As filed with the Securities and Exchange Commission on August 30, 1999
Registration No. 333-
---------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MOLECULAR DEVICES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-2914362
(State of Incorporation) (I.R.S. Employer Identification No.)
1311 Orleans Drive
Sunnyvale, CA 94089
(408) 747-1700
(Address of principal executive offices, including zip code)
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
JOSEPH D. KEEGAN, PH.D.
CHIEF EXECUTIVE OFFICER AND PRESIDENT
MOLECULAR DEVICES CORPORATION
1311 ORLEANS DRIVE
SUNNYVALE, CA 94089
(408) 747-1700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
ANDREI M. MANOLIU, ESQ.
BRETT D. WHITE, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306-2155
(650) 843-5000
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price per Share (1) Offering Price (1) Registration Fee
- ---------------- ---------- ------------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, par value 100,000 shares $30.00 $3,000,000 $834
$0.001 per share
<FN>
(1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule
457(h). The price per share and aggregate offering price are based upon the average of the high and low
prices of Registrant's Common Stock on August 25, 1999 as reported on the Nasdaq National Market.
</FN>
</TABLE>
<PAGE>
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of
registering an additional 100,000 shares of the Registrant's Common Stock to be
issued pursuant to the Registrant's 1995 Non-Employee Directors' Stock Option
Plan, as amended (the "Plan"). The Registration Statement on Form S-8 previously
filed with the Securities and Exchange Commission relating to the Plan (File No.
333-4318, filed with the Commission on May 1, 1996) are incorporated by
reference herein.
EXHIBITS
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditor
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 page hereto
99.1 1995 Non-Employee Directors' Stock Option Plan
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sunnyvale, State of California, on this 30th day of
August, 1999.
MOLECULAR DEVICES CORPORATION
By: /s/ Joseph D. Keegan, Ph.D.
---------------------------
Joseph D. Keegan, Ph.D.
Chief Executive Officer,
and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Joseph D. Keegan, Ph.D., and Timothy Harkness,
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
attorney-in-fact and agent 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 attorney-in-fact and agent or his
substitute, may lawfully do or cause to be done by virtue hereof.
<TABLE>
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.
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Joseph D. Keegan, Ph.D. Chief Executive Officer, August 30, 1999
- ------------------------------------- President and Director
JOSEPH D. KEEGAN, PH.D. (Principal Executive
Officer)
/s/ Timothy A. Harkness Chief Financial Officer August 30, 1999
- ------------------------------------- (Principal Financial and
TIMOTHY A. HARKNESS Accounting Officer)
/s/ Moshe H. Alafi Director August 27, 1999
- -------------------------------------
MOSHE H. ALAFI
/s/ David L. Anderson Director August 27, 1999
- -------------------------------------
DAVID L. ANDERSON
/s/ A. Blaine Bowman Director August 27, 1999
- -------------------------------------
A. BLAINE BOWMAN
/s/ Paul Goddard, Ph.D. Director August 27, 1999
- -------------------------------------
PAUL GODDARD, PH.D.
/s/ Andre F. Marion Director August 27, 1999
- -------------------------------------
ANDRE F. MARION
/s/ Harden M. McConnell, Ph.D. Director August 27, 1999
- -------------------------------------
HARDEN M. MCCONNELL, PH.D.
/s/ J. Allan Waitz, Ph.D. Director August 27, 1999
- -------------------------------------
J. ALLAN WAITZ, PH.D.
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditor
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 page hereto
99.1 1995 Non-Employee Directors' Stock Option Plan
EXHIBIT 5.1
August 30, 1999
Molecular Devices Corporation
1311 Orleans Drive
Sunnyvale, CA 94089
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Molecular Devices Corporation (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 100,000 shares
of the Company's Common Stock, $.001 par value (the "Shares"), pursuant to its
1995 Non-Employee Directors' Stock Option Plan (the "Plan").
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 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
/s/ Andrei M. Manoliu
- -------------------------------------
Andrei M. Manoliu
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1995 Non-Employee Directors' Stock Option Plan of
Molecular Devices Corporation of our report dated January 18, 1999, with respect
to the consolidated financial statements and schedule of Molecular Devices
Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
Palo Alto, California
August 25, 1999
EXHIBIT 99.1
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
1. PURPOSE.
(a) The purpose of the 1995 Non-Employee Directors' Stock Option Plan
(the "Plan") is to provide a means by which each director of
MOLECULAR DEVICES CORPORATION (the "Company") who is not otherwise an
employee of the Company or of any Affiliate of the Company (each such
person being hereafter referred to as a "Non-Employee Director") will
be given an opportunity to purchase stock of the Company.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company as those terms
are defined in Sections 424(e) and (f), respectively, of the Internal
Revenue Code of 1986, as amended from time to time (the "Code").
