As filed with the Securities and Exchange Commission on February
27, 2023
Registration No.
333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XENCOR, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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20-1622502
(I.R.S. Employer
Identification Number)
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111 West Lemon Avenue
Monrovia, California 91016
(626) 305-5900
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive offices)
Bassil I. Dahiyat, Ph.D.
President and Chief Executive Officer
111 West Lemon Avenue
Monrovia, California 91016
(626) 305-5900
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
With a copy to:
Deyan Spiridonov
Chris DeCresce
Paul Hastings LLP
4747 Executive Drive, Twelfth Floor
San Diego, California 92121
(858) 458-3000
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. ☒
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
☐
If this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box.
☒
If this form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box. ☐
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in
Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the
Securities Act. ☐
EXPLANATORY NOTE
This registration statement contains:
•a
base prospectus, which covers the offering, issuance and sale by
the registrant and/or the offering and sale by selling security
holders of the registrant’s common stock, preferred stock, debt
securities, rights, units and/or warrants from time to time in one
or more offerings; and
•a
sales agreement prospectus covering the offering, issuance and sale
by the registrant of up to a maximum aggregate offering price of
$200 million of the registrant’s common stock that may be issued
and sold from time to time under a sales agreement with SVB
Securities LLC.
The base prospectus immediately follows this explanatory note. The
specific terms of any securities to be offered pursuant to the base
prospectus will be specified in a prospectus supplement to the base
prospectus. The sales agreement prospectus immediately follows the
base prospectus.
PROSPECTUS
Xencor, Inc.
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
From time to time, we may offer and sell any combination of the
securities described in this prospectus, either individually or in
combination with other securities, in one or more offerings. We may
also offer common stock or preferred stock upon conversion of debt
securities, common stock upon conversion of preferred stock, or
common stock, preferred stock or debt securities upon the exercise
of warrants, rights or units. In addition, certain selling security
holders to be identified in supplements to this prospectus may
offer and sell these securities from time to time.
This prospectus provides a general description of the securities we
may offer. Each time we sell securities pursuant to this
prospectus, we will provide the specific terms of these offerings
and securities in one or more supplements to this prospectus. We
may also authorize one or more free writing prospectuses to be
provided to you in connection with these offerings. The prospectus
supplement and any related free writing prospectus may also add,
update or change information contained in this prospectus. You
should carefully read this prospectus, the applicable prospectus
supplement and any related free writing prospectus, as well as any
documents incorporated by reference herein or therein before you
invest in any of the securities being offered.
Our common stock is listed on The Nasdaq Global Market under the
trading symbol “XNCR.” On February 24, 2023, the last reported sale
price of our common stock was $34.18 per share. The applicable
prospectus supplement will contain information, where applicable,
as to other listings, if any, on The Nasdaq Global Market or other
securities exchange of the securities covered by the applicable
prospectus supplement.
Investing in our securities involves a high degree of risk. You
should review carefully the risks and uncertainties described under
the heading “Risk Factors” on page
4
of this prospectus and contained in the applicable prospectus
supplement and in any free writing prospectuses we have authorized
for use in connection with a specific offering, and under similar
headings in the documents that are incorporated by reference into
this prospectus.
This prospectus may not be used to consummate a sale of securities
unless accompanied by a prospectus supplement.
The securities may be offered and sold from time to time directly
to investors by us or by any selling security holder, through
agents designated by us or to or through underwriters, brokers or
dealers, on a continuous or delayed basis. If applicable, we will
provide specific information about any selling security holders in
one or more supplements to this prospectus. For additional
information on the methods of sale, you should refer to the section
entitled “Plan of Distribution” in this prospectus. If any agents,
underwriters, brokers or dealers are involved in the sale of any
securities with respect to which this prospectus is being
delivered, the names of such agents, underwriters, brokers or
dealers and any applicable fees, commissions, discounts and over
allotment options will be set forth in a prospectus supplement or a
related free writing prospectus. The price to the public of such
securities and the net proceeds we expect to receive from such sale
will also be set forth in a prospectus supplement or a related free
writing prospectus.
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 February 27, 2023.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of an automatic shelf registration
statement on Form S-3 that we filed with the Securities and
Exchange Commission (the “SEC”), as a “well-known seasoned issuer”
as defined in Rule 405 under the Securities Act of 1933, as
amended (the “Securities Act”), utilizing a “shelf” registration
process. Under this shelf registration process, we may offer and
sell shares of our common stock, shares of our preferred stock,
various series of debt securities and warrants or rights to
purchase any of such securities, either individually or in
combination with other securities described in this prospectus or
in units, in one or more offerings. There is no limit on the
aggregate amount of the securities that we may offer pursuant to
the registration statement of which this prospectus is a part. In
addition, selling security holders to be named in a prospectus
supplement may sell certain of our securities from time to time.
This prospectus provides you with a general description of the
securities we may offer.
Each time we or any selling security holder offer securities under
this prospectus, we or the selling security holder will provide a
prospectus supplement that will contain more specific information
about the terms of that offering. We may also authorize one or more
free writing prospectuses to be provided to you that may contain
material information relating to these offerings. The prospectus
supplement and any related free writing prospectus that we may
authorize to be provided to you may also add, update or change any
of the information contained in this prospectus or in any documents
that we have incorporated by reference into this prospectus. To the
extent that any statement that we make in a prospectus supplement
is inconsistent with statements made in this prospectus, the
statement made in this prospectus will be deemed modified or
superseded by those made in the prospectus supplement. We urge you
to read carefully this prospectus, any applicable prospectus
supplement and any related free writing prospectuses we have
authorized for use in connection with a specific offering, together
with the information incorporated herein by reference as described
under the heading “Where You Can Find More Information” and
“Incorporation of Certain Information by Reference,” before buying
any of the securities being offered.
This prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
You should rely only on the information that we have provided or
incorporated by reference in this prospectus, any applicable
prospectus supplement and any related free writing prospectus that
we may authorize to be provided to you. We have not authorized
anyone to provide you with any information or to make any
representations other than those contained in this prospectus, any
applicable prospectus supplement or any related free writing
prospectuses prepared by or on behalf of us or to which we have
referred you. We take no responsibility for, and can provide no
assurance as to the reliability of, any other information that
others may give you. 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 not assume that the information appearing in this
prospectus, any applicable prospectus supplement or any related
free writing prospectus is accurate on any date subsequent to the
date set forth on the front of the document or that any information
we have incorporated by reference herein or therein is correct on
any date subsequent to the date of the document incorporated by
reference, regardless of the time of delivery of this prospectus,
the applicable prospectus supplement or any related free writing
prospectus, or any sale of a security. Our business, financial
condition, results of operations and prospects may have changed
since those dates.
This prospectus contains summaries of certain provisions contained
in some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
section entitled “Where You Can Find More
Information.”
Unless the context requires otherwise, references in this
prospectus to "Xencor," "we," "us" and "our" refer to Xencor,
Inc.
PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere in
this prospectus or incorporated by reference in this prospectus,
and does not contain all of the information that you need to
consider in making your investment decision. You should carefully
read the entire prospectus, the applicable prospectus supplement
and any related free writing prospectus, including the risks of
investing in our securities discussed under the heading "Risk
Factors" contained in the applicable prospectus supplement and any
related free writing prospectus, and under similar headings in the
other documents that are incorporated by reference into this
prospectus. You should also carefully read the information
incorporated by reference into this prospectus, including our
financial statements, and the exhibits to the registration
statement of which this prospectus is a part.
Xencor, Inc.
We are a clinical-stage biopharmaceutical company focused on
discovering and developing engineered monoclonal antibody and
cytokine therapeutics to treat patients with cancer and autoimmune
diseases who have unmet medical needs. We use our protein
engineering capabilities to increase our understanding of protein
structures and interactions and to design new technologies and
XmAb® drug candidates with improved properties. We advance these
candidates into clinical-stage development, where we are conducting
Phase 1 and Phase 2 studies for a broad portfolio of programs, to
determine which programs we advance into later stages of
development and potentially commercialization, which programs we
partner to access complementary resources to optimize development,
or which programs we terminate.
Our approach to protein design includes engineering Fc domains, the
parts of antibodies that interact with multiple segments of the
immune system and controls antibody structural architecture. The Fc
domain is constant and interchangeable among antibodies, and our
engineered XmAb Fc domains can be readily substituted for natural
Fc domains.
Our protein engineering capabilities and Fc technologies enable us
and our partners to develop XmAb antibodies and biotherapeutic drug
candidates with improved properties and functionality, which can
provide innovative approaches to treating disease and potential
clinical advantage over other treatment options. For example, we
have developed an antibody scaffold to rapidly create novel
multi-specific antibodies that bind two or more different targets
simultaneously, creating entirely new biological mechanisms. Other
applications of our protein engineering technologies enhance
antibody performance by increasing immune inhibitory activity,
improving cytotoxicity, extending circulating half-life and
stabilizing novel protein structures, such as engineered cytokines.
Three marketed XmAb medicines have been developed with our protein
engineering technologies and are generating royalties for
us.
Our Corporate Information
We were incorporated in California in August 1997 under the name
Xencor. In September 2004, we reincorporated in the State of
Delaware under the name Xencor, Inc. Our principal executive
offices are located at 111 West Lemon Avenue, Monrovia, CA 91016,
and our telephone number is (626) 305-5900. Our website address
is
www.xencor.com.
Information found on, or accessible through, our website is not a
part of, and is not incorporated into, this prospectus, and you
should not consider it part of this prospectus or part of any
prospectus supplement. Our website address is included in this
prospectus as an inactive textual reference only.
Description of Securities
We may offer shares of our common stock and preferred stock,
various series of debt securities and warrants or rights to
purchase any of such securities, either individually or in
combination with other securities or in units, from time to
time under this prospectus, together with the applicable prospectus
supplement and any related free writing prospectus, at prices and
on terms to be determined by market conditions at the time of any
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:
•designation
or classification;
•aggregate
principal amount or aggregate offering price;
•maturity
date, if applicable;
•original
issue discount, if any;
•rates
and times of payment of interest or dividends, if any;
•redemption,
conversion, exercise, exchange or sinking fund terms, if
any;
•ranking;
•restrictive
covenants, if any;
•voting
or other rights, if any;
•conversion
or exchange prices or rates, if any, and, if applicable, any
provisions for changes to or adjustments in the conversion or
exchange prices or rates and in the securities or other property
receivable upon conversion or exchange; and
•material
or special U.S. federal income tax considerations, if
any.
The applicable prospectus supplement and any related free writing
prospectus that we may authorize to be provided to you may also
add, update or change any of the information contained in this
prospectus or in the documents we have incorporated by
reference.
The securities may be offered directly to investors by us or by any
selling security holder from time to time, through agents
designated by us or to or through agents, underwriters, brokers or
dealers. We will provide specific information about any selling
security holders in one or more supplements to this prospectus. We,
and our agents, underwriters, brokers or dealers, reserve the right
to accept or reject all or part of any proposed purchase of
securities. If we do offer securities to or through agents,
underwriters, brokers or dealers, we will include in the applicable
prospectus supplement:
•the
names of those agents, underwriters, brokers or
dealers;
•applicable
fees, discounts and commissions to be paid to them;
•details
regarding over-allotment or other options to purchase additional
securities, if any; and
•the
net proceeds to us, if any.
Use of Proceeds
Except as described in any applicable prospectus supplement or in
any free writing prospectuses we have authorized for use in
connection with a specific offering, we intend to use the net
proceeds from the sale of the securities under this prospectus for
general corporate purposes, which may include funding research and
development, capital expenditures, working capital and general and
administrative expenses. See “Use of Proceeds” on page
7
of this prospectus.
Nasdaq Global Market Listing
Our common stock is listed on The Nasdaq Global Market under the
symbol “XNCR.”
RISK FACTORS
Investing in our securities involves a high degree of risk. Before
deciding whether to invest in our securities, you should consider
carefully the risks and uncertainties described under the heading
“Risk Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and described under the
section entitled “Risk Factors” contained in our most recent Annual
Report on Form 10-K, as well as any amendments thereto and other
filings we make with the SEC from time to time, which are
incorporated by reference into this prospectus in their entirety,
together with other information in this prospectus, the documents
incorporated by reference and any free writing prospectus that we
may authorize for use in connection with a specific offering. The
risks described in these documents are not the only ones we face,
but those that we consider to be material. There may be other
unknown or unpredictable economic, business, competitive,
regulatory or other factors that could have material adverse
effects on our future results. Past financial performance may not
be a reliable indicator of future performance, and historical
trends should not be used to anticipate results or trends in future
periods. If any of these risks actually occur, our business,
financial condition, results of operations, cash flow and future
growth prospects could be seriously harmed. This could cause the
market price of our securities to decline, resulting in a loss of
all or part of your investment. Please also carefully read the
section below entitled “Forward-Looking Statements.”
FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplement, as well
as the documents incorporated by reference in this prospectus or
any accompanying prospectus supplement, 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 (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 that may cause our actual results,
performance or achievements to be materially different from any
future results, performance or achievements expressed or implied by
the forward-looking statements. Forward-looking statements may
include, but are not limited to, statements about:
•the
effects of the ongoing COVID-19 pandemic on our financial
condition, results of operations, cash flows and
performance;
•our
ability to execute on our plans to research, develop and
commercialize our product candidates;
•the
success of our ongoing and planned clinical trials;
•the
timing of and our ability to obtain and maintain regulatory
approval for our product candidates;
•our
ability to identify additional products or product candidates with
significant commercial potential that are consistent with our
business objectives;
•our
ability to receive research funding and achieve anticipated
milestones under our collaborations;
•our
partners’ ability to advance drug candidates into, and successfully
complete, clinical trials;
•our
ability to attract collaborators with development, regulatory, and
commercialization expertise;
•our
ability to protect our intellectual property position;
•the
rate and degree of market acceptance and clinical utility of our
products;
•costs
of compliance and our failure to comply with new and existing
governmental regulations;
•the
capabilities and strategy of our suppliers and vendors including
key manufacturers of our clinical drug supplies;
•significant
competition in our industry;
•the
potential loss or retirement of key members of
management;
•our
failure to successfully execute our growth strategy including any
delays in our planned future growth;
•our
failure to maintain effective internal controls; and
•our
ability to accurately estimate expenses, future revenues, capital
requirements and needs for additional financing.
