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As filed with the Securities and Exchange Commission on July 21, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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VARIAGENICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 04-3182077
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
60 HAMPSHIRE STREET
CAMBRIDGE, MASSACHUSETTS 02139
(617) 588-5300
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
VARIAGENICS, INC. 2000 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLES OF THE PLANS)
TAYLOR J. CROUCH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
VARIAGENICS, INC.
60 HAMPSHIRE STREET
CAMBRIDGE, MASSACHUSETTS 02139
(617) 588-5300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Proposed
Title of Amount to be maximum maximum
securities to be registered registered offering price aggregate Amount of
per share offering price registration fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 475,800 shares (1) $14.00 (2) $6,661,200 (2) $1,758.56
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</TABLE>
(1) The number of shares of common stock, par value $.01 per share ("Common
Stock") consists of the aggregate number of shares which may be purchased
under the Variagenics, Inc. 2000 Employee Stock Purchase Plan (the "Plan").
The maximum number of shares that may be purchased pursuant to the Plan is
subject to adjustment in accordance with certain anti-dilution and other
provisions of the Plan. Accordingly, pursuant to Rule 416 under the
Securities Act of 1933, as amended (the "Securities Act"), this
Registration Statement covers, in addition to the number of shares stated
above, an indeterminate number of shares which may be subject to grant or
otherwise issuable after the operation of any such anti-dilution and other
provisions.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act.
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EXPLANATORY NOTE
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In accordance with the instructional Note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission, the information specified
by Part I of Form S-8 has been omitted from this Registration Statement on Form
S-8 for offers of Common Stock pursuant to the Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(1) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to
Rule 424(b) under the Securities Act that contains audited financial statements
for the Registrant's latest fiscal year for which such statements have been
filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (1) above.
(3) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A File No. 0-31035 filed under the
Securities Exchange Act of 1934, including any amendment or report filed for the
purpose of updating such description.
All reports and other documents filed by the Registrant after the date
hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such reports
and documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Incorporated herein by reference from Registration Statement on Form
S-1, No. 333-33558.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
(3.1) Certificate of Incorporation of the Registrant, as amended -
Delaware (Filed as Exhibit 3.1 to Registration Statement on
Form S-1, as amended, No. 333-33558, and incorporated herein
by reference).
(3.2) Restated Certificate of Incorporation of the Registrant -
Delaware - to be filed upon completion of the offering (the
"IPO") contemplated by the Registrant's Registration Statement
on Form S-1, No. 333-33558 (Filed as Exhibit 3.2 to
Registration Statement on Form S-1, as amended, No. 333-33558,
and incorporated herein by reference).
(3.3) By-laws of the Registrant - Delaware (Filed as Exhibit 3.3 to
Registration Statement on Form S-1, as amended, No. 333-33558,
and incorporated herein by reference).
(3.4) Restated By-laws of the Registrant - Delaware - to be
effective upon completion of the IPO (Filed as Exhibit 3.4 to
Registration Statement on Form S-1, as amended, No. 333-33558,
and incorporated herein by reference).
(3.5) Certificate of Correction of Certificate of Amendment of
Certificate of Incorporation (Filed as Exhibit 3.5 to
Registration Statement on Form S-1, as amended, No. 333-33558,
and incorporated herein by reference).
(3.6) Certificate of Correction of Certificate of Amendment of
Certificate of Incorporation (Filed as Exhibit 3.6 to
Registration Statement on Form S-1, as amended, No. 333-33558,
and incorporated herein by reference).
(3.7) Certificate of Amendment of Restated Certificate of
Incorporation (Filed as Exhibit 3.7 to Registration Statement
on Form S-1, as amended, No. 333-33558, and incorporated
herein by reference).
(4.1) Form of Common Stock Certificate (Filed as Exhibit 4.1 to
Registration Statement on Form S-1, as amended, No. 333-33558,
and incorporated herein by reference).
(5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
as to the legality of shares being registered.
(23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5).
(23.2) Consent of PricewaterhouseCoopers LLP.
(24) Power of Attorney (included on the signature page of this
Registration Statement).
(99.1) Variagenics, Inc. 2000 Employee Stock Purchase Plan (Filed as
Exhibit 10.15 to Registration Statement on Form S-1, as
amended, No. 333-33558, and incorporated herein by reference).
