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As filed with the Securities and Exchange Commission on August 3, 2000
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ROSETTA INPHARMATICS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 91-1770023
(State of incorporation) (I.R.S. Employer Identification No.)
12040 115TH AVENUE N.E.
KIRKLAND, WASHINGTON 98034
(Address of principal executive offices)
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1997 STOCK PLAN
2000 STOCK PLAN
2000 DIRECTORS' STOCK OPTION PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
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STEPHEN H. FRIEND, M.D., PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
12040 115TH AVENUE N.E.
KIRKLAND, WASHINGTON 98034
(425) 820-8900
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
Mark J. Handfelt
Venture Law Group
A Professional Corporation
4750 Carillon Point
Kirkland, Washington 98033
(425) 739-8700
(Calculation of Registration Fee on following page)
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Maximum Proposed Proposed
Offering Maximum Amount of
Title of Securities Maximum Amount to Price Per Aggregate Registration
to be Registered be Registered(1) Share Offering Price Fee
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<S> <C> <C> <C> <C>
1997 STOCK PLAN
Common Stock,
$0.001 par value ............. 2,324,347 Shares $ 3.24 (2) $ 7,530,885 $ 1,988.15
Common Stock,
$0.001 par value ............. 934,557 Shares $14.00 (3) $ 13,083,798 $ 3,454.13
2000 STOCK PLAN
Common Stock,
$0.001 par value ............. 16,086,913 Shares $14.00 (3) $225,216,782 $59,457.23
2000 DIRECTORS' STOCK OPTION PLAN
Common Stock,
$0.001 par value ............. 600,000 Shares $14.00 (3) $ 8,400,000 $ 2,217.60
2000 EMPLOYEE STOCK PURCHASE PLAN
Common Stock,
$0.001 par value ............. 3,850,000 Shares $11.90 (4) $ 45,815,000 $12,095.16
TOTAL ......... 23,795,817 Shares $300,046,465 $79,212.27
</TABLE>
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock. In addition,
this Registration Statement also covers (a) 3,500,000 additional shares of
Common Stock that will become issuable under the 2000 Employee Stock
Purchase Plan pursuant to a provision that provides that the number of
shares authorized under the 2000 Employee Stock Purchase Plan will
automatically increase on the first day of each of the fiscal years
beginning in 2001 and ending in 2010 by 1.4% of the number of shares of
Common Stock outstanding on the last day of the preceding fiscal year, up
to a maximum of 350,000 in any year, or such lower amount as determined by
the Board of Directors, and (b) 10,800,000 additional shares of Common
Stock that will become issuable under the 2000 Stock Plan pursuant to a
provision that provides that the number of shares authorized under the 2000
Stock Plan will automatically increase on the first day of each of the
fiscal years beginning in 2001 and ending in 2009 by 4% of the number of
shares of Common Stock outstanding on the last day of the preceding fiscal
year, up to a maximum of 1,200,000 in any year, or such lower as determined
by the Board of Directors.
(2) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. Computation based on the
weighted average per share exercise price (rounded to nearest
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cent) of outstanding options under the referenced plan, the shares
issuable under which are registered hereby.
(3) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation with
respect to unissued options is based upon the average high and low sale
prices of the Common Stock as reported on the Nasdaq National Market on
August 3, 2000.
(4) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
(the "SECURITIES ACT") solely for the purpose of calculating the
registration fee. The computation is based upon the average of the high
and low sale prices of the Common Stock as reported on The Nasdaq National
Market on August 3, 2000, multiplied by 85%, which is the percentage of
the trading purchase price applicable to purchases under the referenced
Plan.
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") are hereby incorporated by reference:
(a) The Registrant's Prospectus filed on August 3, 2000 pursuant to
Rule 424(b) of the Securities Act, which contains audited financial
statements for the Registrant's latest fiscal year for which such statements
have been filed.
(b) Not Applicable.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission
under Section 12 of the Securities Exchange Act of 1934 (the "EXCHANGE ACT")
on July 11, 2000 including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 in this Registration
Statement and to be part hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation reduces the liability of a
director to the corporation or its shareholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent
permissible under Delaware law. The Bylaws of the Registrant further provide
for indemnification of corporate agents to the maximum extent permitted by
the Delaware General Corporation Law. In addition, the Registrant has entered
into Indemnification Agreements with its officers and directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
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Exhibit
Number
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5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation (included
in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (reference is made to the signature page).
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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 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.
(2) that, for purposes 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 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 the 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 a
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Rosetta Inpharmatics, Inc., a corporation organized and existing under the laws
of the State of Delaware, 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 Kirkland, State of Washington, on this
August 3, 2000.
Rosetta Inpharmatics, Inc.
By: /s/ Stephen H. Friend
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Stephen H. Friend, M.D., Ph.D.
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stephen H. Friend, John J. King, II and
Gregory Sessler, jointly and severally, his or her attorneys-in-fact and agents,
each with the power of substitution and resubstitution, for him or her and in
his or her name, place or stead, in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8, and to file such
amendments, together with exhibits and other documents in connection therewith,
with the Securities and Exchange Commission, granting to each attorney-in-fact
and agent, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully as
he or she might or could do in person, and ratifying and confirming all that the
attorney-in-facts and agents, or his or her substitute or substitutes, may 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
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<S> <C> <C>
/s/ Stephen H. Friend President, Chief Executive Officer and August 3, 2000
-------------------------------- Director (Principal Executive Officer)
Stephen H. Friend, M.D., Ph.D.
/s/ John J. King, II Senior Vice President, Chief Operating August 3, 2000
-------------------------------- Officer and Director
John J. King, II
/s/ Gregory Sessler Senior Vice President, Chief Financial August 3, 2000
-------------------------------- Officer (Principal Financial and
Gregory Sessler Accounting Officer)
/s/ Steven Gillis Director August 3, 2000
--------------------------------
Steven Gillis, Ph.D.
/s/ Bill Buffington Director August 3, 2000
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Bill Buffington
/s/ Ruth Kunath Director August 3, 2000
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Ruth Kunath
/s/ Peter Svenillson Director August 3, 2000
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Peter Svenillson
/s/ Charles P. Waite Director August 3, 2000
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Charles P. Waite
/s/ Harvey S. Sadow Director August 3, 2000
--------------------------------
Harvey S. Sadow, Ph.D.
/s/ William W. Ericson Director August 3, 2000
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William W. Ericson
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number
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5.1 Opinion of Venture Law Group, a Professional Corporation
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (reference is made to the signature page).
