<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 9, 2000
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
ACLARA BIOSCIENCES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3222727
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
--------------------------------
1288 PEAR AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(Address of Principal Executive Offices including Zip Code)
--------------------------------
ACLARA BIOSCIENCES, INC. EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
--------------------------------
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
--------------------------------
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
--------------------------------
--------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROPOSED
AMOUNT OFFERING MAXIMUM
TO BE PRICE AGGREGATE AMOUNT OF
REGISTERED PER SHARE OFFERING REGISTRATION
(1) (2) PRICE(1) FEE
------------------------------------ ----------- ---------- ----------- -------------
<S> <C> <C> <C> <C>
Common Stock, $.001 Par Value 450,000 $46.25 $20,812,500 $5,494.50
------------------------------------ ----------- ---------- ----------- -------------
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement shall also cover a
presently indeterminate number of additional shares of the Registrant's
Common Stock that may become issuable as a result of anti-dilution
adjustments deemed necessary or equitable by the Board of Directors of the
Registrant upon stock splits, stock dividends or other similar changes in
capitalization.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, and
is based on the average of the high and low sales price of the common
stock, as reported on The Nasdaq National Market on August 3, 2000.
PROPOSED SALE TO TAKE PLACE AS SOON AFTER THE EFFECTIVE DATE OF THE
REGISTRATION STATEMENT AS OPTIONS GRANTED UNDER THE PLAN ARE
EXERCISED.
================================================================================
TOTAL PAGES 8
EXHIBIT INDEX ON PAGE 6
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with
or included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which were filed by the Registrant with the
Commission, are incorporated herein by reference:
(a) Registrant's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), on March
21, 2000 (File No. 333-95107);
(b) The description of the Registrant's common stock, par value $.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; and
(c) Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000 (File No. 000-29975), including all material
incorporated by reference therein.
In addition, all documents subsequently filed by the Registrant pursuant
to Section 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 hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part of this registration statement
from the date of the filing of such 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. EXPERTS.
The validity of the issuance of the shares of common stock described
herein has been passed upon for the Registrant by Latham & Watkins, San
Francisco, California. Certain Latham & Watkins attorneys hold shares of the
Registrant's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant'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"), the
Registrant's directors shall not be personally liable to the Registrant or its
stockholders for monetary damages for any breach of fiduciary duty as directors
of the Registrant. Under the DGCL, the directors have a fiduciary duty to the
Registrant which is not eliminated by such provisions of the Certificate and, in
appropriate circumstances,
2
<PAGE> 3
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 the
Registrant, 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
redemptions that are prohibited by the DGCL. Such provisions also do not affect
the directors' responsibilities under any other laws, such as the Federal
securities laws or state or Federal environmental laws. The Registrant 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 the Registrant 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 the Registrant, or is or was serving at the request of the Registrant
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.
The Registrant 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.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits on page 6.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(I) 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
3
<PAGE> 4
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
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 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.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company 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 4th
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 and Wendy R. Hitchcock as attorneys-in-fact and agents, each
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 attorneys-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 indicated
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Joseph M. Limber President, Chief Executive August 4, 2000
------------------------------- Officer and Director
Joseph M. Limber (Principal Executive Officer)
/s/ Wendy R. Hitchcock Chief Financial Officer August 4, 2000
------------------------------- (Principal Financial and
Wendy R. Hitchcock Accounting Officer)
/s/ Thomas R. Baruch Director August 4, 2000
-------------------------------
Thomas R. Baruch
/s/ Jean Deleage Director August 4, 2000
-------------------------------
Jean Deleage
Director
-------------------------------
Michael W. Hunkapiller
/s/ Eric S. Lander Director August 4, 2000
-------------------------------
Eric S. Lander
/s/ Andre F. Marion Director August 4, 2000
-------------------------------
Andre F. Marion
/s/ David J. Parker Director August 4, 2000
-------------------------------
David J. Parker
</TABLE>
5
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
-------
<S> <C>
5.1 Opinion of Latham & Watkins.
10.16* ACLARA BioSciences, Inc. Employee Stock Purchase 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 the signature page to this
registration statement).
</TABLE>
----------
* Incorporated by reference to Exhibit 10.16 to the Registrant'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.
6
