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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
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(Exact name of registrant as specified in its charter)
DELAWARE 33-0373077
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1600 FARADAY AVENUE
CARLSBAD, CALIFORNIA 92008
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(Address of principal executive offices) (Zip code)
INVITROGEN CORPORATION
AMENDED AND RESTATED 1997 STOCK OPTION PLAN AND
INDIVIDUAL OPTION AGREEMENTS GRANTED UNDER THE
NOVEL EXPERIMENTAL TECHNOLOGY 1995 STOCK OPTION/
STOCK ISSUANCE PLAN AND 1998 STOCK OPTION/
STOCK ISSUANCE PLAN ASSUMED BY INVITROGEN CORPORATION
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(Full title of the plan)
JAMES R. GLYNN
CHIEF FINANCIAL OFFICER
Invitrogen Corporation
1600 Faraday Avenue
Carlsbad, California 92008
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(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.
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<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed Proposed maximum Amount of
securities registered maximum aggregate offering registration fee
to be offering price
registered (1) price per
share (2)
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<S> <C> <C> <C> <C>
Amended and Restated
1997 Stock Option Plan
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Common Stock 1,000,000 $25.00 $25,000,000
Par Value $0.01
Assumed Options
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Common Stock 469,678 $4.252 $1,997,070
Par Value $0.01
TOTALS 1,469,678 $26,997,070 $7,505.18
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(1) The securities to be registered include options and rights to acquire such
common stock.
(2) The offering price is estimated pursuant to Rule 457 solely for purposes of
calculating the registration fee. As to the shares under the Amended and
Restated 1997 Stock Option Plan, the price is based upon the average of the
high and low prices of the common stock on September 2, 1999 as reported on
the Nasdaq National Market. As to the shares subject to the individual
option agreements granted under the Novel Experimental Technology 1995
Stock Option/Stock Issuance Plan and 1998 Stock Option/Stock Issuance Plan
and assumed by Invitrogen Corporation, the prices are computed on the basis
of the average exercise prices.
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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 latest 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. The prospectus is included
on the Company's Registration Statement on Form S-1 (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 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
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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
See Exhibit Index.
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ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERING
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 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 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) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE
The undersign 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.
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(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 registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 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.
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SIGNATURE
Pursuant to the requirements of the Securities Act the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Carlsbad, State of California, on September 3, 1999.
INVITROGEN CORPORATION
By: /s/ James R. Glynn
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James R. Glynn
Chief Financial Officer
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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 September 3, 1999.
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Signature Title
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<S> <C>
/s/ Lyle C. Turner
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Lyle C. Turner President, Chief Executive Officer and
Chairman of the Board of Directors (Principal Executive
Officer)
/s/ James R. Glynn
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James R. Glynn Chief Financial Officer (Principal Financial and
Accounting Officer)
/s/ David E. McCarty
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David E. McCarty Senior Vice President of Marketing and Sales and Director
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Donald W. Grimm Director
/s/ Kurt R. Jaggers
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Kurt R. Jaggers Director
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Bradley G. Lorimer Director
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Jay M. Short Director
/s/ Lewis J. Shuster
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Lewis J. Shuster Director
</TABLE>
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EXHIBIT INDEX
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<CAPTION>
Ex. # Description
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<S> <C>
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)
4.3 Agreement and Plan of Merger, dated as of June 14, 1999, among
Invitrogen Corporation, Invo Merger Corporation and NOVEX, is
incorporated by reference to Exhibit 2.1 to the Company's
Registration Statement on Form S-4 filed with the Securities
and Exchange Commission on or about July 9, 1999 (Registration
No. 333-82593).
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)
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EXHIBIT 5
September 3, 1999
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
RE: INVITROGEN CORPORATION AMENDED AND RESTATED 1997 STOCK OPTION PLAN AND
INDIVIDUAL OPTION AGREEMENTS GRANTED UNDER THE NOVEL EXPERIMENTAL TECHNOLOGY
1995 STOCK OPTION/STOCK ISSUANCE PLAN AND 1998 STOCK OPTION/STOCK ISSUANCE PLAN
AND ASSUMED BY INVITROGEN CORPORATION.
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 1,469,678
shares of the Company's common stock, $0.01 par value, which may be issued
pursuant to the Invitrogen Corporation Amended and Restated 1997 Stock Option
Plan (the "Option Plan") and option grants under the Novel Experimental
Technology 1995 Stock Option/Stock Issuance Plan and 1998 Stock Option/Stock
Issuance Plan (the "NOVEX Plans") and assumed by the Company (collectively,
the "Assumed Options") pursuant to the Agreement and Plan of Merger dated as
of June 14, 1999, among Invitrogen Corporation, Invo Merger Corporation and
NOVEX (the "Merger Agreement") 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 1,469,678
shares of common stock which may be issued pursuant to the Option Plan and
the Assumed Options 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 Option Plan or the Assumed
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Options, the NOVEX Plans and the Merger Agreement, respectively, will be
validly issued, fully paid and non-assessable.
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,
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
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
September 1, 1999