In some cases, you can identify forward-looking statements by terms
such as “anticipates,” “believes,” “could,” “estimates,” “expects,”
“may,” “plans,” “potential,” “predicts,” “projects,” “should,”
“would,” “will” and similar expressions intended to identify
forward-looking statements.
These statements reflect our current views with respect to future
events, are based on assumptions and are subject to risks and
uncertainties. Given these risks and uncertainties, you should not
place undue reliance on these forward-looking statements. We
discuss in greater detail, and incorporate by reference into this
prospectus in their entirety, many of these risks and uncertainties
under the heading “Risk Factors” contained in the applicable
prospectus supplement, in any free writing prospectus we may
authorize for use in connection with a specific offering, and in
our most recent annual report on Form 10-K, as well as any
amendments thereto reflected in
subsequent filings with the SEC. Also, these forward-looking
statements represent our estimates and assumptions only as of the
date of the document containing the applicable statement. 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. You should
read this prospectus, the applicable prospectus supplement,
together with the documents we have filed with the SEC that are
incorporated by reference and any free writing prospectus we have
authorized for use in connection with a specific 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.
USE OF PROCEEDS
Except as described in any applicable prospectus supplement or in
any free writing prospectuses we have authorized for use in
connection with a specific offering, we currently intend to use the
net proceeds from the sale of the securities under this prospectus
for general corporate purposes, which may include research and
development, capital expenditures, working capital and general and
administrative expenses. We may also use a portion of the net
proceeds to acquire or invest in businesses, products and
technologies that are complementary to our own, although we have no
current plans, commitments or agreements to do so. Accordingly, we
will retain broad discretion over the use of such proceeds. We will
set forth in the applicable prospectus supplement or free writing
prospectus our intended use for the net proceeds received from the
sale of any securities sold pursuant to such prospectus supplement
or free writing prospectus. Unless otherwise specified in the
applicable prospectus supplement or free writing prospectus, we
will not receive any proceeds from the sale of securities by
selling security holders.
DESCRIPTION OF CAPITAL STOCK
As of the date of this prospectus, our amended and restated
certificate of incorporation authorizes us to issue 200,000,000
shares of common stock, par value $0.01 per share, and 10,000,000
shares of preferred stock, par value $0.01 per share. As of
December 31, 2022, 59,997,713 shares of common stock were
outstanding and no shares of preferred stock were
outstanding.
The following summary describes the material terms of our capital
stock. The descriptions of capital stock are qualified by reference
to our amended and restated certificate of incorporation and our
second amended and restated bylaws, which are incorporated by
reference as exhibits into the registration statement of which this
prospectus is a part, and by reference to the applicable provisions
of the Delaware General Corporation Law (the “DGCL”).
Common Stock
Voting.
Our common stock is entitled to one vote for each share held of
record on all matters submitted to a vote of the stockholders,
including the election of directors, and does not have cumulative
voting rights. Accordingly, the holders of a majority of the shares
of our common stock entitled to vote in any election of directors
can elect all of the directors standing for election.
Dividends.
Subject to preferences that may be applicable to any
then-outstanding preferred stock, the holders of common stock are
entitled to receive dividends, if any, as may be declared from time
to time by our board of directors out of legally available
funds.
Liquidation.
In the event of our liquidation, dissolution or winding-up, holders
of our common stock will be entitled to share ratably in the net
assets legally available for distribution to stockholders after the
payment of all of our debts and other liabilities, subject to the
satisfaction of any liquidation preference granted to the holders
of any outstanding shares of preferred stock.
Rights and Preferences.
Holders of our common stock have no preemptive, conversion or
subscription rights, and there are no redemption or sinking fund
provisions applicable to our common stock. The rights, preferences
and privileges of the holders of our common stock are subject to,
and may be adversely affected by, the rights of the holders of
shares of any series of our preferred stock that we may designate
and issue in the future.
Fully Paid and Nonassessable.
All of our outstanding shares of common stock are fully paid and
nonassessable.
Preferred Stock
Under our amended and restated certificate of incorporation, our
board of directors has the authority, without further action by
stockholders, to designate up to 10,000,000 shares of preferred
stock in one or more series and to fix or alter, from time to time,
the designations, powers and rights of each series of preferred
stock and the qualifications, limitations or restrictions of any
series of preferred stock, including dividend rights, dividend
rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption price or
prices, and the liquidation preference of any wholly unissued
series of preferred stock, any or all of which may be greater than
the rights of the common stock, and to establish the number of
shares constituting any such series. To date, none of the
10,000,000 authorized shares of preferred stock have been
designated by our board of directors.
Our board of directors will fix the rights, preferences,
privileges, qualifications and restrictions of the preferred stock
of each series that we sell under this prospectus and any
applicable prospectus supplements in the certificate of designation
relating to each such series. We will incorporate by reference as
an exhibit to the registration statement of which this prospectus
is a part or as an exhibit to one or more Current Reports on Form
8-K, the form of any certificate of designation that describes the
terms of the series of preferred stock we are offering before the
issuance of the related series of preferred stock. This description
will include:
•the
title and stated value;
•the
number of shares we are offering;
•the
liquidation preference per share, if any;
•the
purchase price per share;
•the
dividend rate per share, dividend period, payment date or dates and
method of calculation for dividends, as applicable;
•whether
dividends, if any, will be cumulative or non-cumulative and, if
cumulative, the date from which dividends will
accumulate;
•our
right, if any, to defer payment of dividends and the maximum length
of any such deferral period;
•the
procedures for any auction and remarketing, if any;
•the
provisions for a sinking fund, if any;
•the
provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption or
repurchase rights;
•any
listing of the preferred stock on any securities exchange or
market;
•whether
the preferred stock will be convertible into our common stock or
other securities of ours, including warrants, and, if applicable,
the conversion price, or how it will be calculated, and under what
circumstances and the mechanism by which it may be adjusted, and
the conversion period;
•whether
the preferred stock will be exchangeable into debt securities or
other securities of ours, and, if applicable, the exchange price,
or how it will be calculated, and under what circumstances it may
be adjusted, and the exchange period;
•voting
rights, if any;
•preemptive
rights, if any;
•restrictions
on transfer, sale or other assignment, if any;
•whether
interests in the preferred stock will be represented by depositary
shares;
•a
discussion of any material or special U.S. federal income tax
considerations applicable to the preferred stock;
•the
relative ranking and preferences of the preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up our
affairs;
•any
limitations on issuances of any class or series of preferred stock
ranking senior to or on parity with the series of preferred stock
being issued as to dividend rights and rights if we liquidate,
dissolve or wind up our affairs; and
•Any
other specific terms, rights, preferences, privileges,
qualifications or limitations of, or restrictions on the preferred
stock.
If we issue and sell shares of preferred stock pursuant to this
prospectus, together with any applicable prospectus supplement or
free writing prospectus, the shares will be fully paid and
nonassessable and will not have, or be subject to, any preemptive
or similar rights.
The laws of the State of Delaware, the state of our incorporation,
provide that the holders of preferred stock will have the right to
vote separately as a class on any proposal involving fundamental
changes in the rights of holders of such preferred stock. This
right is in addition to any voting rights that may be provided for
in the applicable certificate of designation.
The issuance of preferred stock could adversely affect the voting
power, conversion or other rights of holders of common stock and
reduce the likelihood that common stockholders will receive
dividend payments and payments upon liquidation. Preferred stock
could be issued quickly with terms designed to delay, deter or
prevent a change in control of our company or make removal of
management more difficult. Additionally, the issuance of preferred
stock may have the effect of decreasing the market price of our
common stock.
Delaware Anti-Takeover Law and Provisions of Our Amended and
Restated Certificate of Incorporation and Second Amended and
Restated Bylaws
Our amended and restated certificate of incorporation and our
second amended and restated bylaws contain certain provisions that
could have the effect of delaying, deterring or preventing another
party from acquiring control of us, and therefore could adversely
affect the market price of our common stock. These provisions and
certain provisions of the DGCL which are summarized below, may also
discourage coercive takeover practices and inadequate takeover
bids, and are designed, in part, to encourage persons seeking to
acquire control of us to negotiate first with our board of
directors. We believe that the benefits of increased protection of
our potential ability to negotiate more favorable terms with an
unfriendly or unsolicited acquirer outweigh the disadvantages of
potentially discouraging a proposal to acquire us.
Delaware Anti-Takeover Law
We are subject to Section 203 of the DGLC (“Section 203”). Section
203 generally prohibits a public Delaware corporation from engaging
in a “business combination” with an “interested stockholder” for a
period of three years following the time that such stockholder
became an interested stockholder, unless:
•prior
to such time the board of directors of the corporation approved
either the business combination or the transaction which resulted
in the stockholder becoming an interested stockholder;
•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 (i) by persons who are directors and also officers and
(ii) 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
•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 662/3% of the outstanding voting stock
which is not owned by the interested stockholder.
Section 203 defines a business combination to include:
•any
merger or consolidation involving the corporation and the
interested stockholder;
•any
sale, transfer, pledge or other disposition involving the
interested stockholder of 10% or more of the assets of the
corporation;
•subject
to exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
•subject
to exceptions, any transaction involving the corporation that has
the effect of increasing the proportionate share of the stock of
any class or series of the corporation beneficially owned by the
interested stockholder; and
•the
receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided
by or through the corporation.
In general, Section 203 defines an interested stockholder as any
entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation and any entity or person affiliated
with or controlling or controlled by the entity or
person.
Amended and Restated Certificate of Incorporation and Second
Amended and Restated Bylaws
Among other things, our amended and restated certificate of
incorporation and second amended and restated bylaws:
•permit
our Board of Directors to issue up to 10,000,000 shares of
preferred stock, with any rights, preferences and privileges as
they may designate (including the right to approve an acquisition
or other change in our control);
•provide
that the authorized number of directors may be changed only by
resolution by a majority of the total number of authorized
directors;
•provide
that all vacancies, including newly created directorships, may,
except as otherwise required by law, be filled by the affirmative
vote of a majority of directors then in office, even if less than a
quorum;
•require
that any action to be taken by our stockholders must be effected at
a duly called annual or special meeting of stockholders and not be
taken by written consent;
•provide
that stockholders seeking to present proposals before a meeting of
stockholders or to nominate candidates for election as directors at
a meeting of stockholders must provide notice in writing in a
timely manner, and also specify requirements as to the form and
content of a stockholder’s notice;
•do
not provide for cumulative voting rights (therefore allowing the
holders of a majority of the shares of common stock entitled to
vote in any election of directors to elect all of the directors
standing for election, if they should so choose);
•provide
that special meetings of our stockholders may be called only by the
chairman of our Board of Director, our Chief Executive Officer or
by our Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors;
and
•establish
advance notice procedures with respect to stockholder proposals and
the nomination of candidates for election as directors, other than
nominations made by or at the direction of the Board of Directors,
as well as procedures and other requirements addressing the
universal proxy rules adopted by the SEC.
The provisions of the DGCL and the provisions of our amended and
restated certificate of incorporation and second amended and
restated bylaws could have the effect of discouraging others from
attempting hostile takeovers and, as a consequence, they might also
inhibit temporary fluctuations in the market price of our common
stock that often result from actual or rumored hostile takeover
attempts. These provisions might also have the effect of preventing
changes in our management. It is possible that these provisions
could make it more difficult to accomplish transactions that
stockholders might otherwise deem to be in their best
interests.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is
Computershare Trust Company, N.A. The transfer agent and
registrar’s address is 250 Royall Street, Canton, MA, 02021. The
transfer agent for any series of preferred stock that we may offer
under this prospectus will be named and described in the prospectus
supplement for that series.
Listing on The Nasdaq Global Market
Our common stock is listed on The Nasdaq Global Market under the
symbol “XNCR”.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information
we include in any applicable prospectus supplements or free writing
prospectuses, summarizes the material terms and provisions of the
debt securities that we may offer under this prospectus. We may
issue debt securities from time to time, in one or more series, as
either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will
apply generally to any debt securities that we may offer under this
prospectus, we will describe the particular terms of any debt
securities that we may offer in more detail in the applicable
prospectus supplement or free writing prospectus. The terms of any
debt securities offered under a prospectus supplement may differ
from the terms described below. Unless the context requires
otherwise, whenever we refer to an “indenture,” we also are
referring to any supplemental indentures that specify the terms of
a particular series of debt securities.
We will issue the debt securities under an indenture that we will
enter into with the trustee named in the indenture. The indenture
will be qualified under the Trust Indenture Act of 1939, as amended
(the “Trust Indenture Act”). We have filed forms of senior and
subordinated indentures as exhibits to the registration statement,
of which this prospectus is a part, and supplemental indentures and
forms of debt securities containing the terms of the debt
securities being offered will be filed as exhibits to the
registration statement of which this prospectus is a part or will
be incorporated by reference from reports that we file with the
SEC.
The following summaries of material provisions of the senior debt
securities, the subordinated debt securities and the related
indentures are subject to, and qualified in their entirety by
reference to, all of the provisions of the indenture applicable to
a particular series of debt securities. We urge you to read the
applicable prospectus supplements and any related free writing
prospectuses related to the debt securities that we may offer under
this prospectus, as well as the complete indentures that contain
the terms of the debt securities. Except as we may otherwise
indicate, the terms of the senior indenture and the subordinated
indenture are identical.
