<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 31, 2000
REGISTRATION NO. 333- ________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
(INCLUDING REGISTRATION OF SHARES FOR RESALE
UNDER A FORM S-3 PROSPECTUS)
UNDER THE SECURITIES ACT OF 1933
--------------------------------
ACLARA BIOSCIENCES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 94-3222727
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
--------------------------------
1288 PEAR AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES INCLUDING ZIP CODE)
--------------------------------
ACLARA BIOSCIENCES, INC. 1995 STOCK PLAN
AND
AMENDED AND RESTATED ACLARA BIOSCIENCES, INC. 1997 STOCK PLAN
(FULL TITLE OF THE PLANS)
--------------------------------
<TABLE>
<S> <C>
JOSEPH M. LIMBER COPY TO:
PRESIDENT AND MICHAEL W. HALL, ESQ.
CHIEF EXECUTIVE OFFICER, LATHAM & WATKINS
ACLARA BIOSCIENCES, INC. 135 COMMONWEALTH DRIVE
1288 PEAR AVENUE MENLO PARK, CALIFORNIA 94025
MOUNTAIN VIEW, CALIFORNIA 94043 (650) 328-4600
(650) 210-1200
</TABLE>
--------------------------------
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
--------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
MAXIMUM AMOUNT OF
AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE PRICE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE(2)
------------------------------------ ------------- ------------ -------- ------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value........... 6,397,782(3) $0.04 - $202,439,383 $53,444
shares $43.13
</TABLE>
(1) This registration statement shall also cover any additional shares of
common stock which become issuable under the ACLARA BioSciences, Inc.
1995 Stock Plan (the "1995 Plan") and the Amended and Restated ACLARA
BioSciences, Inc. 1997 Stock Plan (the "1997 Plan") by reason of any
stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the outstanding shares of common stock
of ACLARA BioSciences, Inc. ("ACLARA").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as
amended, based on (i) the weighted average exercise price of $0.04 for
59,063 shares issuable pursuant to outstanding options previously
granted by ACLARA under the 1995 Plan, (ii) the weighted average
exercise price of $5.42 for 1,881,515 shares issuable pursuant to
outstanding options previously granted by ACLARA under the 1997 Plan and
(iii) the average ($43.13) of the high ($43.75) and low ($42.50) prices
per share of ACLARA's Common Stock as reported on the NASDAQ Stock
Market for August 30, 2000 for 1,244,719 shares reserved for future
grant and issuance pursuant to the 1997 Plan and for 3,212,485 shares
previously issued under the 1995 Plan and the 1997 Plan.
(3) Represents 59,063 shares issuable pursuant to outstanding options
granted under the 1995 Plan, 3,126,234 shares issuable pursuant to
future and outstanding grants under the 1997 Plan and 3,212,485 shares
previously issued under the 1995 Plan and the 1997 Plan (collectively,
the "Plans").
<PAGE> 2
NOTES TO CALCULATION OF REGISTRATION FEE:
The chart below details the calculations of the registration fee:
<TABLE>
<CAPTION>
OFFERING PRICE PER AGGREGATE OFFERING
TYPE OF SHARES NUMBER OF SHARES SHARE PRICE
-------------- ---------------- ------------------ ------------------
<S> <C> <C> <C>
Common Stock, $.001 par
value, issued by ACLARA
pursuant to the exercise
of options granted under
the 1995 Plan 1,346,658 $43.13 (2)(iii) $ 58,081,360
Common Stock, $.001 par
value, issuable pursuant
to outstanding options
granted under the 1995 Plan 59,063 $ 0.04(2)(1) $ 2,363
Common Stock, $.001 par
value, issued by ACLARA
pursuant to the exercise
of options granted under
the 1997 Plan 1,865,827 $43.13(2)(iii) $ 80,473,119
Common Stock, $.001 par
value, issuable pursuant
to outstanding options
granted under the 1997 Plan 1,881,515 $ 5.42(2)(ii) $ 10,197,811
Common Stock, $.001 par
value, available for
future grant and
issuance under the 1997 Plan 1,244,719 $43.13(2)(iii) $ 53,684,730
Proposed Maximum Aggregate Offering Price $202,439,383
Registration Fee $ 53,444
</TABLE>
PROPOSED SALE TO TAKE PLACE AS SOON AFTER THE EFFECTIVE DATE OF THE REGISTRATION
STATEMENT AS OPTIONS GRANTED UNDER THE PLANS ARE EXERCISED.
================================================================================
<PAGE> 3
EXPLANATORY NOTE
Under cover of this registration statement on Form S-8 is a prospectus
of ACLARA BioSciences, Inc. prepared in accordance with Part I of Form S-3 under
the Securities Act. This prospectus has been prepared pursuant to Instruction C
of Form S-8, in accordance with the requirements of Part I of Form S-3, and may
be used for reofferings and resales on a continuous or delayed basis in the
future of up to an aggregate of 3,212,485 "restricted securities" that have been
issued prior to the filing of this registration statement.
This registration statement relates to (i) 3,185,297 shares of common
stock to be issued in the future upon the exercise of outstanding and future
option grants under the 1995 Plan and the 1997 Plan and (ii) the resale of
3,212,485 shares of common stock previously issued under the 1995 Plan and the
1997 Plan.
<PAGE> 4
PROSPECTUS
ACLARA BIOSCIENCES, INC.
3,212,485 SHARES
COMMON STOCK, PAR VALUE $0.001
------------------
This prospectus relates to 3,212,485 shares of common stock of ACLARA
BioSciences, Inc., which may be offered from time to time by certain selling
stockholders of ACLARA for their own accounts. Each of the selling stockholders
(1) acquired the shares of common stock pursuant to ACLARA's 1995 Stock Plan or
ACLARA's 1997 Stock Plan as an employee or consultant of ACLARA or (2) is a
transferee by gift of a person who acquired the shares pursuant to one of those
plans.
It is anticipated that the selling stockholders will offer shares for
sale at prevailing prices in the NASDAQ National Market on the date of sale or
in negotiated transactions. ACLARA will receive no part of the proceeds from
sales made under this prospectus. ACLARA is paying the expenses incurred in
registering the shares, but all selling and other expenses incurred by each of
the selling stockholders will be borne by that selling stockholder.
Each selling stockholder and any participating broker or dealer may be
deemed to be an "underwriter" within the meaning of the Securities Act, in which
event any profit on the sale of shares by the selling stockholder and any
commissions or discounts received by those brokers or dealers may be deemed to
be underwriting compensation under the Securities Act.
