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Exelixis, Inc. – IPO: ‘POS EX’ on 4/11/00

On:  Tuesday, 4/11/00   ·   Effective:  4/11/00   ·   Accession #:  1012870-0-2020   ·   File #:  333-96335

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 4/11/00  Exelixis, Inc.                    POS EX      4/11/00    2:321K                                   Donnelley R R & S… 13/FA

Initial Public Offering (IPO):  Post-Effective Amendment to Add Exhibits
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: POS EX      Post Effective Amendment #1                           10     50K 
 2: EX-10.13    Research Collaboration Agreement                      92    391K 


POS EX   —   Post Effective Amendment #1
Document Table of Contents

Page (sequential) | (alphabetic) Top
 
11st Page   -   Filing Submission
3Item 13. Other Expenses of Issuance and Distribution
"Item 14. Indemnification of Directors and Officers
4Item 15. Recent Sales of Unregistered Securities
"Item 16. (A). Exhibits and Financial Statement Schedules
6Item 17. Undertakings
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As filed with the Securities and Exchange Commission on April 10, 2000 Registration No. 333-96335 -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-1 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ---------------- Exelixis, Inc. (Exact name of registrant as specified in its charter) ---------------- Delaware 8731 04-3257395 (State or other (Primary Standard (I.R.S. Employer jurisdiction of Industrial Classification Identification No.) incorporation or Code Number) organization) ---------------- 260 Littlefield Avenue South San Francisco, CA 94080 (650) 825-2200 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ---------------- GEORGE A. SCANGOS President and Chief Executive Officer 260 Littlefield Avenue South San Francisco, CA 94080 (650) 825-2200 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------------- Copies to: ROBERT L. JONES, ESQ. DEBORAH A. ALISON S. RESSLER, ESQ. Sullivan & MARSHALL, ESQ. Cooley Godward LLP Cromwell 1888 Century Park East Suite Five Palo Alto Square 3000 El Camino 2100 Los Angeles, CA 90067-1725 (310) Real Palo Alto, CA 94306-2155 (650) 712-6600 843-5000 ---------------- Approximate date of proposed sale to the public: As soon as practicable after the effective date of this registration statement as the underwriters shall determine. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Securities Act"), check the following box. [_] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement number for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. [X] If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. [_] ---------------- The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. -------------------------------------------------------------------------------- --------------------------------------------------------------------------------
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EXPLANATORY NOTE This Post-effective Amendment No. 1 to Registration Statement on Form S-1 (File No. 333-96335) is an exhibit-only filing to refile exhibit 10.13 to the Registration Statement to correct an error. 1
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PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 13. Other Expenses of Issuance and Distribution The following table sets forth the costs and expenses, other than the underwriting discounts payable by us, in connection with the sale of common stock being registered. All amounts are estimates except the SEC registration fee, the NASDAQ filing fee and the Nasdaq National Market listing fee. [Download Table] SEC registration fee............................................. $ 30,391 NASDAQ filing fee................................................ 10,500 Nasdaq National Market listing fee............................... 95,000 Blue Sky Fees and expenses....................................... 5,000 Transfer Agent and registrar fees................................ 10,000 Accounting fees and expenses..................................... 350,000 Legal fees and expenses.......................................... 500,000 Printing and engraving costs..................................... 345,000 Miscellaneous expenses........................................... 54,109 ---------- Total.......................................................... $1,400,000 ========== Item 14. Indemnification of Directors and Officers As permitted by Delaware law, our amended and restated certificate of incorporation provides that no director of ours will be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability: . for any breach of duty of loyalty to us or to our stockholders; . for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; . for unlawful payment of dividends or unlawful stock repurchases or redemptions under Section 174 of the Delaware General Corporation Law; or . for any transaction from which the director derived an improper personal benefit. Our amended and restated certificate of incorporation further provides that we must indemnify our directors and executive officers and may