As Filed with the Securities and Exchange Commission on March 10, 2004
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 of Incorporation) (I.R.S. Employer Identification Number)
170 Harbor Way
P.O. Box 511
South San Francisco, CA 94083
(650) 837-7000
(Address of principal executive offices)
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2000 EQUITY INCENTIVE PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Frank Karbe
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 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 1,599,429 shares $8.76 $14,010,998 $1,775.19
(par value $.001)
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement shall also cover any
additional shares of the registrant's common stock that become issuable
under the 2000 Equity Incentive Plan and 2000 Employee Stock Purchase Plan
by reason of any stock dividend, stock split, recapitalization or any other
similar transaction.
(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. The offering price per share and aggregate offering price for the
unissued stock options and shares of 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 March 9, 2004. The
following chart illustrates the calculation of the registration fee:
Proposed Maximum Proposed Maximum
Amount to be Offering Price Aggregate Offering
Title of Shares to be Registered Registered Per Share Price
- -------------------------------- ------------------- ------------------- --------------------
Shares issuable pursuant to the 2000 Equity Incentive Plan 1,000,000 $8.76 $8,760,000
Shares issuable pursuant to the Employee Stock Purchase Plan 599,429 $8.76 $5,250,998
Proposed Maximum Aggregate Offering Price $14,010,998
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) 1,000,000 shares of the Registrant's common stock
to be issued pursuant to the Registrant's 2000 Equity Incentive Plan and (ii)
599,429 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 and 2000 Employee Stock Purchase Plan) File Nos.
333-35862, 333-57026, 333-82722 and 333-102770 previously filed with the SEC on
April 28, 2000, March 14, 2001, February 14, 2002 and January 28, 2003,
respectively, are incorporated by reference herein.
Item 8. Exhibits
Exhibit
Number Description
4.1 Specimen Common Stock Certificate. (1)
4.2 Fourth Amended and Restated Registration Rights Agreement, dated
February 26, 1999 among Exelixis, Inc. and Certain Stockholders
of Exelixis,Inc. (1)
4.3 Warrant, dated August 17, 1998, to purchase 125,796 post-split shares
of Exelixis, Inc. Series A preferred stock in favor of
Comdisco, Inc. (1)
4.4 Warrant, dated August 17, 1998, to purchase 15,365 post-split shares of
Exelixis, Inc. Series A preferred stock in favor of Greg Stento. (1)
4.5 Warrant, dated January 24, 1996, to purchase 267,857 post-split shares
of Exelixis, Inc. Series B convertible stock in favor of MMC/GATX
Partnership No. 1. (1)
4.6 Warrant, dated September 25, 1997, to purchase 63,750 post-split shares
of Exelixis, Inc. common stock in favor of MMC/GATX Partnership
No. 1. (1)
4.7 Warrant, dated November 15, 1999, to purchase 9,000 post-split shares
of Exelixis, Inc. common stock in favor Bristow Investments, L.P. (1)
4.8 Warrant, dated November 15, 1999, to purchase 101,250 post-split
shares of Exelixis, Inc. common stock in favor of Slough Estates
USA, Inc. (1)
4.9 Warrant, dated November 15, 1999, to purchase 2,250 post-split shares
of Exelixis, Inc. common stock in favor of Laurence and Magdalena
Shushan Trust. (1)
4.10 Warrant, dated April 1, 2000, to purchase 70,875 shares of Exelixis,
Inc. common stock in favor of Slough Estates USA, Inc. (2)
4.11 Warrant, dated April 1, 2000, to purchase 6,300 shares of Exelixis,
Inc. common stock in favor of Bristow Investments, L.P. (2)
4.12 Warrant, dated April 1, 2000, to purchase 1,575 shares of Exelixis,
Inc. common stock in favor of Laurance and Madgalena Shusan Family
Trust. (2)
4.13 Form of Convertible Promissory Note, dated May 22, 2001 by and between
Exelixis, Inc. and Protein Design Labs, Inc. (3)
4.14 Form of Note Purchase Agreement, dated May 22, 2001 by and between
Exelixis, Inc. and Protein Design Labs, Inc. (3)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP (contained in Exhibit 5.1 to this
Registration Statement).
24.1 Power of Attorney (contained on the signature pages to this
Registration Statement).
99.1 2000 Equity Incentive Plan. (1)
99.2 2000 Employee Stock Purchase Plan. (1)
________________________
(1) Filed as an Exhibit to Exelixis, Inc.'s Registration Statement on Form S-1,
as amended (File No. 333-30978), as filed with the Securities and Exchange
Commission on February 7, 2000, as amended, and incorporated herein by
reference.
(2) Filed as an Exhibit to Exelixis, Inc.'s Quarterly Report on Form 10-Q for
the quarter ended March 31, 2000, filed with the Securities and Exchange
Commission on May 15, 2000 and incorporated herein by reference.
(3) Filed as an Exhibit to Exelixis, Inc.'s Quarterly Report on Form 10-Q for
the quarter ended June 30, 2001, as filed with the Securities and Exchange
Commission on August 14, 2001 and incorporated herein by reference.
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 March
10, 2004.
