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As filed with the Securities and Exchange Commission on August 30, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
Maxygen, Inc.
(Exact name of registrant as specified in its charter)
Delaware 77-0449487
(State of Incorporation) (I.R.S. Employer Identification No.)
_______________________
515 Galveston Drive
Redwood City, CA 94063
(Address of principal executive offices)
_______________________
2000 International Stock Option Plan
(Full title of the plan)
Russell J. Howard
Chief Executive Officer
Maxygen, Inc.
515 Galveston Drive
Redwood City, CA 94063
(650) 298-5300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
_______________________
Copies to:
August J. Moretti
Heller Ehrman White & McAuliffe, LLP
2500 Sand Hill Road, Suite 100
Menlo Park, CA 94025
_______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Proposed maximum Proposed maximum
Title of securities offering aggregate Amount of
to be registered Amount to be registered (1) price per share (2) offering price (2) registration fee
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock options and common
stock (par value $0.0001) 1,000,000 shares $48.1875 - $55.125 $51,192,237 $13,515
==================================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement shall also
cover any additional shares of Maxygen's common stock that become issuable
under the 2000 International Stock Option Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without Maxygen's receipt of consideration that results in an
increase in the number of Maxygen's outstanding shares of common stock.
1.
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(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the Securities
Act. The offering price per share and aggregate offering price for the
unissued stock options and common stock are based upon the average of the
high and low prices of Maxygen's common stock as reported on the Nasdaq
National Market on August 24, 2000. The following chart illustrates the
calculation of the registration fee:
<TABLE>
<CAPTION>
==============================================================================================================================
Description of Shares Number of Shares Offering Price per Share Aggregate Offering Price
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Shares issuable pursuant to outstanding options
under the 2000 International Stock Option Plan 258,472 $59.8125 $15,459,856.50
------------------------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to unissued options
under the 2000 International Stock Option Plan 741,528 $48.1875 $35,732,380.50
----------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Aggregate Offering Price $ 51,192,237
============================================================================================================================
</TABLE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Maxygen, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference into this registration statement:
(a) The Company's latest annual report on Form 10-K (File No. 000-28401)
for the year ended December 31, 1999, filed pursuant to Sections 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(a) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to in (a) above.
(c) The description of the Company's common stock that is contained in a
registration statement on Form 8-A (File No. 000-28401), filed with the
Commission on December 7, 1999 pursuant to Section 12 under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment that indicates that all securities offered have
been sold or that deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein, or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein, 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.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of common stock being registered hereby will be
passed upon for Maxygen by Heller Ehrman White & McAuliffe, LLP, Menlo Park, CA.
Heller Ehrman White & McAuliffe, LLP, certain of its employees and HEWM
Investors, an entity affiliated with Heller Ehrman White & McAuliffe, LLP,
beneficially own 27,000 shares of Maxygen common stock. Julian N. Stern, the
sole shareholder of a professional corporation that is a partner of Heller
Ehrman White & McAuliffe, LLP and the Secretary of Maxygen, beneficially owns
65,702 shares of Maxygen common stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or to any of its stockholders for monetary damage
for a breach of his or her fiduciary duty as a director, except in the case
where the director breached his or her duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or knowingly
2.
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violated a law, authorized the payment of a dividend or approved a stock
repurchase in violation of the DGCL or obtained an improper personal benefit.
The Company's Amended and Restated Certificate of Incorporation contains a
provision that eliminates directors' personal liability as set forth above.
Under Section 145 of the DGCL the Company has broad powers to indemnify its
directors and officers against liabilities they may incur in such capacities,
including liabilities under the Securities Act. The Company's Certificate of
Incorporation and By-laws require the Company to indemnify its directors and
officers to the full extent permitted by the DGCL. The Certificate of
Incorporation and By-laws also require the Company to advance litigation
expenses upon receipt of an undertaking by the indemnified party to repay such
advances if it is ultimately determined that the indemnified party is not
entitled to indemnification.
The Company has entered into indemnity agreements with each of its
directors and officers. Such indemnity agreements contain provisions that are
in some respects broader than the specific indemnification provisions contained
in the DGCL. The Company also maintains an insurance policy for its directors
and officers insuring against certain liabilities arising in their capacities as
such.
EXHIBITS
Exhibit
Number
5.1 Opinion of Heller Ehrman White & McAuliffe, LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Heller Ehrman White & McAuliffe, LLP (included in Exhibit
5.1)
24 Power of Attorney (included on the signature page)
99.1 2000 International Stock Option Plan
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 (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission
3.
<PAGE>
by the registrant pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference in the 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 that remain unsold at the termination of the
offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, 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.
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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 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 Redwood City, CA, on August 30, 2000.
Maxygen, Inc.
By: /s/ Russell J. Howard
---------------------------------
Russell J. Howard
Chief Executive Officer
POWER OF ATTORNEY
Know All Persons By These Presents, that each person whose signature
appears below constitutes and appoints Russell J. Howard and Simba Gill, and
each or either of them, his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
the attorneys-in-fact and agents, and either of them, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that the
attorneys-in-fact and agents, or any of them, or their or his or her substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Russell J. Howard Chief Executive Officer and August 30, 2000
----------------------------------------------- Director (Principal Executive
Russell J. Howard Officer)
/s/ Simba Gill President and Chief Financial Officer August 30, 2000
----------------------------------------------- (Principal Financial and Accounting
Simba Gill Officer)
/s/ Isaac Stein Director August 30, 2000
-----------------------------------------------
Isaac Stein
/s/ Robert J. Glaser Director August 30, 2000
-----------------------------------------------
Robert J. Glaser
/s/ M.R.C. Greenwood Director August 30, 2000
-----------------------------------------------
M.R.C. Greenwood
</TABLE>
5.
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<TABLE>
<S> <C> <C>
/s/ Adrian Hennah Director August 30, 2000
-----------------------------------------------
Adrian Hennah
/s/ Gordon Ringold Director August 30, 2000
-----------------------------------------------
Gordon Ringold
/s/ George Poste Director August 30, 2000
-----------------------------------------------
George Poste
</TABLE>
6.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential Page
Number Numbers
<S> <C>
5.1 Opinion of Heller Ehrman White & McAuliffe, LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Heller Ehrman White & McAuliffe, LLP (included in Exhibit 5.1)
24 Power of Attorney (included on the signature page)
99.1 2000 International Stock Option Plan
</TABLE>
7.
