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As filed with the Securities and Exchange Commission on December 6, 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
ARRAY BIOPHARMA INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 84-1460811
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1885 33RD STREET
BOULDER, COLORADO 80301
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(Address of Principal Executive Offices)
AMENDED AND RESTATED ARRAY BIOPHARMA INC. STOCK OPTION AND INCENTIVE PLAN
ARRAY BIOPHARMA INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
ROBERT E. CONWAY
CHIEF EXECUTIVE OFFICER
ARRAY BIOPHARMA INC.
1885 33RD STREET
BOULDER, COLORADO 80301
(303) 381-6600
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Amount of
Title of securities Amount to be maximum offering maximum aggregate registration
to be registered registered price per share offering price fee
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<S> <C> <C> <C> <C>
AMENDED AND RESTATED STOCK
OPTION AND INCENTIVE PLAN
Common stock, par value $.001.... 5,941,463 $0.569 - 8.375 (1) $23,911,206 (1) $6,312
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EMPLOYEE STOCK
PURCHASE PLAN
Common stock, par value $.001..... 800,000 $8.375 (2) $ 6,700,000 (2) $1,769
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TOTAL........................... 6,741,463 $30,611,206 $8,081
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and 457(h) under the Securities Act of 1933, as amended
(the "Securities Act"). The offering price per share and the aggregate offering
price are based upon (a) with respect to shares subject to outstanding options
granted under the Stock Option and Incentive Plan, the weighted average exercise
price for such outstanding options pursuant to Rule 457(h) under the Securities
Act; and (b) with respect to shares available for future grant under the Stock
Option and Incentive Plan, the average high and low prices of the Registrant's
common stock as reported on the Nasdaq National Market on December 4, 2000.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and 457(h) under the Securities Act. The offering price
per share and the aggregate offering price are based upon the average high and
low prices of the Registrant's common stock as reported on the Nasdaq National
Market on December 4, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Array BioPharma Inc. will deliver without charge to each
employee or other individual selected or eligible to participate in the Amended
and Restated Array BioPharma Inc. Stock Option and Incentive Plan and the Array
BioPharma Inc. Employee Stock Purchase Plan the documents containing the
information required by Part I of Form S-8 to be included in this Registration
Statement. In accordance with Rule 428(b)(1) under the Securities Act of 1933,
as amended (the "Securities Act"), and the instructions to Part I of Form S-8,
these documents will not be filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference in Item 3 of
Part II of this Registration Statement constitute the prospectus required by
Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Array
BioPharma Inc. (the "Registrant") with the Commission are hereby incorporated
herein by reference:
(a) The Registrant's prospectus, dated November 17, 2000,
filed with the Commission on November 17, 2000 pursuant to Rule 424(b)
of the Securities Act.
(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 on November 16, 2000, pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, all documents and reports filed by the Registrant
subsequent to the date hereof 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 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 a part hereof from the date
of filing of such documents or reports. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of common stock offered in this
Registration Statement will be passed upon by Hogan & Hartson L.L.P., Boulder,
Colorado. As of the date of this Registration Statement, certain attorneys of
Hogan & Hartson L.L.P. own an aggregate of 62,228 shares of the Registrant's
common stock individually and through investment partnerships.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Bylaws of the Registrant provide for the indemnification
of the Registrant's directors and officers to the fullest extent authorized by,
and subject to the conditions set forth in the Delaware General Corporation Law
(the "DGCL"), except that the Registrant will indemnify a director or officer in
connection with a proceeding (or part thereof) initiated by the person only if
the proceeding (or part thereof) was authorized by the Registrant's Board of
Directors. The indemnification provided under the Bylaws includes the right to
be paid by the Registrant the expenses (including attorneys' fees) for any
proceeding for which indemnification may be had in advance of its final
disposition, provided that the payment of those expenses (including attorneys'
fees) incurred by a director or officer in advance of the final disposition of a
proceeding may be made only upon delivery to the Registrant of an undertaking by
or on behalf of the director or officer to repay all amounts so paid in advance
if it is ultimately determined that the director or officer is not entitled to
be indemnified. Under the Bylaws of the Registrant, if the Registrant does not
pay a claim for indemnification within 60 days after it has received a written
claim, the director or officer may bring an action to recover the unpaid amount
of the claim and, if successful, the director or officer also will be entitled
to be paid the expense of prosecuting the action to recover these unpaid
amounts.
