AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 27, 2002
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LEXICON GENETICS INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0474169
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
------------
8800 TECHNOLOGY FOREST PLACE
THE WOODLANDS, TEXAS 77381-1160
(281) 863-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------
ARTHUR T. SANDS, M.D., PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
8800 TECHNOLOGY FOREST PLACE
THE WOODLANDS, TEXAS 77381-1160
(281) 863-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
DAVID P. OELMAN JEFFREY L. WADE
VINSON & ELKINS L.L.P. EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
2300 FIRST CITY TOWER LEXICON GENETICS INCORPORATED
1001 FANNIN 8800 TECHNOLOGY FOREST PLACE
HOUSTON, TEXAS 77002-6760 THE WOODLANDS, TEXAS 77381-1160
(713) 758-3708 (281) 863-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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. [X]
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 delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE AGGREGATE OFFERING AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING PRICE(1) FEE
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Common Stock, par value $0.001............... 12,000,000 shares $3.98 $47,760,000 $4,394
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee based on the average of the high and low trading prices
for the common stock as reported on the Nasdaq National Market on November
20, 2002, in accordance with Rule 457(c) under the Securities Act.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED NOVEMBER 27, 2002
12,000,000 SHARES
[LEXICON GENETICS INCORPORATED LOGO]
LEXICON GENETICS INCORPORATED
COMMON STOCK
------------------
We may offer shares of our common stock from time to time in one or
more offerings in amounts, at prices and on terms to be determined in light of
market conditions at the time of sale. Each time we sell shares of our common
stock, we will provide a supplement to this prospectus that contains specific
information about the offering. The supplement may also add, update or change
information contained in this prospectus. You should carefully read this
prospectus and any supplement before you invest.
Our common stock is listed on The Nasdaq National Market under the
symbol "LEXG". The last reported sale price on November 26, 2002 was $4.15 per
share.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" ON
PAGE 4.
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 , 2002.
TABLE OF CONTENTS
PAGE PAGE
---- ----
Lexicon Genetics Incorporated.............. 3 Legal Matters................................... 6
Risk Factors............................... 4 Experts......................................... 6
Special Note Regarding Forward Looking Change in Independent Public Accountants........ 6
Statements.............................. 4 Where You Can Find More Information............. 7
Use of Proceeds............................ 4 Documents Incorporated by Reference............. 7
Plan of Distribution....................... 5
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We have filed a registration statement on Form S-3 to register with the
Securities and Exchange Commission the offering of the shares described in this
prospectus. This prospectus is part of that registration statement. As allowed
by the SEC's rules, this prospectus does not contain all of the information you
can find in the registration statement or the exhibits to the registration
statement. Please see "Where You Can Find More Information" on page 7.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS.
WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM
THAT CONTAINED IN THIS PROSPECTUS. THIS PROSPECTUS MAY ONLY BE USED WHERE IT IS
LEGAL TO SELL THESE SECURITIES. THE INFORMATION CONTAINED IN THIS PROSPECTUS AND
ANY SUPPLEMENTS TO THIS PROSPECTUS IS ACCURATE ONLY AS OF THE DATES OF THEIR
RESPECTIVE COVERS OR EARLIER DATES AS SPECIFIED THEREIN, REGARDLESS OF THE TIME
OF DELIVERY OF THIS PROSPECTUS OR ANY SUPPLEMENT TO THIS PROSPECTUS OR OF ANY
SALE OF OUR COMMON STOCK.
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In this prospectus, "Lexicon," "Lexicon Genetics," "we," "us" and "our"
refer to Lexicon Genetics Incorporated and its subsidiary.
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The Lexicon name and logo, LexVision(R) and OmniBank(R) are registered
trademarks and Genome5000(TM) and e-Biology(TM) are trademarks of Lexicon
Genetics Incorporated.
LEXICON GENETICS INCORPORATED
Lexicon Genetics is a biopharmaceutical company focused on the
discovery of breakthrough treatments for human disease. We are using gene
knockout technology to systematically discover the physiological functions of
genes in living mammals, or in vivo. Our gene function discoveries fuel
therapeutic discovery programs in cancer, cardiovascular disease, immune
disorders, neurological disease, diabetes and obesity. We have established drug
discovery alliances and functional genomics collaborations with leading
pharmaceutical and biotechnology companies, research institutes and academic
institutions throughout the world to commercialize our technology and further
develop our discoveries.