Our common stock is traded on the NASDAQ National Market under the
symbol "ACLA." On August 30, 2000, the last reported sale price of our common
stock on the NASDAQ National Market was $42.94 per share.
------------------
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 2 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE ADEQUACY OR
ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------
The date of this prospectus is August 31, 2000.
<PAGE> 5
THE COMPANY
We are a developer of microfluidic lab-on-a-chip technology, having
access to a wide range of technology and intellectual property required to
broadly address the genomics and pharmaceutical drug screening markets. We are
developing advanced tools for drug discovery and genomics using our proprietary
microfluidic array technology and assay chemistries. By performing integrated
sample processing and analysis on plastic microfluidic array LabCard Chips,
these tools would enable the rapid, parallel processing of large numbers of
samples while requiring only minute volumes of expensive or rare reagents.
We were formed by a spin-off transaction from Soane Technologies, Inc.
and incorporated in Delaware in 1995 under the name Soane BioSciences, Inc. In
1998, we changed our name to ACLARA BioSciences, Inc. Since our inception, we
have engaged primarily in organization and research and development efforts
related to the application of microfluidics technology to genomics and
pharmaceutical drug screening. To date, we have generated most of our revenues
from research partnerships and collaborations and from government grants. Our
partners and collaborators include PE Biosystems, Packard BioScience, the R.W.
Johnson Pharmaceutical Research Institute, a subsidiary of Johnson & Johnson,
and Cellomics, Inc. We have also received government grants from the National
Institutes of Health (NIH), the National Institute of Standards and Technology
Advanced Technology Program (NIST ATP) and the Defense Advance Research Projects
Agency (DARPA).
On March 24, 2000 we completed our initial public offering, selling
10,350,000 shares of common stock.
Our principal executive offices are located at 1288 Pear Avenue,
Mountain View, California 94043, and our telephone number is (650) 210-1200. Our
website is located at www.aclara.com. Information contained in our website is
not a part of this prospectus.
RISK FACTORS
This offering involves a high degree of risk. You should consider
carefully the risks described below and the other information in this prospectus
before deciding to purchase shares of our common stock. Any of these risk
factors could materially and adversely affect our business, financial condition,
results of operations and future growth prospects. In that case, the trading
price of our common stock could decline, and you could lose all or part of your
investment. Additional risks and uncertainties that we do not currently know
about or that we currently deem immaterial may also impair our business,
financial condition, results of operations and future growth prospects.
WE HAVE A HISTORY OF OPERATING LOSSES AND AN ACCUMULATED DEFICIT, AND WE MAY NOT
ACHIEVE OR MAINTAIN PROFITABILITY IN THE FUTURE.
Since we were founded in May 1995, we have engaged primarily in
organizational and research and development efforts. We have incurred operating
losses every year, and we may never achieve profitability. Net loss for the six
months ended June 30, 2000 was $10.9 million. Net losses for the years ended
December 31, 1997, 1998 and 1999 were $2.0 million, $5.5 million, and $8.2
million, respectively. As of June 30, 2000, we had an accumulated deficit of
$30.4 million. Our losses have resulted principally from costs incurred in
connection with our research and development activities and from general and
administration costs associated with our operations.
We have not commercially launched any LabCard products to date and do
not expect to do so until late 2000. Our ability to generate revenues from
product sales or to achieve profitability is dependent on our ability, alone or
with our collaborative partners, to successfully and timely design, develop,
manufacture and commercialize our microfluidic systems. Our revenue to date has
been generated principally from collaborative research and development
agreements, technology access fees, interest on cash and investment balances and
government grants. We expect that our costs will continue to exceed our revenues
on an annual basis for at least the next two years. Even if we do achieve
profitability, we may not be able to sustain or increase profitability on a
quarterly or annual basis.
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<PAGE> 6
OUR OPERATING RESULTS MAY FLUCTUATE SIGNIFICANTLY.
Our operating results have fluctuated in the past and are likely to do
so in the future. These fluctuations could cause our stock price to decline.
Some of the factors that could cause our operating results to fluctuate include:
- outcome of litigation proceedings to which we are currently a
party;
- expiration or termination of research contracts with
collaborators or government research grants, which may not be
renewed or replaced;
- the timing and willingness of collaborators to commercialize our
products;
- the timing, release and competitiveness of our products; and
- general and industry-specific economic conditions, which may
affect our customers' research and development expenditures and
use of our products.
If revenue declines in a quarter, whether due to a delay in recognizing
expected revenue or otherwise, our earnings will decline because many of our
expenses are relatively fixed in the short-term. In particular, research and
development and general and administrative expenses are not affected directly by
variations in revenue.
Due to fluctuations in our revenue and operating expenses, we believe
that period-to-period comparisons of our results of operations are not a good
indication of our future performance. It is possible that in some future quarter
or quarters, our operating results will be below the expectations of securities
analysts or investors. In that case, our stock price could fluctuate
significantly or decline.
OUR PRODUCTS ARE IN THE EARLY STAGE OF DEVELOPMENT AND MAY NOT BE SUCCESSFULLY
BROUGHT TO COMMERCIALIZATION.
We currently have no commercially available products and we have never
developed, manufactured, distributed or sold commercial systems using our
microfluidics technology. We are developing products that are in many cases part
of complex systems that also have not been fully developed, tested, manufactured
or commercially introduced. For example, we have only produced a working
prototype system that integrates our LabCard chips into a laboratory system that
utilizes automated liquid handling, microfluidic control, fluorescence detection
and software for system control and data analysis. We may not be able to perfect
the design of our products due to the complexity of the systems they are part of
and the demands of the scientific processes that they address. For instance, we
have not yet established the high degrees of accuracy, reliability and ease of
use required for commercial introduction of our products. Even though we have
designed products that function in a prototype system, we cannot assure you that
we will be able to adapt the design to allow for large-scale manufacturing and
commercialization. Although we have projected launch periods for certain of our
products elsewhere in this prospectus, we cannot assure you that we and our
collaborative partners will complete development of the systems by those launch
dates, or at all. If we are unable to design commercially viable systems either
independently or with our collaborative partners, we may be unable to remain in
business.
COMMERCIALIZATION OF OUR PRODUCTS DEPENDS UPON MARKET ACCEPTANCE OF OUR LABCARD
CHIPS AND RELATED SYSTEMS. IF THEY DO NOT ACHIEVE ACCEPTANCE, OUR ABILITY TO
GENERATE SALES WILL BE LIMITED, AND OUR LOSSES WOULD INCREASE.
