<PAGE 1>
SOMATOGEN, INC.
As filed with the Securities and Exchange Commission on November 6, 1996,
Registration No. 333-
============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Somatogen, Inc.
(Exact name of registrant as specified in its charter)
Delaware 84-0991858
(State of Incorporation) (I.R.S. Employer Identification No.)
2545 Central Avenue
Boulder, Colorado 80301
(303) 440-9988
(Address and telephone number of principal executive offices)
Amended and Restated Stock Option Plan
--------------------------------------
(Full title of the plan)
Timothy D. Hoogheem
Senior Vice President of Finance and Administration,
Chief Financial Officer and Treasurer
SOMATOGEN, INC.
2545 Central Avenue
Boulder, Colorado 80301
(303) 440-9988
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
James C.T. Linfield, Esq.
Cooley Godward LLP
2595 Canyon Blvd., Suite 250
Boulder, Colorado 80302
(303) 546-4000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
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SOMATOGEN, INC.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share (1) Price (1) Registration Fee
- ------------------- ------------ ---------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Stock Options and
Common Stock (par
value $.001) 1,000,000 $10.625 $10,625,000 $3,219.38
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering
price are based upon (a) the weighted average exercise price, pursuant
to Rule 457(h) under the Securities Act of 1933, as amended (the "Act"),
for shares subject to options and stock previously granted under the
Registrant's Amended and Restated Stock Option Plan, and (b) the closing
price on the NASDAQ National Market, pursuant to Rule 457(h) of the Act,
of the Registrant's Common Stock on October 31, 1996, for shares subject
to options granted under the Amended and Restated Stock Option Plan. The
following chart illustrates the calculation of the registration fee:
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SOMATOGEN, INC.
<TABLE>
<CAPTION>
Type of Shares Number of Shares Offering Price Per Share Aggregate Offering Price
- -------------- ---------------- ------------------------ ------------------------
<S> <C> <C> <C>
Shares issuable
pursuant to options
outstanding under the
Amended and Restated
Stock Option Plan 258,450 $10.625(a) $2,746,031
Shares issuable upon
exercise of options
available for grant
under the Stock
Option Plan 741,550 $10.625(b) $7,878,969
Proposed Maximum
Aggregate Offering
Price 1,000,000 -- $10,625,000
x .000303
Registration Fee -- -- $3,219.38
(a) Weighted average exercise price.
(b) Based on the NASDAQ National Market closing price of Registrant's Common Stock
on October 31, 1996.
</TABLE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Somatogen, Inc., a Delaware corporation
(the "Company" or the "Registrant") with the Securities and Exchange
Commission (the "Commission") are incorporated by reference into this
Registration Statement:
(a) The Company's latest annual report on Form 10-K for the fiscal year
ended June 30, 1996;
(b) A description of the Company's Common Stock, which is contained
in the Form 8-A Registration Statement filed by the Company with
the Commission which was declared effective on August 1, 1991,
as amended through the date hereof; and,
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SOMATOGEN, INC.
(c) All reports and other documents subsequently filed by the Company
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
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.
INTEREST OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of the Common Stock offered pursuant to
the Amended and Restated Stock Option Plan will be passed upon for the
Company by Cooley Godward LLP. As of the date hereof, certain members
of Cooley Godward LLP beneficially owned 22,494 shares of Common Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Company
has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities
under the Securities Act. The Company's Bylaws require the Company to
indemnify its directors and officers, and permit the Company to indemnify
its employees and other agents, to the extent permitted by Delaware law.
Under the Company's Bylaws, indemnified parties are entitled to
indemnification for negligence, gross negligence and otherwise to the
fullest extent permitted by law. The Bylaws also require the Company
to advance litigation expenses in the case of stockholder derivative
actions or other actions, against an undertaking by the indemnified
party to repay such advances if it is ultimately determined that the
indemnified party is not entitled to indemnification.
The Company has entered into indemnity agreements with each of its
directors and executive officers. Such indemnity agreements contain
provisions which are in some respects broader than the specific
indemnification provisions contained in Delaware law.
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SOMATOGEN, INC.
EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
<S> <C>
4.1* Certificate of Incorporation, as amended.
4.2* Bylaws.
4.3* Specimen stock certificate.
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Price Waterhouse, LLP, Independent Accountants
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to the signature page.
99.1** Registrant's Amended and Restated Stock Option Plan
99.2 Amendment to the Registrant's Amended and Restated Stock Option Plan
_______________________
* Filed as an exhibit to the Form S-1 Registration Statement (No.33-41229),
as amended through the date hereof, and incorporated herein by reference.
** Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended December 31, 1994 and incorporated herein by
reference.
