AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 2003
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
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)
2000 EQUITY INCENTIVE PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
2000 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plans)
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
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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 (2) REGISTRATION FEE
- ------------------------------ ----------------- --------------------------- -------------------- -----------------
- ------------------------------ ----------------- --------------------------- -------------------- -----------------
Stock Options and Common Stock 4,853,009 shares $ 6.96 $ 33,776,924.64 $ 3,107.48
(par value $.001)
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(1) This Registration Statement shall cover any additional shares of common
stock that become issuable under the 2000 Equity Incentive Plan, 2000
Non-Employee Directors' Stock Option Plan and 2000 Employee Stock Purchase Plan
set forth herein by reason of any stock dividend, stock split, recapitalization
or any other similar transaction without receipt of consideration which results
in an increase in the number of shares of the Registrant's outstanding common
stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the Securities Act of
1933, as amended (the "Act"). The offering price per share and aggregate
offering price for the unissued stock options and common stock 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 January 27, 2003. The following
chart illustrates the calculation of the registration fee:
TITLE OF SHARES NUMBER OF SHARES OFFERING PRICE PER AGGREGATE OFFERING
SHARE PRICE
Shares issuable pursuant to unissued stock options 3,849,981 $ 6.96 $ 26,795,867.76
pursuant to the 2000 Equity Incentive Plan
Shares issuable pursuant to unissued stock options 501,514 $ 6.96 $ 3,490,537.44
pursuant to the 2000 Non-Employee Directors' Stock Option Plan
Shares issuable pursuant to the 2000 Employee Stock Purchase Plan 501,514 $ 6.96 $ 3,490,537.44
Proposed Maximum Aggregate Offering Price $ 33,776,924.64
Approximate date of commencement of proposed sale to the public: as soon
as practicable after this Registration Statement becomes effective.
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of
registering an additional: (i) 3,849,981 shares of the Registrant's common stock
to be issued pursuant to the Registrant's 2000 Equity Incentive Plan; (ii)
501,514 shares of the Registrant's common stock to be issued pursuant to the
Registrant's 2000 Non-Employee Directors' Stock Option Plan; and (iii) 501,514
shares of the Registrant's common stock to be issued pursuant to the
Registrant's 2000 Employee Stock Purchase Plan.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The contents of the Registration Statements on Form S-8 (relating to the 2000
Equity Incentive Plan, 2000 Non-Employee Directors' Stock Option Plan and 2000
Employee Stock Purchase Plan) File Nos. 333-35862, 333-57026 and 333-82722
previously filed with the SEC on April 28, 2000, March 14, 2001 and February 14,
2002, respectively, are incorporated by reference herein.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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 Ernst & Young LLP, Independent Auditors.
23.2 Consent of Independent Accountants.
23.3 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* 2000 Equity Incentive Plan.
99.2* 2000 Employee Stock Purchase Plan.
99.3* 2000 Non-Employee Directors' Stock Option Plan.
99.4 Selected Financial Data Additional Disclosure for FASB No. 142.
________________________
*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.
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 the City of South San Francisco, State of California, on January
28, 2003.
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 of 1933, as amended,
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 January 28, 2003
- ------------------------------ Officer and Director
George A. Scangos, Ph.D. (Principal Executive Officer)
/s/ Glen Y. Sato Chief Financial Officer January 28, 2003
- ------------------------------ (Principal Financial and
Glen Y. Sato Accounting Officer)
/s/ Stelios Papadopoulos Chairman of the Board of
- ------------------------------- Directors January 28, 2003
Stelios Papadopoulos, Ph.D.
/s/ Charles Cohen
- ------------------------------ Director January 28, 2003
Charles Cohen, Ph.D.
/s/ Geoffrey Duyk Director January 28, 2003
- -------------------------------
Geoffrey Duyk, M.D., Ph.D.
/s/ Jason Fisherman Director January 28, 2003
- -------------------------------
Jason S. Fisherman, M.D.
/s/ Jean-Francois Formela Director January 28, 2003
- -------------------------------
Jean-Francois Formela, M.D.
/s/ Vincent T. Marchesi Director January 28, 2003
- -------------------------------
Vincent T. Marchesi, Ph.D.
/s/ Peter Stadler Director January 28, 2003
- -------------------------------
Peter Stadler, Ph.D.