Demand for our LabCard products is substantially dependent upon
widespread market acceptance of systems utilizing our LabCard chips as tools for
genomics and pharmaceutical drug screening. Because most of our LabCard chip
products will be part of larger analytical systems marketed by our collaborative
partners, our ability to sell LabCard chips in these cases depends on adoption
by researchers of entirely new analytical equipment. We cannot assure you that
LabCard chips and related instrument systems using our technology will achieve
substantial acceptance in our target markets. Market acceptance will depend on
many factors, including:
3
<PAGE> 7
- our ability and the ability of our collaborative partners to
demonstrate to potential customers the benefits and
cost-effectiveness of our LabCard chips and systems relative to
products currently available at the time these systems are
introduced; and
- the extent of our partners' efforts to market, sell and
distribute the LabCard chips and systems.
Further, if our initial LabCard systems are not favorably received by
the market, it could undermine our ability to successfully introduce subsequent
LabCard systems as well. If our LabCard chips and systems do not gain market
acceptance, our losses would increase and we may be unable to remain in
business.
WE PREDOMINANTLY DEPEND ON COLLABORATIVE PARTNERS TO DEVELOP AND MARKET SYSTEMS
THAT UTILIZE OUR LABCARD CHIPS TO END USERS. IF OUR COLLABORATIVE PARTNERS DO
NOT PERFORM AS EXPECTED, WE MAY BE UNABLE TO DEVELOP AND MARKET OUR PRODUCTS.
Because the majority of our products are components of larger systems,
our success depends on our ability to establish relationships with collaborative
partners to create products to address market needs. For example, our
collaborative relationship with PE Biosystems provides for the joint development
of systems for genomics research and pharmaceutical drug screening. In this
relationship, we provide LabCard chips as one component of systems used by
researchers for genomics analysis and pharmaceutical drug screening
applications. Our ability to expand the applications for our technology rests on
our ability to broaden our relationship with existing partners and identify and
enter into similar relationships with new collaborative partners to address
additional customer needs. If we are unable to broaden our existing
collaborative relationships or enter into relationships with additional
collaborative partners, our business may suffer.
Our ability to sell products will also depend on the ability of our
collaborative partners to develop instrument systems that can utilize our
LabCard chips. If the development efforts of our collaborative partners fail or
are significantly delayed, our losses would increase. We cannot assure you that
our collaborative partners will be able to develop products as planned.
We also intend to rely upon our current and future collaborative
partners to market, sell, distribute and promote our LabCard chips. We do not
intend to develop a large internal marketing and sales organization.
Accordingly, we will be substantially relying on our collaborative partners to
fulfill these tasks. If our collaborative partners do not perform these
functions satisfactorily, our ability to market, sell and distribute our
products could be severely limited.
We generally do not have control over the resources or degree of effort
that any of our existing collaborative partners may devote to our
collaborations. If our collaborators breach or terminate their agreements with
us or otherwise fail to conduct their collaborative activities successfully and
in accordance with agreed upon schedules, our business would be harmed. In
addition, our collaborative partners could cease operations, eliminate relevant
product lines, or offer, design, manufacture or promote competing lines of
products. Any of those occurrences would increase our losses.
WE RELY HEAVILY ON PE BIOSYSTEMS TO DEVELOP, MANUFACTURE AND COMMERCIALIZE
SYSTEMS TO BE USED IN CONNECTION WITH OUR LABCARD CHIPS AND TO COMMERCIALIZE
MOST OF OUR LABCARD PRODUCTS. PE BIOSYSTEMS' FAILURE TO DO SO SUCCESSFULLY COULD
DELAY OR PREVENT THE COMMERCIALIZATION OF OUR PRODUCTS IN THE GENOMICS AND
PHARMACEUTICAL DRUG SCREENING MARKETS AND RESULT IN INCREASED LOSSES.
As part of our business strategy, we are focusing on the development of
our LabCard chips and related chemistries for genomics and pharmaceutical drug
screening systems. In most cases we are relying on PE Biosystems to manufacture
and commercialize the systems, including commercializing our LabCard chips. We
have collaboration agreements with PE Biosystems to jointly develop microfluidic
systems for genomics and pharmaceutical drug screening. In addition to
developing or co-developing the instrumentation, software and reagents, PE
Biosystems will have the exclusive right to market and sell those products
worldwide. We cannot assure you that PE Biosystems will perform its obligations
under the agreements, or that PE Biosystems will successfully
4
<PAGE> 8
commercialize any products resulting from our joint efforts. Moreover, PE
Biosystems has the discretion, under certain circumstances, to elect not to
proceed with the commercialization of products jointly developed under the
agreement. PE Biosystems' failure to perform under the agreement or to
successfully commercialize our LabCard products and systems could delay or
prevent the commercialization of our products and result in increased losses.
IF WE ARE UNABLE TO EFFECTIVELY PROTECT OUR INTELLECTUAL PROPERTY, WE WOULD BE
UNABLE TO PREVENT THIRD PARTIES FROM USING OUR TECHNOLOGY, WHICH COULD IMPAIR
OUR ABILITY TO COMPETE IN THE MARKET. THE COST OF ENFORCING OUR PROPRIETARY
RIGHTS MAY BE EXPENSIVE AND RESULT IN INCREASED LOSSES.
Our success will depend in part on our ability to obtain and maintain
meaningful patent protection for our products, both in the United States and in
other countries, and our inability to do so could harm our competitive position.
We rely on our portfolio of over 120 issued and pending patent applications in
the United States and in other countries to protect a large part of our
intellectual property and our competitive position. We cannot assure you that
any of the currently pending or future patent applications will issue as
patents, or that any patents issued to us will not be challenged, invalidated,
held unenforceable or circumvented. Further, we cannot assure you that our
intellectual property rights will be sufficiently broad to prevent third parties
from producing competing products similar in design to our products.
In addition to patent protection, we also rely on protection of trade
secrets, know-how and confidential and proprietary information. We generally
enter into confidentiality agreements with our employees, consultants and our
collaborative partners upon commencement of a relationship with us. However, we
cannot assure you that these agreements will provide meaningful protection
against the unauthorized use or disclosure of our trade secrets or other
confidential information or that adequate remedies would exist if unauthorized
use or disclosure were to occur. The exposure of our trade secrets and other
proprietary information would impair our competitive advantages and could have a
material adverse effect on our operating results, financial condition and future
growth prospects. Further, we cannot assure you that others have not or will not
independently develop substantially equivalent know-how and technology.
