<PAGE>
As filed with the Securities and Exchange Commission on January 16, 2001
Registration No. 333-47030
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------
XENOGEN CORPORATION
(Exact name of Registrant as specified in its charter)
--------------
<TABLE>
<S> <C> <C>
Delaware 8731 77-0412269
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
Xenogen Corporation
860 Atlantic Avenue
Alameda, California 94501
(510) 291-6100
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
--------------
David W. Carter
Pamela Reilly Contag, Ph.D.
Chief Executive Officers
Xenogen Corporation
860 Atlantic Avenue
Alameda, California 94501
(510) 291-6100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------
Copies to:
<TABLE>
<S> <C>
Karen A. Dempsey, Esq. Donald J. Murray, Esq.
William A. Hines, Esq. Dewey Ballantine LLP
Wilson Sonsini Goodrich & Rosati, 1301 Avenue of the Americas
Professional Corporation New York, New York 10019-6092
One Market (212) 259-8000
Spear Street Tower, Suite 3300
San Francisco, California 94105
(415) 947-2000
</TABLE>
--------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
--------------
CALCULATION OF REGISTRATION FEE
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Maximum
Title of Each Class of Proposed Maximum Aggregate Amount of
Securities Amount to be Offering Price Offering Registration
to be Registered Registered Per Share (1) Price (1) Fee (2)
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par
value................. 8,050,000 shares $12.00 $96,600,000 $25,358
------------------------------------------------------------------------------------------
</TABLE>
-------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(a) under the Securities Act of 1933.
(2) Previously paid.
--------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
<PAGE>
This amendment incorporates by reference Amendment No. 1 to Form S-1,
Registration No. 333-47030. This amendment is being filed solely to refile
Exhibit 2.1, Agreement and Plan of Reorganization relating to the acquisition
of DNX dated September 28, 2000, and Exhibit 10.18, Sponsored Research
Agreement between Xenogen Biosciences and Pfizer Inc., dated as of December 28,
2000.
Part II
Information not required in prospectus
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth all fees and expenses payable by Xenogen in
connection with the registration of the common stock hereunder. All of the
amounts shown are estimates except for the SEC registration fee, the NASD
filing fee and the Nasdaq National Market listing fee.
<TABLE>
<CAPTION>
Amount
To Be Paid
--------------------------------------------------------------------------------
<S> <C>
SEC registration fee................................................ $ 25,358
NASD filing fee..................................................... 10,160
Nasdaq National Market listing fee.................................. 95,000
Printing and engraving expenses..................................... 300,000
Legal fees and expenses............................................. 500,000
Accounting fees and expenses........................................ 500,000
Transfer agent and registrar fees and expenses...................... 100,000
Blue sky fees and expenses.......................................... 5,000
Miscellaneous expenses.............................................. 274,482
----------
Total............................................................. $1,800,000
==========
</TABLE>
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits a corporation to
include in its charter documents, and in agreements between the corporation and
its directors and officers, provisions expanding the scope of indemnification
beyond that specifically provided by the current law.
Article IX of our Restated Certificate of Incorporation provides for the
indemnification of directors to the fullest extent permissible under Delaware
law.
Article VI of our Bylaws provides for the indemnification of officers,
directors and third parties acting on our behalf if such person acted in good
faith and in a manner reasonably believed to be in and not opposed to our best
interest, and, with respect to any criminal action or proceeding, the
indemnified party had no reason to believe his or her conduct was unlawful.
We intend to enter into indemnification agreements with our directors and
executive officers, in addition to indemnification provided for in our Bylaws,
and intend to enter into indemnification agreements with any new directors and
executive officers in the future.
The Underwriting Agreement (Exhibit 1.1 hereto) provides for indemnification by
the Underwriters of our company and our executive officers and directors, and
by us of the underwriters for certain liabilities, including liabilities
arising under the Securities Act, in connection with matters specifically
provided in writing by the Underwriters for inclusion in the Registration
Statement.
--------------------------------------------------------------------------------
II-1
<PAGE>
We intend to purchase and maintain insurance on behalf of any person who is or
was a director or officer against any loss arising from any claim asserted
against him or her and incurred by him or her in any such capacity, subject to
certain exclusions.