(c) The Company, by means of the Plan, seeks to retain the services
of persons now serving as Non-Employee Directors of the Company, to
secure and retain the services of persons capable of serving in such
capacity, and to provide incentives for such persons to exert maximum
efforts for the success of the Company.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors of the
Company (the "Board") unless and until the Board delegates
administration to a committee, as provided in subparagraph 2(b).
(b) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members of the Board (the
"Committee"). If administration is delegated to a Committee, the
Committee shall have, in connection with the administration of the
Plan, the powers theretofore possessed by the Board, subject,
however, to such resolutions, not inconsistent with the provisions of
the Plan, as may be adopted from time to time by the Board. If the
Committee is delegated authority to amend or fix the timing or terms
of options granted under the Plan, then the composition of the
Committee shall comply with the requirements for exemption of option
grants from the application of Section 16 of the Securities Exchange
Act of 1934, or the terms of such options shall be such as to qualify
such options for such exemption. The Board may abolish the Committee
at any time and revest in the Board the administration of the Plan.
1
<PAGE>
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 10 relating to adjustments
upon changes in stock, the stock that may be sold pursuant to options
granted under the Plan shall not exceed in the aggregate three
hundred forty-seven thousand five hundred (347,500) shares of the
Company's common stock. If any option granted under the Plan shall
for any reason expire or otherwise terminate without having been
exercised in full, the stock not purchased under such option shall
again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
4. ELIGIBILITY.
(a) Options shall be granted only to Non-Employee Directors of the
Company.
5. NON-DISCRETIONARY GRANTS.
(a) Upon the date of the initial approval of the Plan by the Board
(the "Adoption Date"), each person who is then a Non-Employee
Director automatically shall be granted an option to purchase sixteen
thousand five hundred (16,500) shares of common stock of the Company
on the terms and conditions set forth herein.
(b) Each person who is, after the Adoption Date, elected for the
first time to be a Non-Employee Director automatically shall, upon
the date of his initial election to be a Non-Employee Director by the
Board or shareholders of the Company, be granted an option to
purchase ten thousand (10,000) shares of common stock of the Company
on the terms and conditions set forth herein.
(c) Following the Adoption Date, each Non-Employee Director shall
automatically be granted an additional Option to purchase four
thousand (4,000) shares of common stock of the Company on the terms
and conditions set forth herein immediately following each annual
meeting of stockholders.
(d) Notwithstanding anything to the contrary set forth in this
Section 5, each Non-Employee Director who received a stock option
grant pursuant to this Plan in September 1998 (a "September 1998
Grant") shall not be entitled to future grants under this Plan until
the September 1998 Grant shall have fully vested. On the date that
the September 1998 Grant shall have fully vested, such Non-Employee
Director shall be treated as having been initially elected to be a
Non-Employee Director on such date and receive the stock option
referenced in Section 5(b) and, thereafter, shall be eligible to
receive the stock options referenced in Section 5(c).
6. OPTION PROVISIONS.
Each option shall be subject to the following terms and conditions:
(a) The term of each option commences on the date it is granted and,
unless sooner terminated as set forth herein, expires on the date
("Expiration Date") ten (10) years from the
2
<PAGE>
date of grant. If the optionee's service as a Non-Employee Director
or employee of or consultant to the Company or any Affiliate
terminates for any reason or for no reason, the option shall
terminate on the earlier of the Expiration Date or the date three (3)
months following the date of termination of all such service;
provided, however, that if such termination of service is due to the
optionee's death, the option shall terminate on the earlier of the
Expiration Date or eighteen (18) months following the date of the
optionee's death. In any and all circumstances, an option may be
exercised following termination of the optionee's service as a
Non-Employee Director or employee of or consultant to the Company or
any Affiliate only as to that number of shares as to which it was
exercisable on the date of termination of such all service under the
provisions of subparagraph 6(e).
(b) Subject to subparagraph 4(b), the exercise price of each option
shall be one hundred percent (100%) of the fair market value of the
stock subject to such option on the date such option is granted.
