AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 14, 2002
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXELIXIS, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3257395
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
170 Harbor Way
P.O. Box 511
South San Francisco, CA 94083
(650) 837-7000
(Address of principal executive offices)
EXELIXIS, INC. 401(k) Plan
(Full title of the plan)
Glen Y. Sato
Chief Financial Officer
Exelixis, Inc.
170 Harbor Way
P.O. Box 511
South San Francisco, CA 94083
(650) 837-7000
(Name, address, including zip code, and telephone number, including area code,of
agent for service)
Copies to:
ROBERT L. JONES, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CALIFORNIA 94306
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
PROPOSED MAXIMUM
TITLE OF CLASS OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PRICE PER SHARE (2) PRICE (1) REGISTRATION FEE
------------------------------ ----------------- --------------------------- -------------------- -----------------
------------------------------ ----------------- --------------------------- -------------------- -----------------
Common Stock (par value $.001) 250,000 shares $ 11.225 $ 2,806,250 $ 258.18
=======================================================================================================================
(1) Pursuant to Rule 416(a), this Registration Statement shall also cover
any additional shares of Registrant's common stock that become issuable under
the 401(k) Plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without receipt of consideration that
increases the number of outstanding shares of Registrant's common stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Act"). The offering price per share and aggregate offering price
are based upon the average of the high and low prices of the Registrant's common
stock as reported on the Nasdaq National Market System on February 8, 2002
pursuant to Rule 457(c) under the Act.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Exelixis, Inc. (the "Company") with the
Securities and Exchange Commission (the "SEC") are incorporated by reference
into this Registration Statement:
(A) The Company's annual report on Form 10-K for the fiscal year ended
December 31, 2000;
(B) The Company's definitive proxy statement on Schedule 14A filed on April
6, 2001;
(C) The Company's quarterly reports on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 2001;
(D) The Company's current reports on Form 8-K filed on May 15, July 18,
July 26, December 20, 2001 and January 11, 2002; and
(E) The description of the Company's common stock which is contained in the
Registration Statement on Form 8-A filed on April 6, 2000, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of 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.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the common stock offered hereby will be passed upon for the
Company by Cooley Godward LLP, Palo Alto, California.
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 Restated Bylaws of the Company require the Company to indemnify its
directors and executive officers, and permit the Company to indemnify its other
officers, employees and other agents, to the extent permitted by Delaware law.
Under the Bylaws, indemnified parties are entitled to indemnification for
negligence, gross negligence and otherwise to the fullest extent permitted by
the Bylaws. 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. The Company also maintains an insurance policy for
its directors and executive officers insuring against certain liabilities
arising in their capacities as such.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
EXHIBIT
NUMBER
4.1* Amended and Restated Certificate of Incorporation of the Company.
4.2* Restated Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Independent Accountants.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages to this
Registration Statement.
99.1 Exelixis, Inc. 401(k) Plan.
99.2 Exelixis, Inc. 401(k) Plan Adoption Agreement.
________________________
*Incorporated by reference to the Company's Registration Statement on Form S-1,
as amended (File No. 333-96335), originally filed with the SEC on February 7,
2000.
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 this 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 this 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 Securities and Exchange Commission 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 this Registration Statement or any
material change to such information in this 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 Registrant 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 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 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 herein 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 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, 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 South San Francisco, State of California, on February
11, 2002.
EXELIXIS, INC.
By: /s/ George A. Scangos
-------------------------
George A. Scangos, Ph.D.
President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints George A. Scangos and Glen Y. Sato, 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, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
------------------------------ ---------------------------------- ------------------
/s/ George A. Scangos President, Chief Executive February 11, 2002
------------------------------ Officer and Director
George A. Scangos, Ph.D. (Principal Executive Officer)
/s/ Glen Y. Sato Chief Financial Officer February 11, 2002
------------------------------ (Principal Financial and
Glen Y. Sato Accounting Officer)
/s/ Stelios Papadopoulos Chairman of the Board of
------------------------------- Directors February 11, 2002
Stelios Papadopoulos, Ph.D.
------------------------------ Director
Charles Cohen, Ph.D.
------------------------------ Director
Jurgen Drews, M.D.
/s/ Geoffrey Duyk Director February 11, 2002
-------------------------------
Geoffrey Duyk, M.D., Ph.D.
/s/ Jason Fisherman Director February 11, 2002
-------------------------------
Jason S. Fisherman, M.D.
/s/ Jean-Francois Formela Director February 11, 2002
-------------------------------
Jean-Francois Formela, M.D.
/s/ Vincent T. Marchesi Director February 11, 2002
-------------------------------
Vincent T. Marchesi, Ph.D.
/s/ Peter Stadler Director February 11, 2002
-------------------------------
Peter Stadler, Ph.D.
------------------------------ Director
Lance Willsey, M.D.
EXHIBITS
EXHIBIT
NUMBER
4.1* Amended and Restated Certificate of Incorporation of the Company.
4.2* Restated Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Independent Accountants.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages to this
Registration Statement.
99.1 Exelixis, Inc. 401(k) Plan.
99.2 Exelixis, Inc. 401(k) Plan Adoption Agreement.
________________________
*Incorporated by reference to the Company's Registration Statement on Form S-1,
as amended (File No. 333-96335), originally filed with the SEC on February 7,
2000.