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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 8, 2001
REGISTRATION NO.__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNITED THERAPEUTICS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 2836 52-1984749
(State or Other Jurisdiction of Incorporation (Primary Standard Industrial (I.R.S. Employer
or Organization) Classification Code Number) Identification Number)
1110 SPRING STREET
SILVER SPRING, MD 20910
(301) 608-9292
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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MARTINE A. ROTHBLATT
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
UNITED THERAPEUTICS CORPORATION
1110 SPRING STREET
SILVER SPRING, MD 20910
(301) 608-9292
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
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COPIES TO:
LADAWN NAEGLE, ESQ.
BRYAN CAVE LLP
700 THIRTEENTH STREET, N.W.
SUITE 700
WASHINGTON, DC 20005
(202) 508-6000
FAX: (202)508-6200
Approximate date of commencement of proposed sale to the public: As soon
as practicable 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. [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. [ ]
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of each class Proposed maximum maximum
of securities Amount to be offering price aggregate offering price Amount of registration
to be registered registered(1) per share(2) (2) fee
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Common stock,
par value
$.01 per share(3) 147,317 $13.13 $1,934,272.20 $483.57
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers such indeterminate number of shares
of common stock as may be required to prevent dilution resulting from
stock splits, stock dividends or similar events.
(2) Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(c), based upon the average of the high and low
sales price for the Common Stock as reported on the Nasdaq National
Market on June 1, 2001.
(3) Pursuant to a Rights Agreement between the Registrant and The Bank of
New York as Rights Agent, dated as of December 17, 2000, Preferred Stock
Purchase Rights are attached to and trade with the common stock. Value
attributed to such Preferred Stock Purchase Rights, if any, is reflected
in the market price of the common stock.
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 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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SUBJECT TO COMPLETION
JUNE 8, 2001
The information in this preliminary prospectus is not complete and may be
changed. The selling shareholders 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.
[UNITED THERAPEUTICS CORPORATION LOGO]
PROSPECTUS
UNITED THERAPEUTICS CORPORATION
147,317 Shares of Common Stock
(par value, $.01 per share)
The selling stockholder is offering to sell 147,317 shares of United
Therapeutics' common stock. United Therapeutics will not receive any of the
proceeds from the sale of these shares by the selling stockholder.
The selling stockholder acquired the offered shares directly from United
Therapeutics in a private placement transaction. The selling stockholder may
sell the shares at prices determined by the prevailing market price for the
shares or in negotiated transactions. The selling stockholder may also sell the
shares to or with the assistance of broker-dealers.
United Therapeutics' common stock is traded on the Nasdaq National
Market under the symbol "UTHR." On June 1, 2001, the closing bid price of the
common stock as reported on the Nasdaq National Market was $13.20 per share.
BEFORE BUYING ANY SHARES YOU SHOULD READ THE DISCUSSION OF MATERIAL RISKS
OF INVESTING IN THE COMMON STOCK IN "RISK FACTORS" BEGINNING ON PAGE 1.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is June __, 2001.
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TABLE OF CONTENTS
Page
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Risk Factors........................................................................1
The Company.........................................................................8
Use of Proceeds.....................................................................8
Selling Stockholder.................................................................9
Plan of Distribution.............................................................. 11
Common Stock ..................................................................... 11
Cautionary Statement Regarding Forward-Looking Statements......................... 12
Lawyers............................................................................14
Experts............................................................................14
Additional Information.............................................................14
Information Incorporated by Reference..............................................14
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RISK FACTORS
This offering involves a high degree of risk. You should carefully
consider the risks and uncertainties described below and the other information
in and incorporated by reference in this prospectus before deciding whether to
invest in United Therapeutics' common stock. If any of the following risks
actually occur, United Therapeutics' business, financial condition or operating
results could be materially adversely affected. This could cause the market
price of the common stock to decline, and you may lose part or all of your
investment.
IF UNITED THERAPEUTICS' PRODUCTS FAIL IN CLINICAL STUDIES OR IF UNITED
THERAPEUTICS IS UNABLE TO OBTAIN FDA APPROVAL FOR ITS PRODUCTS, UNITED
THERAPEUTICS WILL NOT BE ABLE TO SELL THOSE PRODUCTS.
In order to sell its products, United Therapeutics must receive
regulatory approval for its products. To obtain those approvals, United
Therapeutics must conduct clinical studies demonstrating to the satisfaction of
the FDA that the drug and the delivery mechanism for the drug are safe and
effective. If United Therapeutics cannot obtain FDA approval for a product, that
product cannot be sold and United Therapeutics' revenues will suffer. To date,
United Therapeutics has not received FDA approval for any of its pharmaceutical
products. United Therapeutics has completed its pivotal Phase III clinical study
for Remodulin for advanced pulmonary hypertension and submitted an application
for approval of Remodulin for advanced pulmonary hypertension to both the U.S.
FDA and the French regulatory agency. United Therapeutics has started Phase III
clinical studies for Remodulin for late-stage peripheral vascular disease.
United Therapeutics completed enrollment in two Phase III clinical trials to
treat early-stage peripheral vascular disease and early-stage pulmonary
hypertension with beraprost. United Therapeutics is still developing studies for
its other products and has only completed pre-clinical studies for a recently
acquired drug delivery mechanism. United Therapeutics' ongoing clinical studies
might be delayed or halted for various reasons, including:
- The drug is not effective, or physicians think that the
drug is not effective;
- Patients experience severe side effects during
treatment;
- Patients die during the clinical study because their
disease is too advanced or because they experience
medical problems that are not related to the drug being
studied;
- Patients do not enroll in the studies at the rate United
Therapeutics expects; and
- Drug supplies are not sufficient to treat the patients
in the studies.
In addition, the FDA and foreign regulatory authorities have substantial
discretion in the approval process. The FDA and foreign regulatory authorities
may not agree that United Therapeutics has demonstrated that its products are
safe and effective.
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IF UNITED THERAPEUTICS CANNOT MAINTAIN REGULATORY APPROVALS FOR ITS PRODUCTS, IT
CANNOT SELL THOSE PRODUCTS AND ITS REVENUES WILL SUFFER.
The process of obtaining and maintaining regulatory approvals for new
drugs is lengthy, expensive and uncertain. The manufacturing, distribution,
advertising and marketing of these products are subject to extensive regulation.
Any new product approvals United Therapeutics receives in the future could
include significant restrictions on the use or marketing of the product. Product
approvals, if granted, can be withdrawn for failure to comply with regulatory
requirements or upon the occurrence of adverse events following commercial
introduction of the products. If approvals are withdrawn for a product, United
Therapeutics cannot sell that product and its revenues will suffer. In addition,
governmental authorities could seize United Therapeutics' products or force
United Therapeutics to recall its products. Finally, United Therapeutics and its
officers and directors could be subject to civil and criminal penalties for
failure to comply with these regulatory requirements.
