<PAGE>
As filed with the Securities and Exchange Commission on January 11, 2001
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
------------------------
CIPHERGEN BIOSYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C>
DELAWARE 33-059-5156
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
6611 DUMBARTON CIRCLE
FREMONT, CA 94555
(510) 505-2100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1993 STOCK OPTION PLAN
2000 STOCK PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
------------------------
WILLIAM E. RICH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CIPHERGEN BIOSYSTEMS, INC.
6611 DUMBARTON CIRCLE
FREMONT, CA 94555
(510) 505-2100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
MICHAEL J. O'DONNELL
RICHARD L. PICHENY
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
------------------------
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<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================== ======================= ====================== ====================== ===================
PROPOSED
MAXIMUM PROPOSED
AMOUNT OFFERING MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO TO BE PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
------------------------------------------ ----------------------- ---------------------- ---------------------- ------------------
<S> <C> <C> <C> <C>
1993 Stock Option Plan
Common Stock, $0.001 par value
(currently outstanding options) (1) ...... 1,507,216 $ 1.31 $ 1,974,452.96 $ 494.00
------------------------------------------ ----------------------- ---------------------- ---------------------- ------------------
1993 Stock Option Plan
Common Stock, $0.001 par value
(options available for future grant)...... -- -- -- --
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
TOTAL 1993 STOCK OPTION PLAN SHARES
REGISTERED............................. 1,507,216
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
2000 Stock Plan
Common Stock, $0.001 par value
(currently outstanding options) .......... -- -- -- --
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
2000 Stock Plan
Common Stock, $0.001 par value
(options available for future grant) (2).. 1,075,000 $ 8.31 $ 8,933,250.00 $ 2,233.00
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
TOTAL 2000 STOCK PLAN SHARES REGISTERED... 1,075,000
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
2000 Employee Stock Purchase Plan
Common Stock, $0.001 par value (3)........ 215,000 $ 7.07 $ 1,520,050.00 $ 380.00
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
TOTAL MAXIMUM AGGREGATE OFFERING PRICE.... $ 12,427,752.96
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
TOTAL REGISTRATION FEES................... $ 3,107.00
========================================== ======================= ====================== ====================== ===================
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(1) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
the weighted average exercise price per share of $1.31 as to 1,507,216
outstanding but unexercised options to purchase Common Stock under the 1993
Stock Option Plan as of October 3, 2000 (the "Currently Outstanding
Options").
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
1,075,000 shares of Common Stock authorized for issuance pursuant to the
2000 Stock Plan solely for the purpose of calculating the registration fee.
No options have been granted with respect to such shares. The computation
is based upon the average of the high and low price of the Common Stock as
reported on the Nasdaq National Market on January 8, 2001, because the
price at which the options to be granted in the future may be exercised is
not currently determinable.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
85% (see explanation in following sentence) of the average of the high and
low price of the Common Stock as reported on the Nasdaq National Market on
January 8, 2001, because the price at which the options to be granted in
the future may be exercised is not currently determinable. Pursuant to the
Employee Stock Purchase Plan, which plan is incorporated by reference
herein, the Purchase Price of a share of Common Stock shall mean an amount
equal to 85% of the Fair Market Value of a share of Common Stock on the
Enrollment Date or the Exercise Date, whichever is lower.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated herein by reference:
(a) The Registrant's Registration Statement on Form S-1 (File No.
333-32812) as amended (the "Registration Statement"), filed
pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), relating to the Registrant's initial public
offering of its Common Stock.
(b) The description of the Common Stock of the Registrant that is
contained in the Registration Statement on Form 8-A filed
pursuant to Section 12 of the Exchange Act on September 22,
2000.
(c) All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934 subsequent to the filing of this Registration Statement
and prior to the filing of a post-effective amendment that
indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has adopted provisions in its Certificate of
Incorporation that eliminate the personal liability of its directors and
officers for monetary damages arising from a breach of their fiduciary duties in
certain circumstances to the fullest extent permitted by law and authorizes the
Registrant to indemnify its directors and officers to the fullest extent
permitted by law. Such limitation of liability does not affect the availability
of equitable remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by the General
Corporation Law of Delaware, including circumstances in which indemnification is
otherwise discretionary under Delaware law. Section 145 of the General
Corporation Law of Delaware provides for the indemnification of officers,
directors and other corporate agents in terms sufficiently broad to indemnify
such persons, under certain circumstances, for certain liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933.
