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As filed with the Securities and Exchange Commission on November 10, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Genentech, Inc.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 94-2345624
(State of Incorporation) (I.R.S. Employer Identification No.
</TABLE>
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1 DNA Way
South San Francisco, California 94080-4990
(Address of principal executive offices) (Zip Code)
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1999 Stock Plan
1991 Employee Stock Plan
(Full titles of the plans)
Stephen G. Juelsgaard, Esq.
Senior Vice President, General Counsel and Secretary
Genentech, Inc.
1 DNA Way
South San Francisco, California 94080-4990
(Name and address of agent for service)
(650) 225-1000
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Offering Aggregate Amount of
to be Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee
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<S> <C> <C> <C> <C>
Common stock, par value 11,000,000 shares $77.0625 $847,687,500 $235,657.13
$.02 per share
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</TABLE>
(1) The Proposed Maximum Offering Price Per Share was estimated pursuant to
Rules 457(c) and 457(h) promulgated under the Securities Act of 1933, as
amended. Pursuant to Rule 457(h), in the case of an employee stock option plan,
the aggregate offering price is to be computed upon the basis of the price at
which the options may be exercised, or, if such price is not known, upon the
basis of the average of the high and low reported prices pursuant to Rule
457(c). Since the exercise price for the options under the 1999 Stock Plan and
the 1991 Employee Stock Plan covering the Shares is not known, the exercise
price was calculated in accordance with Rule 457(c) with reference to the high
and low prices of November 5, 1999 reported on the New York Stock Exchange of
$75.625 and $78.50, respectively, the average of which is $77.0625. The Proposed
Maximum Offering Price Per Share represents this average.
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PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3: Incorporation of Documents by Reference
In this Registration Statement, "Genentech," "we," "us" and "our" refer
to Genentech, Inc. The Securities and Exchange Commission, or SEC, allows us to
"incorporate by reference" the information we file with it, which means we can
disclose important information by referring to those documents. The information
included in the following documents is incorporated by reference and is
considered to be a part of this Registration Statement. The most recent
information that we file with the SEC automatically updates and supersedes more
dated information. We have previously filed the following documents with the SEC
and incorporate them by reference into this Registration Statement:
(a) Our annual report on Form 10-K for the year ended December 31, 1998;
(b) Our quarterly reports on Form 10-Q for the quarters ended March 31,
1999, June 30, 1999 and September 30, 1999;
(c) Our current report on Form 8-K dated June 28, 1999;
(d) Our current report on Form 8-K dated July 28, 1999;
(e) The description under the heading "Description of Capital Stock"
relating to our common stock in the prospectus included in our Amendment No. 2
to the Registration Statement on Form S-3 (Registration No. 333-88651) filed
with the SEC on October 20, 1999, and the description under the heading
"Description of Capital Stock" relating to the common stock in the our final
prospectus filed with the SEC on October 21, 1999 pursuant to Rule 424(b) under
the Securities Act of 1933, as amended, which is commonly known as the
Securities Act, including any amendment or report filed for the purpose of
updating that description; and
(f) Our current report on Form 8-K dated November 3, 1999.
We also incorporate by reference all documents subsequently filed by us
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended, which is commonly known as the Exchange Act, until all of the
shares registered under this Registration Statement are sold.
We will provide without charge to each person to whom a prospectus is
delivered, including any beneficial owner, a copy of any or all of the
information that has been incorporated by reference in this Registration
Statement. If you would like to obtain this information from us, please direct
your request to the Investor Relations Department, either in writing or by
telephone, to Genentech, Inc., 1 DNA Way, South San Francisco, California 94080,
Attention Investor Relations (650) 225-1260.
Item 4: Description of Securities
We have incorporated by reference the description under the heading
"Description of Capital Stock" relating to our common stock in the prospectus
included in our Amendment No. 2 to the Registration Statement on Form S-3
(Registration No. 333-88651) filed with the SEC on October 20, 1999, and the
description under the heading "Description of Capital Stock" relating to the
common stock in the our final prospectus filed with the SEC on October 21, 1999
pursuant to Rule 424(b) under the Securities Act, including any amendment or
report filed for the purpose of updating that description.
Item 5: Interests of Named Experts and Counsel
Stephen G. Juelsgaard, Senior Vice President, General Counsel and Secretary
of Genentech, is an officer of Genentech and has received options under our 1999
Stock Plan and our 1991 Employee Stock Plan.