UNITED THERAPEUTICS HAS A HISTORY OF LOSSES AND MAY NOT BE PROFITABLE.
United Therapeutics has lost money since its inception in 1996, and its
accumulated deficit was approximately $134.3 million at March 31, 2001. United
Therapeutics expects to incur substantial additional losses over the next
several years, whether or not it generates revenue, as it expands clinical
studies and continues to develop its products. United Therapeutics expects its
quarterly and annual operating results to fluctuate, depending primarily on the
following factors:
- Timing of regulatory approvals and commercial sales of
its products;
- Level of patient demand for its products;
- Timing of payments to licensors and corporate partners;
and
- Timing of investments in new technologies.
Substantially all of United Therapeutics' products are in clinical
studies and the related regulatory approval process, and United Therapeutics is
not yet selling any of its pharmaceutical products. United Therapeutics might
not obtain regulatory approvals for its pharmaceutical products, including its
lead products, Remodulin and beraprost, and may not be able to sell its
pharmaceutical products commercially. Even if United Therapeutics sells its
products, United Therapeutics may not ever be profitable and may not be able to
sustain any profitability it achieves.
DISCOVERIES OR DEVELOPMENTS OF NEW TECHNOLOGIES BY OTHERS MAY MAKE UNITED
THERAPEUTICS' PRODUCTS OBSOLETE.
Other companies may conduct research, make discoveries or introduce new
products that render all or some of United Therapeutics' technologies and
products obsolete or not commercially viable. Researchers are continually making
new discoveries that may lead to new technologies to treat the diseases United
Therapeutics' products are intended for. In addition, alternative approaches to
treating chronic diseases, such as gene therapy, may make United Therapeutics'
products obsolete or noncompetitive.
UNITED THERAPEUTICS' PRODUCTS MAY NOT BE COMMERCIALLY SUCCESSFUL BECAUSE
PHYSICIANS AND PATIENTS MAY NOT ACCEPT THEM.
Even if regulatory authorities approve United Therapeutics' products,
those products may not be commercially successful. United Therapeutics expects
that most of its products, including Remodulin, will be very expensive. Patient
acceptance of and demand for United Therapeutics' products will depend largely
on the following factors:
- Acceptance by physicians and patients of United
Therapeutics' products as safe and effective therapies;
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- Reimbursement of drug and treatment costs by third-party
payors;
- Pricing of alternative products;
- Convenience and ease of administration of United
Therapeutics' products; and
- Prevalence and severity of side effects associated with
United Therapeutics' products.
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UNITED THERAPEUTICS MAY NOT BE ABLE TO SUCCESSFULLY INTEGRATE THE BUSINESSES OF
MEDICOMP, COOKE PHARMA OR ANY OTHER COMPANY IT MAY ACQUIRE
United Therapeutics recently acquired Medicomp and Cooke Pharma and may
make additional acquisitions. The successful integration of the acquired
businesses will require:
- Definition and alignment of the management teams;
- Coordination of geographically separate organizations
- Integration of product offerings
- Coordination of sales and marketing and research and development
efforts
- Alignment of corporate cultures and management philosophies;
- Management focus on transitional activities.
Management may not be able to accomplish the integration of acquired
businesses successfully or within planned periods. Any difficulties encountered
in the transition process could adversely affect the revenues and operating
results of the businesses acquired. If United Therapeutics fails to integrate
acquired businesses quickly and efficiently, it may incur unanticipated costs or
be unable to successfully advance the business objectives of the acquisition.
IF THIRD-PARTY PAYORS WILL NOT REIMBURSE PATIENTS FOR UNITED THERAPEUTICS' DRUG
PRODUCTS, SALES WILL SUFFER.
United Therapeutics' commercial success will depend in part on
third-party payors agreeing to reimburse patients for the costs of United
Therapeutics' pharmaceutical products. Third-party payors frequently challenge
the pricing of new drugs. United Therapeutics expects that its products will be
very expensive. Third-party payors may not approve United Therapeutics' products
for reimbursement. If third-party payors do not approve a United Therapeutics'
product for reimbursement, sales will suffer as patients will opt for a
competing product that is approved for reimbursement.
UNITED THERAPEUTICS RELIES ON THIRD PARTIES TO DEVELOP, MARKET, DISTRIBUTE AND
SELL ITS PRODUCTS AND THOSE THIRD PARTIES MAY NOT PERFORM.
United Therapeutics does not have the ability to independently conduct
clinical studies, obtain regulatory approvals, market, distribute or sell most
of its products and intends to rely substantially on experienced third parties
to perform all of those functions. United Therapeutics may not locate acceptable
contractors or enter into favorable agreements with them. If third parties do
not successfully carry out their contractual duties or meet expected deadlines,
United Therapeutics will be unable to get marketing approvals and will be unable
to sell its products. MiniMed Inc. is United Therapeutics' exclusive partner for
the subcutaneous delivery of Remodulin using the MiniMed Inc. microinfusion
device in the field of pulmonary hypertension. United Therapeutics is relying on
MiniMed's experience, expertise and performance. Similarly, United Therapeutics
is relying on Gentiva Health Services Inc. and Priority Healthcare Corporation
to market, distribute, and sell Remodulin once it has been approved by the FDA.
If United Therapeutics' partners are unsuccessful in their efforts, United
Therapeutics' revenues will suffer.
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UNITED THERAPEUTICS HAS LIMITED EXPERIENCE WITH MANUFACTURING AND DEPENDS ON
THIRD PARTIES, WHO MAY NOT PERFORM, TO SYNTHESIZE AND MANUFACTURE MANY OF ITS
PRODUCTS.
United Therapeutics itself has limited experience with manufacturing. In
October 1999, United Therapeutics acquired SynQuest, Inc., a company that
manufactured Remodulin for United Therapeutics. In December 2000, SynQuest was
dissolved and merged into United Therapeutics as its synthesis and manufacturing
division. Prior to the acquisition of SynQuest, United Therapeutics had no
experience with manufacturing. Although in connection with the acquisition of
SynQuest United Therapeutics retained the employees and managers of SynQuest,
United Therapeutics may be unsuccessful in maintaining drug manufacturing
operations.
