those anticipated in forward-looking statements. We undertake no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise. You are advised, however, to consult any
further disclosure we make in our reports filed with the SEC.
Risks Relating to Our Common Stock and This Offering
Management will have broad discretion as to the use of the proceeds from this offering, and we may not use the proceeds effectively.
Our management will have broad discretion in the application of the net proceeds from this offering and could utilize the proceeds in ways that do not improve
our results of operations or enhance the value of our common stock, and investors will be relying solely on the judgment of our board of directors and management regarding the application of these proceeds. Our failure to apply these funds
effectively could have a material adverse effect on our business, the commercialization of our products and cause the price of our common stock to decline. Investors will not have the opportunity, as part of their investment decision, to assess
whether the proceeds are being used appropriately.
You will experience immediate and substantial dilution in the net tangible book value per share
of the common stock that you purchase.
Since the price per share of our common stock being offered is substantially higher than the net tangible
book value per share of our common stock, you will suffer substantial dilution in the net tangible book value of the common stock that you purchase in this offering. Based on the sale of 6,452,000 shares of common stock in this offering and the
assumed public offering price of $1.55 per share, if you purchase shares of common stock in this offering, you will suffer immediate and substantial dilution of $1.33 per share in the net tangible book value of the common stock. See the section
entitled Dilution elsewhere in this prospectus supplement for a more detailed discussion of the dilution you will incur if you purchase common stock in this offering.
You will experience future dilution as a result of future equity offerings, including our committed equity offering with Aspire.
To raise additional capital, on January 24, 2013, we entered into a common stock purchase agreement with Aspire Capital Fund, LLC, or Aspire Capital,
pursuant to which we may sell shares of our common stock, at our election, to Aspire Capital, at a discount to the prevailing market price. In addition, we may in the future offer additional shares of our common stock or other securities convertible
into or exchangeable for our common stock. We cannot assure you that we will be able to sell shares or other securities in the Aspire Capital offering or any other offering at a price per share that is equal to or greater than the price per share
paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to investors in this offering. Additionally, as an investor in this offering, you may incur dilution as a result of
grants of equity awards under our equity incentive plans, or upon exercise of options or warrants currently outstanding with exercise prices at or below the public offering price of our common stock in this offering. See the section entitled
Dilution below for a more detailed discussion of the dilution you will incur if you purchase common stock in this offering.
S-6
Our share price may be volatile and there may not be an active trading market for our common stock.
There can be no assurance that the market price of our common stock will not decline below its present market price or that there will be an
active trading market for our common stock. The market prices of biotechnology companies have been and are likely to continue to be highly volatile. Fluctuations in our operating results and general market conditions for biotechnology stocks could
have a significant impact on the volatility of our common stock price. We have experienced significant volatility in the price of our common stock. From January 1, 2013 through March 31, 2014, the share price of our common stock has ranged
from a high of $3.15 to a low of $0.55. Factors contributing to such volatility include, but are not limited to:
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information relating to the safety or efficacy of products or product candidates;
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developments regarding regulatory filings;
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developments regarding the reimbursement rates for our products;
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announcements of new collaborations;
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failure to enter into collaborations;
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developments in existing collaborations, including regulatory developments of our automated partners;
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our funding requirements and the terms of our financing arrangements;
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technological innovations or new indications for our products and product candidates;
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introduction of new products or technologies by us or our competitors;
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sales and estimated or forecasted sales of products for which we receive royalties, if any;
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government regulations;
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developments in patent or other proprietary rights;
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the number of shares issued and outstanding;
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the number of shares trading on an average trading day;
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announcements regarding other participants in the biotechnology and pharmaceutical industries, including our competitors; and
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market speculation regarding any of the foregoing.
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A substantial number of shares of our common stock
may be sold in this offering, which could cause the price of our common stock to decline.
Sales of a substantial number of shares of our common
stock in this offering and in the public market following this offering could cause the market price of our common stock to decline. We cannot predict the effect, if any, that market sales of those shares of common stock or the availability of those
shares of common stock for sale will have on the market price of our common stock.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus, the documents we have filed with the SEC that are
incorporated by reference and any free writing prospectus that we have authorized for use in connection with this offering contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as
amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These statements relate to future events or to our future operating or financial performance and involve known and unknown
risks, uncertainties and other factors which may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements.
Such statements in connection with any discussion of future operations or financial performance are often identified by the use of words such
as may, anticipate, estimate, expect, project, intend, plan, believe, and other words and terms of similar meaning. Forward-looking statements include,
but are not limited to, statements about:
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our estimates of future performance, including the commercialization and sales of our galectin-3 test;
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our ability to provide sufficient evidence of clinical utility for our galectin-3 test and to differentiate it from competing cardiovascular diagnostics tests;
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our ability to obtain regulatory clearance from the FDA for our CardioSCORE test and certain additional indications for our galectin-3 test;
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our ability to successfully market, commercialize and achieve widespread market penetration for our cardiovascular diagnostic tests;
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our ability to conduct the clinical studies required for regulatory clearance or approval and to demonstrate the clinical benefits and cost-effectiveness to support commercial acceptance of our products;
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the timing, costs and other limitations involved in obtaining regulatory clearance or approval for any of our products;
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the potential benefits of our cardiovascular diagnostic tests over current medical practices or other diagnostics;
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S-7
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willingness of third-party payers to reimburse for the cost of our tests;
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the ability of our automated partners to develop and obtain regulatory clearance of galectin-3 tests that can be performed on their automated platforms and to commercialize any such tests;
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estimates of market sizes and anticipated uses of our cardiovascular diagnostic tests;
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our ability to enter into collaboration and distribution agreements with respect to our cardiovascular diagnostic tests, the performance of our partners under such agreements and the potential benefits of these
arrangements;
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our ability to obtain and maintain intellectual property protections for our products and operate our business without infringing upon the intellectual property rights of others;
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the expected timing, progress or success of our development and commercialization efforts;
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our ability to successfully obtain sufficient and appropriate blood samples for our validation tests in support of our regulatory filings for our cardiovascular tests;
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our ability to continue as a going concern;
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our ability to obtain additional financing on terms acceptable to us;
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our expectations regarding the use of our purchase agreement with Aspire to obtain additional capital through sales of our common stock to Aspire and the trading price of our common stock being above the $1.00 minimum
floor price that is required for us to use this facility;
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our ability to maintain compliance with the continued listing requirements of The NASDAQ Capital Market;
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the success of our efforts to remediate the material weakness we identified in fiscal 2012 and to satisfactorily improve our internal controls over financial reporting;
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the success of competing cardiovascular diagnostic tests that are or become available;
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regulatory developments in the United States and other countries in which we sell or plan to sell our tests;
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the performance of our third-party suppliers and the manufacturer of our galectin-3 tests;
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our ability to service the principal and interest amounts payable under our secured term loan facility; and
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our estimates regarding anticipated operating losses, future revenue, expenses, capital requirements and our needs for additional financing.
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Such statements are based on managements expectations and are subject to certain factors, risks and uncertainties that may cause actual
results, outcome of events, timing and performance to differ materially from those expressed or implied by such statements. For a summary of such factors, please refer to the section entitled Risk Factors beginning on page S-6 of this
prospectus supplement, as updated and supplemented by the discussion of risks and uncertainties under Risk Factors contained in any additional prospectus supplements and in our most recent annual report on Form 10-K for the year ended
December 31, 2013, which we filed with SEC on March 27, 2014, and which is incorporated by reference herein. The information contained in this document is believed to be current as of the date of this document. We do not intend to update
any of the forward-looking statements after the date of this document to conform these statements to actual results or to changes in our expectations, except as required by law.
You should read this prospectus supplement, the accompanying prospectus, the documents we have filed with the SEC that are incorporated by
reference and any free writing prospectus that we have authorized for use in connection with this offering completely and with the understanding that our actual future results may be materially different from what we expect. We qualify all of the
forward-looking statements in the foregoing documents by these cautionary statements. Unless required by law, we undertake no obligation to update or revise any forward-looking statements to reflect new information or future events or developments.
Thus, you should not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements.
USE OF PROCEEDS
We estimate that the net proceeds to us from the sale of 6,452,000 shares of our common stock offered hereby, at the public offering price of
$1.55 per share, will be approximately $8.9 million, or approximately $10.3 million if the underwriter exercises in full its over-allotment option to purchase additional shares of common stock, after deducting the underwriting discounts and
commissions and estimated offering expenses payable by us.