Item 15. Recent Sales of Unregistered Securities
(a) Within the last three years, and through September 30, 2000, we have issued
and sold the following unregistered securities:
Common Stock
(1) Since our inception in August 1995, we have granted options to purchase
2,553,868 shares of common stock to employees, directors and
consultants under our 1996 stock plan at exercise prices ranging from
$0.068 to $2.74 per share. Of the 2,553,868 shares granted, 1,826,170
remain outstanding, 566,770 shares of common stock have been purchased
pursuant to exercises of stock options and 160,928 shares have been
canceled and returned to the 1996 Stock Plan. Each transaction pursuant
to our 1996 stock plan was exempt from registration requirements in
reliance on Rule 701 under Section 3(b) of the Securities Act.
(2) In July 1997, we sold 292,000 shares of restricted common stock at a
price of $0.068 per share to David W. Carter. This transaction was
exempt from registration in reliance on Section 4(2) of the Securities
Act.
(3) In January 1998, we sold an aggregate of 620,500 shares of restricted
common stock at a price of $0.178 per share to David W. Carter and
Pamela R. Contag, Ph.D. These transactions were exempt from
registration in reliance on Section 4(2) of the Securities Act.
The sales of the above securities were deemed to be exempt from registration in
reliance on Rule 701 promulgated under Section 3(b) under the Securities Act as
transactions pursuant to a compensatory benefit plan or a written contract
relating to compensation in the case of (1), and Section 4(2) of the Securities
Act in the case of (2) and (3) as transactions by an issuer not involving any
public offering. All recipients were either accredited or sophisticated
investors, as those terms are defined under the Securities Act. The recipients
of securities in each such transaction were located through nonpublic means.
Each recipient represented his or her intention to acquire the securities for
investment only and not with a view to or for sale in connection with any
distribution thereof and appropriate legends were affixed to the share
certificates and other instruments issued in such transactions. We determined
that each such recipient had enough knowledge and experience in finance and
business matters to evaluate the risks and merits of the investment or was able
to bear the investment's economic risk based on written information from each
recipient. In addition, based on information provided by us to the recipients
in each transaction we determined that all recipients had either adequate
information about us or had access through employment or other relationships,
to such information.
Preferred Stock
(1) In August 1996, we sold an aggregate of 60,606 shares of Series A
preferred stock at a price of $0.33 per share to Robert D. Brownell,
Albert P. Halluin, Pennie & Edmonds Ventures, and WS Investment Company
95B. These transactions were exempt from registration in reliance on
Regulation D under the Securities Act.
(2) Between April and August 1996, we sold an aggregate of 200,000 shares
of Series B preferred stock at a price of $.50 per share to Michael and
Terri Fayer, Mark and Penny
--------------------------------------------------------------------------------
II-2
<PAGE>
Kermit, Timothy MacHold, State Bank and Trust Company Trust, Eng C.
Ong, Plan A, H. Alan and Judith L. Schwettman and the Smith Family
Trust. These transactions were exempt from registration in reliance on
Regulation D under the Securities Act.
(3) In January 1998, we sold an aggregate of 5,041,539 shares of Series C
preferred stock at a price of $1.30 per share to ten accredited
investors, including Brentwood Affiliates Fund, Brentwood Associates
VIII, L.P., David W. Carter, Delphi BioInvestments IV, L.P., Delphi
Ventures IV, L.P., and Harvard Private Capital Holdings, Inc. These
transactions were exempt from registration in reliance on Regulation D
under the Securities Act.
(4) In April 1999, we sold an aggregate of 6,678,791 shares of Series D
preferred stock at a price of $1.65 per share to fourteen accredited
investors, including Brentwood Affiliates Fund, Brentwood Associates
VIII, L.P., Delphi BioInvestments IV, L.P., Delphi Ventures IV, L.P.,
Harvard Private Capital Holdings, Inc., Invemed Fund, L.P., Invemed
Associates LLC, and S.R. One, Ltd. These transactions were exempt from
registration in reliance on Regulation D under the Securities Act.
(5) In May 2000, we sold an aggregate of 7,194,113 shares of Series E
preferred stock at a price of $4.25 per share to thirteen accredited
investors, including Brentwood Associates VIII, L.P., Chevron
Technology Ventures LLC, Delphi BioInvestments IV, L.P., Delphi
Ventures IV., L.P., Harvard Private Capital Holdings, Inc., HSBC
Investment Bank Plc, Invemed Fund, L.P., Lombard Oldier + Cie, and S.R.
One, Ltd. These transactions were exempt from registration in reliance
on Regulation D under the Securities Act.