/s/ Lance Willsey
------------------------------ Director January 28, 2003
Lance Willsey, M.D.
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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 Ernst & Young LLP, Independent Auditors.
23.2 Consent of Independent Accountants.
23.3 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* 2000 Equity Incentive Plan.
99.2* 2000 Employee Stock Purchase Plan.
99.3* 2000 Non-Employee Directors' Stock Option Plan.
99.4 Selected Financial Data Additional Disclosure for FASB No. 142.
________________________
*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.
EXHIBIT 5.1
Robert L. Jones, Esq.
Direct: (650) 843-5034
Internet: jonesrl@cooley.com
January 28, 2003
Exelixis, Inc.
170 Harbor Way
P.O. Box 511
South San Francisco, CA 94083
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Exelixis, Inc. (the "Company") of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of an aggregate of 4,853,009 shares of the
Company's common stock, $.001 par value (the "Shares"), pursuant to the
Company's 2000 Equity Incentive Plan, 2000 Non-Employee Directors' Stock Option
Plan and 2000 Employee Stock Purchase Plan (collectively the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Amended and Restated Certificate of Incorporation and
Restated Bylaws 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 Plans, the
Registration Statement 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).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward llp
By: /s/ Robert L. Jones
----------------------
Robert L. Jones
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 2000 Equity Incentive Plan, the 2000 Employee Stock
Purchase Plan, and the 2000 Non-Employee Directors' Stock Option Plan of
Exelixis, Inc. of our report dated February 1, 2002, with respect to the
consolidated financial statements of Exelixis, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 2001, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
January 27, 2003
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 2, 2001 relating to the
consolidated balance sheet as of December 31, 2000 and the consolidated
statements of operations, of stockholders' equity and of cash flows for each of
the two years in the period ended December 31, 2000, which appears in Exelixis,
Inc.'s Annual Report on Form 10-K for the year ended December 31, 2001.
/s/ PricewaterhouseCoopers LLP
San Jose, California
January 27, 2003
EXHIBIT 23.2
SELECTED FINANCIAL DATA ADDITIONAL DISCLOSURE FOR FASB NO. 142, "GOODWILL
AND OTHER INTANGIBLE ASSETS"
On January 1, 2002, the Company adopted Statement of Financial Accounting
Standards ("SFAS") No. 142, "Goodwill and Other Intangible Assets" ("SFAS 142"),
which addresses the financial accounting and reporting standards for goodwill
and other intangible assets subsequent to their acquisition. This accounting
standard requires that goodwill no longer be amortized, and instead, be tested
for impairment on a periodic basis.
In accordance with SFAS 142, the Company discontinued the amortization of
goodwill effective January 1, 2002. In addition, the Company re-characterized
acquired assembled workforce as goodwill because it is no longer defined as an
acquired intangible asset under SFAS No. 141, "Business Combinations". The
provisions of SFAS 142 also require the completion of a transitional impairment
test within nine months of adoption, with any impairment treated as a cumulative
effect of change in accounting principle. During the first quarter of 2002, the
Company completed the transitional impairment test, which did not result in
impairment of recorded goodwill. In addition, the Company completed its annual
impairment test on October 1, 2002, which did not result in impairment of
recorded goodwill. The Company will continue to monitor the carrying value of
goodwill through annual impairment tests.
A reconciliation of previously reported net loss and net loss per share to the
amounts adjusted for the exclusion of goodwill and assembled workforce
amortization follows (in thousands, except per share amounts):
FISCAL YEAR ENDED DECEMBER 31,
------------------------------
2001 2000 1999
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Reported net loss. . . . . . . . . . . . . . . $(71,186) $(75,311) $(18,721)
Add: Goodwill amortization . . . . . . . . . . 4,052 219 -
Assembled workforce amortization . . 593 20 -
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Adjusted net loss. . . . . . . . . . . . . . . $(66,541) $(75,072) $(18,721)
========= ========= =========
Net loss per share, basic and diluted. . . . . $ (1.53) $ (2.43) $ (4.60)
Add: Goodwill amortization . . . . . . . . . . 0.09 0.01 -
Assembled workforce amortization . . 0.01 0.00 -
--------- --------- ---------
Adjusted net loss per share, basic and diluted $ (1.43) $ (2.42) $ (4.60)
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