<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 20, 2000
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
CALIPER TECHNOLOGIES CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0675808
(State of Incorporation) (I.R.S. Employer Identification Number)
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605 FAIRCHILD DRIVE
MOUNTAIN VIEW, CA 94043-2234
(650) 623-0700
(Address of principal executive offices)
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1996 EQUITY INCENTIVE PLAN
1999 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
1999 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full titles of the plans)
James L. Knighton
Chief Financial Officer
Caliper Technologies Corp.
605 Fairchild Drive
Mountain View, CA 94043-2234
(650) 623-0700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
BRETT D. WHITE, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CALIFORNIA 94306
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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 Common 3,955,497 $.0624 - $77.625 $125,393,896.19 $33,103.99
Stock (par value $.001)
=============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the Securities
Act of 1933, as amended (the "Act"). The offering price per share and
aggregate offering price for the unissued stock options and Common Stock
are based upon the average of the high and low prices of Registrant's
Common Stock as reported on the Nasdaq National Market System on
January 13, 2000. The offering price per share and aggregate offering
price for the outstanding stock options are based upon the exercise
prices of such options. The following chart illustrates the calculation
of the registration fee:
<PAGE> 2
<TABLE>
<CAPTION>
=============================================================================================================
OFFERING PRICE AGGREGATE
TITLE OF SHARES NUMBER OF SHARES PER SHARE OFFERING PRICE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Shares issuable pursuant to outstanding stock options
pursuant to the 1996 Equity Incentive Plan 89,797 $0.0624 $5,603.33
- -------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to outstanding stock options
pursuant to the 1999 Equity Incentive Plan 2,294,166 $2.3374 $5,362,383.61
- -------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to unissued stock options
pursuant to the 1999 Equity Incentive Plan 1,071,534 $76.375 $81,838,409.25
- -------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to unissued stock options
pursuant to the 1999 Non-Employee Directors' Stock
Option Plan 200,000 $76.375 $15,275,000
- -------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to the 1999 Employee Stock
Purchase Plan 300,000 $76.375 $22,912,500
- -------------------------------------------------------------------------------------------------------------
Proposed Maximum Aggregate Offering Price $125,393,896.19
=============================================================================================================
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Caliper Technologies Corp. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), on December 14, 1999
(No. 333-88827).
(b) The description of the Company's Common Stock which is contained in
the Registration Statement on Form 8-A filed November 22, 1999, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon for
the Company by Cooley Godward LLP, Palo Alto, California ("Cooley Godward"). As
of the date of this prospectus, certain members of Cooley Godward own an
aggregate of approximately 21,196 shares of the Registrant's Common Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act. The Company's By-laws require the Company to indemnify its directors and
executive officers, and permit the Company to indemnify its other officers,
employees and other agents, to the extent permitted by Delaware law. Under the
Company's By-laws, indemnified parties are entitled to indemnification for
negligence, gross negligence and otherwise to the fullest extent permitted by
law. The By-laws also require the Company to advance litigation expenses in the
case of stockholder derivative actions or other actions, against an undertaking
by the indemnified party to repay such advances if it is ultimately determined
that the indemnified party is not entitled to indemnification.
The Company has entered into indemnity agreements with each of its
directors and executive officers. Such indemnity agreements contain provisions
which are in some respects broader than the specific indemnification provisions
contained in Delaware law. The Company also maintains an insurance policy for
its directors and executive officers insuring against certain liabilities
arising in their capacities as such.
3.
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EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4.1* Amended and Restated Certificate of Incorporation of the Company.
4.2* Amended and Restated Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, independent auditors.
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.
99.1* 1996 Equity Incentive Plan
99.2* 1999 Equity Incentive Plan
99.3* 1999 Employee Stock Purchase Plan
99.4* 1999 Non-Employee Directors' Stock Option Plan
</TABLE>
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* Incorporated by reference to the Company's Registration Statement on Form S-1,
as amended (File No.333-88827), originally filed with the SEC on October 12,
1999.
4.
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UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference herein.
(b) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
2. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference herein 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. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the 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,
5.
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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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Mountain View, State of California, on January 14,
2000.
CALIPER TECHNOLOGIES CORP.
By: /s/ DANIEL L. KISNER, M.D.
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Daniel L. Kisner, M.D.
President and Chief Executive Officer
6.
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Daniel L. Kisner, M.D. and James L.
Knighton, 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 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.
Pursuant to the requirements of the Securities Act, 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/ DANIEL L. KISNER, M.D. President, Chief Executive January 14, 2000
- ------------------------------------ Officer and Director
Daniel L. Kisner, M.D. (Principal Executive Officer)
/s/ JAMES L. KNIGHTON Chief Financial Officer January 14, 2000
- ------------------------------------ (Principal Financial and
James L. Knighton Accounting Officer)
/s/ DAVID V. MILLIGAN, PH.D. Director January 18, 2000
- ------------------------------------
David V. Milligan, Ph.D.
/s/ ANTHONY B. EVNIN, PH.D Director January 18, 2000
- ------------------------------------
Anthony B. Evnin, Ph.D.
/s/ CHARLES M. HARTMAN Director January 14, 2000
- ------------------------------------
Charles M. Hartman
/s/ REGIS P. MCKENNA Director January 14, 2000
- ------------------------------------
Regis P. McKenna
/s/ ROBERT T. NELSEN Director January 12, 2000
- ------------------------------------
Robert T. Nelsen
/s/ MICHAEL STEINMETZ, PH.D. Director January 12, 2000
- ------------------------------------
Michael Steinmetz, Ph.D.
</TABLE>
7.
<PAGE> 8
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4.1* Amended and Restated Certificate of Incorporation of the Company.
4.2* Amended and Restated Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, independent auditors.
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.
99.1* 1996 Equity Incentive Plan
99.2* 1999 Equity Incentive Plan
99.3* 1999 Employee Stock Purchase Plan
99.4* 1999 Non-Employee Directors' Stock Option Plan
</TABLE>
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* Incorporated by reference to the Company's Registration Statement on Form S-1,
as amended (File No.333-88827), originally filed with the SEC on October 12,
1999.
<PAGE> 1
EXHIBIT 5.1
Brett D. White, Esq.
Direct: (650) 843-5191
Internet: [email protected]
January 20, 2000
Caliper Technologies Corp.
605 Fairchild Drive
Mountain View, CA 94043
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Caliper Technologies Corp. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of an aggregate of 3,955,497 shares of
the Company's Common Stock, $.001 par value (the "Shares"), pursuant to the
Company's 1996 Equity Incentive Plan, 1999 Equity Incentive Plan, 1999
Non-Employee Directors' Stock Option Plan and 1999 Employee Stock Purchase Plan
(collectively the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Amended and Restated Certificate of Incorporation and
Bylaws 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 Plans, the
Registration Statement and the 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/ BRETT D. WHITE
----------------------------
Brett D. White
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of Caliper Technologies Corp. pertaining to the 1996 Equity
Incentive Plan, 1999 Equity Incentive Plan, 1999 Employees Stock Purchase Plan
and the 1999 Non-Employees Directors' Stock Option Plan, of our report dated
March 5, 1999, with respect to the financial statements of Caliper Technologies
Corp., included in its Registration Statement (Form S-1 No. 333-88827), as
amended, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
January 17, 2000