The net proceeds of this offering are expected to be used for:
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our operations, including, advancing commercialization of our cardiovascular diagnostic tests in the United States and Europe and developing new clinical claims and indications to expand our product pipeline; and
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other general corporate purposes, including, but not limited to, capital expenditures, licensing of intellectual property, repayment of indebtedness and working capital.
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S-8
We have not determined the amounts we plan to spend on any of the areas listed above or the
timing of these expenditures. The amounts and timing of these expenditures will depend on a number of factors, such as the timing and progress of our research and development efforts, technological advances and the competitive environment for our
product candidates. As a result, our management will have broad discretion to allocate the net proceeds from this offering. We have no current plans, commitments or agreements with respect to any acquisitions and may not make any acquisitions.
Pending application of the net proceeds as described above, we may initially invest the net proceeds in short-term, investment-grade, interest-bearing securities or apply them to the reduction of short-term indebtedness.
DILUTION
If you purchase our common stock in this offering, your interest will be diluted to the extent of the difference between the offering price
per share and the net tangible book value per share of our common stock after this offering. Our net tangible book value as December 31, 2013 was approximately $(1.3) million, or $(0.05) per share. Net tangible book value per share is
determined by dividing our total tangible assets, less total liabilities, by the number of shares of our common stock outstanding as of December 31, 2013. Dilution in net tangible book value per share represents the difference between the
amount per share paid by purchasers of shares of common stock in this offering and the net tangible book value per share of our common stock immediately after this offering.
After taking into account the sale by us of 6,452,000 shares of our common stock in this offering at the public offering price of $1.55 per
share, less the underwriting discounts and commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of December 31, 2013 would have been approximately $7.6 million, or $0.22 per share. This would
represent an immediate increase in net tangible book value of $0.27 per share to existing stockholders and immediate dilution of $1.33 per share to investors purchasing our common stock in this offering at the assumed public offering price. The
following table illustrates this dilution on a per share basis:
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Public offering price per share
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$
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1.55
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Net tangible book value per share as of December 31, 2013
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$
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(0.05
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)
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Increase per share attributable to investors purchasing our common stock in this offering
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$
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0.27
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As adjusted net tangible book value per share as of December 31, 2013, after giving effect to this offering
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$
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0.22
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Dilution in net tangible book value per share to investors purchasing our common stock in this offering
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$
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0.33
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S-9
If the underwriter exercises in full its option to purchase 967,800 additional shares of common
stock at the public offering price of $1.55 per share, the pro forma as adjusted net tangible book value after this offering would be $0.26 per share, representing an increase in net tangible book value of $0.30 per share to existing stockholders
and immediate dilution in net tangible book value of $1.29 per share to investors purchasing our common stock in this offering at the public offering price.
The amounts above are based on 27,936,222 shares outstanding as of December 31, 2013 and assume no exercise of outstanding options or
warrants since that date. The number of common stock expected to be outstanding after this offering excludes, as of December 31, 2013:
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2,597,269 shares of our common stock issuable upon exercise of stock options outstanding under our stock plans, at a weighted average exercise price of $3.48 per share;
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864,555 shares of common stock issuable upon the exercise of outstanding warrants as of December 31, 2013, with a weighted-average exercise price of $1.04 per share;
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923,084 shares of our common stock available for future grant or issuance pursuant to our stock plan and employee stock purchase plan; and
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3,973,328 shares of our common stock available for issuance pursuant to our common stock purchase agreement with Aspire Capital.
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To the extent options or warrants outstanding as of December 31, 2013 have been or may be exercised or other shares have been issued,
there may be further dilution to investors. In addition, we may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating plans. To the
extent that additional capital is raised through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
DIVIDEND POLICY
We have not declared or paid dividends on our common stock in the past and do not intend to declare or pay such dividends in the foreseeable
future. Our long-term debt agreement prohibits the payment of cash dividends.
UNDERWRITING
Under the terms and subject to the conditions in an underwriting agreement dated the date of this prospectus supplement, the underwriter named
below has agreed to purchase, and we have agreed to sell, the number of shares of common stock at the public offering price, less the underwriting discount, as set forth on the cover page of this prospectus supplement, as indicated below:
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Underwriter
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Number
of Shares
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Lazard Capital Markets LLC
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6,452,000
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Total:
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6,452,000
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The underwriter is offering the shares subject to their acceptance of the common stock from us and subject to
prior sale. The underwriting agreement provides that the obligations of the underwriter to pay for and accept delivery of the shares offered by this prospectus supplement are subject to the approval of certain legal matters by their counsel and to
other conditions. The underwriter is obligated to take and pay for all of the shares offered by this prospectus supplement if any are purchased.
The underwriter has an option to buy up to 967,800 additional shares from us to cover sales by the underwriter which exceed the number of
shares specified in the table above. The underwriter may exercise this option at any time and from time to time during the 30-day period from the date of this prospectus supplement. If any additional shares are purchased, the underwriter will offer
the additional shares on the same terms as those on which the shares are being offered.
S-10
The underwriter initially proposes to offer the shares directly to the public at the public
offering price listed on the cover page of this prospectus supplement. After the initial offering of the shares, the offering price and other selling terms may from time to time be varied by the underwriter.
The underwriting agreement provides that the obligations of the underwriter are subject to certain conditions precedent, including the absence
of any material adverse change in our business and the receipt of customary legal opinions, letters and certificates.
Discount and Expenses
The following table summarizes the public offering price, underwriting discount and proceeds before expenses to us assuming both no exercise
and full exercise of the underwriters option to purchase additional shares:
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Total
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Per
Share
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Without
Over-
Allotment
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With
Over-
Allotment
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Public offering price
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$
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1.55
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$
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10,000,600
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$
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11,500,690
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Underwriting discount
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$
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0.093
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$
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600,036
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$
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690,041
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Proceeds to us (before expenses)
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$
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1.457
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$
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9,400,564
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$
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10,810,649
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The expenses of the offering, not including the underwriting discount, payable by us are estimated to be
$500,000, which includes up to $200,000 that we have agreed to reimburse the underwriter for their legal fees and expenses incurred in connection with this offering. The relationship between Lazard Frères & Co. LLC and Lazard Capital
Markets LLC is governed by a business alliance agreement between their respective parent companies. Pursuant to such agreement, Lazard Frères & Co. LLC referred this transaction to Lazard Capital Markets LLC and will receive a
referral fee from Lazard Capital Markets LLC in connection therewith; however, such referral fee is not in addition to the fee paid by us to Lazard Capital Markets LLC described above.
No Sales of Similar Securities
We and
each of our executive officers and directors, subject to certain exceptions, have agreed with the underwriter not to dispose of or hedge any of our shares of common stock or securities convertible into or exercisable or exchangeable for common stock
for 90 days after the date of this prospectus without first obtaining the written consent of Lazard Capital Markets LLC. We have also agreed not to sell shares to Aspire Capital Fund, LLC under our committed equity facility with Aspire Capital for a
period of 90 days from the date of the final prospectus relating to this offering. However, we may issue securities during the 90 day lock-up period in connection with (i), the issuance of equity awards pursuant to the Companys benefit plans,
qualified equity incentive plans or other compensation plans as such plans are in existence on the date hereof and described in the Prospectus or as hereafter approved by the shareholders of the Company, (ii) the issuance of Common Stock
pursuant to the valid exercises or conversions of options, warrants or rights outstanding on the date hereof or granted after the date hereof under the plans described in clause (i) and (iii) the issuance of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock in connection with any arms-length, bona fide joint ventures, commercial relationships or other strategic transactions not involving any affiliates of the Company not to exceed
5% of the total outstanding shares immediately following the completion of the Offering. The 90-day lock-up period is subject to extension such that, in the event that either (i) during the last 17 days of the lock-up
period, we issue an earnings or financial results release or material news or a material event relating to us occurs, or (ii) prior to the expiration of the lock-up period, we announce that we will release earnings or financial
results during the 16-day period beginning on the last day of the lock-up period, then in either case the expiration of the lock-up period will be extended until the expiration of the 18-day period beginning on the issuance
of the earnings or financial results release or the occurrence of the material news or material event, as applicable, unless Lazard Capital Markets LLC waives, in writing, such an extension.
Indemnification
We and the underwriter
have agreed to indemnify each other, and we have also agreed to indemnify the underwriter against certain liabilities, including liabilities under the Securities Act of 1933, as amended, and liabilities arising from breaches of representations and
warranties contained in the underwriting agreement. We have also agreed to contribute to payments the underwriter may be required to make in respect of such liabilities.
