<PAGE> 1
As filed with the Securities and Exchange Commission on December 16, 1997
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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XENOMETRIX, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 04-3166089
(State of Incorporation) (I.R.S. Employer of Identification No.)
2425 N. 55TH STREET
BOULDER, COLORADO 80301
(303) 447-1773
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(Address and telephone number of principal executive offices)
AMENDED AND RESTATED STOCK OPTION PLAN
1993 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
---------------------------------------------
(Full title of the plans)
RONALD L. HENDRICK
EXECUTIVE VICE PRESIDENT OF OPERATIONS, FINANCE
AND ADMINISTRATION, AND CHIEF FINANCIAL OFFICER
XENOMETRIX, INC.
2425 N. 55TH STREET
BOULDER, COLORADO 80301
(303) 447-1773
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(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------
Copies to:
JAMES C.T. LINFIELD, ESQ.
COOLEY GODWARD LLP
2595 CANYON BOULEVARD, SUITE 250
BOULDER, COLORADO 80302-6737
(303) 546-4000
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<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and 820,955 $4.125 $2,183,106 $644
Common Stock (par
value $.001)
======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(h) under the Securities Act of
1933, as amended (the "Act") The offering price per share and
aggregate offering price are based on (a) the weighted average
exercise price for shares subject to options and stock previously
granted under the Registrant's Amended and Restated Stock Option Plan,
as amended and (b) the price per share and aggregate offering price
based upon the closing price of Registrant's Common Stock on December
9, 1997 as reported on the Nasdaq Small-Cap Market for options and
shares to be granted under the Amended and Restated Stock Option Plan
and 1993 Non-Employee Directors Stock Option Plan, as amended. The
following chart illustrates the calculation of the registration fee:
<TABLE>
<CAPTION>
======================================================================================================================
TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE PRICE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares issuable 362,542 $4.125 (a) $1,495,486 $441
pursuant to options
outstanding under the
Amended and Restated
Stock Option Plan, as
amended
- ----------------------------------------------------------------------------------------------------------------------
Shares issuable upon
exercise of options 258,413 $1.50 (b) 387,620 114
available for grant
under the Amended and
Restated Stock Option
Plan, as amended
- ----------------------------------------------------------------------------------------------------------------------
Shares issuable upon
exercise of options 200,000 $1.50 (b) 300,000 89
available for grant
under the 1993 Non-
Employee Directors
Stock Option Plan, as
amended
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</TABLE>
(a) Weighted average exercise price.
(b) Nasdaq Small-Cap Market closing price of the Registrant's
Common Stock on December 10, 1997.
================================================================================
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
2.
<PAGE> 3
INCORPORATION BY REFERENCE OF CONTENTS
OF REGISTRATION STATEMENT ON FORM S-8 NO. 33-80889
The contents of Registration Statement on Form S-8 No. 33-80889 filed
with the Securities and Exchange Commission on December 26, 1995 are
incorporated by reference herein.
EXHIBITS
EXHIBIT
NUMBER
-------
5.1 Opinion of Cooley Godward LLP.
10.30 Amendment to Registrant's Amended and Restated Stock
Option Plan.
10.31 Amendment to Registrant's 1993 Non-Employee Directors Stock
Option Plan.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1
to this Registration Statement.
24.1 Power of Attorney is contained on the signature pages.
3.
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boulder, State of
Colorado, on December 16, 1997.
XENOMETRIX, INC.
By: /s/ Ronald L. Hendrick
-----------------------------------
Ronald L. Hendrick
Executive Vice President of
Operations, Finance and
Administration, and Chief Financial
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stephen J. Sullivan and Ronald L.
Hendrick, and each or any one of them, his true and lawful attorney-in-fact and
agent, 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 to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
4.
<PAGE> 5
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Stephen J. Sullivan Chief Executive Officer, President December 16, 1997
- ----------------------------------------------- and Director (Principal Executive
Stephen J. Sullivan Officer)
/s/ Ronald L. Hendrick Executive Vice President of December 16, 1997
- ----------------------------------------------- Operations, Finance and
Ronald L. Hendrick Administration, and Chief Financial
Officer (Principal Financial and
Accounting Officer)
/s/ Walter M. Lovenberg Director December 16, 1997
- -----------------------------------------------
Walter M. Lovenberg
/s/ John K.A. Prendergast Director December 16, 1997
- -----------------------------------------------
John K.A. Prendergast
/s/ Randal P. Schumacher Director December 16, 1997
- -----------------------------------------------
Randal P. Schumacher
/s/ Ralph Z. Sorenson Director December 16, 1997
- -----------------------------------------------
Ralph Z. Sorenson
</TABLE>
5.