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 Frank Karbe, 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 March 10, 2004
- ------------------------------ Officer and Director
George A. Scangos, Ph.D. (Principal Executive Officer)
/s/ Frank Karbe Chief Financial Officer March 10, 2004
- ------------------------------ (Principal Financial and
Frank Karbe Accounting Officer)
/s/ Stelios Papadopoulos Chairman of the Board of
- ------------------------------- Directors March 10, 2004
Stelios Papadopoulos, Ph.D.
/s/ Charles Cohen Director March 10, 2004
- ------------------------------
Charles Cohen, Ph.D.
/s/ Jason Fisherman Director March 10, 2004
- -------------------------------
Jason S. Fisherman, M.D.
/s/ Jean-Francois Formela Director March 10, 2004
- -------------------------------
Jean-Francois Formela, M.D.
/s/ Vincent T. Marchesi Director March 10, 2004
- -------------------------------
Vincent T. Marchesi, Ph.D.
/s/ Frank McCormick Director March 10, 2004
- -------------------------------
Frank McCormick, Ph.D.
/s/ Lance Willsey Director March 10, 2004
------------------------------
Lance Willsey, M.D.
/s/ Jack L. Wyszomierski Director March 10, 2004
- -------------------------------
Jack L. Wyszomierski
EXHIBIT INDEX
Exhibit
Number Description
4.1 Specimen Common Stock Certificate. (1)
4.2 Fourth Amended and Restated Registration Rights Agreement, dated
February 26, 1999 among Exelixis, Inc. and Certain Stockholders
of Exelixis,Inc. (1)
4.3 Warrant, dated August 17, 1998, to purchase 125,796 post-split shares
of Exelixis, Inc. Series A preferred stock in favor of
Comdisco, Inc. (1)
4.4 Warrant, dated August 17, 1998, to purchase 15,365 post-split shares of
Exelixis, Inc. Series A preferred stock in favor of Greg Stento. (1)
4.5 Warrant, dated January 24, 1996, to purchase 267,857 post-split shares
of Exelixis, Inc. Series B convertible stock in favor of MMC/GATX
Partnership No. 1. (1)
4.6 Warrant, dated September 25, 1997, to purchase 63,750 post-split shares
of Exelixis, Inc. common stock in favor of MMC/GATX Partnership
No. 1. (1)
4.7 Warrant, dated November 15, 1999, to purchase 9,000 post-split shares
of Exelixis, Inc. common stock in favor Bristow Investments, L.P. (1)
4.8 Warrant, dated November 15, 1999, to purchase 101,250 post-split
shares of Exelixis, Inc. common stock in favor of Slough Estates
USA, Inc. (1)
4.9 Warrant, dated November 15, 1999, to purchase 2,250 post-split shares
of Exelixis, Inc. common stock in favor of Laurence and Magdalena
Shushan Trust. (1)
4.10 Warrant, dated April 1, 2000, to purchase 70,875 shares of Exelixis,
Inc. common stock in favor of Slough Estates USA, Inc. (2)
4.11 Warrant, dated April 1, 2000, to purchase 6,300 shares of Exelixis,
Inc. common stock in favor of Bristow Investments, L.P. (2)
4.12 Warrant, dated April 1, 2000, to purchase 1,575 shares of Exelixis,
Inc. common stock in favor of Laurance and Madgalena Shusan Family
Trust. (2)
4.13 Form of Convertible Promissory Note, dated May 22, 2001 by and between
Exelixis, Inc. and Protein Design Labs, Inc. (3)
4.14 Form of Note Purchase Agreement, dated May 22, 2001 by and between
Exelixis, Inc. and Protein Design Labs, Inc. (3)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP (contained in Exhibit 5.1 to this
Registration Statement).
24.1 Power of Attorney (contained on the signature pages to this
Registration Statement).
99.1 2000 Equity Incentive Plan. (1)
99.2 2000 Employee Stock Purchase Plan. (1)
________________________
(1) Filed as an Exhibit to Exelixis, Inc.'s Registration Statement on Form S-1,
as amended (File No. 333-30978), as filed with the Securities and Exchange
Commission on February 7, 2000, as amended, and incorporated herein by
reference.
(2) Filed as an Exhibit to Exelixis, Inc.'s Quarterly Report on Form 10-Q for
the quarter ended March 31, 2000, filed with the Securities and Exchange
Commission on May 15, 2000 and incorporated herein by reference.
(3) Filed as an Exhibit to Exelixis, Inc.'s Quarterly Report on Form 10-Q for
the quarter ended June 30, 2001, as filed with the Securities and Exchange
Commission on August 14, 2001 and incorporated herein by reference.
EXHIBIT 5.1
Robert L. Jones, Esq.
(650) 843-5034
jonesrl@cooley.com
March 10, 2004
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 1,599,429 shares of the
Company's common stock, $.001 par value (the "Shares"), pursuant to the
Company's 2000 Equity Incentive Plan and 2000 Employee Stock Purchase Plan
(collectively the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectuses, the Company's Amended and Restated Certificate of
Incorporation and Restated Bylaws, as currently in effect, the Plans 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 and the 2000 Employee Stock
Purchase Plan of Exelixis, Inc. of our report dated January 30, 2004, with
respect to the consolidated financial statements of Exelixis, Inc. included in
its Annual Report (Form 10-K) for the year ended December 31, 2003, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
March 8, 2004