General
The terms of each series of debt securities will be established by
or pursuant to a resolution of our board of directors and set forth
or determined in the manner provided in an officers’ certificate or
by a supplemental indenture. Debt securities may be issued in
separate series without limitation as to aggregate principal
amount. We may specify a maximum aggregate principal amount for the
debt securities of any series. We will describe in the applicable
prospectus supplement the terms of the series of debt securities
being offered, including:
•the
title of the series of debt securities;
•the
principal amount being offered, and if a series, the total amount
authorized and the total amount outstanding;
•any
limit upon the aggregate principal amount that may be
issued;
•the
maturity date or dates;
•the
form of the debt securities of the series;
•the
applicability of any guarantees;
•whether
or not the debt securities will be secured or unsecured, and the
terms of any secured debt;
•whether
the debt securities rank as senior debt, senior subordinated debt,
subordinated debt or any combination thereof, and the terms of any
subordination;
•if
the price (expressed as a percentage of the aggregate principal
amount thereof) at which such debt securities will be issued is a
price other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the
principal amount of such debt securities that is convertible into
another security or the method by which any such portion shall be
determined;
•the
interest rate or rates, which may be fixed or variable, or the
method for determining the rate and the date interest will begin to
accrue, the dates interest will be payable and the regular record
dates for interest payment dates or the method for determining such
dates;
•our
right, if any, to defer payment of interest and the maximum length
of any such deferral period;
•if
applicable, the date or dates after which, or the period or periods
during which, and the price or prices at which, we may, at our
option, redeem the series of debt securities pursuant to any
optional or provisional redemption provisions and the terms of
those redemption provisions;
•the
date or dates, if any, on which, and the price or prices at which
we are obligated, pursuant to any mandatory sinking fund or
analogous fund provisions or otherwise, to redeem, or at the
holder's option to purchase, the series of debt securities and the
currency or currency unit in which the debt securities are
payable;
•the
denominations in which we will issue the series of debt securities,
if other than denominations of $1,000 and any integral multiple
thereof;
•any
and all terms, if applicable, relating to any auction or
remarketing of the debt securities of that series and any security
for our obligations with respect to such debt securities and any
other terms which may be advisable in connection with the marketing
of debt securities of that series;
•whether
the debt securities of the series shall be issued in whole or in
part in the form of a global security or securities; the terms and
conditions, if any, upon which such global security or securities
may be exchanged in whole or in part for other individual
securities; and the depositary for such global security or
securities;
•if
applicable, the provisions relating to conversion or exchange of
any debt securities of the series and the terms and conditions upon
which such debt securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how
it will be calculated and may be adjusted, any mandatory or
optional (at our option or the holders' option) conversion or
exchange features, the applicable conversion or exchange period and
the manner of settlement for any conversion or
exchange;
•if
other than the full principal amount thereof, the portion of the
principal amount of debt securities of the series which shall be
payable upon declaration of acceleration of the maturity
thereof;
•additions
to or changes in the covenants applicable to the particular debt
securities being issued, including, among others, the
consolidation, merger or sale covenant;
•additions
to or changes in the events of default with respect to the
securities and any change in the right of the trustee or the
holders to declare the principal, premium, if any, and interest, if
any, with respect to such securities to be due and
payable;
•additions
to or changes in or deletions of the provisions relating to
covenant defeasance and legal defeasance;
•additions
to or changes in the provisions relating to satisfaction and
discharge of the indenture;
•additions
to or changes in the provisions relating to the modification of the
indenture both with and without the consent of holders of debt
securities issued under the indenture;
•the
currency of payment of debt securities if other than U.S. dollars
and the manner of determining the equivalent amount in U.S.
dollars;
•whether
interest will be payable in cash or additional debt securities at
our or the holders' option and the terms and conditions upon which
the election may be made;
•whether
the debt securities are to be offered at a price such that they
will be deemed to be offered at an “original issue discount” as
defined in paragraph (a) of Section 1273 of the Internal
Revenue Code of 1986, as amended;
•the
terms and conditions, if any, upon which we will pay amounts in
addition to the stated interest, premium, if any and principal
amounts of the debt securities of the series to any holder that is
not a "United States person" for federal tax purposes;
•any
restrictions on transfer, sale or assignment of the debt securities
of the series; and
•any
other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities, any other additions or
changes in the provisions of the indenture, and any terms that may
be required by us or advisable under applicable laws or
regulations.
Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement the terms
on which a series of debt securities may be convertible into or
exchangeable for our common stock, our preferred stock or other
securities. We will include provisions as to settlement upon
conversion or exchange and 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, our preferred stock or other securities that the
holders of the series of debt securities receive would be subject
to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable
to a particular series of debt securities, the indenture will 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
acquiror of such assets must assume all of our obligations under
the indenture or the debt securities, as appropriate. If the debt
securities are convertible into or exchangeable for our other
securities or securities of other entities, the person with whom we
consolidate or merge or to whom we sell all of our property must
make provisions for the conversion of the debt securities into
securities that the holders of the debt securities would have
received if they had converted the debt securities before the
consolidation, merger or sale.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus supplement applicable
to a particular series of debt securities, the following are events
of default under the indenture with respect to any series of debt
securities that we may issue:
•if
we fail to pay interest when due and payable and our failure
continues for 90 days and the time for payment has not been
extended;
•if
we fail to pay the principal, premium or sinking fund payment, if
any, when due and payable and the time for payment has not been
extended;
•if
we fail to observe or perform any other covenant or agreement
contained in the debt securities or the indenture, other than a
covenant specifically relating to another series of debt
securities, and our failure continues for 90 days after we
receive written notice of such failure from the trustee or we and
the trustee receive notice from the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of
the applicable series; and
•if
specified events of bankruptcy, insolvency or reorganization
occur.
We will describe in each applicable prospectus supplement any
additional events of default relating to the relevant series of
debt securities. If an event of default with respect to debt
securities of any series occurs and is continuing, other than an
event of default specified in the last bullet point above, the
trustee or the holders of at least 25% in aggregate principal
amount of the outstanding debt securities of that series, by notice
to us in writing, and to
the trustee if notice is given by such holders, may declare the
unpaid principal, premium, if any, and accrued interest, if any,
due and payable immediately. If an event of default arises due to
the occurrence of certain specified bankruptcy, insolvency or
reorganization events, the unpaid principal, premium, if any, and
accrued interest, if any, of each issue of debt securities then
outstanding shall be due and payable without any notice or other
action on the part of the trustee or any holder.
The holders of a majority in principal amount of the outstanding
debt securities of an affected series may waive any default or
event of default with respect to the series and its consequences,
except defaults or events of default regarding payment of
principal, premium, if any, or interest, unless we have cured the
default or event of default in accordance with the indenture. Any
waiver shall cure the default or event of default.
Subject to the terms of the applicable indenture, if an event of
default under an indenture shall occur and be continuing, the
trustee will be required in the exercise of its powers to use the
same degree of care that a prudent person would use in the conduct
of its own affairs; provided, however, that the 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 trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. 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
trustee, or exercising any trust or power conferred on the trustee,
with respect to the debt securities of that series, provided
that:
•the
direction so given by the holder is not in conflict with any law or
the applicable indenture; and
•subject
to its duties under the Trust Indenture Act, the 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.
A holder of the debt securities of any series will have the right
to institute a proceeding under the indenture or to appoint a
receiver or trustee, or to seek other remedies only
if:
•the
holder has given written notice to the trustee of a continuing
event of default with respect to that series;
•the
holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made a written
request and such holders have offered reasonable indemnity to the
trustee or security satisfactory to it against any loss, liability
or expense to be incurred in compliance with instituting the
proceeding as trustee; and
•the
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 other conflicting
directions within 60 days after the notice, request and
offer.
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 trustee regarding our
compliance with specified covenants in the indenture.
If a default occurs and is continuing under the applicable
indenture and is actually known to a responsible officer of the
trustee, the trustee must mail to each holder notice of the default
within 45 days after it occurs, unless such default has been
cured. Except in the case of a default in the payment of principal
or premium of, or interest on, any debt security or certain other
defaults specified in an indenture, the trustee shall be protected
in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of
directors, or responsible officers of the trustee, in good faith
determine that withholding notice is in the best interests of
holders of the relevant series of debt securities.
Modification of Indenture; Waiver
Subject to the terms of the indenture for any series of debt
securities that we may issue, we and the trustee may change an
indenture without the consent of any holders with respect to the
following specific matters:
•to
fix any ambiguity, defect or inconsistency in the
indenture;
•to
comply with the provisions described above under “— Consolidation,
Merger or Sale;”
•to
provide for uncertificated debt securities in addition to or in
place of certificated debt securities and to make all appropriate
changes for such purpose;
•to
add to our covenants, restrictions, conditions or provisions such
new covenants, restrictions, conditions or provisions for the
benefit of the holders of all or any series of debt securities, and
to make the occurrence, or the occurrence and the continuance, of a
default in any such additional covenants, restrictions, conditions
or provisions an event of default or to surrender any right or
power conferred to us in the indenture;
•to
add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of debt securities, as set forth in
such indenture;
•to
provide for the issuance of, and establish the form and terms and
conditions of, the debt securities of any series as provided above
under “— General,” to establish the form of any certifications
required to be furnished pursuant to the terms of the indenture or
any series of debt securities, or to add to the rights of the
holders of any series of debt securities;
•to
evidence and provide for the acceptance of appointment under any
indenture by a successor trustee;
•to
comply with any requirements of the SEC in connection with the
qualification of any indenture under the Trust Indenture Act;
or
•to
change anything that does not materially adversely affect the
interests of any holder of debt securities of any series in any
material respect; provided that any amendment made solely to
conform the provisions of the indenture to the corresponding
description of the debt securities contained in the applicable
prospectus or prospectus supplement shall be deemed not to
adversely affect the interests of the holders of such debt
securities; provided further, that in connection with any such
amendment we will provide the trustee with an officers’ certificate
certifying that such amendment will not adversely affect the rights
or interests of the holders of such debt securities.
In addition, under the indenture, the rights of holders of a series
of debt securities may be changed by us and the 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
that is affected. However, unless we provide otherwise in the
prospectus supplement applicable to a particular series of debt
securities, we and the trustee may make the following changes only
with the consent of each holder of any outstanding debt securities
affected:
•extending
the fixed maturity of any debt securities of any
series;
•reducing
the principal amount, reducing the rate of or extending the time of
payment of interest, or reducing any premium payable upon the
redemption of any series of any debt securities;
•reducing
the percentage of debt securities, the holders of which are
required to consent to any amendment, supplement, modification or
waiver;
•changing
any of our obligations to pay additional amounts;
•reducing
the amount of principal of an original issue discount security or
any other note payable upon acceleration of the maturity
thereof;
•changing
the currency in which any note or any premium or interest is
payable;
•impairing
the right to enforce any payment on or with respect to any
note;
•adversely
changing the right to convert or exchange, including decreasing the
conversion rate or increasing the conversion price of, such note,
if applicable;
•in
the case of the subordinated indenture, modifying the subordination
provisions in a manner adverse to the holders of the subordinated
debt securities;
•if
the debt securities are secured, changing the terms and conditions
pursuant to which the debt securities are secured in a manner
adverse to the holders of the secured debt securities;
•reducing
the requirements contained in the applicable indenture for quorum
or voting;
•changing
any of our obligations to maintain an office or agency in the
places and for the purposes required by the indenture;
or
•modifying
any of the above provisions set forth in this
paragraph.
Discharge
Each indenture provides that, subject to the terms of the indenture
and any limitation otherwise provided in the prospectus supplement
applicable to a particular series of debt securities, we may elect
to be discharged from our obligations with respect to one or more
series of debt securities, except for specified obligations,
including obligations to:
•provide
for payment;
•register
the transfer or exchange of debt securities of the
series;
•replace
stolen, lost or mutilated debt securities of the
series;
•pay
principal of and premium and interest on any debt securities of the
series;
•maintain
paying agencies;
•hold
monies for payment in trust;
•recover
excess money held by the trustee;
•compensate
and indemnify the trustee; and
•appoint
any successor trustee.
In order to exercise our rights to be discharged, we must deposit
with the trustee money or government obligations sufficient to pay
all the principal of, any 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 provide otherwise 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 (“DTC”) or
another depositary named by us and identified in the applicable
prospectus supplement with respect to that series. To the extent
the debt securities of a series are issued in global form and as
book entry, a description of terms relating to any book-entry
securities will be set forth in the applicable prospectus
supplement.
At the option of the holder, subject to the terms of the applicable
indenture and the limitations applicable to global securities
described in the applicable prospectus supplement, the holder of
the debt securities of any series can exchange the debt securities
for other debt securities of the same series, in any authorized
denomination and of like tenor and aggregate principal
amount.
Subject to the terms of the applicable indenture and the
limitations applicable to global securities set forth in the
applicable prospectus supplement, holders of the debt securities
may present the debt securities for exchange or for registration of
transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security
registrar, at the office of the security registrar or at the office
of any transfer agent designated by us for this purpose. Unless
otherwise provided in the debt securities that the holder presents
for transfer or exchange, we will impose no service charge for any
registration of transfer or exchange, but we may require payment of
any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security
registrar, and any transfer agent in addition to the security
registrar, that we initially designate for any debt securities. We
may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be
required to maintain a transfer agent in each place of payment for
the debt securities of each series.
If we elect to redeem the debt securities of any series, we will
not be required to:
•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
•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.
Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an
event of default under an 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 trustee
must use the same degree of care as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this
provision, the trustee is under no obligation to exercise any of
the powers given it by the indenture at the request of any holder
of debt securities unless it is offered reasonable security and
indemnity against the costs, expenses and liabilities that it might
incur.
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 payment.
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, we will make interest
payments by check that we will mail to the holder or by wire
transfer to certain holders. Unless we otherwise indicate in the
applicable prospectus supplement, we will designate the corporate
trust office of the trustee 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 trustee for the payment
of the principal of or any premium or interest on any debt
securities that 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 debt security
thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt securities will be governed by and
construed in accordance with the internal laws of the State of New
York, except to the extent that the Trust Indenture Act is
applicable.
Ranking Debt Securities
The 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
subordinated debt securities that we may issue. It also does not
limit us from issuing any other secured or unsecured
debt.
The senior debt securities will be unsecured and will rank equally
in right of payment to all our other senior unsecured debt. The
senior indenture does not limit the amount of senior debt
securities that we may issue. It also does not limit us from
issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
The following description, together with the additional information
we may include in any applicable prospectus supplement and free
writing prospectus, summarizes the material terms and provisions of
the warrants that we may offer under this prospectus, which may
consist of warrants to purchase common stock, preferred stock or
debt securities and may be issued in one or more series. Warrants
may be offered independently or in combination with common stock,
preferred stock or debt securities offered by any prospectus
supplement, and may be attached to or separate from those
securities. While the terms we have summarized below will apply
generally to any warrants that we may offer under this prospectus,
we will describe the particular terms of any series of warrants
that we may offer in more detail in the applicable prospectus
supplement and any applicable free writing prospectus. The
following description of warrants will apply to the warrants
offered by this prospectus unless we provide otherwise in the
applicable prospectus supplement. The applicable prospectus
supplement for a particular series of warrants may specify
different or additional terms.