Price Stabilization, Short Positions
In
order to facilitate the offering of the shares, the underwriter may engage in transactions that stabilize, maintain or otherwise affect the price of our common stock. Specifically, the underwriter may sell more shares than they are obligated to
purchase under the underwriting agreement, creating a short position. The underwriter must close out any short position by purchasing shares of common stock in the open market. A short position may be created if the underwriters are concerned that
there may be downward pressure on
S-11
the price of the common stock in the open market after pricing that could adversely affect investors who purchased in this offering. As an additional means of facilitating this offering, the
underwriter may bid for, and purchase, shares of our common stock in the open market to stabilize the price of the common stock. These activities may raise or maintain the market price of our common stock above independent market levels or prevent
or slow a decline in the market price of our common stock. The underwriter is not required to engage in these activities, and may end any of these activities at any time.
A prospectus in electronic format may be made available on websites maintained by the underwriter. The underwriter may agree to allocate a
number of shares to other underwriters for sale to its online brokerage account holders. Internet distributions will be allocated by the underwriter on the same basis as other allocations.
NOTICE TO INVESTORS
United Kingdom
This document is only
being distributed to and is only directed at (i) persons who are outside the United Kingdom or (ii) to investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005
(the Order) or (iii) high net worth entities, and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (e) of the Order (all such persons together being referred to as relevant
persons). The shares are only available to, and any invitation, offer or agreement to subscribe, purchase or otherwise acquire such shares will be engaged in only with, relevant persons. Any person who is not a relevant person should not act
or rely on this document or any of its contents.
The underwriter has represented and agreed that:
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(a)
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they have only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the
Financial Services and Markets Act 2000 or FSMA) received by them in connection with the issue or sale of the shares in circumstances in which Section 21(1) of the FSMA does not apply to us, and
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(b)
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they have complied with, and will comply with all applicable provisions of FSMA with respect to anything done by them in relation to the shares in, from or otherwise involving the United Kingdom.
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European Economic Area
To the extent
that the offer of the shares is made in any Member State of the European Economic Area that has implemented the Prospectus Directive before the date of publication of a prospectus in relation to the shares which has been approved by the competent
authority in the Member State in accordance with the Prospectus Directive (or, where appropriate, published in accordance with the Prospectus Directive and notified to the competent authority in the Member State in accordance with the Prospectus
Directive), the offer (including any offer pursuant to this document) is only addressed to qualified investors in that Member State within the meaning of the Prospectus Directive or has been or will be made otherwise in circumstances that do not
require us to publish a prospectus pursuant to the Prospectus Directive.
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a Relevant Member State), the underwriter has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant
Member State (the Relevant Implementation Date) they have not made and will not make an offer of shares to the public in that Relevant Member State prior to the publication of a prospectus in relation to the shares which has been
approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of shares to the public in that Relevant Member State at any time:
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(a)
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to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities,
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(b)
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to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than 43,000,000 and (3) an annual net turnover
of more than 50,000,000, as shown in its last annual or consolidated accounts, or
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(c)
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in any other circumstances which do not require the publication by us of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an offer of shares to the
public in relation to any shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the shares to be offered so as to enable an investor to decide to
purchase or subscribe the shares, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression Prospectus Directive means Directive
2003/71/EC, (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in each Relevant Member State. The expression 2010 PD
Amending Directive means Directive 2010/73/EU.
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S-12
The EEA selling restriction is in addition to any other selling restrictions set out below. In
relation to each Relevant Member State, each purchaser of shares (other than the underwriter) will be deemed to have represented, acknowledged and agreed that it will not make an offer of shares to the public in any Relevant Member State, except
that it may, with effect from and including the date on which the Prospectus Directive is implemented in the Relevant Member State, make an offer of shares to the public in that Relevant Member State at any time in any circumstances which do not
require the publication by us of a prospectus pursuant to Article 3 of the Prospectus Directive, provided that such purchaser agrees that it has not and will not make an offer of any shares in reliance or purported reliance on Article 3(2)(b) of the
Prospectus Directive. For the purposes of this provision, the expression an offer of shares to the public in relation to any shares in any Relevant Member State has the same meaning as in the preceding paragraph.
Switzerland
This document does not
constitute a prospectus within the meaning of Art. 652a of the Swiss Code of Obligations. The securities may not be sold directly or indirectly in or into Switzerland except in a manner which will not result in a public offering within the meaning
of the Swiss Code of Obligations. Neither this document nor any other offering materials relating to the securities may be distributed, published or otherwise made available in Switzerland except in a manner which will not constitute a public offer
of the securities in Switzerland.
Listing on The NASDAQ Capital Market and Transfer Agent and Registrar
Our shares of common stock are traded on The NASDAQ Capital Market under the symbol BGMD. The transfer agent and registrar for our
common stock is Computershare Trust Company.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed upon for us by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
Boston, Massachusetts. Proskauer Rose LLP, New York, New York, will act as counsel to the underwriter in connection with this offering.
EXPERTS
The consolidated financial statements incorporated in this prospectus supplement and in the registration statement by reference from the
Companys Annual Report on Form 10-K for the year ended December 31, 2013, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by
reference (which report expresses an unqualified opinion on the consolidated financial statements and includes an explanatory paragraph relating to the substantial doubt about the Companys ability to continue as a going concern). Such
financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, and file annual, quarterly and current
reports, proxy statements and other information with the SEC. You may read and copy these reports, proxy statements and other information at the SECs public reference facilities at 100 F Street, N.E., Room 1580, Washington, D.C. 20549.
You can request copies of these documents by writing to the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330
for more information about the operation of the public reference facilities. SEC filings are also available at the SECs web site at
http://www.sec.gov
. Our common stock is listed on The NASDAQ Capital Market, and you can read and
inspect our filings at the offices of the Financial Industry Regulatory Authority at 1735 K Street, Washington, D.C. 20006.
This
prospectus supplement is only part of a registration statement on Form S-3 that we have filed with the SEC under the Securities Act and therefore omits certain information contained in the registration statement. We have also filed exhibits and
schedules with the registration statement that are excluded from this prospectus supplement, and you should refer to the applicable exhibit or schedule for a complete description of any statement referring to any contract or other document. You may
inspect a copy of the registration statement, including the exhibits and schedules, without charge, at the public reference room or obtain a copy from the SEC upon payment of the fees prescribed by the SEC.
S-13
We also maintain a website at
www.bg-medicine.com
, through which you can access our SEC
filings. The information contained on our website and any other website is not incorporated by reference into this prospectus supplement or the accompanying prospectus, and does not constitute a part of this prospectus supplement or the accompanying
prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference information that we file with them. Incorporation by reference allows us to disclose
important information to you by referring you to those other 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. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by that
reference. Copies of all or any part of the registration statement, including the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC listed above in Where You Can
Fin Find More Information. The documents we are incorporating by reference are:
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our annual report on Form 10-K for the fiscal year ended December 31, 2013 filed on March 27, 2014;
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our current reports on Form 8-K filed on January 27, 2014, March 12, 2014, March 20, 2014 (only the portions of Items 8.01 and 9.01 deemed to be filed) and April 3, 2014;
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the portions of our definitive proxy statement on Schedule 14A that are deemed filed with the SEC under the Securities Exchange Act of 1934, as amended, filed on April 23, 2013;
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the description of our common stock contained in our Registration Statement on Form 8-A filed on December 3, 2010, including any amendment or report filed for the purpose of updating such description; and
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all documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, on or after the date of this prospectus and before the termination of offerings under this
prospectus are deemed to be incorporated by reference into, and to be a part of, this prospectus, except in each case for information contained in any such filing where we indicate that such information is being furnished and is not considered
filed under the Securities Exchange Act of 1934, as amended.
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The SEC file number for each of the documents
listed above is 001-33827.
Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by
reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or any other subsequently filed document that is deemed to be incorporated by
reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We will provide without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon the
request of any such person, a copy of any or all of the information incorporated herein by reference (exclusive of exhibits to such documents unless such exhibits are specifically incorporated by reference herein). Requests, whether written or oral,
for such copies should be directed to: Investor Relations, BG Medicine, Inc., 880 Winter Street, Suite 210, Waltham, Massachusetts 02451, (781) 890-1199.
You should rely only on information contained in, or incorporated by reference into, this prospectus and any prospectus supplement. We have
not authorized anyone to provide you with information different from that contained in this prospectus or incorporated by reference in this prospectus. We are not making offers to sell the securities in any jurisdiction in which such an offer or
solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
S-14
PROSPECTUS
BG MEDICINE, INC.