We generate our gene function discoveries using knockout mice - mice
whose DNA has been altered to disrupt, or "knock out," the function of the
altered gene. Our patented gene trapping and gene targeting technologies enable
us to rapidly generate these knockout mice by altering the DNA of genes in a
special variety of mouse cells, called embryonic stem (ES) cells, which can be
cloned and used to generate mice with the altered gene. We employ an integrated
platform of advanced medical technologies to systematically discover and
validate, in vivo, the functions and pharmaceutical utility of the genes we have
knocked out and the potential targets for therapeutic intervention, or drug
targets, they encode.
We employ internal resources and drug discovery alliances to discover
potential small molecule drugs, therapeutic antibodies and therapeutic proteins
for in vivo-validated drug targets that we consider to have high pharmaceutical
value. We use our own sophisticated libraries of drug-like chemical compounds
and an industrialized medicinal chemistry platform to identify small molecule
drug candidates for our in vivo-validated drug targets. We have established
alliances with Abgenix, Inc. for the discovery and development of therapeutic
antibodies based on our drug target discoveries and with Incyte Genomics, Inc.
for the discovery and development of therapeutic proteins. In addition, we have
established collaborations and license agreements with many other leading
pharmaceutical and biotechnology companies under which we receive fees and, in
many cases, are eligible to receive milestone and royalty payments, for access
to some of our technologies and discoveries for use in their own drug discovery
efforts.
We believe that our industrialized approach of discovering and
validating drug targets in vivo, together with our capabilities in small
molecule drug discovery and the integration of our own capabilities with those
of our alliance partners in therapeutic antibody and therapeutic protein
discovery, will significantly increase our likelihood of success in discovering
breakthrough treatments for human disease. We believe our system will reduce the
risk, time and expense of discovering and developing therapeutics for new drug
targets. Together, we believe that these factors will provide us with
substantial strategic advantages in the competition to discover and develop
genomics-based pharmaceutical products.
Lexicon Genetics was incorporated in Delaware in July 1995, and
commenced operations in September 1995. Our corporate headquarters are located
at 8800 Technology Forest Place, The Woodlands, Texas 77381, and our telephone
number is (281) 863-3000. Our corporate website is located at
www.lexicon-genetics.com. Information found on our website should not be
considered part of this prospectus.
3
RISK FACTORS
You should carefully consider the following risk factors and all other
information contained in this prospectus and incorporated into it by reference
before purchasing our common stock. Investing in our common stock involves a
high degree of risk. For a discussion of these risks, please see:
o Our most recent Annual Report on Form 10-K, and
o Our other SEC filings that are incorporated by reference into this
prospectus.
For more information about our SEC filings, please see "Where You Can
Find More Information" and "Documents Incorporated By Reference" on page 7 of
this prospectus. See also "Special Note Regarding Forward-Looking Statements"
below.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. These statements
relate to future events or our future financial performance. We have attempted
to identify forward-looking statements by terminology including "anticipate,"
"believe," "can," "continue," "could," "estimate," "expect," "intend," "may,"
"plan," "potential," "predict," "should" or "will" or the negative of these
terms or other comparable terminology. These statements are only predictions and
involve known and unknown risks, uncertainties and other factors, including the
risks referred to under "Risk Factors," that may cause our or our industry's
actual results, levels of activity, performance or achievements to be materially
different from any future results, levels or activity, performance or
achievements expressed or implied by these forward-looking statements.
Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee future results,
levels of activity, performance or achievements. We are not under any duty to
update any of the forward-looking statements after the date of this prospectus
to conform these statements to actual results, unless required by law.
USE OF PROCEEDS
Except as otherwise described in the prospectus supplement relating to
an offering, we intend to use the net proceeds from the sale(s) of shares of our
common stock offered pursuant to this prospectus and any prospectus supplement
for research and development and general corporate purposes, including capital
expenditures and working capital needs. We may also use some or all of the net
proceeds to acquire or invest in businesses, products and technologies that are
complementary to our own.
The amounts that we actually expend for working capital purposes,
investments or acquisitions will vary significantly depending on a number of
factors, including future revenue growth, if any, the amount of cash we generate
from operations and the progress of our product development efforts.
Accordingly, our management will retain broad discretion in the allocation of
the net proceeds from the sale(s) of the offered securities. If we elect at the
time of the issuance of the securities to make different or more specific use of
proceeds other than as described in this prospectus, the change in use of
proceeds will be described in the applicable prospectus supplement.