We will issue the warrants under a warrant agreement that we will
enter into with a warrant agent to be selected by us. The warrant
agent will act solely as an agent of ours in connection with the
warrants and will not act as an agent for the holders or beneficial
owners of the warrants. We will file as exhibits to the
registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the SEC,
the form of warrant and/or the warrant agreement and warrant
certificate, as applicable, that contain the terms of the
particular series of warrants we are offering, and any supplemental
agreements, before the issuance of such warrants. The following
summaries of material terms and provisions of the warrants and the
warrant agreements are subject to, and qualified in their entirety
by reference to, all of the provisions of the form of warrant
and/or the warrant agreement and warrant certificate, as
applicable, and any supplemental agreements applicable to a
particular series of warrants that we may offer under this
prospectus. We urge you to read the applicable prospectus
supplement and any applicable free writing prospectus related to
the particular series of warrants that we may offer under this
prospectus, as well as any related free writing prospectus, and the
complete form of warrant and/or the warrant agreement and warrant
certificate, as applicable, and any supplemental agreements that
contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the terms
of the series of warrants being offered, including:
•the
offering price and aggregate number of warrants
offered;
•the
currency for which the warrants may be purchased;
•if
applicable, the designation and terms of the securities with which
the warrants are issued and the number of warrants issued with each
such security or each principal amount of such
security;
•if
applicable, the date on and after which the warrants and the
related securities will be separately transferable;
•in
the case of warrants to purchase debt securities, the principal
amount of debt securities purchasable upon exercise of one warrant
and the price at, and currency in which, this principal amount of
debt securities may be purchased upon such exercise;
•in
the case of warrants to purchase common stock or preferred stock,
the number of shares of common stock or preferred stock, as the
case may be, purchasable upon the exercise of one warrant and the
price at which these shares may be purchased upon such
exercise;
•the
effect of any merger, consolidation, sale or other disposition of
our business on the warrant agreements and the
warrants;
•the
terms of any rights to redeem or call the warrants;
•any
provisions for changes to or adjustments in the exercise price or
number of securities issuable upon exercise of the
warrants;
•the
dates on which the right to exercise the warrants will commence and
expire;
•the
manner in which the warrant agreements and warrants may be
modified;
•a
discussion of material or special U.S. federal income tax
considerations, if any, of holding or exercising the
warrants;
•the
terms of the securities issuable upon exercise of the warrants;
and
•any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
Before exercising their warrants, holders of warrants will not have
any of the rights of holders of the securities purchasable upon
such exercise, including:
•in
the case of warrants to purchase debt securities, the right to
receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce
covenants in the applicable indenture; or
•in
the case of warrants to purchase common stock or preferred stock,
the right to receive dividends, if any, or payments upon our
liquidation, dissolution or winding up or to exercise voting
rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities
that we specify in the applicable prospectus supplement at the
exercise price that we describe in the applicable prospectus
supplement. The warrants may be exercised as set forth in the
prospectus supplement relating to the warrants offered. Unless we
otherwise specify in the applicable prospectus supplement, warrants
may be exercised at any time up to the close of business on the
expiration date set forth in the prospectus supplement relating to
the warrants offered thereby. After the close of business on the
expiration date, unexercised warrants will become
void.
Holders of the warrants may exercise the warrants by delivering the
warrant certificate representing the warrants to be exercised
together with specified information, and paying the required amount
to the warrant agent in immediately available funds, as provided in
the applicable prospectus supplement. We will set forth on the
reverse side of the warrant certificate and in the applicable
prospectus supplement the information that the holder of the
warrant will be required to deliver to the warrant
agent.
Upon receipt of payment and the warrant or warrant certificate, as
applicable, properly completed and duly executed at the corporate
trust office of the warrant agent, if any, or any other office,
including ours, indicated in the prospectus supplement, we will, as
soon as practicable, issue and deliver the securities purchasable
upon such exercise. If less than all of the warrants (or the
warrants represented by such warrant certificate) are exercised, a
new warrant or a new warrant certificate, as applicable, will be
issued for the remaining warrants.
Governing Law
Unless we provide otherwise in the applicable prospectus
supplement, the warrants and any warrant agreements will be
governed by and construed in accordance with the internal laws of
the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, will act solely as our agent under the
applicable warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any warrant. A
single bank or trust company may act as warrant agent for more than
one issue of warrants. A warrant agent will have no duty or
responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a
warrant may, without the consent of the related warrant agent or
the holder of any other warrant, enforce by appropriate legal
action its right to exercise, and receive the securities
purchasable upon exercise of, its warrants.
DESCRIPTION OF RIGHTS
General
We may issue rights to purchase common stock, preferred stock or
the other securities described in this prospectus. This prospectus
and any accompanying prospectus supplement will contain the
material terms and conditions for each right. The accompanying
prospectus supplement may add, update or change the terms and
conditions of the rights as described in this
prospectus.
We will describe in the applicable prospectus supplement the terms
and conditions of the issue of rights being offered, the rights
agreement relating to the rights and the rights certificates
representing the rights, including, as applicable:
•the
title of the rights;
•the
date of determining the stockholders entitled to the rights
distribution;
•the
title, aggregate number of shares of common stock, preferred stock
or other securities purchasable upon exercise of the
rights;
•the
exercise price;
•the
currencies in which the rights are being offered;
•the
aggregate number of rights issued;
•the
date, if any, on and after which the rights will be separately
transferable;
•the
date on which the right to exercise the rights will commence and
the date on which the right will expire; and
•any
other terms of the rights, including terms, procedures and
limitations relating to the distribution, exchange and exercise of
the rights.
Exercise of Rights
Each right will entitle the holder of rights to purchase for cash
the principal amount of shares of common stock, preferred stock or
other securities at the exercise price provided in the applicable
prospectus supplement. Rights may be exercised at any time up to
the close of business on the expiration date for the rights
provided in the applicable prospectus supplement. After the close
of business on the expiration date, all unexercised rights will be
void.
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 or preferred stock 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, brokers or dealers or through a
combination of such methods, including pursuant to standby
underwriting arrangements, as described in the applicable
prospectus supplement.
DESCRIPTION OF UNITS
The following description, together with the additional information
we may include in any applicable prospectus supplements and free
writing prospectuses, 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. 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 will file as exhibits to the registration statement of which
this prospectus is a part, or will incorporate by reference from a
report 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
sell under this prospectus, as well as the complete unit agreement
and any supplemental agreements that contain the terms of
the units.
General
We may issue units comprised of one or more debt securities,
shares of common stock, shares of preferred stock, warrants or
rights 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 included security. The unit
agreement under which a unit is issued may provide that the
securities included in the unit may not be held or transferred
separately, at any time or at any time before a specified
date.
We will describe in the applicable prospectus supplement the terms
of the series of units, including:
•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;
•any
provisions of the governing unit agreement that differ from those
described below; and
•any
provisions for the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising
the units.
The provisions described in this section, as well as those
described under “Description of Capital Stock,” “Description of
Debt Securities,” “Description of Warrants” and “Description of
Rights” will apply to each unit and to any common stock, preferred
stock, debt security, warrant or right included in each unit,
respectively.
Issuance in Series
We may issue units in such amounts and in 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.
We, the unit agents and any of their agents may treat the
registered holder of any unit certificate as an absolute owner of
the units evidenced by that certificate for any purpose and as
the person entitled to exercise the rights attaching to
the units so requested, despite any notice to the contrary.
See “Legal Ownership of Securities.”
LEGAL OWNERSHIP OF SECURITIES
We may issue securities in registered form or in the form of one or
more global securities. We describe global securities in greater
detail below. We refer to those persons who have securities
registered in their own names on the books that we or any
applicable trustee, depositary, warrant agent or other agent
maintain for this purpose as the “holders” of those securities.
These persons are the legal holders of the securities. We refer to
those persons who, indirectly through others, own beneficial
interests in securities that are not registered in their own names,
as “indirect holders” of those securities. As we discuss below,
indirect holders are not legal holders, and investors in securities
issued in book-entry form or in street name will be indirect
holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify
in the applicable prospectus supplement. This means securities may
be represented by one or more global securities registered in the
name of a financial institution that holds them as depositary on
behalf of other financial institutions that participate in the
depositary’s book-entry system. These participating institutions,
which are referred to as participants, in turn, hold beneficial
interests in the securities on behalf of themselves or their
customers.
Only the person in whose name a security is registered is
recognized as the holder of that security. Securities issued in
global form will be registered in the name of the depositary or its
participants. Consequently, for securities issued in global form,
we will recognize only the depositary as the holder of the
securities, and we will make all payments on the securities to the
depositary. The depositary passes along the payments it receives to
its participants, which in turn pass the payments along to their
customers who are the beneficial owners. The depositary and its
participants do so under agreements they have made with one another
or with their customers; they are not obligated to do so under the
terms of the securities.
As a result, investors in a book entry security will not own
securities directly. Instead, they will own beneficial interests in
a global security, through a bank, broker or other financial
institution that participates in the depositary’s book-entry system
or holds an interest through a participant. As long as the
securities are issued in global form, investors will be indirect
holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities that are not
issued in global form. In these cases, investors may choose to hold
their securities in their own names or in “street name.” Securities
held by an investor in street name would be registered in the name
of a bank, broker or other financial institution that the investor
chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that
institution.
For securities held in street name, we or any applicable trustee or
depositary will recognize only the intermediary banks, brokers and
other financial institutions in whose names the securities are
registered as the holders of those securities, and we or any such
trustee or depositary will make all payments on those securities to
them. These institutions pass along the payments they receive to
their customers who are the beneficial owners, but only because
they agree to do so in their customer agreements or because they
are legally required to do so. Investors who hold securities in
street name will be indirect holders, not legal holders, of those
securities.
Legal Holders
Our obligations, as well as the obligations of any applicable
trustee, agent or third party employed by us or a trustee or any
agents, run only to the legal holders of the securities. We do not
have obligations to investors who hold beneficial interests in
global securities, in street name or by any other indirect means.
This will be the case whether an investor chooses to be an indirect
holder of a security or has no choice because we are issuing the
securities only in global form.
For example, once we make a payment or give a notice to the holder,
we have no further responsibility for the payment or notice even if
that holder is required, under agreements with its participants or
customers or by law, to
pass it along to the indirect holders but does not do so.
Similarly, we may want to obtain the approval of the holders to
amend an indenture, to relieve us of the consequences of a default
or of our obligation to comply with a particular provision of an
indenture, or for other purposes. In such an event, we would seek
approval only from the legal holders, and not the indirect holders,
of the securities. Whether and how the legal holders contact the
indirect holders is up to the legal holders.
When we refer to “you” in this prospectus, we mean those who invest
in the securities being offered by this prospectus, whether they
are the holders or only indirect holders of those securities. When
we refer to “your securities” in this prospectus, we mean the
securities in which you will hold a direct or indirect
interest.
Special Considerations for Indirect Holders
If you hold securities through a bank, broker or other financial
institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you
should check with your own institution to find out:
•the
performance of third-party service providers;
•how
it handles securities payments and notices;
•whether
it imposes fees or charges;
•how
it would handle a request for the holders’ consent, if ever
required;
•whether
and how you can instruct it to send you securities registered in
your own name so you can be a legal holder, if that is permitted in
the future;
•how
it would exercise rights under the securities if there were a
default or other event triggering the need for holders to act to
protect their interests; and
•if
the securities are in book-entry form, how the depositary’s rules
and procedures will affect these matters.
Global Securities
A global security is a security that represents one or any other
number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have
the same terms.
Each security issued in book-entry form will be represented by a
global security that we issue to, deposit with and register in the
name of a financial institution or its nominee that we select. The
financial institution that we select for this purpose is called the
depositary. Unless we specify otherwise in the applicable
prospectus supplement, DTC will be the depositary for all
securities issued in book-entry form.
A global security may not be transferred to or registered in the
name of anyone other than the depositary, its nominee or a
successor depositary, unless special termination situations arise.
We describe those situations below under “— Special Situations When
a Global Security Will Be Terminated.” As a result of these
arrangements, the depositary, or its nominee, will be the sole
registered owner and legal holder of all securities represented by
a global security, and investors will be permitted to own only
beneficial interests in a global security. Beneficial interests
must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the
depositary or with another institution that does. Thus, an investor
whose security is represented by a global security will not be a
legal holder of the security, but only an indirect holder of a
beneficial interest in the global security.
If the prospectus supplement for a particular security indicates
that the security will be issued as a global security, then the
security will be represented by a global security at all times
unless and until the global security is terminated. If termination
occurs, we may issue the securities through another book-entry
clearing system or decide that the securities may no longer be held
through any book-entry clearing system.
Special Considerations for Global Securities
The rights of an indirect holder relating to a global security will
be governed by the account rules of the investor’s financial
institution and of the depositary, as well as general laws relating
to securities transfers. We do not recognize an indirect holder as
a holder of securities and instead deal only with the depositary
that holds the global security.
If securities are issued only in the form of a global security, an
investor should be aware of the following:
•an
investor cannot cause the securities to be registered in his or her
name, and cannot obtain non-global certificates for his or her
interest in the securities, except in the special situations we
describe below;
•an
investor will be an indirect holder and must look to his or her own
bank or broker for payments on the securities and protection of his
or her legal rights relating to the securities, as we describe
above;
•an
investor may not be able to sell interests in the securities to
some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry
form;
•an
investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the
securities must be delivered to the lender or other beneficiary of
the pledge in order for the pledge to be effective;
•the
depositary’s policies, which may change from time to time, will
govern payments, transfers, exchanges and other matters relating to
an investor’s interest in a global security. We and any applicable
trustee have no responsibility for any aspect of the depositary’s
actions or for its records of ownership interests in a global
security. We and the trustee also do not supervise the depositary
in any way;
•the
depositary may, and we understand that DTC will, require that those
who purchase and sell interests in a global security within its
book-entry system use immediately available funds, and your broker
or bank may require you to do so as well; and
•financial
institutions that participate in the depositary’s book-entry
system, and through which an investor holds its interest in a
global security, may also have their own policies affecting
payments, notices and other matters relating to the securities.
There may be more than one financial intermediary in the chain of
ownership for an investor. We do not monitor and are not
responsible for the actions of any of those
intermediaries.