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION SEQUENTIAL PAGE NUMBER
5.1 Opinion of Cooley LLP.
10.30 Amendment to Registrant's Amended and
Restated Stock Option Plan.
10.31 Amendment to 1993 Registrant's Non-Employee
Directors Stock Option Plan.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Cooley Godward LLP is contained
in Exhibit 5.1 to this Registration Statement.
24.1 Power of Attorney is contained on the
signature pages.
<PAGE> 1
EXHIBIT 5.1
[COOLEY GODWARD LLP LOGO AND LETTERHEAD]
December 16, 1997
Xenometrix, Inc.
2425 N. 55th Street
Boulder, CO 80301
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Xenometrix, Inc. (the "Company") of a Registration Statement
on Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 620,955 shares of the Company's
Common Stock, $.001 par value, pursuant to its Amended and Restated Stock
Option Plan, as amended (the "Stock Option Plan"), and 200,000 shares of the
Company's Common Stock, $.001 par value, pursuant to its 1993 Non-Employee
Directors Stock Option Plan (the "Directors' Plan") (collectively, the
"Shares").
In connection with this opinion, we have examined the Registration Statement
and related Prospectus, your Certificate of Incorporation and By-laws, as
amended, and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have assumed
the genuineness and authenticity of all documents submitted to us as originals,
the conformity to originals of all documents submitted to us as copies thereof,
and the due execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Stock Option Plan
or the Directors' Plan, the Registration Statement and related Prospectus, will
be validly issued, fully paid, and nonassessable (except as to shares issued
pursuant to certain deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ James H. Carroll
------------------------------
James H. Carroll
<PAGE> 1
EXHIBIT 10.30
XENOMETRIX, INC.
AMENDMENT TO
AMENDED AND RESTATED STOCK OPTION PLAN
EFFECTIVE NOVEMBER 1, 1992
AMENDED AND RESTATED SEPTEMBER 12, 1995
Effective September 9, 1997, the Board of Directors of Xenometrix, Inc. (the
"Company") adopted an amendment to the Company's Amended and Restated Stock
Option Plan (the "Plan") so that section 4 of the Plan was amended and restated
to read as follows:
"4. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of Section 10 relating to
adjustments upon changes in stock, the stock that may be sold pursuant to
Options shall not exceed in the aggregate nine hundred sixty thousand (960,000)
shares of the Company's common stock. If any Option shall for any reason
expire or otherwise terminate, in whole or in part, without having been
exercised in full, the stock not purchased under such Option shall revert to
and again become available for issuance under the Plan."
1.
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EXHIBIT 10.31
XENOMETRIX, INC.
AMENDMENT TO
1993 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
Effective September 9, 1997, the Board of Directors of Xenometrix, Inc. (the
"Company") adopted amendments to the Company's 1993 Non-Employee Directors
Stock Option Plan (the "Plan") so that the following sections of the Plan were
amended and restated to read as follows:
"4. Stock Subject to Plan.
(a) The maximum number of shares that may be issued or
transferred pursuant to Options are 350,000 (or the number and kind of shares
of stock or other securities which are substituted for those Shares or to which
those Shares are adjusted upon a Change in Capitalization), and the Company
shall reserve for the purposes of the Plan, out of its authorized but unissued
Shares or out of Shares held in the Company's treasury, or partly out or each,
such number of Shares as shall be determined by the Board."
"6. Options.
"(g)(iii) If the Optionee ceases to be in service as a director
of the Company for any other reason, the Option (to the extent exercisable at
the time of the Optionee's cessation of service shall be exercisable for a
period of thirty (30) days following such cessation of service, and shall
thereafter terminate; provided, however, that if the Optionee dies within such
thirty-day period, the Option (to the extent exercisable at the time of the
Optionee's cessation of service) shall be exercisable by the Optionee's legal
representative, estate or other person to whom the Optionee's rights are
transferred by will or by laws of descent or distribution for a period of one
(1) year following the Optionee's death (but in no event after the expiration
date of the Option), and shall thereafter terminate."
1.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (No. 04-3166089) of Xenometrix, Inc. of our report dated
August 28, 1997, appearing on page F-1 of the Xenometrix, Inc. Annual Report on
Form 10-K for the year ended June 30, 1997.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Boulder, Colorado
December 12, 1997