As permitted by the DGCL, the Registrant's Certificate of
Incorporation provides that directors of the Registrant shall not be liable to
the Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Registrant or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, relating to unlawful
payment of dividends or unlawful stock purchase or redemption or (iv) for any
transaction from which the director derived an improper personal benefit. As a
result of this provision, the Registrant and its stockholders may be unable to
obtain monetary damages from a director for breach of his or her duty of care.
Under the Registrant's Bylaws, the Registrant has the power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Registrant, or is or was serving at
the request of the Registrant as a director, officer, employee, partner or agent
of another corporation or of a partnership, joint venture, limited liability
company, trust or other enterprise, against any liability asserted against the
person or incurred by the person in that capacity, or arising out of the
person's fulfilling one of these capacities, and related expenses, whether or
not the Registrant would have the power to indemnify the person against the
claim under the provisions of the DGCL. The Registrant maintains director and
officer liability insurance on behalf of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. UNDERTAKINGS.
(a) 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. 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) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 (as in this case), and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or 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) 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 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.
(c) 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 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
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 Boulder, State of Colorado, on this 6th day of
December, 2000.
ARRAY BIOPHARMA INC.
By /s/ Robert E. Conway
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Robert E. Conway
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Robert E. Conway, Michael
Carruthers and David L. Snitman, jointly and severally, each in his own
capacity, his true and lawful attorneys-in-fact, with full power of
substitution, for him and his name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments) 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,
with full power and authority to do so and perform each and every act and thing
requisite and necessary to be done in and about the premises, 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 of any of them, or his or their
substitute or substitutes, may lawfully 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 indicated below, on this 6th day of December, 2000.
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SIGNATURE TITLE DATE
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/s/ Robert E. Conway Chief Executive Officer and Director December 6, 2000
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Robert E. Conway
/s/ Kyle Lefkoff Chairman of the Board of Directors December 6, 2000
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Kyle Lefkoff
/s/ Michael Carruthers Chief Financial Officer December 6, 2000
--------------------------- (Principal Financial and Accounting Officer)
Michael Carruthers
/s/ Francis J. Bullock Director December 6, 2000
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Francis J. Bullock, Ph.D.
/s/ Marvin H. Caruthers Director December 6, 2000
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Marvin H. Caruthers, Ph.D.
/s/ Kirby L. Cramer Director December 6, 2000
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Kirby L. Cramer
/s/ Kevin Koch Director December 6, 2000
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Kevin Koch, Ph.D.
/s/ Robert W. Overell Director December 6, 2000
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Robert W. Overell, Ph.D.
/s/ David L. Snitman Director December 6, 2000
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David L. Snitman, Ph.D.
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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4.1* Specimen certificate representing the common stock.
5.1 Opinion of Hogan & Hartson L.L.P. with respect to the legality of the common stock registered
hereby.
23.1 Consent of Ernst & Young LLP, Independent Public Accountants, with respect to the Registrant.
23.2 Consent of Hogan & Hartson L.L.P. (contained in its opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page to this Registration Statement).
99.1 Amended and Restated Array BioPharma Inc. Stock Option and Incentive Plan.
99.2 Array BioPharma Inc. Employee Stock Purchase Plan.
99.3 Form of Incentive Stock Option Agreement.
99.4 Form of Nonqualified Stock Option Agreement.
99.5* 1998 Stock Option Plan, as amended.
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* Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(File No. 333-45922), as amended, and incorporated herein by reference.