Special Situations When a Global Security Will Be
Terminated
In a few special situations described below, a global security will
terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the
choice of whether to hold securities directly or in street name
will be up to the investor. Investors must consult their own banks
or brokers to find out how to have their interests in securities
transferred to their own names, so that they will be direct
holders. We have described the rights of holders and street name
investors above.
Unless we provide otherwise in the applicable prospectus
supplement, a global security will terminate when the following
special situations occur:
•if
the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary
within 90 days;
•if
we notify any applicable trustee that we wish to terminate that
global security; or
•if
an event of default has occurred with regard to securities
represented by that global security and has not been cured or
waived.
The applicable prospectus supplement may also list additional
situations for terminating a global security that would apply only
to the particular series of securities covered by the applicable
prospectus supplement. When a
global security is terminated, only the depositary, and not we, the
trustee, the agent or other third party, as applicable, is
responsible for deciding the names of the institutions in whose
names the securities represented by the global security will be
registered and, therefore, who will be the direct holders of those
securities.
SELLING SECURITY HOLDERS
If the registration statement of which this prospectus forms a part
is used by selling security holders for the resale of any
securities registered thereunder pursuant to a registration rights
agreement to be entered into by us with such selling security
holders or otherwise, information about such selling security
holders, their beneficial ownership of our securities and their
relationship with us will be set forth in a prospectus supplement,
any free writing prospectus or in filings we make with the SEC
under the Exchange Act that are incorporated by reference into the
registration statement.
PLAN OF DISTRIBUTION
We may sell the securities from time to time pursuant to
underwritten public offerings, "at-the-market" offerings,
negotiated transactions, block trades or a combination of these
methods. We may sell the securities to or through one or more
underwriters or dealers (acting as principal or agent), through
agents, or directly to one or more purchasers. We may distribute
securities from time to time in one or more
transactions:
•at
a fixed price or prices, which may be changed;
•at
market prices prevailing at the time of sale;
•at
prices related to such prevailing market prices; or
•at
negotiated prices.
Each time we offer and sell securities, we will provide a
prospectus supplement or supplements (and any related free writing
prospectus that we may authorize to be provided to you) that will
describe the terms of the offering of the securities, including, to
the extent applicable:
•the
name or names of any agents or underwriters, brokers or dealers and
the amount of shares underwritten or purchased by each of
them;
•the
purchase price of the securities or other consideration therefor
and the proceeds we will receive from the sale;
•any
over-allotment or other options under which underwriters may
purchase additional securities from us;
•any
agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation;
•any
initial public offering price;
•any
discounts or concessions allowed or reallowed or paid to brokers or
dealers; and
•any
securities exchanges or markets on which such securities may be
listed.
Only underwriters named in the prospectus supplement will be
underwriters of the securities offered by the prospectus
supplement. Dealers and agents participating in the distribution of
the securities may be deemed to be underwriters, and compensation
received by them on resale of the securities may be deemed to be
underwriting discounts. If such dealers or agents were deemed to be
underwriters, they may be subject to statutory liabilities under
the Securities Act.
We may designate agents who agree to use their reasonable efforts
to solicit purchases of our securities for the period of their
appointment or to sell our securities on a continuing basis. We
will name any agent involved in the offering and sale of securities
and we will describe any commissions we will pay to the agent in
the prospectus supplement.
If underwriters are used in the sale of securities, the
underwriters will acquire the securities for their own account and
may resell the securities from time to time in one or more
transactions, including negotiated transactions, at a fixed public
offering price, at varying prices determined at the time of sale,
at prices related to prevailing market prices or at negotiated
prices. The obligations of the underwriters to purchase the
securities will be subject to the conditions set forth in the
applicable underwriting agreement. We may offer the securities to
the public through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate. Subject to
certain conditions, the underwriters will be obligated to purchase
all of the securities offered by the prospectus supplement, other
than securities covered by any over-allotment or other option. If a
dealer is used in the sale of securities, we or an underwriter 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. To the extent
required, we will set forth in the prospectus supplement the name
of the dealer and the terms of the transaction.
We may change from time to time any initial public offering price
and any discounts or concessions the underwriters allow or reallow
or pay to brokers or dealers. We may use underwriters, dealers or
agents with whom we have a material relationship. We will describe
in the prospectus supplement, naming the underwriter, dealer or
agent, the nature of any such relationship.
We may sell securities directly to one or more purchasers without
using underwriters or agents. Underwriters, brokers, dealers and
agents that participate in the distribution of the securities may
be underwriters as defined in the Securities Act, and any discounts
or commissions they receive from us and any profit on their resale
of the securities may be treated as underwriting discounts and
commissions under the Securities Act. We will identify in the
applicable prospectus supplement any underwriters, brokers, dealers
or agents and will describe their compensation. We may have
agreements with the underwriters, brokers, dealers and agents to
indemnify them against specified civil liabilities, including
liabilities under the Securities Act, or to contribution with
respect to payments which they may be required to make with respect
to these liabilities. Agents, underwriters, brokers and dealers,
and their affiliates, may engage in transactions with, or perform
services for, us in the ordinary course of business.
We, and/or the selling security holders, if applicable, may
authorize underwriters, brokers, dealers or agents to solicit
offers by certain purchasers to purchase the securities from us at
the public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. The contracts will be
subject only to those conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth any
commissions we pay for solicitation of these
contracts.
Unless otherwise specified in the applicable prospectus supplement,
each class or series of securities we may offer will be a new issue
of securities with no established trading market, other than our
common stock, which is listed on The Nasdaq Global Market. We may
elect to list any other class or series of securities on any
exchange or market, but we are not obligated to do so. It is
possible that one or more underwriters may make a market in these
securities, but the underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. We
cannot guarantee the liquidity of the trading markets for any
securities.
Any underwriter may engage in overallotment, stabilizing
transactions, short covering transactions and penalty bids in
accordance with Regulation M under the Exchange Act.
Overallotment involves sales in excess of the offering size, which
create a short position. Stabilizing transactions permit bids to
purchase the underlying security so long as the stabilizing bids do
not exceed a specified maximum price. Syndicate-covering or other
short covering transactions involve purchases of the securities,
either through exercise of the over-allotment option or in the open
market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a
selling concession from a dealer when the securities originally
sold by the dealer are purchased in a stabilizing or covering
transaction to cover short positions. Those activities may cause
the price of the securities to be higher than it would otherwise
be. If commenced, the underwriters may discontinue any of these
activities at any time.
Any underwriters who are qualified market makers on The Nasdaq
Global Market may engage in passive market making transactions in
the securities on The Nasdaq Global Market in accordance with
Rule 103 of Regulation M under the Exchange Act, during
the business day prior to the pricing of the offering, before the
commencement of offers or sales of the securities. Passive market
makers must comply with applicable volume and price limitations and
must be identified as passive market makers. In general, a passive
market maker must display its bid at a price not in excess of the
highest independent bid for such security. If all independent bids
are lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain
purchase limits are exceeded. Passive market making may stabilize
the market price of the securities at a level above that which
might otherwise prevail in the open market and, if commenced, may
be discontinued at any time.
LEGAL MATTERS
Paul Hastings LLP, San Diego, California will pass for us upon the
validity of the securities being offered by this
prospectus.
EXPERTS
The financial statements of Xencor, Inc. as of December 31, 2022
and 2021 and for each of the years in the three-year period ended
December 31, 2022 and the effectiveness of internal control over
financial reporting as of December 31, 2022 incorporated in this
prospectus and registration statement by reference from Xencor,
Inc.’s Annual Report on Form 10-K for the year ended December 31,
2022 have been audited by RSM US LLP, an independent registered
public accounting firm, as stated in their reports thereon
incorporated herein by reference, and have been incorporated in
this prospectus and registration statement in reliance upon such
reports and upon the authority of such firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. The SEC maintains an Internet
website at http://www.sec.gov that
contains reports, proxy and information statements, and other
information regarding issuers that file electronically with the
SEC, including Xencor. You may also access our reports and proxy
statements free of charge at our Internet
website, http://www.xencor.com.
The information contained in, or that can be accessed through, our
website is not part of this prospectus. The prospectus included in
this filing is part of a registration statement filed by us with
the SEC. The full registration statement can be obtained from the
SEC, as indicated above, or from us.
This prospectus is part of a registration statement on Form S-3 we
filed with the SEC relating to the securities to be offered. This
prospectus does not contain all of the information we have included
in the registration statement and the accompanying exhibits and
schedules in accordance with the rules and regulations of the SEC,
and we refer you to the omitted information. The statements this
prospectus makes pertaining to the content of any contract,
agreement or other document that is an exhibit to the registration
statement necessarily are summaries of their material provisions
and do not describe all exceptions and qualifications contained in
those contracts, agreements or documents. You should read those
contracts, agreements or documents for information that may be
important to you. The registration statement, exhibits and
schedules are available at the SEC’s Internet website.
You should rely only on information in this prospectus or
incorporated by reference herein. We have not authorized any person
to provide you with different information. We are not making an
offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this
prospectus is accurate as of any date other than the date of the
front page of this prospectus, regardless of the time of delivery
of this prospectus or any sale of the securities offered by this
prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” information from
other documents that we file with it, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is considered
to be part of this prospectus. We incorporate by reference into
this prospectus and the registration statement of which this
prospectus is a part the information or documents listed below that
we have filed with the SEC (Commission File No.
001-36182):
•our
Annual Report on Form
10-K for
the year ended December 31, 2022, filed with the SEC on
February 27, 2023; and
•the
description of our common stock contained in our Registration
Statement on Form
8-A (File
No. 001-36182), filed under Section 12(b) of the Exchange Act
on November 7, 2013, including any subsequent amendment or report
filed for the purpose of amending such description.
Any information in any of the foregoing documents will
automatically be deemed to be modified or superseded to the extent
that information in this prospectus or in a later filed document
that is incorporated or deemed to be
incorporated herein by reference modifies or replaces such
information. Any statement so modified or superseded will not be
deemed, except as so modified or superseded, to constitute a part
of this prospectus.
We also incorporate by reference any future filings (other than
current reports furnished under Item 2.02 or Item 7.01 of
Form 8-K and exhibits filed on such form that are related to such
items unless such Form 8-K expressly provides to the contrary) made
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act until we file a post-effective amendment that
indicates the termination of the offering of the securities covered
by this prospectus and will become a part of this prospectus from
the date that such documents are filed with the SEC. Information in
such future filings updates and supplements the information
provided in this prospectus. Any statements in any such future
filings will automatically be deemed to modify and supersede any
information in any document we previously filed with the SEC that
is incorporated or deemed to be incorporated herein by reference to
the extent that statements in the later filed document modify or
replace such earlier statements.
We will furnish without charge to each person, including any
beneficial owner, to whom a prospectus is delivered, upon written
or oral request, a copy of any or all of the documents incorporated
by reference, including exhibits to these documents. Any such
request may be made by writing us at Xencor, Inc., 111 West Lemon
Avenue, Monrovia, California 91016 Attn: Corporate Secretary or
telephoning us at (626) 305-5900.
Prospectus
$200 Million
Common Stock
We have entered into a sales agreement, the Sales Agreement, with
SVB Securities LLC, or SVB Securities, relating to shares of our
common stock offered by this prospectus. In accordance with the
terms of the Sales Agreement, we may offer and sell shares of our
common stock having an aggregate offering price of up to
$200,000,000 from time to time through SVB Securities acting as the
sales agent.
Our common stock is traded on The Nasdaq Global Market, under the
symbol “XNCR.” On February 21, 2023, the last reported sale price
of our common stock was $34.14 per share.
Sales of our common stock, if any, under this prospectus may be
made in sales deemed to be “at the market” offerings as defined in
Rule 415 promulgated under the Securities Act of 1933, as
amended, or the Securities Act. SVB Securities is not required to
sell any specific number or dollar amount of securities, but will
act as a sales agent using commercially reasonable efforts
consistent with its normal trading and sales practices, on mutually
agreed terms between SVB Securities and us. There is no arrangement
for funds to be received in any escrow, trust or similar
arrangement.
The compensation to SVB for sales of common stock sold pursuant to
the Sales Agreement will be an amount not to exceed 3.0% of the
gross proceeds of any shares of common stock sold under the Sales
Agreement. In connection with the sale of the common stock on our
behalf, SVB Securities will be deemed to be an “underwriter” within
the meaning of the Securities Act and the compensation of SVB
Securities will be deemed to be underwriting commissions or
discounts. We have also agreed to provide indemnification and
contribution to SVB Securities with respect to certain liabilities,
including liabilities under the Securities Act or the Securities
Exchange Act of 1934, as amended, or the Exchange Act.
INVESTING IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. YOU
SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER
THE HEADING “RISK FACTORS” ON PAGE
S-5
OF THIS PROSPECTUS AND UNDER SIMILAR HEADINGS IN THE OTHER
DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS
PROSPECTUS.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
SVB Securities
February 27, 2023
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus relates to the offering of our common stock. Before
buying any of the common stock that we are offering, we urge you to
carefully read this prospectus, together with the information
incorporated by reference as described under the headings “Where
You Can Find More Information” and “Incorporation of Certain
Information by Reference” in this prospectus. These documents
contain important information that you should consider when making
your investment decision.
This prospectus describes the terms of this offering of common
stock and also adds to and updates information contained in the
documents incorporated by reference into this prospectus. To the
extent there is a conflict between the information contained in
this prospectus, on the one hand, and the information contained in
any document incorporated by reference into this prospectus that
was filed with the Securities and Exchange Commission, or SEC,
before the date of this prospectus, on the other hand, you should
rely on the information in this prospectus. 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 into this prospectus) the statement in the document
having the later date modifies or supersedes the earlier
statement.
You should rely only on the information contained in or
incorporated by reference in this prospectus and in any free
writing prospectus that we have authorized for use in connection
with this offering. We have not, and the sales agent has not,
authorized anyone to provide you with different information. If
anyone provides you with different or inconsistent information, you
should not rely on it. We are not, and the sales agent is not,
making an offer to sell these securities in any jurisdiction where
the offer or sale is not permitted. You should assume that the
information appearing in this prospectus, the documents
incorporated by reference in this prospectus, and in any free
writing prospectus that we have authorized for use in connection
with this offering, is accurate only as of the date of those
respective documents. Our business, financial condition, results of
operations and prospects may have changed since those dates. You
should read this prospectus, the documents incorporated by
reference in this prospectus, and any free writing prospectus that
we have authorized for use in connection with this offering, in
their entirety before making an investment decision.