Our commercial success also depends in part on avoiding the infringement
of other parties' patents or proprietary rights and the breach of any licenses
that may relate to our technologies and products. We are aware of several
third-party patents that may relate to our technology. We believe that we do not
infringe these patents but cannot assure you that we will not be found in the
future to infringe these or other patents or proprietary rights of third
parties, either with products we are currently developing or with new products
that we may seek to develop in the future. If third parties assert infringement
claims against us, we may be forced to enter into license arrangements with
them. We cannot assure you that we could enter into the required licenses on
commercially reasonably terms, if at all. The failure to obtain necessary
licenses or to implement alternative approaches may prevent us from
commercializing products under development and would impair our ability to be
commercially competitive. We may also become subject to interference proceedings
conducted in the U.S. Patent and Trademark Office to determine the priority of
inventions.
The defense and prosecution, if necessary, of intellectual property
suits, USPTO interference proceedings and related legal and administrative
proceedings will result in substantial expense to us and significant diversion
of effort by our technical and management personnel. An adverse determination in
litigation or interference proceedings to which we may become a party could
subject us to significant liabilities to third parties, could put our patents at
risk of being invalidated or interpreted narrowly and could put our patent
applications at risk of not issuing.
Further, there is a risk that some of our confidential information could
be compromised during the discovery process of any litigation. During the course
of any lawsuit, there may be public announcements of the results of hearings,
motions and other interim proceedings or developments in the litigation. If
securities analysts or investors perceive these results to be negative, it could
have a substantial negative effect on the trading price of our stock.
WE ARE INVOLVED WITH INTELLECTUAL PROPERTY LITIGATION WITH CALIPER TECHNOLOGIES
CORP. THAT WILL BE EXPENSIVE, MAY HURT OUR COMPETITIVE POSITION, MAY AFFECT OUR
ABILITY TO ENFORCE OUR INTELLECTUAL PROPERTY RIGHTS AND MAY PREVENT US FROM
5
<PAGE> 9
SELLING CERTAIN OF OUR PRODUCTS.
In March 1999, Caliper sued our former patent law firm, an attorney who
is our current general counsel, and us alleging misappropriation of Caliper's
trade secrets. Caliper claims the attorney and the law firm, who were of counsel
to ACLARA both before and after the alleged events, and who were briefly of
counsel to Caliper during that period, used Caliper's confidential information
in preparing an application for one of our key patents. The attorney joined us
as internal general counsel approximately three years after the alleged events.
The patent in question covers technology used in most of the LabCard chips we
are currently developing. Caliper has asked for unspecified monetary damages and
equitable relief. We believe that Caliper's suit lacks factual and legal merit
and are defending the case vigorously. However, litigation is unpredictable, and
we may not prevail. If we do not prevail, we could owe Caliper a significant
amount of monetary damages. The court could also grant Caliper various forms of
equitable relief including preventing us from enforcing some of our intellectual
property rights against Caliper. As a result, an outcome adverse to us could
cause our business to suffer materially.
We sued Caliper in April 1999 for infringement of U.S. Patent No.
5,750,015, or the '015 patent, which covers technology used in most of our
current LabCard chip designs. We believe our case has merit and are pursuing it
aggressively. The court could decide, however, that Caliper does not infringe
the '015 patent, or could find the '015 patent to be invalid or unenforceable.
In either case, we would not be able to prevent Caliper and other third parties
from using product designs that we view as protected by the '015 patent. These
outcomes would reduce the value of our intellectual property rights, weaken our
competitive position and significantly hurt our financial results.
On July 19, 2000 we announced that the U.S. District Court for the
Northern District of California issued a Markman order interpreting the claims
of the '015 patent. Among its rulings, the Court refused to limit the claims to
devises that employed electrophoretic, but not electroosmotic, movement as
Caliper had asserted. The Court held that, in the context of ACLARA's patent,
the term "plurality of electrodes" defines electrodes that are positioned along
the axis of trenches in microfluidic devices, but not necessarily within the
trenches themselves. The Court also determined that the word "trench" as it
appears in the claims of the '015 patent is defined as an open structure which
does not include a structure that has been permanently covered. In addition, the
Court held that eight of forty-seven claims in the '015 patent were indefinite
and, therefore, invalid.
In January 2000, Caliper sued us alleging infringement of four patents
(U.S. Patent Nos. 5,858,195, 6,001,229, 6,010,607 and 6,010,608) that they claim
to have licensed exclusively. On March 10, 2000, Caliper amended its lawsuit to
include a fifth patent recently issued, U.S. Patent No. 6,033,546. We believe
our products, which are still under development, do not infringe any claims of
these patents and intend to defend our position vigorously. In our Answer and
Counter-Claim filed on April 6, 2000, we have denied that we infringe any of
these patents and have further asserted that these patents are invalid and
unenforceable. However, the outcome of any litigation is uncertain, and we may
not prevail. Should we be found to infringe any of these patents, we may be
liable for potential monetary damages, and could be required to obtain a license
from Caliper to commercialize our products or redesign our products so they do
not infringe any of these patents. If we were unable to obtain a license or
adopt a non-infringing product design, we may not be able to proceed with
development, manufacture and sale of some of our products. In this case our
business may not develop as planned, and our results could materially suffer.
Litigation results are unpredictable. If Caliper prevails on its trade
secret or patent claims or on some or all of its affirmative defenses of
invalidity and enforceability in the federal action, it could impair our ability
to enforce our intellectual property rights, not just against Caliper but
against other competitors or others using the technology claimed in the `015 and
related patents, which could adversely affect our business.
WE HAVE LIMITED MANUFACTURING EXPERIENCE AND WILL BE SUBJECT TO THE RISK OF
FINALIZING CONTRACTUAL ARRANGEMENTS, TRANSFERRING TECHNOLOGY AND MAINTAINING
RELATIONSHIPS WITH THIRD PARTY MANUFACTURERS TO MANUFACTURE OUR LABCARD CHIPS.
We have no experience manufacturing our products in the volumes that
will be necessary for us to achieve significant commercial sales. To date, we
have limited our manufacturing activities to the manufacturing of prototype
LabCard chips and systems for testing purposes and for internal use by our
collaborative partners. The nature of our products requires the use of
sophisticated injection molding and other manufacturing processes that are not
widely available. For this reason only a limited number of vendors currently
have the expertise to manufacture our products.
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<PAGE> 10
We have relationships with outside suppliers who are currently manufacturing
limited quantities of our LabCard chips for research and development purposes.