</TABLE>
UNDERTAKINGS
I. 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:
1. To include any prospectus required by section 10(a)(3)
of the Securities Act;
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SOMATOGEN, INC.
2. 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.
3. 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;
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.
II. 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.
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SOMATOGEN, INC.
III. 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.
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 Boulder, State of
Colorado, on the 6th day of November, 1996.
SOMATOGEN, INC.
By: Timothy D. Hoogheem
Senior Vice President of
Finance and Administration,
Chief Financial Officer
and Treasurer
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SOMATOGEN, INC.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Andre de Bruin and Timothy D.
Hoogheem, his/her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him/her and in his/her 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/she 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
<S> <C> <C>
Andre de Bruin Chairman of the Board November 6, 1996
President, Chief Executive Officer
(Principal executive officer)
Timothy D. Hoogheem Senior Vice President of Finance, November 6, 1996
and Administration, Chief Financial
Officer and Treasurer
(Principal financial officer)
Conrad A. McCarty Corporate Controller November 6, 1996
(Principal accounting officer)
Carlos A. Ferrer Director November 6, 1996
Bernadine Healy, M.D. Director November 6, 1996
Gene I. Miller Director November 6, 1996
George B. Rathmann, Director November 6, 1996
Ph.D.
Jack W. Schuler Director November 6, 1996
Ralph Snyderman, M.D. Director November 6, 1996
</TABLE>
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Somatogen, Inc. pertaining to the Amended and
Restated Stock Option Plan of Somatogen, Inc. of our report dated July 26,
1996, appearing on page F-1 of Somatogen's Annual Report on Form 10-K
for the year ended June 30, 1996.
PRICE WATERHOUSE LLP
Boulder, Colorado
October 31, 1996
We consent to the incorporation by reference in the Registration
Statements (Form S-8) pertaining to Amended and Restated Stock Option
Plan of Somatogen, Inc. of our report dated July 29, 1994, with respect
to the 1994 consolidated financial statements of Somatogen, Inc.
included in its Annual Report (Form 10-K) for the year ended July 30,
1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Jose, California
October 31, 1996
Amendment to Somatogen, Inc.
Amended and Restated Stock Option Plan
The Somatogen, Inc. Amended and Restated Stock Option Plan (the
"Plan") is further amended as follows:
I. A new section IV.6 shall be added to the Plan as follows:
"IV.6 "Amendment Stock". Amendment Stock is the 1,000,000
shares reserved for issuance upon exercise of Stock Options
granted pursuant to the Plan pursuant to the amendment of
the Plan approved by the Board on July 16, 1996."; and
II. Section XII shall be amended to read as follows:
"The Board may from time to time alter, amend, suspend or
discontinue the Plan, including, where applicable, any
modification or amendments as it shall deem advisable in
order that ISOs will be classified as incentive stock
options under the Code, or in order to conform to any
regulation or to any change in any law or regulations
applicable thereto; provided, however, that no such action
shall adversely effect the rights and obligations with
respect to Stock Options at any time outstanding under the
Plan; and provided further that no such action shall,
without the approval of the stockholders of the Company,
(i) increase the maximum number of shares of Common Stock
that may be subject to Stock Options (unless necessary to
effect the adjustments required by Section VI.2), (ii)
materially increase the benefits accruing to Participants
under the Plan, (iii) materially modify the requirements as
to eligibility for participation in the Plan, or (iv) reduce
the Option Price of any Stock Option covering Amendment
Stock granted pursuant to the Plan after the initial grant
date of such Stock Option. The Board may in its sole
discretion submit any other amendment to the Plan for
stockholder approval, including, but not limited to,
amendments to the Plan intended to satisfy the requirements
of Section 162(m) of the Code and the regulations
promulgated thereunder regarding the exclusion of
performance-based compensation from the limit on corporate
deductibility of compensation paid to certain executive
officers."
November 6, 1996
Somatogen, Inc.
2545 Central Avenue
Boulder, CO 80301
Somatogen, Inc.
2545 Central Avenue
Boulder, CO 80301
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in
connection with the filing by Somatogen, Inc. (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with
the Securities and Exchange Commission covering the offering of up to
1,000,000 shares of the Company's Common Stock, $.001 par value (the
"Shares"), pursuant to its Amended and Restated Stock Option Plan (the
"Stock Option Plan").
In connection with this opinion, we have examined the Registration
Statement and related Prospectus, your Certificate of Incorporation and
By-laws, as amended, and such other documents, records, certificates,
memoranda and other instruments as we deem necessary as a basis for this
opinion. We have assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of
all documents submitted to us 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, we are of the
opinion that the Shares, when sold and issued in accordance with the
Stock Option Plan and the Registration Statement, 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).
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Cooley Godward LLP
By: James C. T. Linfield