Unless the context requires otherwise, references in this
prospectus to “Xencor,” “we,” “us” and “our” refer to Xencor,
Inc.
PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere in
this prospectus or incorporated by reference in this prospectus,
and does not contain all of the information that you need to
consider in making your investment decision. You should carefully
read the entire prospectus and any related free writing prospectus,
including the risks of investing in our securities discussed under
the heading "Risk Factors" contained in this prospectus on
page
S-5
and in the documents incorporated by reference into this
prospectus., and under similar headings in the other documents that
are incorporated by reference into this prospectus. You should also
carefully read the information incorporated by reference into this
prospectus, including our financial statements, and the exhibits to
the registration statement of which this prospectus is a
part.
Xencor, Inc.
We are a clinical-stage biopharmaceutical company focused on
discovering and developing engineered monoclonal antibody and
cytokine therapeutics to treat patients with cancer and autoimmune
diseases who have unmet medical needs. We use our protein
engineering capabilities to increase our understanding of protein
structures and interactions and to design new technologies and
XmAb® drug candidates with improved properties. We advance these
candidates into clinical-stage development, where we are conducting
Phase 1 and Phase 2 studies for a broad portfolio of programs, to
determine which programs we advance into later stages of
development and potentially commercialization, which programs we
partner to access complementary resources to optimize development,
or which programs we terminate.
Our approach to protein design includes engineering Fc domains, the
parts of antibodies that interact with multiple segments of the
immune system and controls antibody structural architecture. The Fc
domain is constant and interchangeable among antibodies, and our
engineered XmAb Fc domains can be readily substituted for natural
Fc domains.
Our protein engineering capabilities and Fc technologies enable us
and our partners to develop XmAb antibodies and biotherapeutic drug
candidates with improved properties and functionality, which can
provide innovative approaches to treating disease and potential
clinical advantage over other treatment options. For example, we
have developed an antibody scaffold to rapidly create novel
multi-specific antibodies that bind two or more different targets
simultaneously, creating entirely new biological mechanisms. Other
applications of our protein engineering technologies enhance
antibody performance by increasing immune inhibitory activity,
improving cytotoxicity, extending circulating half-life and
stabilizing novel protein structures, such as engineered cytokines.
Three marketed XmAb medicines have been developed with our protein
engineering technologies and are generating royalties for
us.
Risks Associated with our Business
Our business is subject to numerous risks and uncertainties,
including those highlighted in the section titled “Risk Factors”
immediately following this prospectus summary and those described
under similar headings in the documents incorporated by reference
into this prospectus. These risks include:
•We
have incurred significant losses since our inception and anticipate
that we will continue to incur significant losses for the
foreseeable future.
•Biopharmaceutical
product development is a highly speculative undertaking and
involves a substantial degree of uncertainty. We have never
generated any revenue from product sales and may never be
profitable.
•We
will require additional financing and may be unable to raise
sufficient capital, which could lead us to delay, reduce or abandon
research and development programs or
commercialization.
•The
market price of our common stock is likely to be highly volatile,
and you could lose all or part of your investment.
•Our
principal stockholders, directors and management own a significant
percentage of our stock and will be able to exert significant
control over matters subject to stockholder approval.
•Raising
additional funds through debt or equity financing may be dilutive
or restrict our operations and raising funds through licensing may
require us to relinquish rights to our technology or product
candidates.
•Future
sales and issuances of our common stock or rights to purchase
common stock, including pursuant to our equity incentive plans,
could result in additional dilution of the percentage ownership of
our stockholders and could cause our stock price to
fall.
•Our
success depends on our ability to use and expand our XmAb
technology platform to build a pipeline of XmAb product candidates
and develop marketable products. We cannot be certain our
candidates will receive regulatory approval or be successfully
commercialized.
•The
clinical development stage of our operations may make it difficult
for you to evaluate the success of our business to date and to
assess our future viability.
•Preliminary,
interim, and topline data from our clinical trials that we announce
or publish from time to time may change as more patient data become
available and are subject to audit and verification procedures that
could result in material changes in the final data.
•The
COVID-19 pandemic and the future outbreak of other highly
infectious or contagious diseases could materially and adversely
impact or disrupt our business and our financial condition, results
of operations, cash flows and performance.
Our Corporate Information
We were incorporated in California in August 1997 under the name
Xencor. In September 2004, we reincorporated in the State of
Delaware under the name Xencor, Inc. Our principal executive
offices are located at 111 West Lemon Avenue, Monrovia, CA 91016,
and our telephone number is (626) 305-5900. Our website address
is
www.xencor.com.
Information found on, or accessible through, our website is not a
part of, and is not incorporated into, this prospectus. Our website
address is included in this prospectus as an inactive textual
reference only.
Nasdaq Global Market Listing
Our common stock is listed on The Nasdaq Global Market under the
symbol “XNCR.”
THE OFFERING
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Common Stock Offered By Us |
Shares of our common stock having an aggregate offering price of up
to $200 million. |
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Common Stock to be Outstanding After This Offering |
Up to 65,885,944, assuming sales of 5,858,231 shares of our common
stock in this offering at an offering price of $34.14 per share,
the last reported sale price of our common stock on The Nasdaq
Global Market on February 21, 2023. The actual number of shares
issued will vary depending on the sales price under this
offering. |
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Manner of Offering |
“At the market offering” that may be made from time to time through
SVB Securities, as sales agent. See “Plan of Distribution” on
page
S-16.
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Use of Proceeds |
We currently intend to use the net proceeds from this offering for
general corporate purposes, which may include funding research and
development, capital expenditures, working capital and general and
administrative expenses. See “Use of Proceeds” on page
S-9
of this prospectus.
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Risk Factors |
Investing in our common stock involves significant risks. See “Risk
Factors” on page
S-5
of this prospectus, and under similar headings in other documents
incorporated by reference into this prospectus.
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Nasdaq Global Market Symbol |
XNCR |
The above discussion is based on 59,997,713 shares of our common
stock outstanding as of December 31, 2022, and
excludes:
•10,082,642
shares of our common stock issuable upon the exercise of stock
options outstanding as of December 31, 2022, at a weighted
average exercise price of $29.12 per share;
•1,232,551
shares of our common stock issuable upon vesting of our restricted
stock units outstanding as of December 31, 2022, at a weighted
average grant price of $32.41 per share; and
•an
aggregate of 14,492,779 shares of common stock reserved for future
issuance under our equity compensation plans as of
December 31, 2022, plus any additional shares of our common
stock that may become available under our equity compensation
plans.
RISK FACTORS
Investing in our securities involves a high degree of risk. Before
deciding whether to invest in our securities, you should consider
carefully the risks and uncertainties described under the heading
“Risk Factors” contained in this prospectus and any related free
writing prospectus, and described under the section entitled “Risk
Factors” contained in our Annual Report on Form 10-K for the year
ended December 31, 2022, as well as any amendments thereto and
other filings we make with the SEC from time to time, which are
incorporated by reference into this prospectus in their entirety.
The risks described in these documents are not the only ones we
face, but those that we consider to be material. There may be other
unknown or unpredictable economic, business, competitive,
regulatory or other factors that could have material adverse
effects on our future results. Past financial performance may not
be a reliable indicator of future performance, and historical
trends should not be used to anticipate results or trends in future
periods. If any of these risks actually occur, our business,
financial condition, results of operations, cash flow and future
growth prospects could be seriously harmed. This could cause the
market price of our securities to decline, resulting in a loss of
all or part of your investment. Please also carefully read the
section below entitled “Forward-Looking Statements.”
Risks Related to This Offering
You may experience dilution.
The offering price per share in this offering may exceed the net
tangible book value per share of our common stock outstanding prior
to this offering. Assuming that an aggregate of 5,858,231 shares of
our common stock are sold at a price of $34.14 per share, the last
reported sale price of our common stock on The Nasdaq Global Market
on February 21, 2023, for aggregate gross proceeds of
$200 million, and after deducting commissions and estimated
offering expenses payable by us, you would experience immediate
dilution of $20.43 per share, representing the difference between
our as adjusted net tangible book value per share as of December
31, 2022 after giving effect to this offering at the assumed
offering price. The exercise of outstanding stock options and the
vesting of outstanding restricted stock units would result in
further dilution of your investment. See the section entitled
“Dilution” below for a more detailed illustration of the dilution
you would incur if you participate in this offering. The prices at
which we sell the shares offered hereby will vary and these
variations may be significant. Purchasers of the shares we sell, as
well as our existing shareholders, will experience significant
dilution if we sell shares at prices significantly below the price
at which they invested.
Our management might apply the net proceeds from this offering in
ways with which you do not agree and in ways that may impair the
value of your investment.
We currently intend to use the net proceeds from this offering
primarily to fund the research and development of the drug
candidates in our pipeline and for working capital and general
corporate purposes. Pending these uses, we expect to invest the net
proceeds in short-term, interest bearing obligations, certificates
of deposit or direct or guaranteed obligations of the United
States. Our management has broad discretion as to the use of these
proceeds and you will be relying on the judgment of our management
regarding the application of these proceeds. We might apply these
proceeds in ways with which you do not agree, or in ways that do
not yield a favorable return. If our management applies these
proceeds in a manner that does not yield a significant return, if
any, on our investment of these net proceeds, it could compromise
our ability to pursue our business strategy and adversely affect
the market price of our common stock.
The actual number of shares we will issue under the sales
agreement, at any one time or in total, is uncertain.
Subject to certain limitations in the sales agreement and
compliance with applicable law, we have the discretion to deliver a
placement notice to SVB Securities at any time throughout the term
of the Sales Agreement. The number of shares that are sold by SVB
Securities after delivering a placement notice will fluctuate based
on the market price of our common stock during the sales period and
limits we set with SVB Securities. Because the price per share of
each share sold will fluctuate based on the market price of our
common stock during the sales period, it is not possible at this
stage to predict the number of shares that will be ultimately
issued.
The common stock offered hereby will be sold in “at the market
offerings,” and investors who buy shares at different times will
likely pay different prices.
Investors who purchase shares in this offering at different times
will likely pay different prices, and so may experience different
outcomes in their investment results. We will have discretion,
subject to market demand, to vary the timing, prices, and numbers
of shares sold, and there is no minimum or maximum sales price.
Investors may experience a decline in the value of their shares as
a result of share sales made at prices lower than the prices they
paid.
FORWARD-LOOKING STATEMENTS
This prospectus, as well as the documents incorporated by reference
in this prospectus, 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 (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 that may cause our actual results, performance or
achievements to be materially different from any future results,
performance or achievements expressed or implied by the
forward-looking statements. Forward-looking statements may include,
but are not limited to, statements about:
•the
effects of the ongoing COVID-19 pandemic on our financial
condition, results of operations, cash flows and
performance;
•our
ability to execute on our plans to research, develop and
commercialize our product candidates;
•the
success of our ongoing and planned clinical trials;
•the
timing of and our ability to obtain and maintain regulatory
approval for our product candidates;
•our
ability to identify additional products or product candidates with
significant commercial potential that are consistent with our
business objectives;
•our
ability to receive research funding and achieve anticipated
milestones under our collaborations;
•our
partners’ ability to advance drug candidates into, and successfully
complete, clinical trials;
•our
ability to attract collaborators with development, regulatory, and
commercialization expertise;
•our
ability to protect our intellectual property position;
•the
rate and degree of market acceptance and clinical utility of our
products;
•costs
of compliance and our failure to comply with new and existing
governmental regulations;
•the
capabilities and strategy of our suppliers and vendors including
key manufacturers of our clinical drug supplies;
•significant
competition in our industry;
•the
potential loss or retirement of key members of
management;
•our
failure to successfully execute our growth strategy including any
delays in our planned future growth;
•our
failure to maintain effective internal controls;
•the
anticipated use of proceeds from this offering, if any;
and
•our
ability to accurately estimate expenses, future revenues, capital
requirements and needs for additional financing.
In some cases, you can identify forward-looking statements by terms
such as “anticipates,” “believes,” “could,” “estimates,” “expects,”
“may,” “plans,” “potential,” “predicts,” “projects,” “should,”
“would,” “will” and similar expressions intended to identify
forward-looking statements.
These statements reflect our current views with respect to future
events, are based on assumptions and are subject to risks and
uncertainties. Given these risks and uncertainties, you should not
place undue reliance on these forward-looking statements. We
discuss in greater detail, and incorporate by reference into this
prospectus in their entirety, many of these risks and uncertainties
under the heading “Risk Factors” contained in this prospectus, in
any free writing prospectus we may authorize for use in connection
with this offering, and in our most recent annual
report on Form 10-K, as well as any amendments thereto reflected in
subsequent filings with the SEC. Also, these forward-looking
statements represent our estimates and assumptions only as of the
date of the document containing the applicable statement. 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. You should
read this prospectus, together with the documents we have filed
with the SEC that are incorporated by reference 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.
USE OF PROCEEDS
We may issue and sell shares of our common stock having aggregate
sales proceeds of up to $200 million from time to time. Because
there is no minimum offering amount required to be sold pursuant to
the Sales Agreement, the actual total public offering amount,
commissions and proceeds to us, if any, are not determinable at
this time. There can be no assurance that we will sell any shares
under or fully utilize the Sales Agreement with SVB Securities as a
source of financing.
We currently intend to use the net proceeds from the sale of the
common stock under this prospectus for general corporate purposes,
which may include research and development, capital expenditures,
working capital and general and administrative expenses. We may
also use a portion of the net proceeds to acquire or invest in
businesses, products and technologies that are complementary to our
own, although we have no current plans, commitments or agreements
to do so. Accordingly, we will retain broad discretion over the use
of such proceeds.
DILUTION
If you invest in our common stock in this offering, your ownership
interest will be diluted immediately to the extent of the
difference between the public offering price per share you will pay
in this offering and the as adjusted net tangible book value per
share of our common stock after this offering. Our net tangible
book value as of December 31, 2022 was approximately $709 million,
or $11.82 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, 2022. Dilution with respect to 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 giving effect to the sale of 5,858,231 shares of our common
stock in this offering at an assumed offering price of $34.14 per
share, the last reported sale price of our common stock on The
Nasdaq Global Market on February 21, 2023, and after deducting
estimated offering commissions and offering expenses payable by us,
our as adjusted net tangible book value as of December 31, 2022
would have been approximately $902.6 million, or $13.71 per share.