We will need to enter into contractual relationships with manufacturers for
commercial scale production of LabCard chips and systems and we cannot assure
you that we will be able to do so on a timely basis, for sufficient quantities
of chips or on commercially reasonable terms. Accordingly, we cannot assure you
that we can establish or maintain reliable, high-volume manufacturing at
commercially reasonable costs. In addition, the loss of any of these suppliers
may result in a delay or interruption of our supply of LabCard chips. Any
significant delay or interruption would have a material adverse effect on our
ability to supply adequate quantities of our products and would result in lost
revenues.
WE DEPEND ON OUR KEY PERSONNEL, THE LOSS OF WHOM WOULD IMPAIR OUR ABILITY TO
COMPETE.
Our performance is substantially dependent on the performance of our
senior management and key scientific and technical personnel. We carry key
person life insurance on only two of our senior management personnel. The loss
of the services of any member of our senior management, scientific or technical
staff may significantly delay or prevent the achievement of product development
and other business objectives and could have a material adverse effect on our
business, operating results and financial condition. Our future success will
also depend on our ability to identify, recruit and retain additional qualified
scientific, technical and managerial personnel. There is currently a shortage of
skilled executives and intense competition for such personnel in the areas of
our activities, and we cannot assure you that we will be able to continue to
attract and retain personnel with the advanced qualifications necessary for the
development of our business. The inability to attract and retain the necessary
scientific, technical and managerial personnel could have a material adverse
effect upon our research and development activities, sales revenue, operating
costs and future growth prospects.
WE EXPECT INTENSE COMPETITION IN OUR TARGET MARKETS.
We compete with companies that design, manufacture and market analytical
instruments for genomics and pharmaceutical drug screening using technologies
such as gel electrophoresis, capillary electrophoresis, microwell plates and
robotic liquid handling systems. In addition, a number of companies are
developing new technologies for miniaturizing various laboratory procedures for
genomics and drug screening markets targeted by us using methods such as
hybridization chips and high density microwell plates. Furthermore, we are aware
of other companies that are developing microfluidics technology, including
Caliper Technologies Corp. and Orchid BioSciences, Inc. for potential use in
certain of the markets that we are targeting.
We anticipate that we will face increased competition in the future as
new companies enter the market with new technologies. Rapidly changing
technology, evolving industry standards, changes in customer needs, emerging
competition and new product introductions characterize the markets for our
products. One or more of our competitors may render our technology obsolete or
uneconomical by advances in existing technological approaches or the development
of different approaches. Many of these competitors have greater financial and
personnel resources and more experience in research and development than we
have. Furthermore, we cannot assure you that the pharmaceutical and
biotechnology companies which are our potential customers or our strategic
partners will not develop competing products.
WE MAY BE SUBJECT TO PRODUCT LIABILITY CLAIMS AND MAY NOT BE ABLE TO OBTAIN
ADEQUATE INSURANCE, WHICH WOULD INCREASE OUR LOSSES IF SUCH CLAIMS OCCURRED.
Once we have commercially launched our LabCard products, we will face
exposure to product liability claims. Any product liability claims arising in
the future, regardless of their merit or eventual outcome, could increase our
losses. We intend to secure product liability insurance coverage, but we cannot
assure you that we will be able to obtain such insurance on acceptable terms
with adequate coverage, or at reasonable costs. In addition, potential product
liability claims may exceed the amount of our insurance or may be excluded from
coverage under the terms of the policy.
WE MAY BE UNABLE TO RAISE ADDITIONAL CAPITAL WHEN NEEDED OR GENERATE THE
SIGNIFICANT CAPITAL NECESSARY TO EXPAND OUR OPERATIONS AND INVEST IN NEW
PRODUCTS, WHICH COULD HURT OUR ABILITY TO COMPETE OR ACHIEVE PROFITABILITY.
7
<PAGE> 11
It might be necessary for us to raise additional capital over the next
few years to continue our research and development efforts and to commercialize
our products. We believe that our current capital resources and projected
revenue from collaborations should be sufficient to fund our anticipated levels
of operations through at least the end of 2001. However, we cannot assure you
that our business or operations will not change in a manner that would consume
available resources more rapidly than anticipated. We also cannot assure you
that we will continue to receive funding under existing collaborative
arrangements or that existing or potential future collaborations or sales
revenue will be adequate to fund our operations. We may need additional funds
sooner than planned to meet operational needs and capital requirements for
product development and commercialization. We cannot assure you that additional
funds will be available when needed, or on terms acceptable to us or that
sufficient revenue will be generated from sales. If adequate funds are not
available, we may have to reduce substantially or eliminate expenditures for the
development and production of certain of our proposed products or obtain funds
through arrangements with collaboration partners that require us to relinquish
rights to certain of our technologies or products. Either of these alternatives
could have a material adverse effect on our business, operating results,
financial condition and future growth prospects.
CONCENTRATION OF OWNERSHIP AMONG OUR EXISTING EXECUTIVE OFFICERS, DIRECTORS AND
PRINCIPAL STOCKHOLDERS MAY PREVENT NEW INVESTORS FROM INFLUENCING SIGNIFICANT
CORPORATE DECISIONS.
Prior to the offering, our executive officers, directors and largest
stockholders and their affiliates beneficially own or control approximately 44%
of the outstanding shares of common stock. Accordingly, our current executive
officers, directors and their affiliates, if acting together, could
significantly influence the outcome of corporate actions requiring stockholder
approval, including the election of directors, any merger, consolidation or sale
of all or substantially all of our assets and any other significant corporate
transactions. The concentration of ownership could also delay or prevent a
change of control of our company at a premium price if these stockholders oppose
it.
THE MARKET PRICE OF OUR COMMON STOCK MAY BE HIGHLY VOLATILE.
There has only been a public market for our common stock since March 21,
2000, and since then, our common stock has traded in a range between $20.00 and
$66.00 per share.
The trading price of our common stock may continue to be highly volatile
and could be subject to wide fluctuations in price in response to various
factors, many of which are beyond our control, including: outcome of litigation
proceedings or threatened claims to which we are currently a party; quarterly
fluctuations in results of operations; the company's ability to successfully
commercialize our products; technological innovations or new commercial products
by us or our competitors; developments concerning government regulations or
proprietary rights which could affect the potential growth of our customers; the
execution of new collaborative agreements and material changes in the
relationships with business partners; market reaction to trends in revenues and
expenses, especially research and development; changes in earnings estimates by
analysts; sales of common stock by existing stockholders; and economic and
political conditions. In addition, when the initial public offering lock-up
period expires in September 2000, the price of our common stock may experience
increased volatility.