(c) Payment of the exercise price of each option is due in full in
cash upon any exercise when the number of shares being purchased upon
such exercise is less than 1,000 shares; but when the number of
shares being purchased upon an exercise is 1,000 or more shares, the
optionee may elect to make payment of the exercise price under one of
the following alternatives:
(i) Payment of the exercise price per share in cash at the time
of
exercise; or
(ii) Provided that at the time of the exercise the Company's
common stock is publicly traded and quoted regularly in the Wall
Street Journal, payment by delivery of shares of common stock of
the Company already owned by the optionee, held for the period
required to avoid a charge to the Company's reported earnings,
and owned free and clear of any liens, claims, encumbrances or
security interest, which common stock shall be valued at its
fair market value on the date preceding the date of exercise; or
(iii) Payment by a combination of the methods of payment
specified in subparagraph 6(c)(i) and 6(c)(ii) above.
Notwithstanding the foregoing, this option may be exercised pursuant to a
program developed under Regulation T as promulgated by the Federal Reserve Board
which results in the receipt of cash (or check) by the Company prior to the
issuance of shares of the Company's common stock.
(d) An option shall not be transferable except by will or by the laws
of descent and distribution, or pursuant to a domestic relations
order satisfying the requirements of Rule 16a-12 under the Securities
Exchange Act of 1934 (a "DRO") and shall be exercisable during the
lifetime of the person to whom the option is granted only by such
person (or by his guardian or legal representative) or transferee
pursuant to a DRO. Notwithstanding the foregoing, the optionee may,
by delivering written notice to the Company in a form satisfactory to
the Company, designate a third party who, in the event of the death
of the optionee, shall thereafter be entitled to exercise the option.
3
<PAGE>
(e) The option shall become exercisable in installments over a period
of four years from the date of grant in equal annual installments
commencing on the date one year after the date of grant of the
option, provided that the optionee has, during the entire period
prior to such vesting date, continuously served as a Non-Employee
Director or employee of or consultant to the Company or any Affiliate
of the Company, whereupon such option shall become fully exercisable
in accordance with its terms with respect to that portion of the
shares represented by that installment. For purposes of vesting under
this subparagraph 6(e), attendance at no less than two-thirds (2/3)
of the Board meetings occurring during an installment period is
required in order for an optionee serving as a Non-Employee Director
to vest for such installment; failure to satisfy this requirement
during any particular installment period shall result in an abatement
of the vesting of the option during the applicable installment period
and the aggregate vesting period of such option shall be increased by
one additional year.
(f) The Company may require any optionee, or any person to whom an
option is transferred under subparagraph 6(d), as a condition of
exercising any such option: (i) to give written assurances
satisfactory to the Company as to the optionee's knowledge and
experience in financial and business matters; and (ii) to give
written assurances satisfactory to the Company stating that such
person is acquiring the stock subject to the option for such person's
own account and not with any present intention of selling or
otherwise distributing the stock. These requirements, and any
assurances given pursuant to such requirements, shall be inoperative
if (i) the issuance of the shares upon the exercise of the option has
been registered under a then-currently-effective registration
statement under the Securities Act of 1933, as amended (the
"Securities Act"), or (ii), as to any particular requirement, a
determination is made by counsel for the Company that such
requirement need not be met in the circumstances under the
then-applicable securities laws.
(g) Notwithstanding anything to the contrary contained herein, an
option may not be exercised unless the shares issuable upon exercise
of such option are then registered under the Securities Act or, if
such shares are not then so registered, the Company has determined
that such exercise and issuance would be exempt from the registration
requirements of the Securities Act.
7. COVENANTS OF THE COMPANY.
(a) During the terms of the options granted under the Plan, the
Company shall keep available at all times the number of shares of
stock required to satisfy such options.
(b) The Company shall seek to obtain from each regulatory commission
or agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of stock upon exercise of the
options granted under the Plan; provided, however, that this
undertaking shall not require the Company to register under the
Securities Act either the Plan, any option granted under the Plan, or
any stock issued or issuable pursuant to any such option. If, after
reasonable efforts, the Company is unable to obtain from any such
regulatory commission or agency the authority which counsel for the
Company deems necessary for the lawful issuance and sale of stock
under the Plan, the Company shall be relieved from any liability for
failure to issue and sell stock upon exercise of such options.
4
<PAGE>
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to options granted under the Plan shall
constitute general funds of the Company.
9. MISCELLANEOUS.
(a) Neither an optionee nor any person to whom an option is
transferred under subparagraph 6(d) shall be deemed to be the holder
of, or to have any of the rights of a holder with respect to, any
shares subject to such option unless and until such person has
satisfied all requirements for exercise of the option pursuant to its
terms.
(b) Nothing in the Plan or in any instrument executed pursuant
thereto shall confer upon any Non-Employee Director any right to
continue in the service of the Company or any Affiliate or shall
affect any right of the Company, its Board or stockholders or any
Affiliate to terminate the service of any Non-Employee Director with
or without cause.