(6) In November 2000, we issued 3,500,000 shares of Series F preferred
stock to Phoenix International Life Sciences (Chrysalis) Inc. in
connection with the acquisition of DNX. This transaction was exempt
from registration in reliance on Section 4(2) of the Securities Act.
The sales of the above securities were deemed to be exempt from registration in
reliance on Regulation D under the Securities Act in the case of (1), (2), (3),
(4) and (5) and Section 4(2) of the Securities Act in the case of (6)
promulgated thereunder as transactions by an issuer not involving any public
offering. All recipients were either accredited or sophisticated investors, as
those terms are defined under the Securities Act. The recipients of securities
in each such transaction were located through nonpublic means. Each recipient
represented their intention to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution thereof and
appropriate legends were affixed to the share certificates and other
investments issued in such transactions. We determined that each such recipient
had enough knowledge and experience in finance and business matters to evaluate
the risks and merits of the investment or were able to evaluate the
investment's economic risk based on written information from each recipient. In
addition, based on information provided by us to the recipients we determined
that all recipients had either adequate information about us or had access,
through employment or other relationships, to such information.
(b) There were no underwritten offerings employed in connection with any of the
transactions set forth in Item 15(a).
--------------------------------------------------------------------------------
II-3
<PAGE>
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
-------------------------------------------------------------------------------
<C> <S>
1.1** Form of Underwriting Agreement
2.1+ Agreement and Plan of Reorganization relating to the acquisition of
DNX dated September 28, 2000
3.1(i)** Certificate of Incorporation of Xenogen as currently in effect
3.1(ii)** Amended and Restated Certificate of Incorporation of Xenogen to be
effective upon completion of the offering
3.2(i)** Bylaws of Xenogen as currently in effect
3.2(ii)** Bylaws of Xenogen as in effect upon completion of the offering
4.1** Specimen Common Stock Certificate
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
10.1** Amended and Restated Investors' Rights Agreement dated May 15, 2000
10.2** 1996 Stock Plan
10.3** Form of 2000 Stock Incentive Plan
10.4** Form of 2000 Employee Stock Purchase Plan
10.5** Form of Director and Executive Officer Indemnification Agreement
10.6** Agreement between Xenogen and Pamela R. Contag, Ph.D. dated as of
January 21, 1998
10.7** Agreement between Xenogen and David W. Carter dated as of January
21, 1998
10.8(i)** Lease Agreement for 860 Atlantic Avenue, Alameda, California
10.8(ii)** Lease Agreement for 2061 Challenger Drive, Alameda, California
10.9** Stock Subscription Warrant dated August 14, 1998
10.10** Form of Series C Preferred Stock Purchase Warrant dated November
13, 1997
10.11** Common Stock Purchase Warrant dated April 28, 2000
10.12**+ License Agreement between Xenogen and The Board of Trustees of the
Leland Stanford Junior University dated May 5, 2000
10.13** Promissory Notes by David W. Carter dated January 15, 1998
10.14** Promissory Note Secured by Deed of Trust by Pamela R. Contag, Ph.D.
dated September 18, 1998
10.15**+ Commercial License Agreement between Xenogen and IRM, LLC dated
July 12, 2000
10.16**+ License Agreement between Xenogen and Taconic Farms, Inc. dated
January 13, 2000
10.17**+ License Agreement between Ohio University and Embryogen, Inc. dated
June 13, 1985, as amended on July 1, 1991
10.18+ Sponsored Research Agreement between Xenogen Biosciences and Pfizer
Inc. dated as of December 28, 2000
23.1 Consent of Ernst & Young LLP, independent accountants
23.2* Consent of Counsel (included in exhibit 5.1)
24.1** Power of Attorney (See page II-5)
27.1** Financial Data Schedule
</TABLE>
--------
* To be filed by amendment
** Previously filed
+ Confidential treatment has been requested for portions of this exhibit
(b) Financial Statement Schedules
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under
the related instructions or are inapplicable, and therefore have been omitted.
--------------------------------------------------------------------------------
II-4
<PAGE>
Item 17. Undertakings
Insofar as indemnification by Xenogen for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Xenogen, we have 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
Xenogen of expenses incurred or paid by a director, officer or controlling
person of Xenogen in the successful defense of any action, suit or proceeding)
is asserted by a director, officer or controlling person in connection with the
securities being registered, we will, unless in the opinion of our counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by Xenogen
is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
We hereby undertake that:
(a) We will provide to the underwriters at the closing as specified in the
underwriting agreement certificates in such denominations and
registered in such names as required by the underwriters to permit
prompt delivery to each purchaser.