The market price for our common stock may also be affected by our
ability to meet analyst's expectations. Any failure to meet such expectations,
even slightly, could have an adverse effect on the market price of the common
stock. In addition, the stock market, and the NASDAQ National Market and the
market for technology companies in particular, is subject to extreme price and
volume fluctuations. This volatility has had a significant effect on the market
prices of securities issued by many companies for reasons unrelated to the
operating performance of these companies. In the past, following periods of
volatility in the market price of the company's securities, securities class
action litigation has often been instituted against us, it could result in
substantial costs and a diversion of our management's attention and resources,
which could have an adverse effect on our business, results of operations and
financial condition.
ANTI-TAKEOVER PROVISIONS IN OUR CHARTER DOCUMENTS AND DELAWARE LAW LIMIT THE
ABILITY OF ANOTHER PARTY TO ACQUIRE US, WHICH COULD CAUSE OUR STOCK PRICE TO
DECLINE.
8
<PAGE> 12
Certain provisions of our certificate of incorporation and our bylaws
could delay or prevent a third party from acquiring us, even if doing so might
be beneficial to our stockholders. For example, we have a classified board of
directors whose members serve staggered three-year terms and are removable only
for cause. In addition, because we are incorporated in Delaware, we are governed
by the provisions of Section 203 of the Delaware General Corporation Law which
may prohibit large stockholders from consummating a merger or combination with
us. These provisions could also limit the price that investors might be willing
to pay in the future for our common stock.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares of
common stock by the selling stockholders.
SELLING STOCKHOLDERS
The following table sets forth information with respect to the selling
stockholders and the shares of our common stock that they may offer and sell
under this prospectus. Each of the selling stockholders named below (1) acquired
the shares of common stock pursuant to the 1995 Plan or the 1997 Plan as an
employee of ACLARA BioSciences, Inc. or (2) is the transferee by gift of a
person who acquired the shares pursuant to the 1995 Plan or the 1997 Plan.
The following table sets forth with respect to each selling stockholder,
based upon information available to us as of July 31, 2000, the number of shares
of common stock owned, the number of shares of common stock registered by this
prospectus and the number of outstanding shares of common stock that will be
owned after the sale of the registered shares of common stock assuming the sale
of all of the registered shares of common stock. Assuming the sale of all of the
registered shares of common stock, none of the selling stockholders will own 1%
or more of our outstanding common stock. We calculated beneficial ownership as
of July 31, 2000, according to Rule 13d-3 of the Exchange Act.
Because the selling stockholders may sell all or some portion of the
shares of common stock beneficially owned by them, only an estimate (assuming
the selling stockholder sells all of the shares offered hereby) can be given as
to the number of shares of common stock that will be beneficially owned by the
selling stockholders after this offering. In addition, the selling stockholders
may have sold, transferred or otherwise disposed of, or may sell, transfer or
otherwise dispose of, at any time or from time to time since the dates on which
they provided the information regarding the shares of common stock beneficially
owned by them, all or a portion of the shares of common stock beneficially owned
by them in transactions exempt from the registration requirements of the
Securities Act.
9
<PAGE> 13
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF
SHARES NUMBER OF SHARES OWNED
BENEFICIALLY SHARES AFTER THE
NAME OWNED REGISTERED OFFERING
---- ----- ---------- --------
<S> <C> <C> <C>
Maria Goretty Alonso Amigo 45,405 45,405 0
Dominic Benvegnu 5,625 5,625 0
Torleif Bjornson 108,400 99,300 9,100
Travis D. Boone 40,673 30,905 9,768
George Barton Borland 4,650 3,900 750
Scott Braxton 21,875 21,875 0
Irene M. Visser Brewster 4,650 3,125 1,500
Jonathan Briggs 42,443 5,000 37,443
Victor P. Burolla 4,688 4,688 0
Gary J. Ciambrone 4,219 2,187 2,032
Guy Clark 3,750 3,750 0
Robert M. Coppock 14,063 14,063 0
Ingrid D. Cruzado 11,499 9,999 1,500
Jess DeLeon 9,662 9,657 5
Sharel M. Figueredo 1,010 375 635
Matthew J. Franklin(1) 102,694 75,000 27,694
Susan J. Gardner 2,525 1,625 900
Ian Gibbons 45,000 15,000 30,000
Phillip H. Gooding 9,350 5,312 4,038
Maurice Green 3,000 3,000 0
Alan K. Hauser 41,655 41,655 0
Daniel Hion 9,626 9,626 0
Wendy R. Hitchcock(2) 292,500 70,000 222,500
Herbert H. Hooper(3) 607,955 565,767 42,187
Xiaowen Hu 8,999 7,500 1,499
Hung Pin Kao 12,562 8,124 4,438
Robert T. Kennedy 5,250 5,250 0
Robert Koski 750 750 0
Amit Kumar 3,072 3,072 0
Benson Kwan 8,063 8,063 0
James P. Landers 9,751 9,751 0
Thu Trong Le 3,750 3,750 0
James Lee 4,875 4,875 0
Wendy B. Levine 6,422 3,281 3,141
Joseph M. Limber(4) 982,500 982,500 0
Douglas B. MacBlane 16,749 16,749 0
Kevin E. Maher 13,906 9,374 4,532
Richard A. Mathies 10,125 10,125 0
Randy McCormick 69,688 57,900 11,788
Robert J. Nelson 7,500 7,500 0
Uyen Thi Nguyen 4,500 3,875 625
Novesky Living Trust, 514,901 514,901 0
dated 4/15/91 (Roger G
Novesky and Bonita S
Novesky, Co-Trustees)(5)
Amy S. Novesky 22,500 22,500 0
Minda M. Novesky 22,500 22,500 0
</TABLE>
10
<PAGE> 14
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF
SHARES NUMBER OF SHARES OWNED
BENEFICIALLY SHARES AFTER THE
NAME OWNED REGISTERED OFFERING
---- ----- ---------- --------
<S> <C> <C> <C>
Sara B. Novesky 22,500 22,500 0
Aran Paulus 25,781 25,781 0
Gertrude B. Pfost 6,525 6,525 0
Charmaine Qiu 2,187 2,187 0
Donald W. Renn 12,000 12,000 0
Antonio J. Ricco 27,500 18,750 8,750
Bertram Rowland(6) 123,846 64,374 59,472
Jennifer Ruth 4,313 4,313 0
Alexander P. Sassi 40,789 3,750 37,039
Laurence R. Shea 7,970 7,970 0
Sharat Singh 39,297 39,297 0
Timothy F. Smith 9,610 9,610 0
David Soane(7) 23,639 12,563 11,076
Greg Stauber 7,500 7,500 0
James C. Sternberg 14,250 14,250 0
Daniel P. Stites 14,251 14,251 0
Hongdong Tan 17,500 4,063 13,437
Edwin F. Ullman 136,433 125,493 10,950
Ann K. Wainwright 19,500 18,000 1,500
Hong Ying Wang 5,625 5,625 0
Stephen Williams 16,376 9,876 6,500
Kelly Wright 6,750 6,750 0
Vivian Xiao 2,741 2,741 0
Qifeng Xue 13,436 13,436 0
Duane Yamasaki 5,000 3,000 2,000
Xing Yang 3,263 3,263 0
Jessina Yu 5,438 5,438 0
</TABLE>
(1) Matthew J. Franklin was Director of Finance and Administration from July
1996 to July 1999.
