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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GENOMICA CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation or Organization)
23-2821818
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(I.R.S. Employer Identification No.)
1745 38th Street, Boulder, Colorado 80301
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(Address of Principal Executive Offices) (Zip Code)
2000 Equity Incentive Plan
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(Full Title of the Plan)
Teresa W. Ayers
Chief Executive Officer
Genomica Corporation
1745 38th Street
Boulder, Colorado 80301
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(Name and Address of Agent for Service)
(720) 565-4500
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(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Wendy W. Tuey, Esq.
Cooley Godward LLP
2595 Canyon Boulevard, Suite 250
Boulder, Colorado 80302
(303) 546-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share (1) Price Registration Fee
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<S> <C> <C> <C> <C>
Stock Awards and 4,005,310 $5.9257 $23,734,173.10 $6,265.82
Common Stock (par
value $.001 per share)
==================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and (h)(1) based upon (i)
$2.0239, the weighted average of the exercise prices (ranging from $0.18 to
$19.44) of 2,061,212 stock options currently outstanding under the 2000
Equity Incentive Plan, and (ii) $10.0625, the average of the high and low
prices of our common stock on November 17, 2000, as reported on the Nasdaq
National Market. The following chart illustrates our calculation of the
registration fee:
<TABLE>
<CAPTION>
===================================================================================================================================
Type of Securities Amount Offering Price Per Share Aggregate Offering Price
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<S> <C> <C> <C>
Shares issuable pursuant to stock 2,061,212 $ 2.0239 $ 4,171,686.97
options currently outstanding under
the 2000 Equity Incentive Plan
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Shares issuable pursuant to stock 1,944,098 $10.0625 $19,562,486.13
awards available for grant under
the 2000 Equity Incentive Plan
===================================================================================================================================
</TABLE>
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by us with the Securities and Exchange
Commission are incorporated by reference into this Registration Statement:
(a) The Prospectus dated September 28, 2000 (Registration No. 333-32472).
(b) The Form 10-Q for the quarterly period ended September 30, 2000.
(c) The description of our common stock contained in our Registration
Statement on Form 8-A.
(d) All documents hereafter filed by us pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all of the securities offered hereby have been sold or which deregisters all
such securities then remaining unsold.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein or contained in this Registration Statement
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.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
An investment partnership affiliated with Cooley Godward LLP, counsel for
the Registrant, owns 28,494 shares of Common Stock of the Registrant.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the General Corporation Law of Delaware (the
"Delaware Law"), we have broad powers to indemnify our directors and officers
against liabilities they may incur in such capacities, including liabilities
under the Securities Act of 1933, as amended (the "Securities Act").
Our certificate of incorporation and bylaws include provisions to (i)
eliminate the personal liability of our directors for monetary damages resulting
from breaches of their fiduciary duty to the extent permitted by Section
102(b)(7) of the Delaware Law and (ii) require us to indemnify our directors and
officers to the fullest extent permitted by Section 145 of the Delaware Law,
including circumstances in which indemnification is otherwise discretionary.
Pursuant to Section 145 of the Delaware Law, a corporation generally has the
power to indemnify its present and former directors, officers, employees and
agents against expenses incurred by them in connection with any suit to which
they are, or are threatened to be made, a party by reason of their serving in
such positions so long as they acted in good faith and in a manner they
reasonably believed to be in or not opposed to, the best interests of the
corporation and, with respect to any criminal action, had no reasonable cause to
believe their conduct was unlawful. We believe that these provisions are
necessary to attract and retain qualified persons as directors and officers.
These provisions do not eliminate the directors' duty of care, and, in
appropriate circumstances, equitable
1.
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remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware Law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to us, for
acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for acts or omissions that the director believes to
be contrary to our best interests or the best interests of our stockholders, for
any transaction from which the director derived an improper personal benefit,
for acts or omissions involving a reckless disregard for the director's duty to
us or our stockholders when the director was aware or should have been aware of
a risk of serious injury to us or our stockholders, for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the director's duty to us or our stockholders, for improper transactions between
the director and us and for improper distributions to stockholders and loans to
directors and officers. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities law or
state or federal environmental laws.