United Therapeutics relies on third parties for the manufacture of all
other products other than Remodulin. United Therapeutics is relying on Cook
Imaging Corporation for the formulation of Remodulin. United Therapeutics relies
on Magellan Laboratories Incorporated to test the purity and stability of each
batch of Remodulin. United Therapeutics relies exclusively on Toray Industries,
Inc. to manufacture beraprost. United Theapeutics relies on Nelson
Nutraceuticals to manufacture the HeartBar. United Therapeutics' manufacturing
strategy presents the following risks:
- The manufacturing processes for some of United
Therapeutics' products have not been tested in
quantities needed for commercial sales;
- Delays in scale-up to commercial quantities could delay
clinical studies, regulatory submissions and
commercialization of United Therapeutics' products;
- A long lead time is needed to manufacture Remodulin, and
the manufacturing process is complex;
- United Therapeutics and manufacturers of United
Therapeutics' products are subject to the FDA's good
manufacturing practices regulations and similar foreign
standards, and although United Therapeutics controls
compliance issues with respect to the work conducted by
SynQuest, the company does not have control over
compliance with these regulations by its third-party
manufacturers;
- If United Therapeutics has to change to another
manufacturing contractor or abandon its captive
manufacturing operations, FDA and comparable foreign
regulators would require new testing and compliance
inspections and the new manufacturer would have to be
educated in the processes necessary for the production
of the affected product;
- Without satisfactory long-term agreements with its
manufacturers, United Therapeutics will not be able to
develop or commercialize its products, other than
Remodulin, as planned or at all and will have to rely
solely on the manufacturing capacity the company
acquired through SynQuest;
- Without substantial experience in operating a
manufacturing facility, United Therapeutics may not be
able to successfully manufacture Remodulin; and
- United Therapeutics may not have intellectual property
rights, or may have to share intellectual property
rights, to many improvements in the manufacturing
processes or new manufacturing processes for its
products.
Any of these factors could delay clinical studies or
commercialization of United Therapeutics' products, entail higher costs and
result in United Therapeutics being unable to effectively sell its products.
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IF THE LICENSES UNITED THERAPEUTICS DEPENDS ON ARE BREACHED OR TERMINATED,
UNITED THERAPEUTICS WOULD LOSE ITS RIGHT TO DEVELOP AND SELL THE PRODUCTS
COVERED BY THE LICENSES.
United Therapeutics acquires or licenses drugs which have been
discovered and initially developed by others. In addition, United Therapeutics
has obtained and will be required to obtain licenses to third-party technology
to conduct its business, including licenses for its products and a license for
the MiniMed microinfusion device. This dependence on licenses has the following
risks:
- United Therapeutics may not be able to obtain future
licenses at a reasonable cost or at all;
- If any of United Therapeutics' licenses are terminated,
United Therapeutics will lose its rights to develop and
market some or all of its products;
- The licenses that United Therapeutics holds generally
provide for termination by the licensor in the event
United Therapeutics breaches the license agreement,
including by failing to pay royalties and other fees on
a timely basis;
- In the event that Glaxo Wellcome or Pharmacia & Upjohn
terminate their agreements, United Therapeutics will
have no further rights to utilize their patents or trade
secrets to develop and commercialize Remodulin; and
- If licensors fail to maintain the intellectual property
licensed to United Therapeutics as required by most of
United Therapeutics' license agreements, United
Therapeutics may lose its rights to develop and market
some or all of its products and may be forced to incur
substantial additional costs to maintain the
intellectual property itself or force the licensor to do
so.
IF UNITED THERAPEUTICS' PATENT AND OTHER INTELLECTUAL PROPERTY PROTECTION IS
INADEQUATE, UNITED THERAPEUTICS' SALES AND PROFITS COULD SUFFER OR COMPETITORS
COULD FORCE UNITED THERAPEUTICS' PRODUCTS COMPLETELY OUT OF THE MARKET.
The U.S. patent for the method of treating pulmonary hypertension with
Remodulin expires in 2009. The U.S. patents for the beraprost composition of
matter and synthesis expire in 2003 and 2010. United Therapeutics may not be
able to extend these or any other patents. Competitors may develop products
based on the same active ingredients as United Therapeutics' products, including
Remodulin, and market those products after the patents expire, or may design
around United Therapeutics' existing patents. If this happens, United
Therapeutics' sales would suffer and United Therapeutics' profits could be
severely impacted.
The issued beraprost patents do not cover methods of treating any
disease, including pulmonary hypertension or peripheral vascular disease, using
beraprost. Patents may be issued to others which prevent the manufacture or sale
of United Therapeutics' products. United Therapeutics may have to license those
patents and pay significant fees or royalties to the owners of the patents in
order to keep marketing its products. This would cause profits on sales to
suffer.
United Therapeutics has filed a patent application in the United States
for the synthesis of Remodulin, but this and other patent applications which
have been or may be filed by United Therapeutics may not issue. The scope of any
patent that issues may not be sufficient to protect United Therapeutics'
technology. The laws of foreign jurisdictions in which United Therapeutics
intends to sell its products may not protect the company's rights to the same
extent as the laws of the United States.
In addition to patent protection, United Therapeutics also relies on
trade secrets, proprietary know-how and technology advances. United Therapeutics
enters into confidentiality agreements with its employees and others, but these
agreements may not be effective in protecting the company's proprietary
information. Others may independently develop substantially equivalent
proprietary information or obtain access to United Therapeutics' know-how.
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Litigation, which is very expensive, may be necessary to enforce or
defend United Therapeutics' patents or proprietary rights and may not end
favorably for United Therapeutics. Any of United Therapeutics' licenses, patents
or other intellectual property may be challenged, invalidated, canceled,
infringed or circumvented and may not provide any competitive advantage to
United Therapeutics.
UNITED THERAPEUTICS MAY NOT HAVE, OR MAY HAVE TO SHARE RIGHTS TO, FUTURE
INVENTIONS ARISING FROM ITS OUTSOURCING AGREEMENTS AND MAY LOSE POTENTIAL
PROFITS OR SAVINGS.
Pursuant to United Therapeutics' agreement with MiniMed concerning the
subcutaneous delivery of Remodulin, any new inventions or intellectual property
that arise from United Therapeutics' activities with MiniMed will be owned
jointly by United Therapeutics and MiniMed. Under United Therapeutics' agreement
with Shearwater Polymers, Inc. concerning pegylation, any inventions that relate
to a non-prostacyclin pegylation method will be owned by Shearwater Polymers. If
United Therapeutics does not have rights to new developments or inventions that
arise during the terms of these agreements, or United Therapeutics has to share
the rights with others, United Therapeutics will lose the benefit of the new
rights which may mean a loss of future profits or savings generated from
improved technology.