$75,000,000
COMMON
STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
RIGHTS
PURCHASE
CONTRACTS
UNITS
This prospectus
will allow us to issue, from time to time at prices and on terms to be determined at or prior to the time of the offering, up to $75,000,000 of any combination of the securities described in this prospectus, either individually or in units. We may
also offer common stock or preferred stock upon conversion of or exchange for the debt securities; common stock upon conversion of or exchange for the preferred stock; common stock, preferred stock or debt securities upon the exercise of warrants,
rights or performance of purchase contracts; or any combination of these securities upon the performance of purchase contracts.
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 the 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 read this prospectus and any prospectus supplement, as well as
any documents incorporated by reference into this prospectus or any prospectus supplement, carefully 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 listed on The Nasdaq Global Market under the symbol BGMD. On June 7, 2012, the last reported sale price of our
common stock was $5.47 per share. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on The Nasdaq Global Market or any securities market or other securities exchange of the securities
covered by the prospectus supplement. Prospective purchasers of our securities are urged to obtain current information as to the market prices of our securities, where applicable.
Investing in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider
carefully the risks that we have described on page 4 of this prospectus under the caption Risk Factors. We may include specific risk factors in supplements to this prospectus under the caption Risk Factors. This
prospectus may not be used to sell our securities unless accompanied by a prospectus supplement.
Neither the
Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is June 8, 2012.
TABLE OF CONTENTS
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, rights or purchase contracts to purchase any of such
securities, either individually or in units, in one or more offerings, with a total value of up to $75,000,000. 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.
This prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the
offering of the securities, you should refer to the registration statement, including its exhibits. The prospectus supplement may also add, update or change information contained or incorporated by reference in this prospectus. However, no
prospectus supplement will offer a security that is not registered and described in this prospectus at the time of its effectiveness. This prospectus, together with the applicable prospectus supplements and the documents incorporated by reference
into this prospectus, includes all material information relating to the offering of securities under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, the information and documents incorporated herein
by reference and the additional information under the heading Where You Can Find More Information before making an investment decision.
You should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We have
not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained
or incorporated by reference in this prospectus. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it
is lawful to do so. You should assume that the information in this prospectus or any prospectus supplement is accurate only as of the date on the front of the document and that any information we have incorporated herein by reference is accurate
only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or any sale of a security.
We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference in the accompanying prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be
deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as
accurately representing the current state of our affairs.
This prospectus may not be used to consummate sales of our securities, unless
it is accompanied by a prospectus supplement. To the extent there are inconsistencies between any prospectus supplement, this prospectus and any documents incorporated by reference, the document with the most recent date will control.
Unless the context otherwise requires, the Company, we, us, our and similar terms refer to BG
Medicine, Inc. and our subsidiaries.
PROSPECTUS SUMMARY
The following is a summary of what we believe to be the most important aspects of our business and the offering of our securities under
this prospectus. We urge you to read this entire prospectus, including the more detailed consolidated financial statements, notes to the consolidated financial statements and other information incorporated by reference from our other filings with
the SEC or included in any applicable prospectus supplement. Investing in our securities involves risks. Therefore, carefully consider the risk factors set forth in any prospectus supplements and in our most recent annual and quarterly filings with
the SEC, as well as other information in this prospectus and any prospectus supplements and the documents incorporated by reference herein or therein, before purchasing our securities. Each of the risk factors could adversely affect our business,
operating results and financial condition, as well as adversely affect the value of an investment in our securities.
About BG Medicine, Inc.
We are a life sciences company focused on the discovery, development and commercialization of novel cardiovascular diagnostics to
address significant unmet medical needs, improve patient outcomes and contain healthcare costs. Our first commercialized product, the BGM
Galectin-3
TM
test for use in patients with heart failure, received clearance from the United States Food and Drug Administration, or FDA, in late 2010 and is commercially available in the United States, as well as in Europe under a CE Mark. This manual
version of our test is being marketed in the United States through several regional and national laboratory testing facilities. In addition, we have partnered with four leading diagnostic instrument manufacturers which are developing automated
instrument versions of our
galectin-3
test, and we expect that, during 2012, the first of our partners will file for regulatory clearance in the United States and also begin marketing an automated version of
the test in Europe under a CE Mark. In May 2012, we also submitted a 510(k) to extend the approved labeling indication for the BGM
Galectin-3
test to include individuals in the general adult population who are
at risk for developing heart failure, based on elevated levels of galectin-3. If we obtain clearance in the United States for this additional indication, we expect that the potential market for our
galectin-3
test will increase significantly. In May 2012, we also obtained CE Mark in the European Union (EU) for this expanded indication for the BGM Galectin-3 test and we are working with our partners to begin commercialization in the EU. We are also
developing CardioSCORE, a blood test designed to identify individuals at high risk for near-term, significant cardiovascular events, such as heart attack and stroke. In December 2011, we submitted a 510(k) premarket notification to the FDA in order
to obtain regulatory clearance to market our CardioSCORE test in the United States. Our validation, or registration, study demonstrated that CardioSCORE has the potential to offer a significant improvement over conventional risk factor-based
approaches for heart attack and stroke risk. We believe that our diagnostic tests will provide clinicians with improved information to better detect and characterize disease states. We believe that this information may enable physicians to achieve
better patient outcomes and contain healthcare costs through, for example, earlier diagnosis, segmentation based on underlying disease processes, more accurate prognosis, more personalized treatment selection or monitoring of disease based on
disease activity. We focus on blood-based tests due to the ease and low cost of access to evaluable samples for testing and the opportunity for repeat sampling to monitor changes in a patients medical condition.
We have developed our initial product candidates to address significant unmet needs in cardiovascular disease. Our first commercialized
product, the BGM
Galectin-3
test for heart failure, is a novel assay for measuring
galectin-3
levels in blood plasma or serum.
Galectin-3,
a member of the galectin family of proteins, is a biomarker that has been shown to play an important role in heart failure. Heart failure is a condition caused by a combination of diseases or
factors that damage or overwork the heart muscle, resulting in its inability to pump blood efficiently to meet the requirements of other body organs. This condition often leads to serious medical complications and is a leading cause of death.
According to the American Heart Association, heart failure affects an estimated 5.8 million Americans, with an approximate 670,000 new cases occurring each year, and we believe the prevalence and incidence of heart failure are similar in
Europe. In the United States alone, heart failure was expected to cost the healthcare system over an estimated $39 billion in 2010. We have measured
galectin-3
in more than twelve studies involving over 8,000
patients with chronic or acute heart failure. In these studies,
galectin-3
was found to be a strong independent predictor of mortality or unplanned hospitalization, the primary endpoints of the studies. We
believe that the data from these studies indicate that heart failure patients with high levels of
galectin-3
have a more progressive form of the disease, which we refer to as
galectin-3-dependent
heart failure. We believe that our
galectin-3
test provides physicians with meaningful information that may lead to more
clinically-
and cost-effective management of heart failure patients. This test is indicated for use in conjunction with clinical evaluation as an aid in assessing the prognosis of patients diagnosed with chronic
heart failure.
Although our manual BGM
Galectin-3
test is an important element of our commercialization strategy, we believe that automated instrument versions of our test will be required for us to achieve broad customer acceptance and clinical
adoption. In furtherance of our strategy to become a leading provider of high-value diagnostic tests that can be sold through leading diagnostic instrument manufacturers for use as novel assays on their existing automated diagnostic laboratory
instruments, we have entered into worldwide development and commercialization agreements with Abbott Laboratories, or Abbott, Alere Inc., or Alere, bioMérieux SA, or bioMérieux, and Siemens Healthcare Diagnostics Inc., or Siemens, for
the inclusion of our
galectin-3
test on a variety of automated instruments, including
point-of-care
instruments. We believe that
through these four partners we have broad access to all major segments of the immunoassays market: hospitals, private laboratories, reference laboratories and physician office laboratories. We believe that one of these laboratory instrument
manufacturers will be in a position to submit a 510(k) premarket notification to the FDA in 2012 in order to obtain regulatory clearance to market automated instrument versions of our
galectin-3
test in the
United
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States. Subject to clearance from the FDA, we expect automated instrument versions of this test to be available for commercial use through two or more of these instrument manufacturers during
2013. We believe that it will take less time for laboratory instrument manufacturers to develop and obtain FDA regulatory clearance for an automated version of our
galectin-3
test than it took for us to
develop and receive FDA regulatory clearance for the manual version of the test, since only the method for performing the test will change. The automated version of the test will be designed in the same way and be indicated for the same use as the
manual test, and the manual test will serve as the predicate device for the first automated test under the FDAs 510(k) clearance requirements. As a result, we expect that the FDA will be able to rely on much of the data and information
reviewed, and knowledge gained, during the clearance process for the manual version of our test, thereby reducing the time necessary to receive clearance for the automated version of the test. Notwithstanding these factors, the FDA may not clear the
automated version of this test as and when we expect.