II-1
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The Registrant has entered into indemnification agreements to such
effect with its officers and directors containing provisions which are in some
respects broader than the specific indemnification provisions contained in the
General Corporation Law of Delaware. The indemnification agreements may require
the Company, among other things, to indemnify such officers and directors
against certain liabilities that may arise by reason of their status or service
as directors or officers (other than liabilities arising from willful misconduct
of a culpable nature) and to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified.
Reference is also made to Section 7 of the Underwriting Agreement for
the Registrant's initial public offering, which provides for the indemnification
of officers, directors and controlling persons of the Registrant against certain
liabilities.
The Registrant maintains directors' and officers' liability insurance
that includes coverage for securities matters.
See also the undertakings set forth in response to Item 9.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are filed as
part hereof, or incorporated by reference into this Registration Statement. (See
Exhibit Index below).
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 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.
(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
of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered
II-2
<PAGE>
therein, and the offering of such securities at that time
shall be deemed to be an initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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.
II-3
<PAGE>
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 Fremont, State of California on January 10, 2001.
CIPHERGEN BIOSYSTEMS, INC.
By: /s/ William E. Rich, Ph.D.
--------------------------------------
William E. Rich, Ph.D.
President and Chief Executive Officer
II-4
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William E. Rich and Matthew J. Hogan,
jointly and severally, his or her attorney-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorney-in-fact, or his substitute or substitutes, may 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 date indicated.
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<CAPTION>
SIGNATURE TITLE DATE
---------------------------------------------------- ---------------------------------------- --------------------
<S> <C> <C>
/s/ William E. Rich
------------------------------------------------- President and Chief Executive Officer January 10, 2001
William E. Rich (Principal Executive Officer)
/s/ Matthew J. Hogan
------------------------------------------------- Vice President and Chief Financial January 10, 2001
Matthew J. Hogan Officer (Principal Financial Officer)
/s/ Daniel M. Caserza
------------------------------------------------- Corporate Controller (Principal January 10, 2001
Daniel M. Caserza Accounting Officer)
/s/ John A. Young
------------------------------------------------- Director December 18, 2000
John A. Young
/s/ Michael J. Callaghan
------------------------------------------------- Director December 18, 2000
Michael J. Callaghan
/s/ Barbara dalton
------------------------------------------------- Director December 18, 2000
Barbara Dalton
/s/ Jean-Francois Formela
------------------------------------------------- Director December 19, 2000
Jean-Francois Formela
/s/ William R. Green
------------------------------------------------- Director December 18, 2000
William R. Green
/s/ James L. Rathmann
------------------------------------------------- Director December 19, 2000
James L. Rathmann
</TABLE>
II-5
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<CAPTION>
SIGNATURE TITLE DATE
---------------------------------------------------- ---------------------------------------- --------------------
<S> <C> <C>
/s/ Daniel Vapnek
------------------------------------------------- Director December 18, 2000
Daniel Vapnek
</TABLE>
------------------------------------------
The employee benefit plans being registered pursuant to this Registration
Statement are subject to administration by the Board of Directors of the
Registrant.
II-6
<PAGE>
INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT NUMBER EXHIBIT DOCUMENT
--------------------- ---------------------------------------------------------------------------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation of Registrant
(incorporated by reference to Exhibit 3.2 of Registrant's Registration
Statement on Form S-1, File No. 333-32812 (the "Form S-1"))
3.2 Bylaws of Registrant (incorporated by reference to Exhibit 3.4 of the
Form S-1)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to
the legality of securities being registered
10.1 1993 Stock Option Plan (incorporated by reference to Exhibit 10.3 of the
Form S-1)
10.2 2000 Stock Plan (incorporated by reference to Exhibit 10.5 of the Form S-1)
10.6 2000 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.6
of the Form S-1)
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(contained in Exhibit 5.1 hereto)
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
24.1 Power of Attorney (see page II-5)
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