We have entered into indemnity agreements with our directors and executive
officers that require us to indemnify such persons against expenses, judgments,
fines, settlements and other amounts incurred (including expenses of a
derivative action) in connection with any proceeding, whether actual or
threatened, to which any such person may be made a party by reason of the fact
that such person is or was one of our directors or executive officers or any of
our affiliated enterprises, provided that such person acted in good faith and in
a manner such person reasonably believed to be in or not opposed to our best
interests and, with respect to any criminal proceeding, had no reasonable cause
to believe his conduct was unlawful. The indemnification agreements also set
forth certain procedures that will apply in the event of a claim for
indemnification thereunder.
We have an insurance policy covering our officers and directors with
respect to certain liabilities, including liabilities arising under the
Securities Act or otherwise.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
Exhibit Number Description
-------------- -----------
4.1 2000 Equity Incentive Plan (incorporated by reference to
Exhibit 10.20 to our Registration Statement on Form S-1
(Registration No. 333-32472)).
4.2 Forms of Grant Notice and Stock Option Agreement under
the 2000 Equity Incentive Plan (incorporated by
reference to Exhibit 10.22 to our Registration Statement
on Form S-1 (Registration No. 333-32472)).
4.3 Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.3 to our Registration Statement
on Form S-1 (Registration No. 333-32472)).
4.4 Amended and Restated Bylaws (incorporated by reference
to Exhibit 3.4 to our Registration Statement on Form S-1
(Registration No. 333-32472)).
4.5 Specimen stock certificate (incorporated by reference to
Exhibit 4.2 to our Registration Statement on Form S-1
(Registration No. 333-32472)).
2.
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5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24 Power of Attorney (included on Pages 5 and 6).
UNDERTAKINGS
1. The 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;
(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 with or furnished to the
Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(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 therein, 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 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant, 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
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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.
4.
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SIGNATURES
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 Boulder, State of Colorado, on the 21st day of
November, 2000.
GENOMICA CORPORATION
By: /s/ Daniel R. Hudspeth
------------------------
Daniel R. Hudspeth
Chief Financial Officer and Vice President of
Finance
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Teresa W. Ayers and Daniel R. Hudspeth,
and each of them, as his true and lawful attorneys-in-fact and agents, 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) to this Registration Statement, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents 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.
Pursuant to the requirements of the Securities Act, 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/ James L. Rathmann Chairman of the Board of Directors November 21, 2000
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James L. Rathmann
/s/ Teresa W. Ayers Chief Executive Officer and Director November 21, 2000
------------------------------------- (Principal Executive Officer)
Teresa W. Ayers
/s/ Thomas G. Marr President, Chief Scientist and Director November 21, 2000
-------------------------------------
Thomas G. Marr
/s/ Daniel R. Hudspeth Chief Financial Officer, Vice November 21, 2000
------------------------------------- President of Finance, Treasurer and
Daniel R. Hudspeth Secretary (Principal Financial and
Accounting Officer)
_____________________________________ Director ___________, 2000
Marvin H. Caruthers
</TABLE>
5.
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Ralph E. Christoffersen Director November 21, 2000
-------------------------------------
Ralph E. Christoffersen
_________________________ Director ___________, 2000
Arnold J. Levine
_________________________ Director ___________, 2000
Robert T. Nelsen
</TABLE>
6.
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EXHIBIT INDEX
4.1 2000 Equity Incentive Plan (incorporated by reference to Exhibit
10.20 to our Registration Statement on Form S-1 (Registration No.
333-32472)).
4.2 Forms of Grant Notice and Stock Option Agreement under the 2000
Equity Incentive Plan (incorporated by reference to Exhibit 10.22
to our Registration Statement on Form S-1 (Registration No. 333-
32472)).
4.3 Restated Certificate of Incorporation (incorporated by reference to
Exhibit 3.3 to our Registration Statement on Form S-1 (Registration
No. 333-32472)).
4.4 Amended and Restated Bylaws (incorporated by reference to Exhibit
3.4 to our Registration Statement on Form S-1 (Registration No.
333-32472)).
4.5 Specimen stock certificate (incorporated by reference to Exhibit
4.2 to our Registration Statement on Form S-1 (Registration No.
333-32472)).
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24 Power of Attorney (included on Pages 5 and 6).
