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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 19, 1998
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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GENE LOGIC INC.
(Exact name of Registrant as specified in its charter)
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Delaware 06-1411336
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
708 Quince Orchard Road
Gaithersburg, Maryland 20878
(Address of principal executive offices)
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1997 EQUITY INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
1997 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plans)
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MICHAEL J. BRENNAN, M.D., PH.D.
President and Chief Executive Officer
GENE LOGIC INC.
708 Quince Orchard Road
Gaithersburg, Maryland 20878
(301) 987-1700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Frederick T. Muto, Esq.
L. Kay Chandler, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE (1) OFFERING PRICE (1) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 5,843,644 $0.15-8.50 $31,810,802 $9,384.19
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</TABLE>
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon (a) the actual exercise price for shares
subject to outstanding stock options previously granted under the
Registrant's 1997 Equity Incentive Plan; and (b) the average of the high
and low sales prices of Registrant's Common Stock on May 18, 1998, as
reported on the Nasdaq National Market, for shares issuable under the
Registrant's 1997 Equity Incentive Plan, Employee Stock Purchase Plan, and
Non-Employee Directors' Stock Option Plan. The following chart shows the
calculation of the registration fee:
<TABLE>
<CAPTION>
Number of Offering Price Aggregate
Type of Shares Shares Per Share Offering Price
-------------- --------- -------------- --------------
<S> <C> <C> <C>
Common Stock issuable pursuant to outstanding 831,999 $0.15 $ 124,800
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 94,500 $0.30 $ 28,350
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 435,290 $1.00 $ 435,290
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 765,633 $2.50 $1,914,083
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 56,000 $3.50 $ 196,000
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 73,000 $8.375 $ 611,375
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 25,024 $7.9375 $ 198,628
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 17,000 $8.0625 $ 137,063
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 20,000 $8.50 $ 170,000
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 28,500 $8.25 $ 235,125
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 23,000 $8.438 $ 194,074
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 1,000 $8.00 $ 8,000
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 160,000 $7.875 $1,260,000
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 3,000 $7.031 $ 21,093
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 11,000 $8.313 $ 91,443
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to outstanding 11,000 $8.1250 $ 89,375
options under the 1997 Equity Incentive Plan
Common Stock issuable pursuant to the 1997 2,912,698 $7.9375 $23,119,540
Equity Incentive Plan
Common Stock issuable pursuant to the Employee 250,000 $7.9375 $1,984,375
Stock Purchase Plan
Common Stock issuable under the 1997 Non-Employee 125,000 $7.9375 $ 992,188
Directors' Stock Option Plan
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The prospectus contained in the Form S-1 Registration Statement (No.
333-37317) filed by Gene Logic Inc. (the "Registrant") with the Securities
and Exchange Commission (the "Commission") on October 7, 1997, as amended
through the date hereof (the "Form S-1"), is hereby incorporated by reference
into this Registration Statement. Registrant also incorporates by reference
its Annual Report on Form 10-K for the year ended December 31, 1997, filed on
March 31, 1998 and its Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998, filed on May 14, 1998 pursuant to Sections 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). A
description of the Registrant's Common Stock which is contained in the Form
S-1, including any amendment or reports filed for the purpose of updating
such description, is hereby incorporated by reference into this Registration
Statement. All documents filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of this Registration Statement and 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 into this Registration Statement and
to be a part hereof from the date of filing of such documents. Any statement
contained in a document 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.
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Cooley Godward LLP, San Diego, California.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its Directors and officers against
liabilities they may incur in such capacities, including liabilities under
the Securities Act.
The Registrant's Restated Certificate of Incorporation and Amended and
Restated By-laws include provisions to (i) eliminate the personal liability
of its Directors for monetary damages resulting from breaches of their
fiduciary duty to the extent permitted by Section 102(b)(7) of the General
Corporation Law of Delaware (the "Delaware Law") and (ii) require the
Registrant to indemnify its Directors and officers to the fullest extent
permitted by Section 145 of the Delaware Law, including circumstances in
which indemnification is otherwise discretionary. Pursuant to Section 145 of
the Delaware Law, a corporation generally has the power to indemnify its
present and former directors, officers, employees and agents against expenses
incurred by them in connection with any suit to which they are or are
threatened to be made a party by reason of their serving in such positions so
long as they acted in good faith and in a manner they reasonably believed to
be in or not opposed to, the best interests
1
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of the corporation and with respect to any criminal action, they had no
reasonable cause to believe their conduct was unlawful. The Registrant
believes that these provisions are necessary to attract and retain qualified
persons as Directors and officers. These provisions do not eliminate the
Directors' duty of care, and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware Law. In addition, each Director will continue to be
subject to liability for breach of the Director's duty of loyalty to the
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for acts or omissions that the
Director believes to be contrary to the best interests of the Registrant or
its stockholders, for any transaction from which the Director derived an
improper personal benefit, for acts or omissions involving a reckless
disregard for the Director's duty to the Registrant or its stockholders when
the Director was aware or should have been aware of a risk of serious injury
to the Registrant or its stockholders, for acts or omissions that constitute
an unexcused pattern of inattention that amounts to an abdication of the
Director's duty to the Registrant or its stockholders, for improper
transactions between the Director and the Registrant and for improper
distributions to stockholders and loans to Directors and officers. The
provision also does not affect a Director's responsibilities under any other
law, such as the federal securities law or state or federal environmental
laws.