(b) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by Xenogen pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of the
registration statement as of the time it was declared effective.
(c) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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.
--------------------------------------------------------------------------------
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Xenogen
Corporation has duly caused this Amendment No. 3 to the Registration Statement
on Form S-1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Alameda, State of California, on the 16th day of
January, 2001.
Xenogen Corporation
*
By: _________________________________
David W. Carter
Co-Chief Executive Officer and
Chairman of the Board
*
By: _________________________________
Pamela R. Contag, Ph.D.
Co-Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement on Form S-1 has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Co-Chief Executive Officer January 16, 2001
____________________________________ and Chairman of the Board
David W. Carter (Co-Principal Executive
Officer)
* Co-Chief Executive Officer, January 16, 2001
____________________________________ President and Director
Pamela R. Contag, Ph.D. (Co-Principal Executive
Officer)
/s/ Kevin J. Birtchnell Chief Financial Officer January 16, 2001
____________________________________ and Vice President
Kevin J. Birtchnell (Principal Financial and
Accounting Officer)
* Director January 16, 2001
____________________________________
Brian G. Atwood
* Director January 16, 2001
____________________________________
Alan M. Goldberg, Ph.D.
* Director January 16, 2001
____________________________________
Raymond J. Whitaker, Ph.D.
* Director January 16, 2001
____________________________________
Debra Yu, M.D.
</TABLE>
/s/ Kevin J. Birtchnell
By:____________________________
Kevin J. Birtchnell
Attorney-in-Fact
--------------------------------------------------------------------------------
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
-------------------------------------------------------------------------------
<C> <S>
1.1** Form of Underwriting Agreement
2.1+ Agreement and Plan of Reorganization relating to the acquisition of
DNX dated September 28, 2000
3.1(i)** Certificate of Incorporation of Xenogen as currently in effect
3.1(ii)** Amended and Restated Certificate of Incorporation of Xenogen to be
effective upon completion of the offering
3.2(i)** Bylaws of Xenogen as currently in effect
3.2(ii)** Bylaws of Xenogen as in effect upon completion of the offering
4.1** Specimen Common Stock Certificate
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
10.1** Amended and Restated Investors' Rights Agreement dated May 15, 2000
10.2** 1996 Stock Plan
10.3** Form of 2000 Stock Incentive Plan
10.4** Form of 2000 Employee Stock Purchase Plan
10.5** Form of Director and Executive Officer Indemnification Agreement
10.6** Agreement between Xenogen and Pamela R. Contag, Ph.D. dated as of
January 21, 1998
10.7** Agreement between Xenogen and David W. Carter dated as of January
21, 1998
10.8(i)** Lease Agreement for 860 Atlantic Avenue, Alameda, California
10.8(ii)** Lease Agreement for 2061 Challenger Drive, Alameda, California
10.9** Stock Subscription Warrant dated August 14, 1998
10.10** Form of Series C Preferred Stock Purchase Warrant dated November
13, 1997
10.11** Common Stock Purchase Warrant dated April 28, 2000
10.12**+ License Agreement between Xenogen and The Board of Trustees of the
Leland Stanford Junior University dated May 5, 2000
10.13** Promissory Notes by David W. Carter dated January 15, 1998
10.14** Promissory Note Secured by Deed of Trust by Pamela R. Contag, Ph.D.
dated September 18, 1998
10.15**+ Commercial License Agreement between Xenogen and IRM, LLC dated
July 12, 2000
10.16**+ License Agreement between Xenogen and Taconic Farms, Inc. dated
January 13, 2000
10.17**+ License Agreement between Ohio University and Embryogen, Inc. dated
June 13, 1985, as amended on July 1, 1991
10.18+ Sponsored Research Agreement between Xenogen Biosciences and Pfizer
Inc. dated as of December 28, 2000
23.1 Consent of Ernst & Young LLP, independent accountants
23.2* Consent of Counsel (included in exhibit 5.1)
24.1** Power of Attorney (See page II-5)
27.1** Financial Data Schedule
</TABLE>
--------
* To be filed by amendment
** Previously filed
+ Confidential treatment has been requested for portions of this exhibit
--------------------------------------------------------------------------------