In May 2012, we submitted a 510(k) to extend the approved labeling indication for
the BGM Galectin-3 test to include individuals in the general adult population who are at risk for developing heart failure based on elevated levels of galectin-3. If we obtain clearance in the United States for this additional indication, we expect
that the potential market for our galectin-3 test will increase significantly. In May 2012, we also obtained CE Mark in the European Union (EU) for this expanded indication for the BGM Galectin-3 test and we are working with our partners to begin
commercialization in the EU.
Our lead product candidate in development is CardioSCORE, previously known as AMIPredict
, which is a multi-analyte biomarker-based blood test for atherothrombotic cardiovascular disease, commonly known as vulnerable plaque. This test is designed to identify patients with a high risk
of suffering a near-term, significant cardiovascular event, such as heart attack or stroke. In December 2011, we submitted a 510(k) premarket notification to the FDA in order to obtain regulatory clearance to market our CardioSCORE test in the
United States. In February 2012, we received a letter from the FDA regarding our 510(k) notification that requested additional information, including information regarding our clinical validation study and additional analytical study data. We are
undertaking activities to respond to the FDA. Our response to the FDA is due no later than
mid-August
2012. Based on anticipated future interactions with the FDA regarding the additional information requested,
we expect to be able to better assess whether our goal of obtaining FDA clearance by
year-end
is achievable. We submitted our 510(k) notification for CardioSCORE following completion of our pivotal validation
study, which demonstrated that CardioSCORE has the potential to offer a significant improvement over conventional risk factor-based diagnostics to measure heart attack and stroke risk, such as the Framingham Risk Score. The CardioSCORE test uses
currently approved laboratory instrumentation and reagents that are available commercially. CardioSCORE is a proprietary
in vitro
diagnostic multivariate index assay that measures the levels of seven protein biomarkers in blood, and
integrates the results to yield a single numerical score that is related to an individuals near-term cardiovascular risk. The validation study for CardioSCORE, termed the BioImage Study, comprised a community-based cohort of 6,600 individuals.
The results of the study demonstrated that CardioSCORE testing at baseline significantly predicted high risk of major cardiovascular events in both men and women, independent of other conventional risk factors for cardiovascular disease, such as
cholesterol, blood pressure, smoking status, obesity, diabetes and age. We expect that the full results of the BioImage Study will be presented at a major scientific conference in 2012.
Our discovery efforts are focused on leveraging our proprietary technology platform and our initiatives and collaborations to discover new
diagnostic tests for clinically and commercially important diseases. In contrast to the prevailing development approach in diagnostics in which companies identify commercial market opportunities for a product following a serendipitous discovery, our
platform allows us to initiate a structured process for discovering biomarkers for high-value market opportunities in healthcare that we identify in conjunction with our partners, such as third-party payers. As part of our product development
process for internally discovered and licensed biomarkers, we develop and optimize our own first generation assays, conduct clinical development studies utilizing these tests and then seek regulatory clearance or approval if the clinical studies are
successful.
As part of our strategy, we plan to continue to use the patient samples and data generated from our existing and any new
collaborations and initiatives to successfully advance the development and commercialization of our products. For example, in 2006 we initiated and are leading the HRP (high-risk plaque) initiative for atherothrombotic cardiovascular
disease, which consists of a series of
pre-competitive,
multi-party research and development projects with Abbott, AstraZeneca, Merck, Philips and Takeda. As part of the HRP initiative, we have conducted
several studies and related activities involving approximately 7,000 Humana members who provided biological specimens to which we have certain rights for our discovery and development projects that we conduct independent of this research initiative.
In addition to the HRP initiative, in 2009, we entered into a five-year Cooperative Research and Development Agreement with the National Heart, Lung, and Blood Institute, part of the National Institutes of Health, or NHLBI, and Boston University to
conduct certain biomarker discovery studies in the area of metabolic syndrome and atherosclerotic cardiovascular disease using samples and data from the Framingham Heart Study. We were selected for this collaboration through a peer-reviewed process
by NHLBI and have certain rights to multivariate markers discovered as part of the joint research.
Additional Information
We maintain our operations at 610 Lincoln Street North, Waltham, Massachusetts 02451, and our phone number is
(781) 890-1199.
Our Internet website address is www.bg-medicine.com. The information contained on our website is not incorporated by
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reference into, and does not form any part of, this prospectus or any accompanying prospectus supplement. We
have included our website address as a factual reference and do not intend it to be an active link to our website.
BG Medicine, the BG Medicine logo and BGM
Galectin-3
are
trademarks and service marks of BG Medicine, Inc. Other trademarks, service marks, trade names, logos and brand names identified in this prospectus are the property of their respective owners.
Our Annual Reports on Form
10-K,
Quarterly Reports on Form
10-Q,
Current Reports on Form
8-K
and all amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, or the Exchange Act, are available free of charge through the investor relations page of our internet website as soon as reasonably practicable after we electronically file such material with, or furnish it to, the Securities and Exchange
Commission.
Offerings Under This Prospectus
Under this prospectus, we may offer shares of our common stock and preferred stock, various series of debt
securities and/or warrants, rights or purchase contracts to purchase any of such securities, either individually or in units, with a total value of up to $75,000,000, from time to time at prices and on terms to be determined by market conditions at
the time of the offering. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will describe the
specific amounts, prices and other important terms of the securities, including, to the extent applicable:
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designation or classification;
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aggregate principal amount or aggregate offering price;
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maturity, if applicable;
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rates and times of payment of interest or dividends, if any;
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redemption, conversion or sinking fund terms, if any;
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voting or other rights, if any; and
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conversion or exercise prices, if any.
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The prospectus supplement also may add, update or change information
contained in this prospectus or in documents we have incorporated by reference into this prospectus. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not
registered and described in this prospectus at the time of its effectiveness.
We may sell the securities
directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the right to accept or reject all or part of any proposed purchase of securities. If we offer securities through agents or
underwriters, we will include in the applicable prospectus supplement:
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the names of those agents or underwriters;
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applicable fees, discounts and commissions to be paid to them;
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details regarding over-allotment options, if any; and
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the net proceeds to us.
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This
prospectus may not be used to consummate a sale of any securities unless it is accompanied by a prospectus supplement.
RISK FACTORS
Investing in our securities involves significant risk. The prospectus supplement applicable to each offering
of our securities will contain a discussion of the risks applicable to an investment in BG Medicine. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed under the heading
Risk Factors in the applicable prospectus supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this prospectus. You should
also consider the risks, uncertainties and assumptions discussed under the heading Risk Factors included in our most recent annual report on
Form 10-K,
as revised or supplemented by our
subsequent quarterly reports on
Form 10-Q
or our current reports on
Form 8-K
on file with the SEC, all of which are incorporated herein by reference, and which
may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to
us or that we currently deem immaterial may also affect our operations.
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RATIO OF EARNINGS TO FIXED CHARGES
Any time debt securities are offered pursuant to this prospectus, we will provide a table setting forth our ratio of earnings to fixed charges
on a historical basis in the applicable prospectus supplement, if required.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
The SEC encourages companies to disclose forward-looking information so that investors can better
understand a companys future prospects and make informed investment decisions. This prospectus and the documents we have filed with the SEC that are incorporated herein by reference contain such forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of 1995.