This represents an immediate increase in net tangible book value of
$1.89 per share to existing stockholders and immediate dilution of
$20.43 per share to investors purchasing our common stock in this
offering at the public offering price. The following table
illustrates this dilution on a per share basis:
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Assumed public offering price per share |
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$ |
34.14 |
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Net tangible book value per share as of December 31,
2022
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$ |
11.82 |
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Increase in net tangible book value per share attributable to this
offering |
1.89 |
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As adjusted net tangible book value per share as of December 31,
2022, after giving effect to this offering
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(13.71) |
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Dilution per share to investors purchasing our common stock in this
offering |
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$ |
20.43 |
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The above discussion and table are based on 59,997,713 shares of
our common stock outstanding as of December 31, 2022, and
exclude:
•10,082,642
shares of our common stock issuable upon the exercise of stock
options outstanding as of December 31, 2022, at a weighted
average exercise price of $29.12 per share;
•1,232,551
shares of our common stock issuable upon vesting of our restricted
stock units outstanding as of December 31, 2022, at a weighted
average grant price of $32.41 per share; and
•an
aggregate of 14,492,779 shares of common stock reserved for future
issuance under our equity compensation plans as of
December 31, 2022, plus any additional shares of our common
stock that may become available under our equity compensation
plans.
The table above assumes for illustrative purposes that an aggregate
of 5,858,231 shares of our common stock are sold during the term of
the Sales Agreement with SVB Securities at a price of $34.14 per
share, the last reported sale price of our common stock on The
Nasdaq Global Market on February 21, 2023, for aggregate gross
proceeds of $200 million. The shares subject to the Sales
Agreement with SVB Securities are being sold from time to time at
various prices. An increase of $1.00 per share in the price at
which the shares are sold from the assumed offering price of $34.14
per share shown in the table above, assuming all of our common
stock in the aggregate amount of $200 million during the term
of the Sales Agreement with SVB Securities is sold at that price,
would increase our as adjusted net tangible book value per share
after the offering to $13.74 per share and would increase the
dilution in net tangible book value per share to new investors in
this offering to $21.40 per share, after deducting commissions and
estimated aggregate offering expenses payable by us. A decrease of
$1.00 per share in the price at which the shares are sold from the
assumed offering price of $34.14 per share shown in the table
above, assuming all of our common stock in the aggregate amount of
$200 million during the term of the Sales Agreement with SVB
Securities is sold at that price, would decrease our as adjusted
net tangible book value per share after the offering to $13.67 per
share and would decrease the dilution in net tangible book value
per share to new investors in this offering to $19.47 per share,
after deducting commissions and estimated aggregate offering
expenses payable by us.
To the extent that outstanding options as of December 31, 2022 have
been or may be exercised or other shares are issued, investors
purchasing our common stock in this offering may experience further
dilution. 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.
DESCRIPTION OF CAPITAL STOCK
As of the date of this prospectus, our amended and restated
certificate of incorporation authorizes us to issue 200,000,000
shares of common stock, par value $0.01 per share, and 10,000,000
shares of preferred stock, par value $0.01 per share. As of
December 31, 2022, 59,997,713 shares of common stock were
outstanding and no shares of preferred stock were
outstanding.
The following summary describes the material terms of our capital
stock. The descriptions of capital stock are qualified by reference
to our amended and restated certificate of incorporation and our
second amended and restated bylaws, which are incorporated by
reference as exhibits into the registration statement of which this
prospectus is a part, and by reference to the applicable provisions
of the Delaware General Corporation Law (the “DGCL”).
Common Stock
Voting.
Our common stock is entitled to one vote for each share held of
record on all matters submitted to a vote of the stockholders,
including the election of directors, and does not have cumulative
voting rights. Accordingly, the holders of a majority of the shares
of our common stock entitled to vote in any election of directors
can elect all of the directors standing for election.
Dividends.
Subject to preferences that may be applicable to any
then-outstanding preferred stock, the holders of common stock are
entitled to receive dividends, if any, as may be declared from time
to time by our board of directors out of legally available
funds.
Liquidation.
In the event of our liquidation, dissolution or winding-up, holders
of our common stock will be entitled to share ratably in the net
assets legally available for distribution to stockholders after the
payment of all of our debts and other liabilities, subject to the
satisfaction of any liquidation preference granted to the holders
of any outstanding shares of preferred stock.
Rights and Preferences.
Holders of our common stock have no preemptive, conversion or
subscription rights, and there are no redemption or sinking fund
provisions applicable to our common stock. The rights, preferences
and privileges of the holders of our common stock are subject to,
and may be adversely affected by, the rights of the holders of
shares of any series of our preferred stock that we may designate
and issue in the future.
Fully Paid and Nonassessable.
All of our outstanding shares of common stock are fully paid and
nonassessable.
Preferred Stock
Under our amended and restated certificate of incorporation, our
board of directors has the authority, without further action by
stockholders, to designate up to 10,000,000 shares of preferred
stock in one or more series and to fix or alter, from time to time,
the designations, powers and rights of each series of preferred
stock and the qualifications, limitations or restrictions of any
series of preferred stock, including dividend rights, dividend
rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption price or
prices, and the liquidation preference of any wholly unissued
series of preferred stock, any or all of which may be greater than
the rights of the common stock, and to establish the number of
shares constituting any such series. To date, none of the
10,000,000 authorized shares of preferred stock have been
designated by our board of directors.
Our board of directors will fix the rights, preferences,
privileges, qualifications and restrictions of the preferred stock
of each series that we sell under this prospectus in the
certificate of designation relating to each such series. We will
incorporate by reference as an exhibit to the registration
statement of which this prospectus is a part or as an exhibit to
one or more Current Reports on Form 8-K, the form of any
certificate of designation that describes the terms of the series
of preferred stock we are offering before the issuance of the
related series of preferred stock. This description will
include:
•the
title and stated value;
•the
number of shares we are offering;
•the
liquidation preference per share, if any;
•the
purchase price per share;
•the
dividend rate per share, dividend period, payment date or dates and
method of calculation for dividends, as applicable;
•whether
dividends, if any, will be cumulative or non-cumulative and, if
cumulative, the date from which dividends will
accumulate;
•our
right, if any, to defer payment of dividends and the maximum length
of any such deferral period;
•the
procedures for any auction and remarketing, if any;
•the
provisions for a sinking fund, if any;
•the
provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption or
repurchase rights;
•any
listing of the preferred stock on any securities exchange or
market;
•whether
the preferred stock will be convertible into our common stock or
other securities of ours, including warrants, and, if applicable,
the conversion price, or how it will be calculated, and under what
circumstances and the mechanism by which it may be adjusted, and
the conversion period;
•whether
the preferred stock will be exchangeable into debt securities or
other securities of ours, and, if applicable, the exchange price,
or how it will be calculated, and under what circumstances it may
be adjusted, and the exchange period;
•voting
rights, if any;
•preemptive
rights, if any;
•restrictions
on transfer, sale or other assignment, if any;
•whether
interests in the preferred stock will be represented by depositary
shares;
•a
discussion of any material or special U.S. federal income tax
considerations applicable to the preferred stock;
•the
relative ranking and preferences of the preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up our
affairs;
•any
limitations on issuances of any class or series of preferred stock
ranking senior to or on parity with the series of preferred stock
being issued as to dividend rights and rights if we liquidate,
dissolve or wind up our affairs; and
•Any
other specific terms, rights, preferences, privileges,
qualifications or limitations of, or restrictions on the preferred
stock.
If we issue and sell shares of preferred stock pursuant to this
prospectus, together with any free writing prospectus, the shares
will be fully paid and nonassessable and will not have, or be
subject to, any preemptive or similar rights.
The laws of the State of Delaware, the state of our incorporation,
provide that the holders of preferred stock will have the right to
vote separately as a class on any proposal involving fundamental
changes in the rights of holders of such preferred stock. This
right is in addition to any voting rights that may be provided for
in the applicable certificate of designation.
The issuance of preferred stock could adversely affect the voting
power, conversion or other rights of holders of common stock and
reduce the likelihood that common stockholders will receive
dividend payments and payments upon liquidation. Preferred stock
could be issued quickly with terms designed to delay, deter or
prevent a change in control of our company or make removal of
management more difficult. Additionally, the issuance of preferred
stock may have the effect of decreasing the market price of our
common stock.
Delaware Anti-Takeover Law and Provisions of Our Amended and
Restated Certificate of Incorporation and Second Amended and
Restated Bylaws
Our amended and restated certificate of incorporation and our
second amended and restated bylaws contain certain provisions that
could have the effect of delaying, deterring or preventing another
party from acquiring control of us, and therefore could adversely
affect the market price of our common stock. These provisions and
certain provisions of the DGCL which are summarized below, may also
discourage coercive takeover practices and inadequate takeover
bids, and are designed, in part, to encourage persons seeking to
acquire control of us to negotiate first with our board of
directors. We believe that the benefits of increased protection of
our potential ability to negotiate more favorable terms with an
unfriendly or unsolicited acquirer outweigh the disadvantages of
potentially discouraging a proposal to acquire us.
Delaware Anti-Takeover Law
We are subject to Section 203 of the DGLC (“Section 203”). Section
203 generally prohibits a public Delaware corporation from engaging
in a “business combination” with an “interested stockholder” for a
period of three years following the time that such stockholder
became an interested stockholder, unless:
•prior
to such time the board of directors of the corporation approved
either the business combination or the transaction which resulted
in the stockholder becoming an interested stockholder;
•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 (i) by persons who are directors and also officers and
(ii) 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
•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 662/3% of the outstanding voting stock
which is not owned by the interested stockholder.
Section 203 defines a business combination to include:
•any
merger or consolidation involving the corporation and the
interested stockholder;
•any
sale, transfer, pledge or other disposition involving the
interested stockholder of 10% or more of the assets of the
corporation;
•subject
to exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
•subject
to exceptions, any transaction involving the corporation that has
the effect of increasing the proportionate share of the stock of
any class or series of the corporation beneficially owned by the
interested stockholder; and
•the
receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided
by or through the corporation.
In general, Section 203 defines an interested stockholder as any
entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation and any entity or person affiliated
with or controlling or controlled by the entity or
person.
Amended and Restated Certificate of Incorporation and Second
Amended and Restated Bylaws
Among other things, our amended and restated certificate of
incorporation and second amended and restated bylaws:
•permit
our Board of Directors to issue up to 10,000,000 shares of
preferred stock, with any rights, preferences and privileges as
they may designate (including the right to approve an acquisition
or other change in our control);
•provide
that the authorized number of directors may be changed only by
resolution by a majority of the total number of authorized
directors;
•provide
that all vacancies, including newly created directorships, may,
except as otherwise required by law, be filled by the affirmative
vote of a majority of directors then in office, even if less than a
quorum;
•require
that any action to be taken by our stockholders must be effected at
a duly called annual or special meeting of stockholders and not be
taken by written consent;
•provide
that stockholders seeking to present proposals before a meeting of
stockholders or to nominate candidates for election as directors at
a meeting of stockholders must provide notice in writing in a
timely manner, and also specify requirements as to the form and
content of a stockholder’s notice;
•do
not provide for cumulative voting rights (therefore allowing the
holders of a majority of the shares of common stock entitled to
vote in any election of directors to elect all of the directors
standing for election, if they should so choose);
•provide
that special meetings of our stockholders may be called only by the
chairman of our Board of Director, our Chief Executive Officer or
by our Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors;
and
•establish
advance notice procedures with respect to stockholder proposals and
the nomination of candidates for election as directors, other than
nominations made by or at the direction of the Board of Directors,
as well as procedures and other requirements addressing the
universal proxy rules adopted by the SEC.
The provisions of the DGCL and the provisions of our amended and
restated certificate of incorporation and second amended and
restated bylaws could have the effect of discouraging others from
attempting hostile takeovers and, as a consequence, they might also
inhibit temporary fluctuations in the market price of our common
stock that often result from actual or rumored hostile takeover
attempts. These provisions might also have the effect of preventing
changes in our management. It is possible that these provisions
could make it more difficult to accomplish transactions that
stockholders might otherwise deem to be in their best
interests.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is
Computershare Trust Company, N.A. The transfer agent and
registrar’s address is 250 Royall Street, Canton, MA,
02021.
Listing on The Nasdaq Global Market
Our common stock is listed on The Nasdaq Global Market under the
symbol “XNCR”.
PLAN OF DISTRIBUTION
We have entered into a Sales Agreement with SVB Securities LLC, SVB
Securities, as the sales agent, under which we may issue and sell
shares of common stock having an aggregate offering price of up to
$200 million from time to time through SVB Securities. Sales of
shares of common stock, if any, under this prospectus will be made
at market prices by any method that is deemed to be an “at the
market offering,” as defined in Rule 415(a)(4) under the Securities
Act, including sales made directly on The Nasdaq Global Market or
any other trading market for our common stock. If authorized by us
in writing, SVB Securities may purchase shares of our common stock
as principal.
Upon delivery of a placement notice to SVB Securities, SVB
Securities will offer shares of our common stock subject to the
terms and conditions of the Sales Agreement on a daily basis or as
otherwise agreed upon by us and SVB Securities. We will designate
the maximum amount of common stock to be sold through SVB
Securities on a daily basis or otherwise determine such maximum
amount together with SVB Securities. Subject to the terms and
conditions of the Sales Agreement, SVB Securities will use its
commercially reasonable efforts consistent with its normal trading
and sales practices to sell on our behalf all of the shares of
common stock requested to be sold by us. We may instruct SVB
Securities not to sell shares of common stock if the sales cannot
be effected at or above the price designated by us in any such
instruction. SVB Securities or we may suspend the offering of
shares of our common stock being made under the Sales Agreement
upon proper notice to the other party. SVB Securities and we each
have the right, by giving written notice as specified in the Sales
Agreement, to terminate the Sales Agreement in each party’s sole
discretion at any time. The offering of shares of our common stock
pursuant to the Sales Agreement will otherwise terminate upon the
termination of the Sales Agreement as provided
therein.