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ITEM 9. UNDERTAKINGS.
(a) 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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(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, represents 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% 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)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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(c) 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 foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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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 Cambridge, Massachusetts on July 21, 2000.
VARIAGENICS, INC.
By /s/ Taylor J. Crouch
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Taylor J. Crouch
President and Chief Executive Officer
Each person whose signature appears below constitutes and appoints
Taylor J. Crouch and Richard P. Shea, and each of them, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution in each of them, for him and in his name, place and stead, and in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement on Form S-8 of Variagenics, Inc., 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 or necessary to be done in or
about the premises, as full to all intents and purposes as he or she 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 or her substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
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>
SIGNATURES TITLE DATE
<S> <C> <C>
/s/ Taylor J. Crouch President, Chief Executive Officer July 21, 2000
----------------------------------- and Director (Principal executive officer)
Taylor J. Crouch
/s/ Richard P. Shea
----------------------------------- Chief Financial Officer and Treasurer July 21, 2000
Richard P. Shea (Principal financial and accounting officer)
/s/ David Housman
----------------------------------- Director July 21, 2000
David Housman, Ph.D.
/s/ Philippe O. Chambon
----------------------------------- Director July 21, 2000
Philippe O. Chambon, M.D., Ph.D.
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/s/ Mark P. Carthy
----------------------------------- Director July 21, 2000
Mark P. Carthy
/s/ Jean-Francois Formela
----------------------------------- Director July 21, 2000
Jean-Francois Formela, M.D.
/s/ Martin A. Vogelbaum
----------------------------------- Director July 21, 2000
Martin A. Vogelbaum
/s/ David A. Shotland
----------------------------------- Director July 21, 2000
David A. Shotland
/s/ William A. Scott
----------------------------------- Director July 21, 2000
William A. Scott, Ph.D.
/s/ Anthony Wild
----------------------------------- Director July 21, 2000
Anthony Wild, Ph.D.
</TABLE>
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VARIAGENICS, INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
Exhibit
Number Description
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(3.1) Certificate of Incorporation of the Registrant, as amended - Delaware
(Filed as Exhibit 3.1 to Registration Statement on Form S-1, as
amended, No. 333-33558, and incorporated herein by reference).
(3.2) Restated Certificate of Incorporation of the Registrant - Delaware -
to be filed upon completion of the offering (the "IPO") contemplated
by the Registrant's Registration Statement on Form S-1, No. 333-33558
(Filed as Exhibit 3.2 to Registration Statement on Form S-1, as
amended, No. 333-33558, and incorporated herein by reference).
(3.3) By-laws of the Registrant - Delaware (Filed as Exhibit 3.3 to
Registration Statement on Form S-1, as amended, No. 333-33558, and
incorporated herein by reference).
(3.4) Restated By-laws of the Registrant - Delaware - to be effective upon
completion of the IPO (Filed as Exhibit 3.4 to Registration Statement
on Form S-1, as amended, No. 333-33558, and incorporated herein by
reference).
(3.5) Certificate of Correction of Certificate of Amendment of Certificate
of Incorporation (Filed as Exhibit 3.5 to Registration Statement on
Form S-1, as amended, No. 333-33558, and incorporated herein by
reference).
(3.6) Certificate of Correction of Certificate of Amendment of Certificate
of Incorporation (Filed as Exhibit 3.6 to Registration Statement on
Form S-1, as amended, No. 333-33558, and incorporated herein by
reference).
(3.7) Certificate of Amendment of Restated of Certificate of Incorporation
(Filed as Exhibit 3.7 to Registration Statement on Form S-1, as
amended, No. 333-33558, and incorporated herein by reference).
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(4.1) Form of Common Stock Certificate (Filed as Exhibit 4.1 to Registration
Statement on Form S-1, as amended, No. 333-33558, and incorporated
herein by reference).
(5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as to
the legality of shares being registered.
(23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5).
(23.2) Consent of PricewaterhouseCoopers LLP.
(24) Power of Attorney (included on the signature page of this Registration
Statement).
(99.1) Variagenics, Inc. 2000 Employee Stock Purchase Plan (Filed as Exhibit
10.15 to Registration Statement on Form S-1, as amended, No.
333-33558, and incorporated herein by reference).
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