Such statements in connection with any discussion of future
operations or financial performance are identified by the use of words such as may, anticipate, estimate, expect, project, intend, plan, believe, and
other words and terms of similar meaning. Forward-looking statements include, but are not limited to, statements about: our estimates of future performance, including the expected commercialization of the automated versions of our
galectin-3
test, other indications for our
galectin-3
test, our CardioSCORE test and timing of the launch of our other product candidates; our ability to market, commercialize
and achieve market acceptance for our cardiovascular diagnostic tests and any of our other product candidates that we are developing or may develop in the future; our ability to conduct the clinical studies required for regulatory clearance or
approval and to demonstrate the clinical benefits and cost-effectiveness to support commercial acceptance of our product candidates; the timing, costs and other limitations involved in obtaining regulatory clearance or approval for any of our
product candidates; the potential benefits of our cardiovascular diagnostic tests over current medical practices or other diagnostics; the willingness of third-party payers to reimburse for the cost of our tests; estimates of market sizes and
anticipated uses of our cardiovascular diagnostic tests and our other product candidates; our ability to enter into collaboration agreements with respect to our cardiovascular diagnostic tests and our other product candidates and the performance of
our collaborative partners under such agreements; our ability to protect our intellectual property and operate our business without infringing upon the intellectual property rights of others; the expected timing, progress or success of our research
and development and commercialization efforts; our ability to successfully obtain sufficient supplies of samples for our biomarker discovery and development efforts; our ability to service the principal and interest amounts payable under our secured
loan facility; and our estimates regarding anticipated operating losses, future revenue, expenses, capital requirements and our needs for additional financing. Such statements are based on managements expectations and are subject to certain
factors, risks and uncertainties that may cause actual results, outcome of events, timing and performance to differ materially from those expressed or implied by such statements. For a summary of such factors, please refer to the section entitled
Risk Factors in this prospectus, as updated and supplemented by the discussion of risks and uncertainties under Risk Factors contained in any supplements to this prospectus and in our most recent annual report on
Form 10-K,
as revised or supplemented by our subsequent quarterly reports on
Form 10-Q
or our current reports on
Form 8-K,
as well as any amendments thereto, as filed with the SEC and which are incorporated herein by reference. The information contained in this document is believed to be current as of the date of
this document. We do not intend to update any of the forward-looking statements after the date of this document to conform these statements to actual results or to changes in our expectations, except as required by law.
In light of these assumptions, risks and uncertainties, the results and events discussed in the forward-looking statements contained in this
prospectus or in any document incorporated herein by reference might not occur. Investors are cautioned not to place undue reliance on the forward-looking statements, which speak only as of the date of this prospectus or the date of the document
incorporated by reference in this prospectus. We are not under any obligation, and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a result of new information, future events or otherwise. All
subsequent forward-looking statements attributable to us or to any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section.
USE OF PROCEEDS
We cannot assure you that we will receive any proceeds in connection with securities which may be offered pursuant to this prospectus. Unless
otherwise indicated in the applicable prospectus supplement, we intend to use any net proceeds from the sale of securities under this prospectus for our operations and our further development and commercialization of our existing diagnostic
products, as well as the discovery of new biomarkers, and other general corporate purposes, including, but not limited to, repayment of existing indebtedness, working capital, intellectual property protection and enforcement, capital expenditures,
investments, acquisitions and collaborations. We have not determined the amounts we plan to spend on any of the areas listed above or the timing of these expenditures. As a result, our management will have broad discretion to allocate the net
proceeds, if any, we receive in connection with securities offered pursuant to this prospectus for any purpose. Pending application of the net proceeds as described above, we may initially invest the net proceeds in short-term, investment-grade,
interest-bearing securities or apply them to the reduction of short-term indebtedness.
PLAN OF DISTRIBUTION
General Plan of Distribution
We
may offer securities under this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may sell the securities (1) through underwriters or dealers,
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(2) through agents or (3) directly to one or more purchasers, or through a combination of such methods. We may distribute the securities from time to time in one or more transactions
at:
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a fixed price or prices, which may be changed from time to time;
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market prices prevailing at the time of sale;
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prices related to the prevailing market prices; or
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We may directly solicit offers to purchase the securities being offered by
this prospectus. We may also designate agents to solicit offers to purchase the securities from time to time. We will name in a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.
If we utilize a dealer in the sale of the securities being offered by this prospectus, we will sell the securities to the dealer, as
principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with
the underwriter at the time of sale, and we will provide the name of any underwriter in the prospectus supplement which the underwriter will use to make resales of the securities to the public. In connection with the sale of the securities, we, or
the purchasers of the securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through dealers, and the underwriter may
compensate those dealers in the form of discounts, concessions or commissions.
With respect to underwritten public offerings, negotiated
transactions and block trades, we will provide in the applicable prospectus supplement information regarding any compensation we pay to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions
or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended, or
the Securities Act, 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. We may enter into agreements to indemnify underwriters,
dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof.
If so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit
offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the
aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will not be subject to any
conditions except that:
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the purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and
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if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons
acting as our agents will not have any responsibility in respect of the validity or performance of delayed delivery contracts.
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Shares of our common stock sold pursuant to the registration statement of which this prospectus is a part will be authorized for quotation and
trading on The Nasdaq Global Market. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on The Nasdaq Global Market or any securities market or other securities exchange of the
securities covered by the prospectus supplement. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities.
In order to facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that
stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of more securities than we sold to them. In these
circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option. In addition, these persons may stabilize or maintain the price of the securities by
bidding for or purchasing the applicable security in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if the 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. These transactions may be
discontinued at any time.
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In compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or
FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement.
The underwriters, dealers and agents may engage in other transactions with us, or perform other services for us, in the ordinary course
of their business.
DESCRIPTION OF COMMON STOCK
We are authorized to issue 100,000,000 shares of common stock, par value $0.001 per share. On May 24, 2012, we had 20,041,957 shares
of common stock outstanding and approximately 35 stockholders of record.
The following summary of certain provisions of our common stock
does not purport to be complete. You should refer to our restated certificate of incorporation and our restated bylaws, both of which are included as exhibits to the registration statement of which this prospectus is a part. The summary below is
also qualified by provisions of applicable law.
General
Holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, and do
not have cumulative voting rights. Subject to preferences that may be applicable to any outstanding shares of preferred stock, holders of common stock are entitled to receive ratably such dividends, if any, as may be declared from time to time by
our board of directors out of funds legally available for dividend payments. All shares of common stock outstanding as of the date of this prospectus and, upon issuance and sale, all shares of common stock that we may offer pursuant to this
prospectus, will be fully paid and nonassessable. The holders of common stock have no preferences or rights of conversion, exchange,
pre-emption
or other subscription rights. There are no redemption or sinking
fund provisions applicable to the common stock. In the event of any liquidation, dissolution or
winding-up
of our affairs, holders of common stock will be entitled to share ratably in our assets that are
remaining after payment or provision for payment of all of our debts and obligations and after liquidation payments to holders of outstanding shares of preferred stock, if any.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
Nasdaq Global Market
Our common stock is listed for quotation on The Nasdaq Global Market under the symbol BGMD.
DESCRIPTION OF PREFERRED STOCK
We are authorized to issue 5,000,000 shares of preferred stock, par value $0.001 per share. As of May 24, 2012, no shares of our
preferred stock were outstanding or designated. The following summary of certain provisions of our preferred stock does not purport to be complete. You should refer to our restated certificate of incorporation and our restated bylaws, both of which
are included as exhibits to the registration statement of which this prospectus is a part. The summary below is also qualified by provisions of applicable law.
General
Our board of directors may,
without further action by our stockholders, from time to time, direct the issuance of shares of preferred stock in series and may, at the time of issuance, determine the rights, preferences and limitations of each series, including voting rights,
dividend rights and redemption and liquidation preferences. Satisfaction of any dividend preferences of outstanding shares of preferred stock would reduce the amount of funds available for the payment of dividends on shares of our common stock.
Holders of shares of preferred stock may be entitled to receive a preference payment in the event of any liquidation, dissolution or
winding-up
of our company before any payment is made to the holders of
shares of our common stock. In some circumstances, the issuance of shares of preferred stock may render more difficult or tend to discourage a merger, tender offer or proxy contest, the assumption of control by a holder of a large block of our
securities or the removal of incumbent management. Upon the affirmative vote of our board of directors, without stockholder approval, we may issue shares of preferred stock with voting and conversion rights which could adversely affect the holders
of shares of our common stock.
If we offer a specific series of preferred stock under this prospectus, we will describe the terms of the
preferred stock in the prospectus supplement for such offering and will file a copy of the certificate establishing the terms of the preferred stock with the SEC. To the extent required, this description will include:
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the title and stated value;
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the number of shares offered, the liquidation preference, if any, per share and the purchase price;
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the dividend rate(s), period(s) and/or payment date(s), or method(s) of calculation for such dividends;
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whether dividends will be cumulative or
non-cumulative
and, if cumulative, the date from which dividends will accumulate;
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the procedures for any auction and remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption, if applicable;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price (or how it will be calculated) and conversion period;
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whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price (or how it will be calculated) and exchange period;
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voting rights, if any, of the preferred stock;
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a discussion of any material and/or special U.S. federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of the affairs of the Company; and
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any material limitations on issuance of any class or series of preferred stock ranking pari passu with or senior to the series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding
up of the Company.
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Transfer Agent and Registrar
The transfer agent and registrar for our preferred stock will be set forth in the applicable prospectus supplement.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we include in any applicable prospectus supplements, summarizes the
material terms and provisions of the debt securities that we may offer under this prospectus. 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 so indicate in a prospectus supplement, the terms of any debt securities offered under such prospectus supplement may differ from
the terms we describe below, and to the extent the terms set forth in a prospectus supplement differ from the terms described below, the terms set forth in the prospectus supplement shall control.