4
PLAN OF DISTRIBUTION
We may sell shares of our common stock under this prospectus from time
to time in any one or more of the following ways:
o to or through underwriters;
o through brokers or dealers;
o directly to other purchasers; or
o through agents.
We may sell shares of our common stock under this prospectus from time
to time in one or more transactions:
o at a fixed price or prices, which may be changed;
o at market prices prevailing at the time of sale;
o at prices related to such prevailing market prices; or
o at negotiated prices.
The prospectus supplement relating to the shares of common stock will
set forth the terms of the offering of such shares, including the names or names
of any underwriters, brokers, dealers or agents, the name or names of any
managing underwriter or underwriters, the purchase price of the shares and the
net proceeds to us from such sale, any delayed delivery arrangements, any
underwriting discounts and commissions and other items constituting
underwriters' compensation, any public offering price and any discounts or
concessions allowed or reallowed or paid to dealers and any commissions paid to
agents.
If we use underwriters in the sale of shares of common stock, the
underwriters will acquire the shares for their own account. The underwriters may
resell the shares from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. Underwriters may offer shares to the public
either through underwriting syndicates represented by one or more managing
underwriters or directly by one or more firms acting as underwriters. Unless we
inform you otherwise in the prospectus supplement, the obligations of the
underwriters to purchase the shares will be subject to certain conditions, and
the underwriters will be obligated to purchase all of the offered shares if they
purchase any of them. The underwriters may change from time to time any public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers.
In connection with the sale of shares of our common stock,
underwriters, brokers, dealers or agents may receive compensation from us or
purchasers of securities for whom they may act as agents, in the form of
discounts, concessions or commissions. Underwriters, dealers and agents that
participate in the distribution of our common stock may be deemed to be
underwriters, and any discounts or commissions received by them from us and any
profit on the resale of securities by them may be deemed to be underwriting
discounts and commissions under the Securities Act of 1933. Any person who may
be deemed to be an underwriter will be identified, and the compensation received
from us will be described, in the prospectus supplement.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include over-allotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, whereby selling concessions allowed
to syndicate members or other broker-dealers for the securities sold for their
account may be reclaimed by the syndicate if those securities are repurchased by
the syndicate in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the securities,
5
which may be higher than the price that might otherwise prevail in the open
market, and, if commenced, may be discontinued at any time.
If dealers or brokers acting as dealers are used in the sale of the
shares of common stock, we will sell the shares to such dealers or brokers as
principals. The dealers or brokers acting as dealers may then resell such shares
to the public at varying prices to be determined by such dealers or brokers at
the time of resale. The names of dealers or brokers acting as dealers and the
terms of the transaction will be set forth in the prospectus supplement relating
to such shares. We may sell the shares of common stock directly or through
agents designated by us from time to time. Any agent involved in the offer or
sale of the shares will be named, and any commissions that we pay to such agent
will be set forth, in the prospectus supplement relating to such shares. Unless
otherwise indicated in the prospectus supplement, any such agent will be acting
on a best efforts basis for the period of its appointment.
We may sell shares of common stock directly. In this case, no
underwriters or agents would be involved. We may sell shares directly to
institutional investors or others who may be deemed to be underwriters within
the meaning of the Securities Act of 1933 with respect to any sale of those
shares.
If so indicated in the prospectus supplement, we will authorize agents,
underwriters, brokers or dealers to solicit offers from certain types of
institutions to purchase shares of common stock 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. Such
contracts will be subject only to those conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth also the commission
payable for solicitation of such contracts.
We may have agreements with the underwriters, dealers and agents to
indemnify them against specific civil liabilities, including liabilities under
the Securities Act of 1933, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make as a result of those
specific civil liabilities.
Underwriters and agents and their affiliates may be customers of,
engage in transactions with, or perform services for us or our subsidiaries in
the ordinary course of their businesses.
LEGAL MATTERS
The validity of the issuance of the common stock offered by this
prospectus will be passed upon for us by Vinson & Elkins L.L.P., Houston, Texas.
EXPERTS
The financial statements, as of December 31, 2000 and 2001, and for
each of the three years in the period ended December 31, 2001, incorporated by
reference in this prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said report. Arthur Andersen LLP has not consented to the
inclusion of their report in this prospectus, and we have not obtained their
consent to do so in reliance upon Rule 437a of the Securities Act of 1933.