IF UNITED THERAPEUTICS' HIGHLY QUALIFIED MANAGEMENT AND TECHNICAL PERSONNEL
LEAVE THE COMPANY, ITS BUSINESS MAY SUFFER.
United Therapeutics is dependent on its current management. United
Therapeutics does not maintain key person life insurance. United Therapeutics'
success will depend in part on retaining the services of its existing management
and key personnel and attracting and retaining new highly qualified personnel.
Expertise in the field of pulmonary and vascular disease is not generally
available in the market, and competition for qualified management and personnel
is intense.
UNITED THERAPEUTICS MAY NOT SUCCESSFULLY COMPETE WITH ESTABLISHED DRUG
COMPANIES.
United Therapeutics competes with established drug companies during
product development for, among other things, funding, access to licenses,
personnel and third-party collaborators. United Therapeutics will also compete
with these companies following approval of its products. Almost all of these
companies have substantially greater financial, marketing, sales, distribution
and technical resources, and more experience in research and development,
clinical trials and regulatory matters, than United Therapeutics. United
Therapeutics is aware of existing treatments that will compete with its
products. If United Therapeutics cannot successfully compete with new or
existing products, United Therapeutics' marketing and sales will suffer and it
may not ever be profitable.
IF UNITED THERAPEUTICS NEEDS ADDITIONAL FINANCING AND CANNOT OBTAIN IT, PRODUCT
DEVELOPMENT AND SALES MAY BE LIMITED.
United Therapeutics may need to spend more money than currently expected
because it may need to change its product development plans or product offerings
to address difficulties with clinical studies or preparing for commercial sales.
United Therapeutics may not be able to obtain additional funds on commercially
reasonable terms or at all. If additional funds are not available, United
Therapeutics may be compelled to delay clinical studies, curtail operations or
obtain funds through collaborative arrangements that may require it to
relinquish rights to certain of its products or potential markets.
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UNITED THERAPEUTICS MAY NOT HAVE ADEQUATE INSURANCE AND MAY HAVE SUBSTANTIAL
EXPOSURE TO PAYMENT OF PRODUCT LIABILITY CLAIMS.
The testing, manufacture and marketing of human drugs involves product
liability risks. Although United Therapeutics has product liability insurance,
United Therapeutics may not be able to maintain this product liability insurance
at an acceptable cost, if at all, and this insurance may not provide adequate
coverage against potential losses. If claims or losses exceed United
Therapeutics' liability insurance coverage, United Therapeutics may go out of
business.
UNITED THERAPEUTICS' STOCK PRICE COULD BE VOLATILE AND COULD DECLINE.
The market prices for securities of drug companies are highly volatile,
and there are significant price and volume fluctuations in the market that may
be unrelated to particular companies' operating performances. United
Therapeutics' stock price could decline suddenly due to the following factors:
- Results of clinical trials;
- Timing of regulatory approvals;
- Fluctuations in operating results;
- Announcements by United Therapeutics or others of technological
innovations or new products;
- Failure to meet estimates or expectations of securities
analysts;
- Rate of product acceptance;
- Developments in patent or other proprietary rights;
- Public concern as to the safety of products developed by United
Therapeutics or by others;
- Future sales of substantial amounts of common stock by existing
United Therapeutics stockholders; and
- General market conditions.
FUTURE SALES OF SHARES MAY DEPRESS THE STOCK PRICE.
If the stockholders sell a substantial number of shares of United
Therapeutics' common stock in the public market, or investors become concerned
that substantial sales might occur, the market price of the common stock could
decrease. Such a decrease could make it difficult for United Therapeutics to
raise capital by selling stock or to pay for acquisitions using stock. To the
extent outstanding options or warrants are exercised or additional shares of
capital stock are issued, existing stockholders may incur additional dilution.
EXISTING DIRECTORS AND EXECUTIVE OFFICERS OF UNITED THERAPEUTICS OWN A
SUBSTANTIAL BLOCK OF STOCK AND MIGHT BE ABLE TO DIRECT THE OUTCOME OF MATTERS
REQUIRING STOCKHOLDER APPROVAL.
United Therapeutics' directors and named executive officers beneficially
own approximately 26 percent of its outstanding common stock. Accordingly, these
stockholders as a group might be able to direct the outcome of matters requiring
approval by United Therapeutics' stockholders, including the election of its
directors. Such stockholder control could delay or prevent a change of control
of United Therapeutics.
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BECAUSE OF THE RIGHTS AGREEMENT AND "ANTI-TAKEOVER" PROVISIONS IN UNITED
THERAPEUTICS' CERTIFICATE OF INCORPORATION AND BYLAWS, A THIRD PARTY MAY BE
DISCOURAGED FROM MAKING A TAKEOVER OFFER WHICH COULD BE BENEFICIAL TO UNITED
THERAPEUTICS AND THE PUBLIC STOCKHOLDERS.
On December 14, 2000, United Therapeutics adopted a shareholder rights
plan. The effect of this rights plan and of certain provisions of United
Therapeutics' Amended and Restated Certificate of Incorporation and Amended and
Restated By-Laws, and the anti-takeover provisions of Section 203 of the
Delaware General Corporation Law, could delay or prevent a third party from
acquiring United Therapeutics or replacing members of the United Therapeutics
board of directors, even if the acquisition or the replacements would be
beneficial to United Therapeutics' stockholders. These factors could also reduce
the price that certain investors might be willing to pay for shares of the
common stock and result in the market price being lower than it would be without
these provisions.
IF STOCKHOLDERS DO NOT RECEIVE DIVIDENDS, STOCKHOLDERS MUST RELY ON STOCK
APPRECIATION FOR ANY RETURN ON THEIR INVESTMENT IN UNITED THERAPEUTICS.
United Therapeutics has never declared or paid cash dividends on any of
its capital stock. United Therapeutics currently intends to retain its earnings
for future growth and therefore does not anticipate paying cash dividends in the
future.
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THE COMPANY
United Therapeutics Corporation is a biotechnology company focused on
combating cardiovascular, inflammatory and infectious diseases with unique
therapeutic products.
United Therapeutics develops pharmaceuticals to treat vascular diseases,
including pulmonary hypertension and peripheral vascular disease, as well as
other selected chronic conditions. Both pulmonary hypertension and peripheral
vascular disease are characterized by reduced production of natural
prostacyclin, a highly unstable molecule that has powerful effects on
blood-vessel health. United Therapeutics' lead products, Remodulin(TM) and
beraprost, are stable synthetic forms of prostacyclin. Remodulin is delivered
under the skin, or "subcutaneously." United Therapeutics has completed its
pivotal Phase III clinical study of Remodulin for treating advanced pulmonary
hypertension, has filed a new drug application with the U.S. Food and Drug
Administration and a Marketing Authorization Application in France and is
awaiting a decision by the these agencies. Beraprost is delivered orally, and
United Therapeutics has completed enrollment in two Phase III studies of
beraprost for the treatment of early-stage peripheral vascular disease and
early-stage pulmonary hypertension. United Therapeutics has also conducted phase
II testing of Remodulin for critical limb ischemia and is in the pre-clinical
stages of development for therapies in certain infectious diseases and chronic
obstructive pulmonary disease.