We may sell from time to time, in one or more offerings under this prospectus, debt securities, which may be senior or subordinated. We will
issue any such senior debt securities under a senior indenture that we will enter into with a trustee to be named in the senior indenture. We will issue any such subordinated debt securities under a subordinated indenture, which we will enter into
with a trustee to be named in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement, of which this prospectus is a part. We use the term indentures to refer to either the senior
indenture or the subordinated indenture, as applicable. The indentures 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 either the trustee
under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of material provisions
of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each indenture provides that
debt securities may be issued from time to time in one or more series and may be denominated and payable in foreign currencies or units based on or relating to foreign currencies. Neither indenture limits the amount of debt securities that may be
issued thereunder, and each indenture provides that the specific terms of any series of debt securities shall be set forth in, or determined pursuant to, an authorizing resolution 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;
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the aggregate principal amount and any limit on the amount that may be issued;
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the currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or units in which principal or interest or both will or may be payable;
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whether we will issue the series of debt securities in global form, the terms of any global securities and who the depositary will be;
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the maturity date and the date or dates on which principal will be payable;
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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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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the subordination of any series of subordinated debt;
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the place or places where payments will be payable;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional redemption provisions;
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the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund provisions or otherwise, to redeem, or at the holders option to purchase, the series of debt securities;
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whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves;
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whether we will be restricted from incurring any additional indebtedness;
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a discussion on any material or special U.S. federal income tax considerations applicable to a series of debt securities;
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities.
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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 indentures do not contain any covenant that
restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indentures or
the debt securities, as appropriate.
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 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.
Events of Default Under the Indenture
The following are events of default under the indentures with respect to any series of debt securities that we may issue:
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if we fail to pay interest when due and 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 and the time for payment has not been extended or delayed;
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if we fail to observe or perform any other covenant set forth in the debt securities of such series or the applicable indentures, 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 indentures, if an event of default under an indenture shall occur and be continuing, the debenture trustee will be
under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the debenture trustee reasonable
indemnity. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the debenture trustee, or
exercising any trust or power conferred on the debenture trustee, with respect to the debt securities of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, 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
indentures 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 indentures, the rights of holders of a series of debt securities may be changed by us and the debenture trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series (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
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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; or
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment or waiver.
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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 indentures provide
that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or another depositary named by us and identified in a
prospectus supplement with respect to that series.
At the option of the holder, subject to the terms of the indentures and the
limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized
denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable to
global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly
executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for
transfer or exchange or in the applicable 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
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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 applicable indenture, undertakes to
perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture trustee under such indenture must use the same degree of care as a prudent person would exercise or use
in the conduct of his or her own affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by the indentures at the request of any holder of debt securities unless it is offered
reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any
interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, 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 in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
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 indentures and the
debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Subordination of Subordinated Debt Securities
Our obligations pursuant to any subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to
certain of our other indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of senior indebtedness we may incur. It also does not limit us from issuing any other secured or unsecured
debt.
DESCRIPTION OF WARRANTS
General
We may issue warrants to
purchase shares of our common stock, preferred stock and/or debt securities in one or more series together with other securities or separately, as described in the applicable prospectus supplement. Below is a description of certain general terms and
provisions of the warrants that we may offer. Particular terms of the warrants will be described in the warrant agreements and the prospectus supplement relating to the warrants.
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
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the specific designation and aggregate number of, and the price at which we will issue, the warrants;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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the designation, amount and terms of the securities purchasable upon exercise of the warrants;
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if applicable, the exercise price for shares of our common stock and the number of shares of common stock to be received upon exercise of the warrants;
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if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon exercise, and a description of that series of our preferred stock;
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if applicable, the exercise price for our debt securities, the amount of debt securities to be received upon exercise, and a description of that series of debt securities;
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the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on
which you may exercise the warrants;
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whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will
correspond to the form of the unit and of any security included in that unit;
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any applicable material U.S. federal income tax consequences;
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the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents;
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the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
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if applicable, the date from and after which the warrants and the common stock, preferred stock and/or debt securities will be separately transferable;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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information with respect to book-entry procedures, if any;
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the anti-dilution provisions of the warrants, if any;
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any redemption or call provisions;
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whether the warrants may be sold separately or with other securities as parts of units; and
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
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Transfer Agent and Registrar
The
transfer agent and registrar for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION OF RIGHTS
General
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 purchase contracts, or any combination of those securities in the form of units, 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 to which any prospectus supplement may relate. The particular terms of the
rights to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the
rights, rights agreement or rights certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you
to read the applicable rights agreement and rights certificate for additional information before you decide whether to purchase any of our rights.
We will provide in a prospectus supplement the following terms of the rights being issued:
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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 aggregate number of rights issued;
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whether the rights are transferrable and the date, if any, on and after which the rights may be separately transferred;
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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 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 U.S. 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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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 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.
Rights Agent
The rights agent for any
rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including contracts obligating holders to purchase from us, and for us to sell to holders, a
specific or variable number of our debt securities, shares of common stock, preferred stock, warrants or rights, or securities of an entity unaffiliated with us, or any combination of the above, at a future date or dates. Alternatively, the purchase
contracts may obligate us to purchase from holders, and obligate holders to sell to us, a specific or variable number of our debt securities, shares of common stock, preferred stock, warrants, rights or other property, or any combination of the
above. The price of the securities or other property subject to the purchase contracts may be fixed at the time the purchase contracts are issued or may be determined by reference to a specific formula described in the purchase contracts. We may
issue purchase contracts separately or as a part of units each consisting of a purchase contract and one or more of our other securities described in this prospectus or securities of third parties, including U.S. Treasury securities, securing
the holders obligations under the purchase contract. The purchase contracts may require us to make periodic payments to holders or vice versa and the payments may be unsecured or
pre-funded
on some
basis. The purchase contracts may require holders to secure the holders obligations in a manner specified in the applicable prospectus supplement.
The applicable prospectus supplement will describe the terms of any purchase contracts in respect of which this prospectus is being delivered,
including, to the extent applicable, the following:
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whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those
securities, or the method of determining those amounts;
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whether the purchase contracts are to be prepaid;
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whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of the securities subject to purchase under the purchase contract;
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any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts;
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any applicable U.S. federal income tax considerations; and
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whether the purchase contracts will be issued in fully registered or global form.
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The
preceding description sets forth certain general terms and provisions of the purchase contracts to which any prospectus supplement may relate. T he particular terms of the purchase contracts to which any prospectus supplement may relate and the
extent, if any, to which the general provisions may apply to the purchase contracts so offered will be described in the applicable prospectus
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supplement. To the extent that any particular terms of the purchase contracts described in a prospectus supplement differ from any of the terms described above, then the terms described above
will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable purchase contract for additional information before you decide whether to purchase any of our purchase contracts.
DESCRIPTION OF UNITS
The following description, together with the additional information that we include in any applicable prospectus supplements summarizes the
material terms and provisions of the units that we may offer under this prospectus. 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 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
We may issue units consisting of
common stock, preferred stock, one or more debt securities, warrants, rights or purchase contacts for the purchase of common stock, preferred stock and/or debt securities in one or more series, in any combination. 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 security included in the unit. 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 set forth in any prospectus supplement or as described under Description of
Common Stock, Description of Preferred Stock, Description of Debt Securities, Description of Warrants, Description of Rights and Description of Purchase Contracts will apply to each
unit, as applicable, and to any common stock, preferred stock, debt security, warrant, right or purchase contract included in each unit, as applicable.
Unit Agent
The name and address of the
unit agent for any units we offer will be set forth in the applicable prospectus supplement.
Issuance in Series
We may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency
or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate
legal action its rights as holder under any security included in the unit.
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CERTAIN PROVISIONS OF DELAWARE LAW AND OF THE COMPANYS
CERTIFICATE OF INCORPORATION AND BYLAWS
Anti-Takeover Provisions of our Certificate of Incorporation and Bylaws
In addition to the board of directors ability to issue shares of preferred stock, our restated certificate of incorporation and restated
bylaws contain other provisions that are intended to enhance the likelihood of continuity and stability in the composition of the board of directors and which may have the effect of delaying, deferring or preventing a future takeover or change in
control of our company unless such takeover or change in control is approved by our board of directors.
These provisions, summarized
below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the
benefits of increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these
proposals could result in an improvement of their terms.