(2) Until August 2000, Wendy R. Hitchcock was Vice President,
Finance/Administration, Chief Financial Officer and Secretary of ACLARA.
(3) Herbert Hooper is Executive Vice President, Chief Technology Officer and
Co-Founder of ACLARA.
(4) Joseph M. Limber is President, Chief Executive Officer and Director of
ACLARA.
(5) Roger Novesky was our Chief Executive Officer from October 1994 until
March 1998.
(6) Bertram Rowland is Vice President and General Counsel of ACLARA.
(7) David Soane was a co-founder of ACLARA.
PLAN OF DISTRIBUTION
The shares of common stock may be sold from time to time by the selling
stockholders in one or more transactions at fixed prices, at market prices at
the time of sale, at varying prices determined at the time of sale or at
negotiated prices. The selling stockholders will act independently of us in
making decisions with respect to the timing, manner and size of each sale. The
selling stockholders may offer their shares of common stock in one or more of
the following transactions:
- on any national securities exchange or quotation service at
which the common stock may be listed or quoted at the time of
sale, including the NASDAQ National Market;
- in the over-the-counter market;
11
<PAGE> 15
- in private transactions;
- through options; and
- by pledge to secure debts and other obligations, or a
combination of any of the above transactions.
The shares of common stock described in this prospectus may be sold from
time to time directly by the selling stockholders. Alternatively, the selling
stockholders may from time to time offer shares of common stock to or through
underwriters, broker/dealers or agents. The selling stockholders and any
underwriters, broker/dealers or agents that participate in the distribution of
the shares of common stock may be deemed to be "underwriters" within the meaning
of the Securities Act of 1933. Any profits on the resale of shares of common
stock and any compensation received by any underwriter, broker/dealer or agent
may be deemed to be underwriting discounts and commissions under the Securities
Act of 1933.
Selling stockholders may also resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the of the rule. The selling
stockholders may decide not to sell any of the shares offered under this
prospectus, and may transfer, will or gift such shares by other means not
described in this prospectus.
ACLARA will pay for all expenses of this registration, including
registration and filing fees, printing and duplication expenses, administrative
expenses and legal and accounting fees. Each selling stockholder will pay its
own brokerage and legal fees, if any.
We may suspend the use of this prospectus if we learn of any event that
causes this prospectus to include an untrue statement of a material fact or to
omit to state a material fact required to be stated in the prospectus or
necessary to make the statements in the prospectus not misleading in the light
of the circumstances them existing. If this type of event occurs, a prospectus
supplement or post-effective amendment, if required, will be distributed to each
selling stockholder.
LEGAL MATTERS
The validity of the common stock being offered will be passed upon for
us by Latham & Watkins, Menlo Park, California. Certain attorneys of Latham &
Watkins hold shares of our common stock.
EXPERTS
The financial statements for ACLARA BioSciences, Inc. as of December 31,
1998 and 1999 and for each of the three years in the period ended December 31,
1999 and for the period from May 5, 1995 (date of inception) to December 31,
1999, incorporated by reference in this prospectus, have been so included in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Commission a Registration Statement on Form S-8
under the Securities Act with respect to the shares of common stock offered by
this prospectus. A copy of any document incorporated by reference in the
registration statement (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically incorporated by
reference into the information that the registration statement incorporates)
will be provided by us without charge to any person (including any beneficial
owner) to whom this prospectus has been delivered upon the oral or written
request of such person. Such requests should be directed to ACLARA BioSciences,
Inc., 1288 Pear Avenue, Mountain View, California 94043. Our telephone number is
(650) 210-1200.
We are also subject to the informational requirements of the Exchange
Act and are required to file annual and quarterly reports, proxy statements and
other information with the Commission. You can inspect and copy reports and
other information filed by us with the Commission at the Commission's Public
Reference Room at 450
12
<PAGE> 16
Fifth Street, N.W., Washington, D.C. 20549. You may also obtain information on
the operation of the Public Reference Room by calling the Commission at
1-800-SEC-0300. The Commission also maintains an Internet site at
http:\\www.sec.gov that contains reports, proxy and information statements
regarding issuers, including us, that file electronically with the Commission.
You should only rely on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. The common stock is not being
offered in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any supplement is accurate as of any
date other than the date on the front of this prospectus.
The following documents which we filed with the Commission are
incorporated by reference into this prospectus:
(a) Our prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1993, as amended (the "Securities Act"), on
March 21, 2000 (File No. 333-95107);
(b) The description of our Common Stock, par value $0.001 per share,
contained in the Registration Statement on Form 8-A filed with
the Commission on March 17, 2000 pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any subsequently filed amendments and reports
updating such description;
(c) Our Quarterly Report on Form 10-Q for the quarter ended March
31, 2000, filed pursuant to Section 13 of the Exchange Act,
including all material incorporated by reference therein; and
(d) Our Quarterly Report on Form 10-Q for the quarter ended June 30,
2000, as amended on Form 10-Q/A, filed pursuant to Section 13 of
the Exchange Act, including all material incorporated by
reference therein.