indemnify our other officers and employees and agents to the fullest extent permitted by Delaware law. We believe that indemnification under our amended and restated certificate of incorporation covers negligence and gross negligence on the part of indemnified parties. We have entered into indemnification agreements with each of our directors and certain officers. These agreements, among other things, require us to indemnify each director and officer for certain expenses including attorneys' fees, judgments, fines and settlement amounts incurred by any such person in any action or proceeding, including any action by or in the right of Exelixis, Inc., arising out of the person's services as our director or officer, any subsidiary of ours or any other company or enterprise to which the person provides services at our request. The underwriting agreement (see Exhibit 1.1) will provide for indemnification by the underwriters of Exelixis, Inc., our directors, our officers who sign the registration statement, and our controlling persons for some liabilities, including liabilities arising under the Securities Act. II-1
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Item 15. Recent Sales of Unregistered Securities Since January 1, 1997, Exelixis, Inc. has sold and issued the following unregistered securities: (1) From January 1997 through March 2000, Exelixis has granted stock options to purchase 8,341,130 shares of common stock, at a weighted average exercise price of $0.79, to employees, consultants and directors. Of these stock options, 724,790 shares have been cancelled or have lapsed without being exercised, 6,551,814 shares have been exercised for common stock and 1,064,526 shares remain outstanding. (2) In April 1997, Exelixis issued an aggregate of 7,875,000 shares of Series C preferred stock to 41 accredited investors at $2.00 per share, for an aggregate purchase price of $15,750,000. Shares of Series C preferred stock are convertible into shares of common stock at the rate of 0.75 of a share of common stock for each share of Series C preferred stock outstanding. (3) In September 1997, Exelixis issued one warrant to purchase 63,750 shares of common stock to one purchaser at an exercise price of $2.67 per share. (4) From August 1998 to June 1999, Exelixis issued an aggregate of 2,500,000 shares of Series D preferred stock to 11 accredited investors at $3.00 per share, for an aggregate purchase price of $7.5 million. In this period, Exelixis issued an additional 2,500,000 shares of Series D preferred stock to Pharmacia & Upjohn, Inc. at $3.00 per share, for an aggregate purchase price of $7.5 million pursuant to the terms of a development agreement dated February 26, 1999. Shares of Series D preferred stock are convertible at the rate of 0.75 of a share of common stock for each share of Series D preferred stock outstanding. (5) In November 1999 Exelixis issued three warrants to purchase an aggregate of 112,500 shares of common stock to three purchasers at an exercise price of $4.00 per share. Item 16. (A) Exhibits and Financial Statement Schedules [Download Table] 1.1+ Form of Underwriting Agreement. 3.1+ Restated Certificate of Incorporation of Registrant, dated January 25, 1999. 3.2+ Certificate of Amendment of the Restated Certificate of Incorporation of Registrant, dated February 2, 2000. 3.3+ Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Registrant, dated April 5, 2000. 3.4+ Form of Restated Certificate of Incorporation of Registrant to be filed upon the closing of the offering made in connection with this Registration Statement. 3.5+ Amended and Restated Bylaws of Registrant to be filed upon the closing of the offering made in connection with this Registration Statement. 4.1+ Specimen Common Stock Certificate. 4.2+ Fourth Amended and Restated Registration Rights Agreement, dated February 26, 1999 among Registrant and Certain Stockholders of Registrant. 4.3+ Warrant, dated August 17, 1998, to Purchase 167,728 shares of Series A Preferred Stock in favor of Comdisco, Inc. (125,796 post-split shares). 4.4+ Warrant, dated August 17, 1998, to Purchase 20,486 shares of Series A Preferred Stock in favor of Greg Stento (15,365 post-split shares). 4.5+ Warrant, dated January 24, 1996, to Purchase 357,143 shares of Series B Convertible Stock in favor of MMC/GATX Partnership No. 1 (267,857 post-split shares). II-2
