<PAGE>
Registration No. 333- _________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
INVITROGEN CORPORATION
----------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 33-0373077
----------------------------- ----------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1600 FARADAY AVENUE
CARLSBAD, CALIFORNIA 92008
--------------------------------------------------
(Address of principal executive offices) (Zip code)
INVITROGEN CORPORATION
1995 STOCK OPTION PLAN,
1997 STOCK OPTION PLAN,
EMPLOYEE STOCK OWNERSHIP PLAN,
1998 EMPLOYEE STOCK PURCHASE PLAN,
AND 401(k) PLAN
-----------------------------------------------
(Full title of the plan)
JAMES R. GLYNN
CHIEF FINANCIAL OFFICER
Invitrogen Corporation
1600 Faraday Avenue
Carlsbad, California 92008
-----------------------------------------------
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (760) 603-7200
This registration statement shall hereafter become effective in accordance
with Rule 462 promulgated under the Securities Act of 1933, as amended.
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------
Title of Amount to be Proposed Proposed Amount of
securities registered maximum maximum registration
to be offering aggregate fee
registered (1) price per offering price
share (2)
<S> <C> <C> <C> <C>
1995 AND 1997 STOCK OPTION PLANS
Common Stock - Outstanding 3,182,402 $ 4.13 $13,143,320.26 $ 3,653.84
Par Value $0.01
Common Stock - Reserved 1,127,385 $15.03125 $16,946,005.78 $ 4,710.99
Par Value $0.01
EMPLOYEE STOCK OWNERSHIP PLAN
Common Stock 1,195,717 $15.03125 $17,973,121.16 $ 4,996.53
Par Value $0.01
1998 EMPLOYEE STOCK PURCHASE PLAN
Common Stock 250,000 $12.77656 $ 3,194,140.00 $ 887.97
Par Value $0.01
401(K) PLAN
Common Stock 150,000 $15.03125 $ 2,254,687.50 $ 626.80
Par Value $0.01
TOTALS 5,905,504 $53,511,274.70 $14,877.00
</TABLE>
(1) The securities to be registered include options and rights to acquire such
common stock, and pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the 401(k) Plan.
(2) The offering price is estimated pursuant to Rule 457 solely for purposes of
calculating the registration fee. As to the shares subject to outstanding
but unexercised options, the price is computed on the basis of the weighted
average exercise price for the options outstanding under the applicable
plan. As to the remaining shares under the 1995 Stock Option Plan, the
1997 Stock Option Plan, the Employee Stock Ownership Plan and the 401(k)
Plan, the price is based upon the average of the high and low prices of the
common stock on March 5, 1999 as reported on the Nasdaq National Market.
The 1998 Employee Stock Purchase Plan establishes a purchase price equal to
85% of the fair market value of the Company's common stock and, therefore,
the price for shares issuable under this plan is based upon 85% of the
average of the high and low prices of the common stock on March 5, 1999 as
reported on the Nasdaq National Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") by Invitrogen Corporation (the "Company") are incorporated by
reference in this Registration Statement:
(a) The Company's Prospectus filed pursuant to Rule 424(b) of the
Securities Act of 1933, as amended (the "Securities Act"), containing
audited financial statements for the Company's latest fiscal year ended
December 31, 1998 filed with the Commission on March 1, 1999
(registration number 333-68665).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the
end of the fiscal year covered by the registrant document referred to in
(a) above.
(c) The description of the Company's common stock contained in its
Registration Statement on Form 8-A filed with the Commission under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company and the Invitrogen Corporation
401(k) Plan with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all shares of
common stock offered pursuant to this Registration Statement have been sold or
which deregisters all shares of common stock then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or
<PAGE>
rescission. The statute has no effect on a director's duty of loyalty or
liability for acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, illegal payment of dividends or
stock redemptions or repurchases, or for any transaction from which the
director derives an improper personal benefit. As permitted by the statute,
the Company has adopted provisions in its Certificate of Incorporation which
eliminate to the fullest extent permissible under Delaware law the personal
liability of its directors to the Company and its stockholders for monetary
damages for breach or alleged breach of their duty of care.
Section 145 of the Delaware General Corporation Law provides generally
that a corporation shall have the power, and in some cases is required, to
indemnify an agent, including an officer or director, 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 (other than an action by or in the right of the corporation) by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation, against certain expenses, judgments, fines,
settlements, and other amounts under certain circumstances.
The Company's By-laws provide for indemnification (to the full extent
permitted by the Delaware General Corporation Law) of directors, officers,
employees and other agents of the Company against all expenses, liability and
loss (including attorney's fees, judgment, fines, ERISA excise taxes or
penalties, amounts paid or to be paid in settlement and amounts expended in
seeking indemnification granted to such person under applicable law, this
By-Law or any agreement with the Company) reasonably incurred or suffered by
such person in connection therewith, subject to certain provisions. The
Company's By-Laws also empower it to maintain directors and officers
liability insurance coverage and to enter into indemnification agreements
with its directors, officers, employees or agents.
These indemnification provisions may be sufficiently broad to permit
indemnification of the Company's officers and directors for liabilities
(including reimbursement of expenses incurred) arising under the Securities
Act.