Classified board of directors; removal of directors for cause.
Our
restated certificate of incorporation and restated bylaws provide for our board of directors to be divided into three classes serving staggered terms. At each annual meeting of stockholders, directors elected to succeed those directors whose terms
expire will be elected for a three-year term of office. All directors elected to our classified board of directors will serve until the election and qualification of their respective successors or their earlier resignation or removal. The board of
directors is authorized to create new directorships and to fill such positions so created and is permitted to specify the class to which any such new position is assigned. The person filling such position would serve for the term applicable to that
class. The board of directors (or its remaining members, even if less than a quorum) is also empowered to fill vacancies on the board of directors occurring for any reason for the remainder of the term of the class of directors in which the vacancy
occurred. Members of the board of directors may only be removed for cause and only by the affirmative vote of 80% of our outstanding voting stock. These provisions are likely to increase the time required for stockholders to change the composition
of the board of directors. For example, in general, at least two annual meetings will be necessary for stockholders to effect a change in a majority of the members of the board of directors. The provision for a classified board could prevent a party
who acquires control of a majority of our outstanding common stock from obtaining control of our board of directors until our second annual stockholders meeting following the date the acquirer obtains the controlling stock interest. The classified
board provision could have the effect of discouraging a potential acquirer from making a tender offer or otherwise attempting to obtain control of us and could increase the likelihood that incumbent directors will retain their positions.
Advance notice provisions for stockholder proposals.
Our restated bylaws establish an advance notice procedure for stockholder
proposals to be brought before an annual meeting of our stockholders, including proposed nominations of persons for election to our board of directors, as well as procedures for including proposed nominations at special meetings at which directors
are to be elected. Stockholders at our annual meeting may only consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of our board or by a stockholder who was a stockholder of record
on the record date for the meeting, who is entitled to vote at the meeting and who has given to our secretary timely written notice, in proper form, of the stockholders intention to bring that business before the meeting, and who has complied
with the procedures and requirements set forth in the bylaws. Although our bylaws do not give our board of directors the power to approve or disapprove stockholder nominations of candidates or proposals regarding other business to be conducted at a
special or annual meeting, our bylaws may have the effect of precluding the conduct of some business at a meeting if the proper procedures are not followed or may discourage or defer a potential acquirer from conducting a solicitation of proxies to
elect its own slate of directors or otherwise attempting to obtain control of us.
Special meetings of stockholders.
Special
meetings of the stockholders may be called only by our board of directors pursuant to a resolution adopted by a majority of the total number of authorized directors. Stockholders are not permitted to call a special meeting or to require our board of
directors to call a special meeting.
No stockholder action by written consent.
Our restated certificate of incorporation and
restated bylaws do not permit our stockholders to act by written consent. As a result, any action to be effected by our stockholders must be effected at a duly called annual or special meeting of the stockholders.
Super-majority stockholder vote required for certain actions.
The Delaware General Corporation Law provides generally that the
affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporations certificate of incorporation or bylaws, unless the corporations certificate of incorporation or bylaws, as the case may be,
requires a greater percentage. Our restated certificate of incorporation requires the affirmative vote of the holders of at least 80% of our outstanding voting stock to amend or repeal certain provisions of our restated certificate of incorporation.
This 80% stockholder vote would be in addition to any separate class vote that might in the future be required pursuant to the terms of any preferred stock that might then be outstanding. In addition, an 80% vote is also required for any amendment
to, or repeal of, our restated bylaws by the stockholders. Our restated bylaws may be amended or repealed by a vote of a majority of the total number of authorized directors.
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Provisions of Delaware Law Governing Business Combinations
We are subject to the business combination provisions of Section 203 of the Delaware General Corporation Law. In general, such
provisions prohibit a publicly held Delaware corporation from engaging in any business combination transactions with any interested stockholder for a period of three years after the date on which the person became an
interested stockholder, unless:
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prior to such date, the board of directors approved either the business combination or the transaction which resulted in the interested stockholder obtaining such status; or
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upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (a) persons who
are directors and also officers and (b) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
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at or subsequent to such time the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative
vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder.
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A
business combination is defined to include mergers, asset sales and other transactions resulting in financial benefit to a stockholder. In general, an interested stockholder is a person who, together with affiliates and
associates, owns 15% or more of a corporations voting stock or within three years did own 15% or more of a corporations voting stock. The statute could prohibit or delay mergers or other takeover or change in control attempts with
respect to us and, accordingly, may discourage attempts to acquire us.
Limitations on Liability and Indemnification of Officers and Directors
Our restated certificate of incorporation limits the liability of our officers and directors to the fullest extent permitted by the Delaware
General Corporation Law, and our restated certificate of incorporation and restated bylaws provide that we will indemnify our officers and directors to the fullest extent permitted by such law. We have also entered into indemnification agreements
with our officers and directors and expect to enter into a similar agreement with any new officers and directors.
LEGAL MATTERS
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, Massachusetts, will pass upon the validity of the
issuance of the securities to be offered by this prospectus.
EXPERTS
The financial statements incorporated in this prospectus by reference from the Companys Annual Report on Form
10-K
have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such financial statements have been
so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements of the Securities Exchange Act of 1934, as
amended, and file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy these reports, proxy statements and other information at the SECs public reference facilities at 100 F Street,
N.E., Room 1580, Washington, D.C. 20549. You can request copies of these documents by writing to the SEC and paying a fee for the copying cost. Please call the SEC at
1-800-SEC-0330
for more information about the operation of the public reference facilities. SEC filings are also available at the SECs web site at http://www.sec.gov
.
Our common stock is
listed on The Nasdaq Global Market, and you can read and inspect our filings at the offices of the Financial Industry Regulatory Authority at 1735 K Street, Washington, D.C. 20006.
This prospectus is only part of a registration statement on
Form S-3
that we have filed with the
SEC under the Securities Act of 1933, as amended, and therefore omits certain information contained in the registration statement. We have also filed exhibits and schedules with the registration statement that are excluded from this prospectus, and
you should refer to the applicable exhibit or schedule for a complete description of any statement referring to any contract or other document. You may inspect a copy of the registration statement, including the exhibits and schedules, without
charge, at the public reference room or obtain a copy from the SEC upon payment of the fees prescribed by the SEC.
We also maintain a
website at www.bg-medicine.com, through which you can access our SEC filings. The information set forth on our website is not part of this prospectus.
17
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference information that we file with them. Incorporation by reference allows us to disclose
important information to you by referring you to those other 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 filed a registration statement on
Form S-3
under the Securities Act of 1933, as amended, with the SEC with respect to the securities we may offer pursuant to this prospectus. This
prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement, including the exhibits, for further information about us and the securities we may offer pursuant
to this prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by
that reference. Copies of all or any part of the registration statement, including the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC listed above in Where
You Can Find More Information. The documents we are incorporating by reference are:
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our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2011 filed on March 30, 2012;
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our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2012, filed on May 15, 2012;
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our Current Reports on
Form 8-K
filed on January 13, 2012, February 16, 2012 (other than Item 2.02), March 8, 2012 (other than Item 2.02),
March 26, 2012 and May 15, 2012 (other than Item 2.02);
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the portions of our Definitive Proxy Statement on Schedule 14A filed on April 30, 2012 that are deemed filed with the SEC under the Exchange Act;
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the description of our common stock contained in our Registration Statement on
Form 8-A
filed on December 3, 2010, including any amendment or report filed for the
purpose of updating such description; and
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all reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus and prior to the termination or completion of the
offering of securities under this prospectus shall be deemed to be incorporated by reference in this prospectus and to be a part hereof from the date of filing such reports and other documents.
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Unless otherwise noted, the SEC file number for each of the documents listed above is
001-33827.
In addition, all reports and other documents filed by us pursuant to the Exchange Act after the date of the initial registration statement and
prior to effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus.
Any statement
contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this
prospectus or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
You may request, orally or in writing, a copy of any or all of the documents
incorporated herein by reference. These documents will be provided to you at no cost, by contacting: Investor Relations, BG Medicine, Inc., 610 Lincoln Street North, Waltham, Massachusetts 02451, (781) 890-1199.
You should rely only on information contained in, or incorporated by reference into, this prospectus and any prospectus supplement. We have
not authorized anyone to provide you with information different from that contained in this prospectus or incorporated by reference in this prospectus. We are not making offers to sell the securities in any jurisdiction in which such an offer or
solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
18
6,452,000 shares
Common stock
Prospectus Supplement
Sole Book-Running Manager
LAZARD CAPITAL MARKETS LLC
April 3, 2014
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