The Registrant has entered into indemnity agreements with each of its
Directors and executive officers that require the Registrant to indemnify
such persons against expenses, judgments, fines, settlements and other
amounts incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person
may be made a party by reason of the fact that such person is or was Director
or an executive officer of the Registrant or any of its affiliated
enterprises, provided that such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests
of the Registrant and, with respect to any criminal proceeding, had no
reasonable cause to believe his conduct was unlawful. The indemnification
agreements also set forth certain procedures that will apply in the event of
a claim for indemnification thereunder.
At present, there is no pending litigation or proceeding involving a
Director, officer or key employee of the Registrant as to which
indemnification is being sought nor is the Registrant aware of any threatened
litigation that may result in claims for indemnification by any officer or
Director.
The Registrant has an insurance policy covering the officers and
Directors of the Registrant with respect to certain liabilities, including
liabilities arising under the Securities Act or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
4.1 Amended and Restated Certificate of Incorporation. (1)
4.2 By-laws, as amended and restated. (1)
4.3 Specimen Stock Certificate. (1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
</TABLE>
2
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<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
24.1 Power of Attorney. Reference is made to page 5.
99.1 Registrant's 1997 Equity Incentive Plan (the "1997 Plan"). (1)
99.2 Form of Stock Option Agreement under the 1997 Plan. (1)
99.3 Form of Stock Option Grant Notice under the 1997 Plan. (1)
99.4 Registrant's Employee Stock Purchase Plan and related offering
document. (1)
99.5 Registrant's 1997 Non-Employee Directors' Stock Option Plan. (1)
99.6 Form of Nonstatutory Stock Option under Registrant's 1997
Non-Employee Directors' Stock Option Plan. (1)
</TABLE>
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(1) Filed as an exhibit to Registration Statement on Form S-1 (No. 333-37317)
originally filed on October 7, 1997, as amended through the date hereof,
and incorporated herein by reference.
ITEM 9. 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% 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 (1)(a)(i) and (1)(a)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission 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;
(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.
3
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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 of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act of
1934) that is incorporated by reference in the 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.
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 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
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 Gaithersburg, State of Maryland, on
May 19, 1998.
GENE LOGIC INC.
By: /s/Michael J. Brennan
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Michael J. Brennan, M.D., Ph.D.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael J. Brennan, M.D., Ph.D., and
Mark D. Gessler, 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, exhibits thereto and other documents in connection with) 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 or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, 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/ Michael J. Brennan President, Chief Executive Officer and May 19, 1998
- -------------------------------- Director (PRINCIPAL EXECUTIVE OFFICER)
Michael J. Brennan, M.D., Ph.D.
/s/ Mark D. Gessler Senior Vice President, Corporate Development May 19, 1998
- -------------------------------- and Chief Financial Officer (PRINCIPAL
Mark D. Gessler FINANCIAL AND ACCOUNTING OFFICER)
/s/ Alan G. Walton Chairman of the Board of Directors May 19, 1998
- --------------------------------
Alan G. Walton, Ph.D., D.Sc.
/s/ Jules Blake Director May 19, 1998
- --------------------------------
Jules Blake, Ph.D.
/s/ Charles L. Dimmler III Director May 19, 1998
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Charles L. Dimmler III
/s/ G. Anthony Gorry Director May 19, 1998
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G. Anthony Gorry, Ph.D.
/s/ Jeffrey D. Sollender Director May 19, 1998
- --------------------------------
Jeffrey D. Sollender
</TABLE>
5
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
4.1 Amended and Restated Certificate of Incorporation. (1)
4.2 By-laws, as amended and restated. (1)
4.3 Specimen Stock Certificate. (1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to
Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page 5.
99.1 Registrant's 1997 Equity Incentive Plan (the "1997 Plan"). (1)
99.2 Form of Stock Option Agreement under the 1997 Plan. (1)
99.3 Form of Stock Option Grant Notice under the 1997 Plan. (1)
99.4 Registrant's Employee Stock Purchase Plan and related offering
document. (1)
99.5 Registrant's 1997 Non-Employee Directors' Stock Option Plan. (1)
99.6 Form of Nonstatutory Stock Option under Registrant's 1997
Non-Employee Directors' Stock Option Plan. (1)
</TABLE>
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(1) Filed as an exhibit to Registration Statement on Form S-1 (No. 333-37317)
originally filed on October 7, 1997, as amended through the date hereof,
and incorporated herein by reference.
<PAGE>
EXHIBIT 5.1
OPINION OF COOLEY GODWARD LLP
May 19, 1998
GENE LOGIC INC.
708 Quince Orchard Road
Gaithersburg, Maryland 20878
Dear Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by GENE LOGIC INC. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission, covering the registration of up to 5,843,644 shares of
the Company's Common Stock $.01 par value (the "Shares"), for issuance (i)
pursuant to the Company's 1997 Equity Incentive Plan, Employee Stock Purchase
Plan and 1997 Non-Employee Directors' Stock Option Plan (collectively, the
"Plans"), and (ii) upon the exercise of outstanding options granted under the
Company's 1997 Equity Incentive Plan and 1997 Non-Employee Directors' Stock
Option Plan.
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Plans, the Company's Amended and Restated
Certificate of Incorporation and By-laws, as amended and restated, and the
originals or copies certified to our satisfaction of such records, documents,
certificates, memoranda and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below. 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 Registration
Statement and Plans, will be validly issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
Cooley Godward LLP
/s/Frederick T. Muto
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Frederick T. Muto
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 20,
1998 included in Gene Logic, Inc.'s Form 10-K for the year ended December 31,
1997 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Baltimore, Maryland,
May 19, 1998