Under the form of Underwriting Agreement filed as Exhibit 1.1 to the
Registration Statement on Form S-1 (Reg. No. 333-68665), initially filed on
December 10, 1998, and as amended through the date hereof, the Underwriters
are obligated under certain circumstances to indemnify directors and
officers of the Company against certain liabilities, including liabilities
under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
The undersigned registrant hereby undertakes that it will submit or has
submitted the 401(k) Plan and the Employee Stock Ownership Plan and any
amendments thereto to the Internal
<PAGE>
Revenue Service (the "IRS") in a timely manner and has made or will make all
changes required by the IRS in order to qualify the plans.
ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERING
The undersigned Company 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 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.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company 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) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE
The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company'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
<PAGE>
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.
(h) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF
REGISTRATION STATEMENT ON FORM S-8
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Securities and
Exchange 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 Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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
Company 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.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Act 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 Carlsbad, State of California, on March 8, 1999.
INVITROGEN CORPORATION
By: /s/ James R. Glynn
--------------------------------
James R. Glynn
Chief Financial Officer
<PAGE>
POWER OF ATTORNEY
Each of the undersigned officers and directors of Invitrogen Corporation,
hereby constitutes and appoints James R. Glynn his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
with power to act alone, to sign and execute on behalf of the undersigned any
amendment or amendments to this Registration Statement on Form S-8, and each of
the undersigned does hereby ratify and confirm all that said attorney-in-fact
and agent, or his substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on March 8, 1999.
Signature Title
- --------- -----
/s/ Lyle C. Turner
- --------------------------
Lyle C. Turner President, Chief Executive Officer and
Chairman of the Board of Directors (Principal
Executive Officer)
/s/ James R. Glynn
- --------------------------
James R. Glynn Chief Financial Officer (Principal Financial and
Accounting Officer)
/s/ Joseph M. Fernandez
- --------------------------
Joseph M. Fernandez Senior Vice President of Business Development,
Secretary and Director
/s/ Donald W. Grimm
- --------------------------
Donald W. Grimm Director
/s/ Kurt R. Jaggers
- --------------------------
Kurt R. Jaggers Director
/s/ Bradley G. Lorimer
- --------------------------
Bradley G. Lorimer Director
/s/ Jay M. Short
- --------------------------
Jay M. Short Director
/s/ Lewis J. Shuster
- --------------------------
Lewis J. Shuster Director
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Act, the trustees (or other
persons who administer the employee benefit plan) have duly caused this
registration statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of Carlsbad, State of California, on
March 8, 1999.
INVITROGEN CORPORATION
401(k) PLAN
By: /s/ Lyle C. Turner
-----------------------------
Lyle C. Turner, Trustee
By: /s/ Joseph M. Fernandez
-----------------------------
Joseph. M. Fernandez, Trustee
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Act, the trustees (or other
persons who administer the employee benefit plan) have duly caused this
registration statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of Carlsbad, State of California, on
March 8, 1999.
INVITROGEN CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
By: /s/ Lyle C. Turner
-----------------------------
Lyle C. Turner, Trustee
By: /s/ Joseph M. Fernandez
-----------------------------
Joseph. M. Fernandez, Trustee
<PAGE>
EXHIBIT INDEX
Ex. # Description
- ----- -----------
4.1 Restated Certificate of Incorporation of the Company, as amended, is
incorporated by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1 filed with the Securities and Exchange Commission
on December 10, 1998 (File No. 333-68665)
4.2 Amended and Restated By-Laws of the Company are incorporated by
reference to Exhibit 3.2 to the Company's Registration Statement on Form
S-1 filed with the Securities and Exchange Commission on December 10,
1998 (File No. 333-68665)
5 Opinion re. legality
23.1 Consent of Gray Cary Ware Freidenrich LLP (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (Included in signature pages to this registration
statement)
<PAGE>
EXHIBIT 5
March 8, 1999
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
RE: INVITROGEN CORPORATION 1995 STOCK OPTION PLAN, 1997 STOCK OPTION PLAN,
EMPLOYEE STOCK OWNERSHIP PLAN, 1998 EMPLOYEE STOCK PURCHASE PLAN AND
INVITROGEN CORPORATION 401(k) PLAN - REGISTRATION STATEMENT ON FORM S-8
Gentlemen and Ladies:
As legal counsel for Invitrogen Corporation, a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 5,905,504 shares of
the Company's common stock, $0.01 par value, which may be issued pursuant to
the Invitrogen Corporation 1995 Stock Option Plan, 1997 Stock Option Plan,
Employee Stock Ownership Plan, 1998 Employee Stock Purchase Plan and 401(k)
Plan (collectively, the "Plans") pursuant to a registration statement on Form
S-8 (the "Registration Statement").
We have examined all instruments, documents and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed.
In such examination, we have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as originals and the
conformity to the originals of all documents submitted to us as copies.
We are admitted to practice only in the State of California and we
express no opinion concerning any law other than the law of the State of
California, the Delaware General Corporation Law and the federal law of the
United States. As to matters of Delaware General Corporation Law, we have
based our opinion solely upon examination of such laws and the rules and
regulations of the authorities administering such laws, all as reported in
standard, unofficial compilations. We have not obtained opinions of counsel
licensed to practice in jurisdictions other than the State of California.
Based on such examination, we are of the opinion that the 5,905,504
shares of common stock which may be issued pursuant to the Plans are duly
authorized shares of the Company's common stock, and, when issued against
payment of the purchase price therefor in accordance with the provisions of
the Plans will be validly issued, fully paid and non-assessable.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich LLP
GRAY CARY WARE & FREIDENRICH LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 15, 1999
included in Invitrogen Corporation's Form S-1 as filed February 26, 1999 and
to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
San Diego, California
March 8, 1999