Because Arthur Andersen LLP has not consented to the inclusion of their report
in this prospectus, you will not be able to recover against Arthur Andersen LLP
under Section 11(a) of the Securities Act for any untrue statements of a
material fact contained in the financial statements audited by Arthur Andersen
LLP or any omissions to state a material fact required to be stated therein.
CHANGE IN INDEPENDENT PUBLIC ACCOUNTS
On March 26, 2002, our Board of Directors and Audit Committee dismissed
Arthur Andersen LLP as our independent public accountants and engaged Ernst &
Young LLP to serve as our independent public accountants for the year ending
December 31, 2002. The appointment of Ernst & Young was ratified at our 2002
annual meeting of stockholders held on May 8, 2002.
6
Arthur Andersen LLP's reports on our consolidated financial statements
for the years ended December 31, 2001 and 2000 did not contain an adverse
opinion or disclaimer of opinion, nor were they qualified or modified as to
uncertainty, audit scope or accounting principles.
During the years ended December 31, 2001 and 2000 and through March 26,
2002, there were no disagreements with Arthur Andersen LLP on any matter of
accounting principles or practices, financial statement disclosure, or auditing
scope or procedure which, if not resolved to Arthur Andersen LLP's satisfaction,
would have caused them to make reference to the subject matter in connection
with their report on our consolidated financial statements for such years; and
there were no reportable events as defined in Item 304(a)(1)(v) of Regulation
S-K.
We provided Arthur Andersen LLP with a copy of the foregoing
disclosures. Attached as Exhibit 16.1 to our report on Form 8-K dated March 29,
2002, which is incorporated into this registration statement by reference, is a
copy of Arthur Andersen LLP's letter, dated March 29, 2002, stating its
agreement with such statements.
During the two-year period ended December 31, 2001 and through the date
of the Board of Directors' decision, we did not consult Ernst & Young LLP with
respect to the application of accounting principles to a specified transaction,
either completed or proposed, or the type of audit opinion that might be
rendered on our consolidated financial statements, or any other matters or
reportable events as set forth in Items 304(a)(2)(i) and (ii) of Regulation S-K.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a
registration statement on Form S-3 under the Securities Act of 1933 regarding
our offering and sale of shares of our common stock by this prospectus. This
prospectus, which constitutes a part of that registration statement, does not
contain all of the information contained in the registration statement or the
exhibits to the registration statement, as permitted by the rules and
regulations of the SEC. For further information about us and our common stock,
please review the registration statement and the exhibits filed as a part of it.
Statements made in this prospectus that describe documents may not necessarily
be complete. We recommend that you review the documents that we have filed with
the registration statement to obtain a more complete understanding of these
documents. A copy of the registration statement, including the exhibits filed as
a part of it, may be inspected at the SEC's Public Reference Room, 450 Fifth
Street, N.W., Washington, D.C. 20549, and copies of all or any part of the
registration statement may be obtained from the SEC upon the payment of fees
prescribed by it. You may obtain information on the Public Reference Room by
calling the SEC at 1-800-SEC-0330. The SEC maintains a Web site at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding companies that file electronically with it.
We are subject to the information and reporting requirements of the
Securities Exchange Act of 1934 and will file periodic reports, proxy statements
and other information with the SEC. You may inspect any of these documents as
described in the preceding paragraph. These reports, proxy statements and other
information may also be inspected at the offices of Nasdaq Operations, 1735 K
Street, N.W., Washington, D.C. 20006.
DOCUMENTS INCORPORATED BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" into this prospectus information that we file with the SEC in other
documents. This means that we can disclose important information to you by
referring to other documents that contain that information. The information
incorporated by reference is considered to be part of this prospectus, except
for information superseded by information in this prospectus. Information that
we file later with the SEC will automatically update and supercede the
information incorporated by reference in this prospectus. We incorporate by
reference the documents listed below that we have previously filed with the SEC
and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, prior to the termination of the
offering of the securities covered by this prospectus:
o our annual report on Form 10-K for the year ended December 31, 2001;
o our quarterly reports on Form 10-Q for the quarterly periods ended
March 31, 2002, June 30, 2002 and September 30, 2002;
7
o our current report on Form 8-K dated March 29, 2002; and
o the description of our common stock contained in our registration
statement on Form 8-A filed with the Commission on March 27, 2000
pursuant to Section 12 of the Securities Exchange Act of 1934,
including any amendments and reports filed for the purpose of
updating such description.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this prospectus will be deemed to be modified or
superseded for purposes of this prospectus to the extent that a statement
contained in this prospectus or in any other subsequently filed document which
also is or is deemed to be incorporated by reference in this prospectus modifies
or supersedes that statement. Any statement that is modified or superseded will
not constitute a part of this prospectus, except as so modified or superseded.