United Therapeutics' objective is to become a leader in the development
and commercialization of drugs and other therapies focused on combatting
cardiovascular, inflammatory and infectious diseases with unique therapeutic
products. To achieve this objective, United Therapeutics is pursuing the
following strategies:
- Capitalize on its experience and expertise in pulmonary vascular
medicine;
- Establish its prostacyclin products as the standard of care for
cardiovascular disease; and
- Minimize fixed costs and corporate overhead through outsourcing
and partnering where cost effective.
United Therapeutics was incorporated in Delaware in June 1996 under the
name Lung Rx, Inc. Its principal office is located at 1110 Spring Street, Silver
Spring, Maryland 20910, and its telephone number there is (301) 608-9292. United
Therapeutics' clinical development office is located at 68 T.W. Alexander Drive,
Research Triangle Park, North Carolina 27709, and its telephone number there is
(919) 485-8350. Information on United Therapeutics' web sites is not a part of
this prospectus.
USE OF PROCEEDS
United Therapeutics will not receive any proceeds from the sale of the
shares of common stock by the selling stockholder pursuant to this prospectus.
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SELLING STOCKHOLDER
United Therapeutics is registering all shares covered by this prospectus
on behalf of the selling stockholder named in the table below. United
Therapeutics issued all of the shares to the selling stockholder in a private
placement transaction. United Therapeutics has registered the shares to permit
the selling stockholder and its pledgees, donees, transferees, distributees or
other successors-in-interest, including their affiliates and limited and/or
general partners that receive their shares from the selling stockholder as a
gift, partnership distribution or other non-sale related transfer after the date
of this prospectus, to resell the shares when they deem appropriate.
In the agreement under which the selling stockholder acquired the shares
of common stock, the selling stockholder represented that it was acquiring the
shares for investment and with no present intention of distributing those
shares. In addition, the selling stockholder qualified as an "accredited
investor" as such term is defined in Rule 501 under the Securities Act of 1933.
United Therapeutics agreed to prepare and file a registration statement to
permit the resale of the shares and to bear all registration expenses other than
fees and expenses of counsel or other advisors for the selling stockholder and
underwriting discounts and commissions and brokerage commissions and fees.
Accordingly, in recognition of the fact that the selling stockholder, even
though it acquired the shares without a view to distribution, may wish to be
legally permitted to sell the shares when it deems appropriate, United
Therapeutics has filed with the SEC a registration statement on Form S-3, of
which this prospectus forms a part. United Therapeutics will use its reasonable
efforts to prepare and file amendments and supplements to the registration
statement as may be necessary to keep the registration statement effective for
at least one year after the date the registration statement is declared
effective.
Cooke PH, Inc. sold Cooke Pharma, Inc. to United Therapeutics in
December 2000. In furtherance of that acquisition, United Therapeutics now
employs John Cooke, founder of Cooke Pharma, Inc. (now Cooke PH, Inc.) on a
part-time basis.
The following table sets forth the name of the selling stockholder, the
number of shares owned by the selling stockholder prior to this offering, the
total number of shares offered under this prospectus, and the number of shares
of common stock owned by the selling stockholder after this offering is
completed. The number of shares in the column "Number of Shares Being Offered"
represents all of the shares that the selling stockholder may offer under this
prospectus. United Therapeutics does not know how long the selling stockholder
will hold the shares before selling them and currently has no agreements,
arrangements or understandings with the selling stockholder regarding the sale
of any of the shares. The table assumes all shares being offered in this
offering are sold to non-affiliates of the selling stockholder.
PERCENT SHARES
SHARES BENEFICIALLY NUMBER OF BENEFICIALLY BENEFICIALLY
OWNED SHARES BEING OWNED AFTER OWNED
NAME OF SELLING STOCKHOLDER PRIOR TO OFFERING OFFERED OFFERING AFTER OFFERING
--------------------------- ----------------- ------- -------- --------------
Cooke PH, Inc. 147,317 147,317 --- ---
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PLAN OF DISTRIBUTION
The common stock offered by this prospectus may be sold from time to
time by the selling stockholder and its pledgees, donees, transferees,
distributees or other successors-in-interest. The selling stockholder will act
independently of us in making decisions with respect to the timing, manner and
size of the sale of common stock covered hereby. The selling stockholder may
sell its shares on the Nasdaq National Market or otherwise, at market prices or
at negotiated prices. It may sell shares by one or a combination of the
following:
- a block trade in which a broker or dealer so engaged
will attempt to sell the shares as agent, but may
position and resell a portion of the block as principal
to facilitate the transaction;
- purchases by a broker or dealer as principal and resale
by the broker or dealer for its account pursuant to this
prospectus;
- an exchange distribution in accordance with the rules of
an exchange;
- ordinary brokerage transactions and transactions in
which a broker solicits purchasers; and
- in privately negotiated transactions.
In addition, any shares offered hereby that qualify for sale pursuant to
Rule 144 may, at the option of the holder thereof, be sold under Rule 144 rather
than pursuant to this prospectus.
In effecting sales, brokers or dealers engaged by the selling
stockholder may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts from the selling stockholder in
amounts to be negotiated prior to the sale. The selling stockholder and any
broker-dealers that participate in the distribution may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act of
1933, and any proceeds or commissions received by them, and any profits on the
resale of shares sold by broker-dealers, may be deemed to be underwriting
discounts and commissions. Because the selling stockholder may be deemed to be
an underwriter, it will be subject to the prospectus delivery requirements of
the Securities Act of 1933.
In connection with distributions of the shares offered hereby, the
selling stockholder may enter into hedging transactions with broker-dealers or
other financial institutions. In addition, broker-dealers may agree with the
selling stockholder to sell a specified number of shares at a stipulated price
per share, and to the extent such a broker-dealer is unable to do so acting as
agent for the selling stockholder, to purchase as principal any unsold shares at
the price required to fulfill the broker-dealer commitment to the selling
stockholder. Broker-dealers who acquire shares as principal may thereafter
resell such shares from time to time in transactions (which may involve crosses
and block transactions and which may involve sales to and through other
broker-dealers, including transactions of the nature described above) in the
over-the-counter market, in negotiated transactions or by a combination of such
methods of sale or otherwise at market prices prevailing at the time of sale or
at negotiated prices, and in connection with such resales may pay to or receive
from the purchasers of such shares commissions computed as described above.
