As filed with the Securities and Exchange Commission on June 28, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEDAREX, INC.
(Exact name of registrant as specified in its charter)
New Jersey 22-2822175
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
707 State Road 08540
Princeton, New Jersey (Zip Code)
(Address of Principal Executive Offices)
MEDAREX, INC. 2002 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Donald L. Drakeman
Medarex, Inc.
707 State Road
Princeton, New Jersey 08540
(Name and address of agent for service)
(609) 430-2880
(Telephone number, including area code, of agent for service)
Copies to:
W. Bradford Middlekauff Dwight A. Kinsey, Esq.
Senior Vice President, General Counsel Satterlee Stephens Burke & Burke LLP
and Secretary 230 Park Avenue
Medarex, Inc. New York, New York 10169
707 State Road (212) 818-9200
Princeton, New Jersey 08540
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of Securities to Amount to be offering price per aggregate offering Amount of
be registered registered (1) share (2) price (2) registration fee
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Common Stock, $ .01
par value per share 500,000 shares $ 6.955 $ 3,477,500 $ 320
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(1) The registration statement also includes an indeterminable number of
additional shares that may become issuable as a result of the anti-dilution
adjustment provisions of the Plan. It also includes preferred share
purchase rights under the Medarex, Inc. Shareholder Rights Agreement.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) and based upon the average of the high and
low sale prices of the Company's Common Stock as reported by the Nasdaq
National Market as June 26, 2002.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
2001; (b) Quarterly Report of the Company on Form 10-Q for the three-month
period ended March 31, 2002; (c) Proxy Statement dated April 17, 2002 for Annual
Meeting of Shareholders held on May 22, 2002; and (d) the description of the
Registrant's Common Stock set forth in the Registrant's Registration Statement
on Form S-3 (File No. 333-95565), including any amendments or reports filed for
the purpose of updating such description; and
(b) All reports and other documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the filing hereof and prior to a filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such reports and documents. Any statement contained herein or in
any document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequent filed document, which also is or is deemed to be incorporated by
reference herein, modified or superseded such statement. Any such statement so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement, except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Dwight A. Kinsey, Esq., a partner of Satterlee Stephens Burke & Burke
LLP, owns 6,000 shares Medarex Common Stock. Mr. Kinsey also holds options to
purchase 40,000 shares of Medarex Common Stock which he received for services
rendered as Assistant Secretary of Medarex. No other partner or associate of the
firm owns shares or holds options to purchase shares of Medarex having a fair
market value either individually or in the aggregate in excess of $50,000.
Item 6. Indemnification of Directors and Officers.
Section 14A:3-5 of The New Jersey Business Corporation Act (the
"NJBCA") empowers a New Jersey corporation to indemnify any person who is or was
a director, officer, employee or agent of the indemnifying corporation or of any
constituent corporation absorbed by the indemnifying corporation in a
consolidation or merger and any person who is or was a director, officer,
trustee, employee or agent of any other enterprise, serving as such at the
request of the indemnifying corporation, or of any such constituent corporation,
or legal representative of any such director, officer, trustee, employee or
agent (a "corporate agent"), against his expenses and liabilities incurred in
connection with any proceeding involving the corporate agent, other than a
proceeding by or in the right of the corporation, if (a) such corporate agent
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and (b) with respect to any
criminal proceeding, such corporate agent had no reason to believe that his
conduct was unlawful. In addition, a corporation may indemnify such corporate
agent against his expenses in connection with any proceeding by or in the right
of the corporation to procure a judgment in its favor which involves such
corporate agent by reason of his having been such corporate agent, if he acted
in good faith and in a manner he
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reasonably believed to be in or not opposed to the best interests of the
corporation. However, in such proceeding no indemnification shall be provided in
respect of any claim, issue or matter as to which such corporate agent shall
have been adjudged to be liable to the corporation, unless and only to the
extent that the Superior Court of the State of New Jersey or the court in which
such proceeding was brought shall determine upon application that despite the
adjudication of liability, but in view of all circumstances of the case, such
corporate agent is fairly and reasonably entitled to indemnity for such expenses
as the Superior Court or such other court shall deem proper.
Under the NJBCA, a corporation shall indemnify a corporate agent
against expenses to the extent that such corporate agent has been successful on
the merits or otherwise in any proceeding referred to above or in defense of any
claim, issue or matter therein.