The aggregate compensation payable to SVB Securities as sales agent
will be an amount not to exceed 3.0% of the gross proceeds of any
shares sold through SVB pursuant to the Sales Agreement. We have
also agreed to reimburse SVB Securities up to $75,000 of its actual
outside legal expenses incurred by it in connection with this
offering. We have also agreed to reimburse SVB Securities for
certain ongoing fees of its legal counsel. We estimate that the
total expenses of the offering payable by us, excluding commissions
and expense reimbursement payable to SVB Securities under the Sales
Agreement, will be approximately $150,000.
SVB Securities will provide written confirmation to us following
the close of trading on The Nasdaq Global Market on each day in
which shares of common stock are sold through it as sales agent
under the Sales Agreement. Each confirmation will include the
number of shares of common stock sold through it as sales agent on
that day, the volume weighted average price of the shares of common
stock sold, the percentage of the daily trading volume and the net
proceeds to us.
Settlement for sales of shares of common stock will occur, unless
the parties agree otherwise, on the second business day that is
also a trading day following the date on which any sales were made
in return for payment of the net proceeds to us. There is no
arrangement for funds to be received in an escrow, trust or similar
arrangement.
We will report at least quarterly the number of shares of common
stock sold through SVB Securities under the Sales Agreement, the
net proceeds to us and the compensation paid by us to SVB
Securities in connection with the sales of shares of common stock
during the relevant period.
In connection with the sales of shares of common stock on our
behalf, the SVB Securities will be deemed to be an “underwriter”
within the meaning of the Securities Act, and the compensation paid
to SVB Securities will be deemed to be underwriting commissions or
discounts. We have agreed in the Sales Agreement to provide
indemnification and contribution to SVB Securities against certain
liabilities, including liabilities under the Securities Act. As
sales agent, SVB Securities will not engage in any transactions
that stabilize our common stock.
LEGAL MATTERS
Paul Hastings LLP, San Diego, California will pass for us upon the
validity of the securities being offered by this prospectus.
Goodwin Procter LLP, New York, New York is counsel for SVB
Securities in connection with this offering
EXPERTS
The financial statements of Xencor, Inc. as of December 31, 2022
and 2021 and for each of the years in the three-year period ended
December 31, 2022 and the effectiveness of internal control over
financial reporting as of December 31, 2022 incorporated in this
prospectus and registration statement by reference from Xencor,
Inc.’s Annual Report on Form 10-K for the year ended December 31,
2022 have been audited by RSM US LLP, an independent registered
public accounting firm, as stated in their reports thereon
incorporated herein by reference, and have been incorporated in
this prospectus and registration statement in reliance upon such
reports and upon the authority of such firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. The SEC maintains an Internet
website at http://www.sec.gov that
contains reports, proxy and information statements, and other
information regarding issuers that file electronically with the
SEC, including Xencor. You may also access our reports and proxy
statements free of charge at our Internet
website, http://www.xencor.com.
The information contained in, or that can be accessed through, our
website is not part of this prospectus. The prospectus included in
this filing is part of a registration statement filed by us with
the SEC. The full registration statement can be obtained from the
SEC, as indicated above, or from us.
This prospectus is part of a registration statement on Form S-3 we
filed with the SEC relating to the securities to be offered. This
prospectus does not contain all of the information we have included
in the registration statement and the accompanying exhibits and
schedules in accordance with the rules and regulations of the SEC,
and we refer you to the omitted information. The statements this
prospectus makes pertaining to the content of any contract,
agreement or other document that is an exhibit to the registration
statement necessarily are summaries of their material provisions
and do not describe all exceptions and qualifications contained in
those contracts, agreements or documents. You should read those
contracts, agreements or documents for information that may be
important to you. The registration statement, exhibits and
schedules are available at the SEC’s Internet website.
You should rely only on information in this prospectus or
incorporated by reference herein. We have not authorized any person
to provide you with different information. We are not making an
offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this
prospectus is accurate as of any date other than the date of the
front page of this prospectus, regardless of the time of delivery
of this prospectus or any sale of the securities offered by this
prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” information from
other documents that we file with it, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is considered
to be part of this prospectus. We incorporate by reference into
this prospectus and the registration statement of which this
prospectus is a part the information or documents listed below that
we have filed with the SEC (Commission File No.
001-36182):
•our
Annual Report on Form
10-K for
the year ended December 31, 2022, filed with the SEC on
February 27, 2023; and
•the
description of our common stock contained in our Registration
Statement on Form
8-A (File
No. 001-36182), filed under Section 12(b) of the Exchange Act
on November 7, 2013, including any subsequent amendment or report
filed for the purpose of amending such description.
Any information in any of the foregoing documents will
automatically be deemed to be modified or superseded to the extent
that information in this prospectus or in a later filed document
that is incorporated or deemed to be incorporated herein by
reference modifies or replaces such information. Any statement so
modified or superseded will not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
We also incorporate by reference any future filings (other than
current reports furnished under Item 2.02 or Item 7.01 of
Form 8-K and exhibits filed on such form that are related to such
items unless such Form 8-K expressly provides to the contrary) made
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act until we file a post-effective amendment that
indicates the termination of the offering of the securities covered
by this prospectus and will become a part of this prospectus from
the date that such documents are filed with the SEC. Information in
such future filings updates and supplements the information
provided in this prospectus. Any statements in any such future
filings will automatically be deemed to modify and supersede any
information in any document we previously filed with the SEC that
is incorporated or deemed to be incorporated herein by reference to
the extent that statements in the later filed document modify or
replace such earlier statements.
We will furnish without charge to each person, including any
beneficial owner, to whom a prospectus is delivered, upon written
or oral request, a copy of any or all of the documents incorporated
by reference, including exhibits to these documents. Any such
request may be made by writing us at Xencor, Inc., 111 West Lemon
Avenue, Monrovia, California 91016 Attn: Corporate Secretary or
telephoning us at (626) 305-5900.
$200 Million
Common Stock
Prospectus
SVB Securities
February 27, 2023
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution
The following table sets forth an estimate of the fees and
expenses, other than the underwriting discounts and commissions,
payable by us in connection with the issuance and distribution of
the securities being registered. All the amounts shown are
estimates.
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SEC registration fee |
$ ** |
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The Nasdaq Global Market listing fee |
* |
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Accounting fees and expenses |
* |
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Legal fees and expenses |
* |
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Transfer agent and registrar fees and expenses |
* |
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Trustee fees and expenses |
* |
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Blue sky fees and expenses (including legal fees) |
* |
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FINRA filing fee (if applicable) |
* |
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Printing and miscellaneous fees and expenses |
* |
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Total |
$ * |
__________________
**In
accordance with Rules 456(b) and 457(r), the Registrant is
deferring payment of all applicable registration fees for the
securities offered by this prospectus other than the $22,040 filing
fee related to the $200,000,000 of our common stock that may be
issued pursuant to the sales agreement prospectus included in this
Registration Statement.
*The
amount of securities and number of offerings are indeterminable and
the expenses cannot be estimated at this time. An estimate of the
aggregate expenses in connection with the sale and distribution of
securities being offered will be included in the applicable
prospectus supplement.
Item 15. Indemnification of Directors and
Officers
Under Section 145 of the Delaware General Corporation Law, or DGCL,
the company has broad powers to indemnify its directors and
officers against liabilities they may incur in such capacities,
including liabilities under the Securities Act of 1933, as amended,
or the Securities Act. Section 145 of the DGCL generally provides
that a Delaware corporation has the power to indemnify its present
and former directors, officers, employees and agents against
expenses incurred by them in connection with any suit to which they
are or are threatened to be made, a party by reason of their
serving in such positions so long as they acted in good faith and
in a manner they reasonably believed to be in or not opposed to,
the best interests of the corporation and, with respect to any
criminal action, they had no reasonable cause to believe their
conduct was unlawful.
The company's amended and restated certificate of incorporation and
second amended and restated bylaws include provisions that (i)
eliminate the personal liability of directors for monetary damages
resulting from breaches of their fiduciary duty to the fullest
extent permitted under applicable law, (ii) require the company to
indemnify its directors and executive officers to the fullest
extent permitted by the DGCL or other applicable law and (iii)
provide the company with the power, in its discretion, to indemnify
its other officers, employees and other agents as set forth in the
DGCL or other applicable law. The company believes that these
provisions of its amended and restated certificate of incorporation
and second amended and restated bylaws are necessary to attract and
retain qualified persons as directors and officers. These
provisions do not eliminate the company's directors' or officers'
duty of care, and, in appropriate circumstances, equitable remedies
such as injunctive or other forms of non-monetary relief will
remain available under the DGCL. In addition, each director will
continue to be subject to liability pursuant to Section 174 of the
DGCL, for breach of such director's duty of loyalty to the company,
for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for acts or omissions
that such director believes to be contrary to the company's best
interests or the best interests of the company's stockholders, for
any transaction from which such director derived an improper
personal benefit, for acts or omissions involving a reckless
disregard for such director's duty to the company or to the
company's stockholders when such director was aware or should have
been aware of a risk of serious injury to the company or to the
company's stockholders, for
acts or omission that constitute an unexcused pattern of
inattention that amounts to an abdication of such director's duty
to the company or to the company's stockholders, for improper
transactions between such director and the company and for improper
loans to directors and officers. These provisions also do not
affect a director's responsibilities under any other law, such as
the federal securities law or state or federal environmental
laws.
As permitted by Delaware law, the company has entered into
indemnification agreements with each of its current directors and
officers pursuant to the foregoing provisions. The company has an
insurance policy covering its officers and directors with respect
to certain liabilities, including liabilities arising under the
Securities Act or otherwise.
Any underwriting agreement that we may enter into will likely
provide for indemnification of the company, our directors, our
officers who sign the registration statement and our controlling
persons, if any, for some liabilities, including liabilities
arising under the Securities Act.
Item 16. Exhibits
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Incorporated by Reference |
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Exhibit No.
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Exhibit Description |
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Form |
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Filing Date/Period
End Date
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Exhibit |
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Filed
Herewith
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1.1* |
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Form of Underwriting Agreement |
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1.2 |
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X |
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4.1 |
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8-K |
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12/11/13 |
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3.1 |
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4.2 |
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10-K |
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2/27/23 |
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3.2 |
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4.3 |
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S-1 |
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10/25/13 |
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4.1 |
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4.4 |
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X |
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4.5 |
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X |
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4.6* |
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Form of Senior Note. |
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4.7* |
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Form of Subordinated Note. |
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4.8* |
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Form of Warrant Agreement. |
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4.9* |
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Form of Unit Agreement. |
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5.1 |
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X |
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23.1 |
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X |
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23.2 |
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X |
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24.1 |
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X |
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25.1+ |
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The Statement of Eligibility on Form T-1 under the Trust Indenture
Act of 1939, as amended, of the Trustee under the Senior Indenture
will be incorporated herein by reference from a subsequent filing
in accordance with Section 305(b)(2) of the Trust Indenture
Act of 1939. |
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25.2+ |
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The Statement of Eligibility on Form T-1 under the Trust Indenture
Act of 1939, as amended, of the Trustee under the Subordinated
Indenture will be incorporated herein by reference from a
subsequent filing in accordance with Section 305(b)(2) of the
Trust Indenture Act of 1939. |
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107 |
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X |
__________________
*To
be filed by amendment or as an exhibit to a Current Report on Form
8-K and incorporated herein by reference, if
applicable.
+ To be filed by amendment
or pursuant to Trust Indenture Act Section 305(b)(2), if
applicable.
Item 17. Undertakings
(a)The
undersigned registrant hereby undertakes:
(1)To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i)To
include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii)To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC 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; and
(iii)To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however,
that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or
furnished to the SEC by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration
statement.
(2)That,
for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona
fide offering
thereof.
(3)To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4)That,
for the purpose of determining liability under the Securities Act
of 1933 to any purchaser:
(i)Each
prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(ii)Each
prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included
in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona
fide offering
thereof. Provided, however,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(5)That,
for the purpose of determining liability of the registrant under
the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration
statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i)Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to
Rule 424;
(ii)Any
free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii)The
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of an
undersigned registrant; and
(iv)Any
other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(b)The
undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Exchange
Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the
initial
bona fide
offering thereof.
(c)Insofar
as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, 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 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 Act and will be governed by the final adjudication of such
issue.
(d)The
undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations
prescribed by the SEC under Section 305(b)(2) of the Trust
Indenture Act.
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-3 and has
duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of
Monrovia, State of California, on February 27, 2023.
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XENCOR, INC. |
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By: |
/s/ Bassil I. Dahiyat, Ph.D. |
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Bassil I. Dahiyat, Ph.D. |
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President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS,
that each person whose signature appears below constitutes and
appoints Bassil I. Dahiyat and John J. Kuch, and each of them
acting individually, as his or her true and lawful
attorneys-in-fact and agents, with full power of each to act alone,
with full powers of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities,
to sign any and all amendments to this registration statement
(including post-effective amendments), and to file the same, with
all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and generally to do
all such things in their names and behalf in their capacities as
officers and directors to enable Xencor, Inc. to comply with the
provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as
fully for all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming that all said
attorneys-in-fact and agents, or any of them or their or his or her
substitutes or resubstitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ Bassil I. Dahiyat, Ph.D. |
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President, Chief Executive Officer and Member of the Board of
Directors |
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February 27, 2023 |
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Bassil I. Dahiyat, Ph.D.
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(Principal Executive Officer)
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/s/ John J. Kuch |
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Senior Vice President and Chief Financial Officer |
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February 27, 2023 |
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John J. Kuch
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(Principal Financial and Accounting Officer)
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/s/ A. Bruce Montgomery, MD |
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Director |
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February 27, 2023 |
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A. Bruce Montgomery, MD
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/s/ Kurt A. Gustafson |
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Director |
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February 27, 2023 |
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Kurt A. Gustafson
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/s/ Kevin C. Gorman, Ph.D. |
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Director |
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February 27, 2023 |
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Kevin C. Gorman, Ph.D.
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/s/ Richard J. Ranieri |
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Director |
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February 27, 2023 |
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Richard J. Ranieri
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/s/ Ellen G. Feigal, M.D. |
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Director |
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February 27, 2023 |
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Ellen G. Feigal, M.D.
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/s/ Dagmar Rosa-Bjorkeson |
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Director |
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February 27, 2023 |
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Dagmar Rosa-Bjorkeson
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/s/ Nancy Valente |
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Director |
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February 27, 2023 |
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Nancy Valente
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