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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
2000 NONSTATUTORY STOCK OPTION PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
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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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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of Securities to Amount to be offering price aggregate offering Amount of
be registered(1) registered(2) per share(3) price(3) registration fee
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<S> <C> <C> <C> <C>
2000 NONSTATUTORY STOCK OPTION PLAN
Common Stock 50,000 $66.50 $ 3,325,000
Par Value $0.01 750,0000 $69.00 $51,750,000
1998 EMPLOYEE STOCK
PURCHASE PLAN
Common Stock
Par Value $0.01 100,000 $56.525 $ 5,652,500
Totals 900,000 $60,727,500 $16,032.06
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(1) The securities to be registered include options and purchase rights to
acquire Common Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
(3) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
under the 2000 Nonstatutory Stock Option Plan, the price is computed on the
basis of the weighted average exercise price. As to the remaining shares
under the 2000 Nonstatutory Stock Option Plan, the price is based upon the
average of the high and low prices of the Common Stock on May 8, 2000, 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 under this plan
is based upon 85% of the average of the high and low prices of the Common
Stock on May 8, 2000, as reported on the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Invitrogen Corporation (the "Company") hereby incorporates by reference
in this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant
to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended December 31, 1999, as filed with the Securities and
Exchange Commission on March 14, 2000.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
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 the
Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All 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 to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
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 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
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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 Corporate 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
of 1933, as amended (the "Securities Act").
Under the form of Underwriting Agreement filed as Exhibit 1.1 to the
Registration Statement of 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.
Item 9. UNDERTAKINGS
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:
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(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; and
(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 (1)(i) and (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.
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.
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
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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 of 1933, as amended,
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 May 9, 2000
Invitrogen Corporation
By: /s/ James R. Glynn
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James R. Glynn
Chief Financial Officer
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Invitrogen Corporation whose signatures
appear below, hereby constitute and appoint James R. Glynn his or her true and
lawful attorney-in-fact and agent, with full power of substitution, each 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 of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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/s/ Lyle C. Turner
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Lyle C. Turner President, Chief Executive Officer and May 9, 2000
Chairman of the Board of Directors
(Principal Executive Officer)
/s/ James R. Glynn
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James R. Glynn Chief Financial Officer (Principal May 9, 2000
Financial and Accounting Officer)
/s/ Lewis J. Shuster
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Lewis J. Shuster Chief Operating Officer and Director May 9, 2000
/s/ David E. McCarty
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David E. McCarty Director May 9, 2000
/s/ Donald W. Grimm
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Donald W. Grimm Director May 9, 2000
/s/ Kurt R. Jaggers
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Kurt R. Jaggers Director May 9, 2000
/s/ Bradley G. Lorimer
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Bradley G. Lorimer Director May 9, 2000
/s/ Jay M. Short
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Jay M. Short Director May 9, 2000
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EXHIBIT INDEX
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 (No. 333-68665)
4.2 Amended and Restated Bylaws 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 (No. 333-68665)
5 Opinion re legality
23.1 Consent of Counsel (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
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-328-6561 Fax: 650-327-3699 www.gcwf.com
May 9, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
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 900,000 shares of the
Common Stock, $0.01 par value, of the Company which may be issued pursuant to
the Invitrogen Corporation 2000 Nonstatutory Stock Option Plan and the
Invitrogen Corporation 1998 Employee Stock Purchase Plan ( collectively the
"Plans").
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 corporation laws of
the State of Delaware and the federal law of the United States. As to matters of
Delaware corporation law, we have based our opinion solely upon our 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 900,000 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 receipt of the
consideration therefor in accordance with the provisions of the Plans, will be
validly issued, fully paid and nonassessable. 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
/s/ Gray Cary Ware & Freidenrich LLP
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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 reports dated March 1, 2000
included in Invitrogen Corporation's Form 10-K for the year ended December 31,
1999 and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
/s/ Arthur Andersen LLP
San Diego, California
May 9, 2000