The indemnification and advancement of expenses provided by or granted
pursuant to the NJBCA shall not exclude any other rights, including the right to
be indemnified against liabilities and expenses incurred in proceedings by or in
the right of the corporation, to which a corporate agent may be entitled under a
certificate of incorporation, bylaw, agreement, vote of shareholders, or
otherwise; provided that no indemnification shall be made to or on behalf of a
corporate agent if a judgment or other final adjudication adverse to the
corporate agent establishes that his acts or omissions (a) were in breach of his
duty of loyalty to the corporation or its shareholders, (b) were not in good
faith or involved a knowing violation of law or (c) resulted in receipt by the
corporate agent of an improper personal benefit.
The Restated Certificate of Incorporation, as amended, and Article XIII
of the Registrant's Amended and Restated By-Laws provide for the indemnification
of its Officers and Directors under certain circumstances and are incorporated
herein by reference.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4(b) Restated Certificate of Incorporation of
Medarex, Inc. (Incorporated by reference to
Exhibit 4(b) to the Registrant's Registration
Statement on Form S-8 (File No. 333-39084) filed
on June 12, 2000), as amended by Registrant's
Certificate of Amendment of the Restated
Certificate of Incorporation (Incorporated by
reference to Exhibit 3.1 to the Registrant's Form
8-K filed on June 26, 2001).
4(c) Medarex, Inc. Amended and Restated By-Laws
(Incorporated by reference to Exhibit 4.2 to the
Registrant's Form 8-K filed on May 25, 2001).
5 Opinion of Satterlee Stephens Burke & Burke LLP
as to legality of the securities being registered
10.1 Medarex, Inc. 2002 Employee Stock Purchase Plan
15 Not Applicable
2
Exhibit No. Description
23(a) Consent of Ernst & Young LLP
23(b) Consent of PricewaterhouseCoopers
24 Power of Attorney (accompanies signature pages to the
Registration Statement)
99 Not Applicable
Item 9. Undertakings.
The undersigned Registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Securities and Exchange Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) To deliver or cause to be delivered with the prospectus, to each person
to whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Exchange Act; and, where interim financial information required to be presented
by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(6) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Princeton, State of New Jersey, on
this 26th day of June, 2002.
MEDAREX, INC.
By:/s/Irwin Lerner
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Irwin Lerner-Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Medarex, Inc., a New
Jersey corporation, do hereby constitute and appoint Donald L. Drakeman and
Christian Schade, and either of them, the lawful attorney and agent, with power
and authority to do any and all acts and things and to execute any and all
instruments which said attorney and agent, determine may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power of authority,
the powers granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments and supplements thereof, and
to any and all instruments or documents filed as part of or in connection with
such Registration Statement, and each of the undersigned hereby certifies and
confirms all that said attorney and agent, shall do or cause to be done by
virtue hereof. The Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the dates indicated below.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
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/s/Irwin Lerner Chairman of the Board June 26, 2002
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Irwin Lerner
/s/Donald L. Drakeman President, Chief Executive Officer and Director June 26, 2002
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Donald L. Drakeman (Principal Executive Officer)
/s/Michael A. Appelbaum Executive Vice President and Director June 26, 2002
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Michael A. Appelbaum
/s/Christian Schade Senior Vice President and Chief Financial Officer June 26, 2002
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Christian Schade (Principal Financial and Accounting Officer)
/s/Michael W. Fanger Director June 26, 2002
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Michael W. Fanger
/s/Julius A. Vida Director June 26, 2002
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Julius A. Vida
/s/Charles R. Schaller Director June 26, 2002
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Charles R. Schaller
/s/W. Leigh Thompson, Jr. Director June 26, 2002
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W. Leigh Thompson, Jr.
/s/Frederick B. Craves Director June 26, 2002
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Frederick B. Craves
Director June __, 2002
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Ronald J. Saldarini
INDEX TO EXHIBITS
Exhibit No. Description
5 Opinion of Satterlee Stephens Burke & Burke
LLP as to legality of the securities being
registered
10.1 Medarex, Inc. 2002 Employee Stock Purchase
Plan
23(a) Consent of Ernst & Young LLP
23(b) Consent of PricewaterhouseCoopers