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As filed with the Securities and Exchange Commission on August 4, 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
VIROLOGIC, INC.
(Exact name of registrant as specified in its charter)
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Delaware 94-3234479
(State of Incorporation) (I.R.S. Employer Identification No.)
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270 East Grand Avenue
South San Francisco, CA 94080
(650) 635-1100
(Address of principal executive offices)
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2000 EQUITY INCENTIVE PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
William D. Young
Chief Executive Officer
ViroLogic, Inc.
270 East Grand Avenue
South San Francisco, CA 94080
(650) 635-1100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Frederick T. Muto, Esq.
Christopher J. Kearns, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(858) 550-6000
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered (1) Price per Share (2) Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share 4,231,501 shares $11.44 $48,418,207.00 $12,783.00
=============================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which shall become issuable under the 2000 Equity Incentive
Plan and the 2000 Employee Stock Purchase Plan 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.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The offering price per share
and aggregate offering price are derived from (a) the actual exercise
price for shares subject to outstanding stock options previously granted
under the Registrant's 2000 Equity Incentive Plan and (b) the average of
the high and low prices of Registrant's Common Stock on August 2, 2000
as reported on the Nasdaq National Market for the shares not yet subject
to currently outstanding options under the 2000 Equity Incentive Plan
and for shares issuable pursuant to the 2000 Employee Stock Purchase
Plan.
<TABLE>
<CAPTION>
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OFFERING PRICE PER AGGREGATE OFFERING
TYPE OF SHARES NUMBER OF SHARES SHARE PRICE
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<S> <C> <C> <C>
Common Stock issuable pursuant to 5,000 $0.32 $1,600.00
outstanding options under the 2000
Equity Incentive Plan
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Common Stock issuable pursuant to 25,915 $0.64 $16,585.60
outstanding options under the 2000
Equity Incentive Plan
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Common Stock issuable pursuant to 5,000 $0.80 $4,000.00
outstanding options under the 2000
Equity Incentive Plan
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Common Stock issuable pursuant to 827,050 $3.14 $2,596,937.00
outstanding options under the 2000
Equity Incentive Plan
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Common Stock issuable pursuant to 90,220 $3.20 $288,704.00
outstanding options under the 2000
Equity Incentive Plan
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Common Stock issuable pursuant to 224,477 $3.70 $830,564.90
outstanding options under the 2000
Equity Incentive Plan
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Common Stock issuable pursuant to 174,888 $5.40 $944,395.20
outstanding options under the 2000
Equity Incentive Plan
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Common Stock issuable pursuant to 86,600 $7.00 $606,200.00
outstanding options under the 2000
Equity Incentive Plan
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Common Stock issuable pursuant to 109,750 $9.53 $1,045,917.50
outstanding options under the 2000
Equity Incentive Plan
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Common Stock issuable pursuant to 2,182,601 $15.6875 $34,239,553.19
options available for grant under the
2000 Equity Incentive Plan
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Common Stock issuable pursuant to the 500,000 $15.6875 $7,843,750.00
2000 Employee Stock Purchase Plan
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</TABLE>
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by VIROLOGIC, INC. (the "Registrant" or
the "Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The prospectus contained in the Form S-1 Registration Statement (No.
333-30896) filed by ViroLogic, Inc. with the Securities and Exchange Commission
(the "Commission") on February 22, 2000, as amended through the date hereof (the
"Form S-1").
(b) The Company's latest quarterly report on Form 10-Q, as amended,
filed with the Commission on June 15, 2000.
All reports and other documents filed by the Company pursuant to
Sections 12(g), 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
have been sold or which 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.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Cooley Godward LLP, San Diego, California.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's certificate of incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. In addition, the
Company's bylaws require it to indemnify its directors and executive officers,
and allow it to indemnify its other employees and agents, to the fullest extent
permitted by law. It has also entered into agreements to identify some of its
directors and executive officers. The Company believes that these provisions and
agreements are necessary to attract and retain qualified directors and executive
officers. At present, there is no pending litigation or proceeding involving any
director, executive officer, employee or agent where indemnification will be
required or permitted. The Company is not aware of any threatened litigation or
proceeding that might result in a claim for such indemnification. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, executive officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed 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.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
1.
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EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4.1* Amended and Restated Certificate of Incorporation
4.2* Bylaws
4.3* Specimen Stock Certificate
4.4* 2000 Equity Incentive Plan.
4.5* Form of Stock Option Agreement under the 2000 Equity Incentive Plan
for options granted prior to the effectiveness of the Registration
Statement on Form S-1 (No. 333-30896) originally filed on February
22, 2000, as amended through the date hereof.
4.6* Form of Stock Option Agreement pursuant to the 2000 Equity
Incentive Plan for options granted after the effectiveness of the
Registration Statement on Form S-1 (No. 333-30896) originally filed
on February 22, 2000, as amended through the date hereof.
4.7 2000 Employee Stock Purchase Plan and related offering documents.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages.
</TABLE>
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* Filed as an exhibit to Registration Statement on Form S-1 (No.
333-30896) originally filed on February 22, 2000, as amended
through the date hereof, and incorporated herein by reference.
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) (Section 230.424(b) of this
chapter) 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.
2.
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(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 by the issuer pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference herein.
(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 herein, 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 which 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 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.
3.
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SIGNATURES
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 South San Francisco, County of San Mateo, State
of California, on July 31, 2000.
VIROLOGIC, INC.
By: /s/ William D. Young
----------------------------------
William D. Young
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William D. Young and Martin H. Goldstein,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments, exhibits thereto and other documents in
connection therewith) 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 said attorneys-in-fact and
agents, and each 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 might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
4.
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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/ William D. Young Chief Executive Officer and July 31, 2000
------------------------------------ Chairman
William D. Young (Principal Executive Officer;
Principal Financial and
Accounting Officer)
/s/ Martin H. Goldstein President and Director July 31, 2000
------------------------------------
Martin H. Goldstein
/s/ Richard M. Beleson Director July 31, 2000
------------------------------------
Richard M. Beleson
/s/ Anders Hove Director July 31, 2000
------------------------------------
Anders Hove
/s/ Cristina Kepner Director July 31, 2000
------------------------------------
Cristina Kepner
/s/ Albert L. Zesiger Director July 31, 2000
------------------------------------
Albert L. Zesiger
</TABLE>
5.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
4.1* Amended and Restated Certificate of Incorporation
4.2* Bylaws
4.3* Specimen Stock Certificate
4.4* 2000 Equity Incentive Plan.
4.5* Form of Stock Option Agreement under the 2000 Equity Incentive Plan
for options granted prior to the effectiveness of the Registration
Statement on Form S-1 (No. 333-30896) originally filed on February
22, 2000, as amended through the date hereof.
4.6* Form of Stock Option Agreement pursuant to the 2000 Equity Incentive
Plan for options granted after the effectiveness of the Registration
Statement on Form S-1 (No. 333-30896) originally filed on February
22, 2000, as amended through the date hereof.
4.7 2000 Employee Stock Purchase Plan and related offering documents.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages.
</TABLE>
* Filed as an exhibit to Registration Statement on Form S-1 (No.
333-30896) originally filed on February 22, 2000, as amended through
the date hereof, and incorporated herein by reference.