(c) No Non-Employee Director, individually or as a member of a group,
and no beneficiary or other person claiming under or through him,
shall have any right, title or interest in or to any option reserved
for the purposes of the Plan except as to such shares of common
stock, if any, as shall have been reserved for him pursuant to an
option granted to him.
(d) In connection with each option made pursuant to the Plan, it
shall be a condition precedent to the Company's obligation to issue
or transfer shares to a Non-Employee Director, or to evidence the
removal of any restrictions on transfer, that such Non-Employee
Director make arrangements satisfactory to the Company to insure that
the amount of any federal or other withholding tax required to be
withheld with respect to such sale or transfer, or such removal or
lapse, is made available to the Company for timely payment of such
tax.
(i) If the common stock is listed on any established stock
exchange or a national market system, including without
limitation the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotation
("Nasdaq") System, the Fair Market Value of a share of common
stock shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such system
or exchange (or the exchange with the greatest volume of trading
in common stock) on the last market trading day prior to the day
of determination, as reporting in the Wall Street Journal or
such other source as the Board deems reliable;
(ii) If the common stock is quoted on the Nasdaq System (but not
on the National Market System thereof) or is regularly quoted by
a recognized securities dealer but selling prices are not
reported, the Fair Market Value of a share of common stock shall
be the mean between the bid and asked prices for the common
stock on the last market trading day prior to the day of
determination, as reported in the Wall Street Journal or such
other source as the Board deems reliable;
(iii) In the absence of an established market for the common
stock, the Fair Market Value shall be determined in good faith
by the Board.
5
<PAGE>
10. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or
subject to any option granted under the Plan (through merger,
consolidation, reorganization, recapitalization, stock dividend,
dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in
corporate structure or otherwise), the Plan and outstanding options
will be appropriately adjusted in the class(es) and maximum number of
shares subject to the Plan and the class(es) and number of shares and
price per share of stock subject to outstanding options.
(b) In the event of: (1) a merger or consolidation in which the
Company is not the surviving corporation; (2) a reverse merger in
which the Company is the surviving corporation but the shares of the
Company's common stock outstanding immediately preceding the merger
are converted by virtue of the merger into other property, whether in
the form of securities, cash or otherwise; or (3) any other capital
reorganization in which more than fifty percent (50%) of the shares
of the Company entitled to vote are exchanged, the time during which
options outstanding under the Plan may be exercised shall be
accelerated and the options terminated if not exercised prior to such
event.
11. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the Plan,
provided, however, that except as provided in paragraph 10 relating
to adjustments upon changes in stock, no amendment shall be effective
unless approved by the stockholders of the Company within twelve (12)
months before or after the adoption of the amendment, where the
amendment will:
(i) Increase the number of shares which may be issued under the
Plan;
(ii) Modify the requirements as to eligibility for participation
in the Plan (to the extent such modification requires
stockholder approval in order for the Plan to comply with the
requirements of Rule 16b-3); or
(iii) Modify the Plan in any other way if such modification
requires stockholder approval in order for the Plan to comply
with the requirements of Nasdaq or any securities exchange on
which the Company desires prices for its common stock to be
quoted.
(b) Rights and obligations under any option granted before any
amendment of the Plan shall not be impaired by such amendment unless
(i) the Company requests the consent of the person to whom the option
was granted and (ii) such person consents in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. No
options may be granted under the Plan while the Plan is suspended or
after it is terminated.
(b) Rights and obligations under any option granted while the Plan is
in effect shall not be impaired by suspension or termination of the
Plan, except with the consent of the person to whom the option was
granted.
6
<PAGE>
(c) The Plan shall terminate upon the occurrence of any of the events
described in subparagraph 10(b) above.
13. EFFECTIVE DATE OF PLAN; CONDITIONS OF EXERCISE.
(a) The Plan shall become effective upon adoption by the Board of
Directors, subject to the condition subsequent that the Plan is
approved by the stockholders of the Company.
(b) No option granted under the Plan shall be exercised or
exercisable unless and until the condition of subparagraph 13(a)
above has been met.
7
ADOPTED BY THE BOARD OF DIRECTORS ON SEPTEMBER 13, 1995 APPROVED BY THE
STOCKHOLDERS ON DECEMER 12, 1995 AMENDED BY THE BOARD OF DIRECTORS ON JANUARY
29, 1999 AMENDED BY THE STOCKHOLDERS ON MAY 20, 1999.