We have advised the selling stockholder that the anti-manipulation of
Regulation M under the Securities and Exchange Act of 1934 (the "Exchange Act")
may apply to sales of shares in the market and to the activities of the selling
stockholder and its affiliates. In addition, we will make copies of this
prospectus available to the selling stockholder and have informed it of the need
for delivery of copies of this prospectus to purchasers on or prior to sales of
the shares offered hereby. The selling stockholder may indemnify any
broker-dealer that participates in transactions involving the sale of the shares
against certain liabilities, including liabilities arising under the Securities
Act. Any commissions paid or any discounts or concessions allowed to any such
broker-dealers, and any profits received on the resale of such shares, may be
deemed to be underwriting discounts and commissions under the Securities Act if
any such broker-dealers purchase shares as principal.
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In order to comply with the securities laws of certain states, if
applicable, the common stock will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states, the
common stock may not be sold unless such shares have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
There can be no assurance that the selling stockholder will sell all or
any of the shares of common stock offered under this prospectus.
If the selling stockholder notifies United Therapeutics that a material
arrangement has been entered into with a broker-dealer for the sale of shares
through a block trade, special offering, exchange, distribution or secondary
distribution or a purchase by a broker or dealer, United Therapeutics will file
a prospectus supplement if required by Rule 424 under the Securities Act of
1933.
United Therapeutics has agreed to indemnify the selling stockholder
against certain liabilities, including liabilities arising under the Securities
Act of 1933. The selling stockholder may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving shares of the common
stock against certain liabilities, including liabilities arising under the
Securities Act of 1933.
COMMON STOCK
Each share of the common stock of United Therapeutics trades with and
has attached to it a right to purchase shares of preferred stock. The terms of
the rights are set forth in a Rights Agreement dated as of December 17, 2000,
between United Therapeutics Corporation and The Bank of New York, as Rights
Agent. Each right entitles the holder to purchase from United Therapeutics one
one-thousandth of a share of Series A Junior Participating Preferred Stock, par
value $0.01 per share, at a price of $129.50, subject to adjustment. The rights
are currently evidenced by common stock certificates and are not exercisable
until the earlier of:
- the close of business on the tenth business day following the date of
public announcement of or the date on which United Therapeutics first has notice
or determines that a person or group of affiliated or associated persons has
acquired, or has obtained the right to acquire, 15% or more of the outstanding
shares of United Therapeutics voting stock without the prior express written
consent of the Board of Directors, or
- The close of business on the tenth business day following the
commencement of a tender offer or exchange offer by a person, without the prior
written consent of the Board of Directors, which offer, upon consummation would
result in such person's control of 15% or more of United Therapeutics voting
stock.
If not exercised by the holders or earlier redeemed or exchange by
United Therapeutics, the rights will expire on December 29, 2010. The purchase
price payable, and the number of shares of Series A preferred stock or other
securities or property issuable upon exercise of the rights are subject to
adjustment from time to time to prevent dilution by action of the Board of
Directors and in circumstances described in the Rights Agreement.
For more information regarding the rights attached to United
Therapeutics common stock, you may refer to the Form 8-K dated December 17,
2000, filed with the Securities and Exchange Commission on December 18, 2000.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
The following statements are or may constitute forward-looking statements:
- statements set forth in this prospectus or statements
incorporated by reference from documents United Therapeutics has
filed with the Securities and Exchange Commission, including
possible or assumed
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18
future results of the company's operations, including but not
limited to any statements contained in this prospectus or in the
documents incorporated by reference concerning:
- expectation of continued losses;
- cash needed for current research and development
contract obligations during 2001 and the funding for
such expenses;
- expectations concerning milestone and royalty payments
in 2001
- the use of net operating loss carryforwards and business
tax credit carryforwards;
- the completion of in process research and development
products in 2002;
- the levels of working capital required for existing
research and development and general and administrative
programs;
- adequacy of United Therapeutics' resources to fund
operations through 2004;
- status and projected outcome of ongoing clinical
studies; and
- existence and timing of future clinical studies of its
product candidates.
- any statements preceded by, followed by or that include the
words "believes," "expects," "predicts," "anticipates,"
"intends," "estimates," "should," "may" or similar expressions;
and
- other statements contained or incorporated by reference in this
prospectus that are not historical facts.
Because such statements are subject to risks and uncertainties, actual
results may differ materially from those expressed or implied by such
forward-looking statements. Factors that could cause actual results to differ
materially include, but are not limited to:
- assumptions regarding the status of research and development
subject to existing contracts;
- projections with respect to resources needed for future
operations;
- expectations of success of clinical studies; and
- factors discussed under "Risk Factors" beginning on page 1.
You should not place undue reliance on such statements, which speak only as
of the date that they were made. These cautionary statements should be
considered in connection with any written or oral forward-looking statements
that United Therapeutics may issue in the future. United Therapeutics does not
undertake any obligation to release publicly any revisions to such
forward-looking statements after completion of this offering to reflect later
events or circumstances or to reflect the occurrence of unanticipated events.
LAWYERS
The validity of the shares of common stock offered hereby will be passed
upon for United Therapeutics by Bryan Cave LLP. James L. Nouss, Jr., a partner
of Bryan Cave LLP, beneficially owns 12,925 shares of common stock of United
Therapeutics.
EXPERTS
The consolidated balance sheets of United Therapeutics, as of December 31,
1999 and 2000, and the consolidated statements of operations, stockholders'
equity and cash flows for the years ended December 31, 1998, 1999 and 2000
incorporated by reference in this prospectus and registration statement have
been incorporated by reference herein in reliance upon the report of KPMG LLP,
independent certified public accountants, appearing in United Therapeutics'
Annual Report on Form 10-K for the fiscal year ended December 31, 2000, given on
the authority of that firm as experts in accounting and auditing.