In addition, all documents which we file pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus and
prior to the termination of this offering, shall be deemed to be incorporated by
reference herein and to be a part of this prospectus from the date of the filing
of such 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 prospectus to the extent that a statement
contained in this prospectus, or in any other subsequently filed document which
also is or is deemed to be incorporated by reference in this prospectus,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
13
<PAGE> 17
YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY REFERENCE OR
CONTAINED IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU
WITH INFORMATION DIFFERENT FROM THAT CONTAINED IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT. THIS PROSPECTUS IS NOT AN OFFER OF THESE SECURITIES IN
ANY JURISDICTION WHERE AN OFFER AND SALE IS NOT PERMITTED. THE INFORMATION
CONTAINED IN THIS PROSPECTUS IS ACCURATE ONLY AS OF THE DATE OF THIS PROSPECTUS,
REGARDLESS OF THE TIME OF DELIVERY OF THIS PROSPECTUS OR ANY SALE OF OUR COMMON
STOCK.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
The Company..................................................................... 3
Risk Factors.................................................................... 3
Use of Proceeds................................................................. 9
Selling Stockholders............................................................ 9
Plan of Distribution............................................................ 11
Legal Matters................................................................... 12
Experts......................................................................... 12
Where You Can Find More Information............................................. 12
</TABLE>
3,212,485 SHARES
COMMON STOCK
ACLARA BIOSCIENCES, INC.
PROSPECTUS
AUGUST 31, 2000
14
<PAGE> 18
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which we filed with the Commission are
incorporated by reference into this registration statement:
(a) ACLARA's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1993, as amended (the "Securities Act"), on
March 21, 2000 (File No. 333-95107);
(b) The description of ACLARA's Common Stock, par value $0.001 per
share, contained in the Registration Statement on Form 8-A filed
with the Commission on March 17, 2000 pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any subsequently filed amendments and reports
updating such description;
(c) ACLARA's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000, including all material incorporated by reference
therein, filed pursuant to Section 13 of the Exchange Act; and
(d) ACLARA's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2000, as amended on Form 10-Q/A, including all material
incorporated by reference therein, filed pursuant to Section 13
of the Exchange Act.
In addition, all documents subsequently filed by ACLARA pursuant to
Sections 13(a), 13(c), 14 and 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 hereby have been sold or which
reregisters 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 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 in this registration statement, or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference in this registration statement, modifies or supersedes
such statement. Any such 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. NAMED EXPERTS.
The validity of the issuance of the shares of Common Stock described
herein has been passed upon for ACLARA by Latham & Watkins, San Francisco,
California. Certain Latham & Watkins attorneys hold shares of ACLARA's Common
Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
ACLARA's Restated Certificate of Incorporation in effect as of the date
hereof (the "Certificate") provides that, except to the extent prohibited by the
Delaware General Corporation Law, as amended (the "DGCL"), ACLARA's directors
shall not be personally liable to ACLARA or its stockholders for monetary
damages for any breach of fiduciary duty as directors of ACLARA. Under the DGCL,
the directors have a fiduciary duty to ACLARA which is not eliminated by such
provisions of the Certificate and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of nonmonetary relief will remain
available. In addition, each director will continue to be subject to liability
under the DGCL for breach of the director's duty of loyalty to ACLARA, for acts
or omissions which are found by a court of competent jurisdiction to be not in
good faith or involving intentional misconduct, for knowing violations of law,
for actions leading to improper personal benefit to the director, and for
payment of dividends or approval of stock repurchases or redemption's that are
prohibited by the DGCL. Such provisions also
15
<PAGE> 19
do not affect the directors' responsibilities under any other laws, such as the
Federal securities laws or state or Federal environmental laws. ACLARA has
applied for liability insurance for its officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its
directors and officers and to purchase insurance with respect to liability
arising out of their capacity or status as directors and officers, provided that
this provision shall not eliminate or limit the liability of a director: (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) arising under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. The DGCL provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's bylaws, any agreement, a vote of stockholders or otherwise. The
Certificate eliminates the personal liability of directors to the fullest extent
permitted by Section 102(b)(7) of the DGCL and provides that ACLARA may fully
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (whether
civil, criminal, administrative or investigative) by reason of the fact that
such person is or was a director or officer of ACLARA, or is or was serving at
the request of ACLARA as a director or officer of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding.
ACLARA has entered into agreements to indemnify our directors and
officers. These agreements, among other things, require us to indemnify these
directors and officers for certain expenses, including attorneys' fees,
judgments, fines and settlement amounts incurred by any such person in any
action or proceeding, including any action by or in the right of our company,
arising out of that person's services as a director or officer of our company,
any subsidiary of ours or any other company or enterprise to which the person
provides services at our request.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The securities that are reoffered or resold pursuant to this
registration statement were issued by us pursuant to the 1995 Plan or the 1997
Plan in transactions that were exempt from the registration requirements of the
Securities Act pursuant to Section 4(2) thereto or Rule 701 thereunder.
ITEM 8. EXHIBITS.
See Index to Exhibits on Page 19.
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 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;
16
<PAGE> 20
provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) 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.
(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, 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 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.
(c) 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, 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.
17
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
ACLARA 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 this 31st day
of August, 2000.
ACLARA BioSciences, Inc.
By: /s/ Joseph M. Limber
---------------------------------
Joseph M. Limber, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints
Joseph M. Limber as attorney-in-fact and agent, acting alone, with full power of
substitution and resubstitution, to sign on his behalf, individually and in the
capacities stated below, and to file any and all amendments, including
post-effective amendments, to this Registration Statement and other documents in
connection therewith, with the Securities and Exchange Commission, granting to
said attorney-in-fact and agent full power and authority to perform any other
act on behalf of the undersigned required to be done in the premises.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities as of
August 31, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Joseph M. Limber President, Chief Executive August 31, 2000
------------------------------- Officer and Director (Principal
Joseph M. Limber Executive Officer and Acting
Principal Financial and
Accounting Officer)
Director August , 2000
-------------------------------
Thomas R. Baruch
/s/ Jean Deleage Director August 31, 2000
-------------------------------
Jean Deleage
/s/ Michael W. Hunkapiller Director August 31, 2000
-------------------------------
Michael W. Hunkapiller
Director August , 2000
-------------------------------
Eric S. Lander
/s/ Andre F. Marion Director August 31, 2000
-------------------------------
Andre F. Marion
Director August , 2000
-------------------------------
David J. Parker
</TABLE>
18
<PAGE> 22
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
------
<S> <C>
5.1 Opinion of Latham & Watkins.
10.2* ACLARA BioSciences, Inc. 1995 Stock Plan.
10.3 Amended and Restated ACLARA BioSciences, Inc. 1997 Stock Plan.
23.1 Consent of Latham & Watkins (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24.1 Power of Attorney (included on page 18 of this registration statement).
</TABLE>
----------
*Incorporated by reference from ACLARA's Registration Statement on Form S-1, as
amended (File No. 333-95107), initially filed with the Securities and Exchange
Commission on January 20, 2000.
19