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Item 6: Indemnification of Directors and Officers
Our certificate of incorporation limits, to the fullest extent permitted
by Delaware corporate law, the personal liability of directors for monetary
damages for breach of their fiduciary duties.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides, in summary, that directors and officers of Delaware
corporations are entitled, under certain circumstances, to be indemnified
against all expenses and liabilities (including attorneys' fees) incurred by
them as a result of suits brought against them in their capacity as a director
or officer, if 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 or proceeding, if they had no reasonable cause to
believe their conduct was unlawful; provided, that no indemnification may be
made against expenses in respect of any claim, issue or matter as to which they
shall have been adjudged to be liable to the corporation, unless and only to the
extent that the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, they are fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper. Any such
indemnification may be made by the corporation only as authorized in each
specific case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable standard of conduct.
Our board of directors may provide similar indemnification to our
officers, employees and agents as it deems appropriate and as authorized by
Delaware law. We may purchase insurance on behalf of any director, officer,
employee or agent against any expense incurred by such person in his or her
capacity.
Our certificate of incorporation also provides that Roche and the officers
or directors of Roche Holdings, Inc., or Roche, which is our majority
stockholder, will not be presumed liable to us or our stockholders for breach of
any fiduciary duty or duty of loyalty, failure to act in the best interests of
Genentech, or receipt of any improper personal benefit, simply because Roche or
any director or officer of Roche, in good faith, takes any action, exercises any
right or gives or withholds any consent with respect to any agreement or
contract between Roche and Genentech.
In addition, Roche will not be liable to us or our stockholders for
breach of any fiduciary duty if Roche pursues or acquires a potential corporate
opportunity of ours or does not inform us of a potential corporate opportunity.
If a director, officer or employee of Genentech who is also a director, officer
or employee of Roche knows of a potential transaction or matter that may be a
corporate opportunity both for Genentech and Roche, the director, officer or
employee is entitled to offer the corporate opportunity to us or Roche as the
director, officer or employee deems appropriate under the circumstances in his
or her sole discretion, and no such director, officer or employee will be liable
to us or our stockholders for breach of any fiduciary duty or duty of loyalty or
failure to act in our best interests or the derivation of any improper personal
benefit by reason of the fact that such director, officer or employee offered
such corporate opportunity to Roche (rather than to us) or did not communicate
information regarding such corporate opportunity to us, or Roche pursues or
acquires such corporate opportunity for itself or directs such corporate
opportunity to another person or does not communicate the corporate opportunity
to us.
Neither Roche nor any officer or director thereof shall be liable to us or
our stockholders for breach of any fiduciary duty or duty of loyalty or failure
to act in (or not opposed to) our best interests or the derivation of any
improper personal benefit by reason of the fact that Roche or an officer of
director thereof in good faith takes any action or exercises any rights or gives
or withholds any consent in connection with any agreement or contract between
Roche and Genentech. No vote cast or other action taken by any person who is an
officer, director or other representative of Roche, which vote is cast or action
is taken by such person in his capacity as a director of Genentech, shall
constitute an action of or the exercise of a right by or a consent of Roche for
the purpose of any such agreement or contract.
Item 7: Exemption from Registration Claimed
Not applicable.
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Item 8: Exhibits
<TABLE>
<CAPTION>
Exhibit
Number
<S> <C>
5 Opinion of Stephen G. Juelsgaard, Esq.
15.1 Letter re: Unaudited Interim Financial Information.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Stephen G. Juelsgaard, Esq. is contained in Exhibit 5
to this Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 1999 Stock Plan. (*)
99.2 1991 Employee Stock Plan. (**)
</TABLE>
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(*) Previously filed as Exhibit 99.1 to our Registration Statement on
Form S-8 (Registration No. 333-83989) filed with the Securities and
Exchange Commission on July 29, 1999.
(**) Previously filed as Exhibit 99.2 to our Post-Effective Amendment
No. 1 to our Registration Statement on Form S-8 (Registration
No. 333-83989) filed with the Securities and Exchange Commission
on November 2, 1999.
Item 9: 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 SEC pursuant to Rule 424(b) 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.
(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
4
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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 SEC 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, as amended, the
undersigned 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, State of California, on
November 10, 1999.