14
19
ADDITIONAL INFORMATION
United Therapeutics has filed with the Securities and Exchange
Commission, Washington, D.C., a registration statement on Form S-3 under the
Securities Act of 1933, covering the securities offered by this prospectus. This
prospectus does not contain all of the information that you can find in that
registration statement and its exhibits and schedule. Certain items are omitted
in accordance with the rules and regulations of the Commission. For further
information with respect to United Therapeutics and the common stock offered
here, reference is made to the registration statement and the exhibits and
schedule filed with the registration statement. Statements contained in this
prospectus as to the contents of any contract or other document referred to are
not necessarily complete and in each instance such statement is qualified by
reference to each such contract or document filed with or incorporated by
reference as part of the registration statement. United Therapeutics files
reports, proxy statements and other information with the Commission. You may
read any materials United Therapeutics has filed with the Commission without
charge at the public reference facilities maintained by the Commission in Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and the Commission's
regional offices located at the Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago Illinois 60661 and Seven World Trade Center, 13th
Floor, New York, New York 10048. Copies of all or any part of these documents
may be obtained from such offices upon the payment of the fees prescribed by the
Commission. The public may obtain information on the operation of the public
reference room by calling the Commission at 1-800-SEC-0330. The Commission
maintains a World Wide Web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission. The address of the site is http://www.sec.gov. The
registration statement, including all exhibits thereto and amendments thereof,
has been filed electronically with the Commission.
INFORMATION INCORPORATED BY REFERENCE
The Commission allows United Therapeutics to "incorporate by reference"
the information United Therapeutics provides in documents filed with the
Commission, which means that United Therapeutics can disclose important
information by referring to those documents. The information incorporated by
reference is an important part of this prospectus. Any statement contained in a
document that is incorporated by reference in this prospectus is automatically
updated and superseded if information contained in this prospectus, or
information that United Therapeutics later files with the Commission, modifies
and replaces this information. United Therapeutics incorporates by reference the
following documents the company has filed with the Commission:
(1) Annual Report on Form 10-K for the fiscal year ended December 31,
2000.
(2) Current Report on Form 8-K/A filed February 1, 2001.
(3) Current Report on Form 8-K/A filed February 1, 2001.
(4) Current Report on Form 8-K/A filed March 6, 2001.
(5) Current Report on Form 8-K/A filed March 14, 2001.
(6) Quarterly Report on Form 10-Q for the quarter ended March 31, 2001.
(7) Current Report on Form 8-K filed April 13, 2001.
(8) Description of common stock contained in the Registration Statement
on Form 8-A, filed on June 8, 1999 and description of the preferred stock
purchase rights (which trade with the common stock) contained in the
Registration Statement on Form 8-A filed on January 2, 2001.
In addition, all documents filed by United Therapeutics with the Commission
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
after the date of this prospectus and prior to the filing of a post-
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20
effective amendment that indicates that all securities offered hereby have been
sold or that deregisters all securities remaining unsold, will be considered to
be incorporated by reference into this prospectus and to be a part of this
prospectus from the dates of the filing of such documents.
You may get copies of any of the incorporated documents (excluding
exhibits, unless the exhibits are specifically incorporated) at no charge to you
by writing or calling the Director of Finance and Investor Relations, United
Therapeutics Corporation, 1110 Spring Street, Silver Spring, Maryland 20910,
telephone (301) 608-9292.
16
21
================================================================================
YOU MAY RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. WE
HAVE NOT AUTHORIZED ANYONE TO PROVIDE INFORMATION DIFFERENT FROM THAT CONTAINED
IN THIS PROSPECTUS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR SALE OF COMMON
STOCK MEANS THAT INFORMATION CONTAINED IN THIS PROSPECTUS IS CORRECT AFTER THE
DATE OF THIS PROSPECTUS. THIS PROSPECTUS IS NOT AN OFFER TO SELL OR SOLICITATION
OF AN OFFER TO BUY THESE SHARES OF COMMON STOCK IN ANY CIRCUMSTANCES UNDER WHICH
THE OFFER OR SOLICITATION IS UNLAWFUL.
------------------------
TABLE OF CONTENTS
PAGE
----
Risk Factors............................................1
The Company.............................................8
Use of Proceeds.........................................8
Selling Stockholder.....................................9
Plan of Distribution....................................11
Common Stock............................................11
Cautionary Statement Regarding Certain
Forward-Looking Statements..............................11
Lawyers.................................................12
Experts.................................................12
Additional Information..................................13
Information Incorporated by Reference...................13
_______________
[UNITED THERAPEUTICS CORPORATION LOGO]
147,317 SHARES
COMMON STOCK
PROSPECTUS
JUNE __, 2001
================================================================================
22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses payable by the Registrant in
connection with the registration of the common stock.
Registration fee.................................$ 483.57
Nasdaq National Market Listing Fee...............$ 1,473.17
Legal fees and expenses..........................$ 7,500.00*
Accounting fees and expenses.....................$ 2,000.00*
Miscellaneous expenses........................... *
Total....................$ 11,456.74*
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Delaware law, the Registrant's Amended and Restated
Certificate of Incorporation provides that no director of the Registrant will be
personally liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (a) for any breach
of duty of loyalty to United Therapeutics or to its stockholders, (b) for acts
or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the Delaware General
Corporation Law, or (d) for any transaction from which the director derived an
improper personal benefit.
The Registrant's Amended and Restated Certificate of Incorporation further
provides that the Registrant must indemnify its directors and executive officers
and may indemnify its other officers and employees and agents to the fullest
extent permitted by Delaware law. The Registrant believes that indemnification
under its Amended and Restated Certificate of Incorporation covers negligence
and gross negligence on the part of indemnified parties.
The Registrant has entered into indemnification agreements with each of its
directors and executive officers. These agreements, among other things, require
the Registrant to indemnify such directors and executive officers for certain
expenses (including attorneys' fees), judgments, fines and settlement amounts
incurred by any such person in any action or proceeding, including any action by
or in the right of the Registrant, arising out of such person's services as a
director or officer of the Registrant, any subsidiary of the Registrant or any
other company or enterprise to which the person provides services at the request
of the Registrant.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following is a list of exhibits filed as a part of this
registration statement.
EXHIBIT NO. DESCRIPTION
----------- -----------
3.1 Amended and Restated Certificate of Incorporation of the
Registrant, incorporated by reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form S-1 (Registration
No. 333-76409).
3.2 Amended and Restated Bylaws of the Registrant, incorporated by
reference to Exhibit 3.2 of the Registrant's Registration
Statement (Registration No. 333-76409).
4.1 Reference is made to Exhibits 3.1 and 3.2.
4.2 Registration Rights Agreement, dated as of October 30, 1998, by
and among the Registrant, Merrill Lynch KECALP L.P. 1997, and
Merrill Lynch KECALP International L.P. 1997, incorporated by
reference to Exhibit 4.2 of the Registrant's Registration
Statement on Form S-1 (Registration No. 333-
II-1
23
76409).