Upon your written or oral request, we will provide you at no cost a
copy of any or all of the documents incorporated by reference in this
prospectus, other than the exhibits to those documents, unless the exhibits are
specifically incorporated by reference into this prospectus. You may request a
copy of these documents by contacting:
Investor Relations
Lexicon Genetics Incorporated
8800 Technology Forest Place
The Woodlands, Texas 77381-1160
Telephone: (281) 863-3000
8
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by the Registrant in connection with the
issuance and distribution of the securities being registered (other than
underwriting discounts and commissions) are as follows:
SEC Registration Fee................................. $ 4,394
Printing Expenses.................................... 50,000
Accounting Fees and Expenses......................... 35,000
Legal Fees and Expenses.............................. 100,000
Transfer Agent and Registrar Fees.................... 3,000
Miscellaneous Expenses............................... 7,606
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Total...................................... $ 200,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any such
person serving in any such capacity who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the corporation
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
Lexicon's restated certificate of incorporation and restated bylaws
provide that indemnification shall be to the fullest extent permitted by the
DGCL for all current or former directors or officers. As permitted by the DGCL,
the restated certificate of incorporation provides that directors of Lexicon
shall have no personal liability to Lexicon or its stockholders for monetary
damages for breach of fiduciary duty as a director, except (1) for any breach of
the director's duty of loyalty to Lexicon or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law, (3) under Section 174 of the DGCL or (4) for any transaction
from which a director derived an improper personal benefit.
II-1
ITEM 16. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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3.1 -- Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (Registration No. 333-96469) and incorporated by reference herein).
3.2 -- Restated Bylaws (filed as Exhibit 3.2 to the Company's Registration Statement on Form S-1
(Registration No. 333-96469) and incorporated by reference herein).
5.1 -- Opinion of Vinson & Elkins L.L.P.
23.1 -- Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.1)
24.1 -- Power of Attorney (contained in signature page)
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ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if
the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent 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 this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in this Registration Statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) 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.
The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
II-2
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 provisions described in Item 14, 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.
II-3
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 The Woodlands, in the State of Texas, on November 27,
2002.
LEXICON GENETICS INCORPORATED
By: /s/ ARTHUR T. SANDS
-------------------------------------
Arthur T. Sands, M.D., Ph.D.
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints Arthur T. Sands and
Jeffrey L. Wade, and each of them, any of whom may act without the joinder of
the other, as his true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and any Registration Statement
(including any amendment thereto) for this offering that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and
to file the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or would do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them or their or
his substitute and substitutes, may lawfully do or cause to be done by virtue
hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED BELOW.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ARTHUR T. SANDS President, Chief Executive Officer and Director November 27, 2002
------------------------------------ (principal executive officer)
Arthur T. Sands, M.D., Ph.D.
/s/ JULIA P. GREGORY Executive Vice President and Chief Financial November 27, 2002
------------------------------------ Officer (principal financial and accounting
Julia P. Gregory officer)
/s/ C. THOMAS CASKEY Chairman of the Board of Directors November 27, 2002
------------------------------------
C. Thomas Caskey, M.D.
/s/ SAM L. BARKER Director November 27, 2002
------------------------------------
Sam L. Barker, Ph.D.
/s/ PATRICIA M. CLOHERTY Director November 27, 2002
------------------------------------
Patricia M. Cloherty
/s/ ROBERT J. LEFKOWITZ Director November 27, 2002
------------------------------------
Robert J. Lefkowitz, M.D.
/s/ WILLIAM A. MCMINN Director November 27, 2002
------------------------------------
William A. McMinn
II-4
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
3.1 -- Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (Registration No. 333-96469) and incorporated by reference herein).
3.2 -- Restated Bylaws (filed as Exhibit 3.2 to the Company's Registration Statement on Form S-1
(Registration No. 333-96469) and incorporated by reference herein).
5.1 -- Opinion of Vinson & Elkins L.L.P.
23.1 -- Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.1)
24.1 -- Power of Attorney (contained in signature page)
----------------