GENENTECH, INC.
By: /s/ STEPHEN G. JUELSGAARD
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Name: Stephen G. Juelsgaard
Title: Senior Vice President,
General Counsel and Secretary
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stephen G. Juelsgaard and Cynthia J.
Ladd, 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) 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.
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/ ARTHUR D. LEVINSON Principal Executive Officer and Director November 10, 1999
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Arthur D. Levinson
/s/ LOUIS J. LAVIGNE, JR. Principal Financial Officer November 10, 1999
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Louis J. Lavigne, Jr.
/s/ JOHN M. WHITING Principal Accounting Officer November 10, 1999
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John M. Whiting
/s/ HERBERT W. BOYER Director November 10, 1999
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Herbert W. Boyer
Director
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Franz B. Humer
Director
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Jonathan K.C. Knowles
/s/ CHARLES A. SANDERS Director November 10, 1999
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Charles A. Sanders
/s/ MARK RICHMOND Director November 10, 1999
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Mark Richmond
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
5 Opinion of Stephen G. Juelsgaard, Esq.
15.1 Letter re: Unaudited Interim Financial Information.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Stephen G. Juelsgaard, Esq. is contained in Exhibit 5
to this Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 1999 Stock Plan. (*)
99.2 1991 Employee Stock Plan. (**)
</TABLE>
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(*) Previously filed as Exhibit 99.1 to our Registration Statement on Form
S-8 (Registration No. 333-83989) filed with the Securities and
Exchange Commission on July 29, 1999.
(**) Previously filed as Exhibit 99.2 to our Post-Effective Amendment No. 1
to our Registration Statement on Form S-8 (Registration No. 333-83989)
filed in the Securities and Exchange Commission on November 2, 1999.
8
<PAGE> 1
EXHIBIT 5
Genentech, Inc.
1 DNA Way
South San Francisco, California 94080
November 8, 1999
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary of Genentech, Inc.
(the "Company"). In connection with this opinion, I have examined the following
documents:
o the Company's Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission
covering the offering of 11,000,000 shares of the Company's Common
Stock, par value $.02 per share (the "Shares"), pursuant to the
Company's 1999 Stock Plan and 1991 Employee Stock Plan (the "Plans")
and the related Prospectuses;
o the Company's Amended and Restated Certificate of Incorporation and
Bylaws; and
o such other documents, records, certificates, memoranda and other
instruments as I deem necessary as a basis for this opinion.
I have assumed the genuineness and authenticity of all documents submitted to me
as originals, the conformity to originals of all documents submitted to me as
copies thereof, and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, I am of the opinion that
the Shares, when sold and issued in accordance with the Registration Statement
and either of the Plans and the related Prospectus, will be validly issued,
fully paid, and nonassessable (except as to shares issued pursuant to certain
deferred payment arrangements, which will be fully paid and nonassessable when
such deferred payments are made in full).
I am admitted to practice only in the State of California. The opinions set
forth herein are limited to matters of the General Corporation Law of the state
of Delaware and the federal securities laws of the United States.
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ STEPHEN G. JUELSGAARD
Stephen G. Juelsgaard
Senior Vice President,
General Counsel and Secretary
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EXHIBIT 15.1
November 5, 1999
The Board of Directors and Stockholders
Genentech, Inc.
We are aware of the incorporation by reference in the Registration Statement
(Form S-8) of Genentech, Inc. pertaining to the 1999 Stock Plan and the 1991
Employee Stock Plan of Genentech, Inc. of our reports dated April 9, 1999, July
9, 1999 and October 7, 1999 relating to the unaudited condensed consolidated
interim financial statements of Genentech, Inc. that are included in its Forms
10-Q for the quarters ended March 31, 1999, June 30, 1999 and September 30,
1999.
Pursuant to Rule 436(c) of the Securities Act of 1933 our report is not a part
the registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
Very truly yours,
/s/ ERNST & YOUNG LLP
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1999 Stock Plan and 1991 Employee Stock Plan of
Genentech, Inc. of our reports dated January 20, 1999, with respect to the
consolidated financial statements and schedule of Genentech, Inc. included and
incorporated by reference in its Annual Report on Form 10-K for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
San Jose, California
November 5, 1999
/s/ ERNST & YOUNG LLP