4.3 Form of Common Stock Purchase Agreement, executed as of March
1998, by and between the Registrant and each of Community
Investment Partners III L.P., LLLP, Mary Ellen and Raul Evelio
Perez, Trustees of the Mary Ellen Perez revocable trust dated
October 28, 1993, Edward D. Jones & Co., Oakwood Investors I,
L.L.C. and James L. Nouss, Jr., incorporated by reference to
Exhibit 4.3 of the Registrant's Registration Statement on form
S-1 (Registration No. 333-76409).
4.4 Warrant to purchase shares of United Therapeutics common stock,
issued on November 2, 1998 to Cortech, Inc., incorporated by
reference to Exhibit 4.4 of the Registrant's Registration
Statement on form S-1 (Registration No. 333-76409).
4.5 Stock Option Grant to purchase shares of United Therapeutics'
common stock, issued on September 16, 1998, to Toray Industries,
Inc., incorporated by reference to Exhibit 4.5 of the
Registrant's Registration Statement on form S-1 (Registration
No. 333-76409).
4.6 Registration Rights Agreement, dated as of October 7, 1999, by
and among the Registrant and Robert M. Moriarty, Ph.D., Raju
Penmasta, Ph.D., Lian Guo, Ph.D., George W. Davis, Esq. and
David Moriarty, incorporated by reference to Exhibit 10.2 of the
Registrant's Form 10-Q for the period ended September 30, 1999.
4.7 Form of Purchase Agreement dated as of December 22, 1999,
incorporated by reference to Exhibit 4.6 of the Registrant's
Registration Statement on form S-1 (Registration No. 333-93853).
4.8 Registration Rights Agreement, dated as of June 27, 2000 by and
between the Registrant and Toray Industries, Inc., incorporated
by reference to Exhibit 4.7 of the Registrant's Registration
Statement on Form S-3 (Registration No. 333-40598).
4.9 Stock Option Grant issued on June 27, 2000 to Toray Industries,
Inc., incorporated by reference to Exhibit 4.8 of the
Registrant's Registration Statement on Form S-3 (Registration
No. 333-40598).
4.10 Form of Stock Purchase Agreement dated July 13, 2000
incorporated by reference to Exhibit 99.2 of the Registrant's
Current Report on Form 8-K filed July 14, 2000.
4.11 Registration Rights Agreement, dated as of December 15, 2000 by
and between the Registrant and Cooke Pharma, Inc., incorporated
by reference to Exhibit 2.2 of the Registrant's Form 8-K/A dated
December 15, 2000.
4.12 Escrow Agreement, dated as of December 15, 2000 among
Registrant, UP Subsidiary Corporation, Cooke Pharma, Inc., and
Mahon, Patusky, Rothblatt & Fisher, Chartered, as escrow agent,
incorporated by reference to Exhibit 2.3 of the Registrant's
Form 8-K/A dated December 15, 2000.
4.13 Registration Rights Agreement, dated as of December 28, 2000 by
and between the Registrant and Medicomp, Inc., incorporated by
reference to Exhibit 2.2 of the Registrant's Form 8-K/A dated
December 28, 2000.
4.14 Escrow Agreement, dated as of December 28, 2000 among
Registrant, UTSC Sub Acquisition, Inc., Medicomp, Inc., Mahon,
Patusky, Rothblatt & Fisher, Chartered, as escrow agent, and
Chicago Title, as successor escrow agent, incorporated by
reference to Exhibit 2.3 of the Registrant's Form 8-K/A dated
December 28, 2000.
4.15 Rights Agreement, dated as of December 17, 2000 between
Registrant and The Bank of New York, as Rights Agent,
incorporated by reference to Exhibit 4 of Registrant's Form 8-K
dated December 17, 2000.
5 Opinion of Bryan Cave LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Bryan Cave LLP. Reference is made to Exhibit 5.
24 Power of Attorney (included on signature page).
II-2
24
ITEM 17. UNDERTAKINGS.
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 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.
(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.
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 15 or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned Registrant undertakes that: (1) for purposes of determining
any liability under the Securities Act, the information omitted from the form of
prospectus filed as part of the registration statement in reliance upon Rule
430A and contained in the form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of the registration statement as of the time it was declared effective, and
(2) for the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-3
25
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 Silver Spring, County of Montgomery, State of
Maryland on the 7th day of June, 2001.
UNITED THERAPEUTICS CORPORATION
By: /s/ FRED T. HADEED
---------------------------
Fred T. Hadeed
Chief Financial Officer
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed below by the following persons in the
capacities and on the dates stated.
KNOW ALL PERSONS BY THESE PRESENTS, that each hereby constitutes and
appoints Martine A. Rothblatt and Paul A. Mahon, and each of them, his
attorney-in-fact, with full power of substitution, for him in any and all
capacities, to sign any and all amendments to this Registration Statement
(including post-effective amendments), and any and all Registration Statements
filed pursuant to Rule 462 under the Securities Act of 1933, as amended, in
connection with or related to the offering contemplated by this Registration
Statement and its amendments, if any, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by United Therapeutics' said attorney to any and all amendments to
said Registration Statement.
Signatures Title Date
---------- ----- ----
/s/ MARTINE A. ROTHBLATT Chairman of the Board and
------------------------------------- Chief Executive Office June 7, 2001
Martine A. Rothblatt
/s/ ROGER JEFFS President and Chief Operating
------------------------------------- Officer June 7, 2001
Roger Jeffs
/s/ JAMES W. CROW President Emeritus and Director June 7, 2001
-------------------------------------
James W. Crow
/s/ GILLES CLOUTIER Executive Vice President, Special
------------------------------------- Projects and Treasurer June 7, 2001
Gilles Cloutier
/s/ SHELMER D. BLACKBURN, JR. Executive Vice President for Medical
------------------------------------- Affairs, Secretary and Director June 7, 2001
Shelmer D. Blackburn, Jr.
/s/ FRED T. HADEED Chief Financial Officer June 7, 2001
-------------------------------------
Fred T. Hadeed
II-4
26
/s/ NOAH A. SAMARA Director June 7, 2001
-------------------------------------
Noah A. Samara
/s/ DAVID GOORAY Director June 7, 2001
-------------------------------------
David Gooray
/s/ H. BEECHER HICKS, III Director June 7, 2001
-------------------------------------
H. Beecher Hicks, III
/s/ MICHAEL C. MILES Director June 7, 2001
-------------------------------------
Michael C. Miles
/s/ WAYNE C. ROE Director June 7, 2001
-------------------------------------
Wayne C. Roe
/s/ RICARDO BALDA Chief Executive Officer, Medicomp, June 7, 2001
------------------------------------- Inc. and Director
Ricardo Balda
DC01 206228
II-5
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UNITED THERAPEUTICS CORPORATION
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
5 Opinion of Bryan Cave LLP
23 Consent of KPMG LLP