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[Download Table] 4.6+ Warrant, dated September 25, 1997, to Purchase 85,000 shares of Common Stock in favor of MMC/GATX Partnership No. 1 (63,750 post- split shares). 4.7+ Warrant, dated November 15, 1999, to Purchase 12,000 shares of Common Stock in favor of Bristow Investments, L.P. (9,000 post- split shares). 4.8+ Warrant, dated November 15,1999, to Purchase 135,000 shares of Common Stock in favor of Slough Estates USA, Inc. (101,250 post- split shares). 4.9+ Warrant, dated November 15, 1999, to Purchase 3,000 shares of Common Stock in favor of Laurence and Magdalena Shushan FamilyTrust (2,250 post-split shares). 5.1+ Opinion of Cooley Godward LLP. 10.1+ Form of Indemnity Agreement. 10.2+ 1994 Employee, Director and Consultant Stock Plan. 10.3+ 1997 Equity Incentive Plan. 10.4+ 2000 Equity Incentive Plan. 10.5+ 2000 Non-Employee Directors' Stock Option Plan. 10.6+ 2000 Employee Stock Purchase Plan. 10.7++ Collaboration Agreement, dated December 16, 1999, between Registrant, Bayer Corporation and GenOptera LLC. 10.8++ Operating Agreement, dated December 15, 1999, between Registrant, Bayer Corporation and GenOptera LLC. 10.9+ Cooperation Agreement, dated September 15, 1998, between Registrant and Artemis Pharmaceuticals, GmbH. 10.10+ Sublease Agreement, dated June 1, 1997, between Arris Pharmaceutical Corporation and Registrant. 10.11+ Lease, dated May 12, 1999, between Registrant and Britannia Pointe Grand Limited Partnership. 10.12+ Master Services Agreement, dated November 15, 1999, between Registrant and Artemis Pharmaceuticals GmbH. 10.13+* Research Collaboration and Technological Transfer Agreement, dated September 14, 1999, between Registrant and Bristol-Myers Squibb. 10.14++ Corporate Collaboration Agreement, dated February 26, 1999, between Registrant and Pharmacia & Upjohn AB. 10.15++ Amendment to Corporate Collaboration Agreement, dated October, 1999, between Registrant and Pharmacia & Upjohn AB. 10.16+ Asset Purchase Agreement, dated July 11, 1999, between Registrant and MetaXen/Xenova. 10.17+ Employment Agreement, dated September 13, 1996, between Registrant and George Scangos, Ph.D. 10.18+ Employment Agreement, dated April 14, 1997, between Registrant and Geoffrey Duyk, M.D., Ph.D. 10.19+ Employment Agreement, dated October 19, 1999, between Registrant and Glen Y. Sato, Chief Financial Officer and Vice President of Legal Affairs. 23.1+ Consent of Independent Accountants (Exelixis). 23.2+ Consent of Independent Accountants (MetaXen). 23.3+ Consent of Cooley Godward LLP (included in Exhibit 5.1). II-3
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[Download Table] 24.1+ Power of Attorney (contained on signature page). 27.1+ Financial Data Schedule. -------- + Previously filed. * Filed herewith. + Confidential treatment requested for certain portions of this exhibit. (b) Financial Statement Schedules All schedules for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission are not required under the related instructions or are inapplicable, and therefore have been omitted. Item 17. Undertakings The registrant hereby undertakes to provide to the Underwriters at the closing specified in the Underwriting Agreement certificates in such denominations and registered in such names as required by the Underwriters to permit prompt delivery to each purchaser. 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 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 Act and will be governed by the final adjudication of such issue. The undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of Prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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. II-4
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SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has caused this Post-effective Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the County of South San Francisco, State of California on the 10th day of April, 2000. Exelixis, Inc. /s/ George A. Scangos, Ph.D By: _________________________________ George A. Scangos, Ph.D President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Post-effective Amendment No. 1 to Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. [Download Table] Signature Title Date --------- ----- ---- /s/ George A. Scangos, Ph.D. President, Chief Executive April 10, 2000 ______________________________________ Officer and Director George A. Scangos, Ph.D. (principal executive officer) /s/ Glen Y. Sato Chief Financial Officer April 10, 2000 ______________________________________ (principal financial and Glen Y. Sato accounting officer) * Chairman of the Board of April 10, 2000 ______________________________________ Directors Stelios Papadopoulos, Ph.D. * Director April 10, 2000 ______________________________________ Charles Cohen, Ph.D. * Director April 10, 2000 ______________________________________ Jurgen Drews, M.D. * Director April 10, 2000 ______________________________________ Geoffrey Duyk, M.D., Ph.D. * Director April 10, 2000 ______________________________________ Jason S. Fisherman, M.D. * Director April 10, 2000 ______________________________________ Jean-Francois Formela, M.D. II-5
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[Download Table] Signature Title Date --------- ----- ---- * Director April 10, 2000 ______________________________________ Edmund Olivier * Director April 10, 2000 ______________________________________ Lance Willsey, M. D. * Director April 10, 2000 ______________________________________ Peter Stadler, Ph.D. [Download Table] /s/ Glen Y. Sato *By: _________________________________ Attorney-in-fact II-6
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Exhibit Index [Download Table] Exhibit Number Description ------- ----------- 1.1+ Form of Underwriting Agreement. 3.1+ Restated Certificate of Incorporation of Registrant, dated January 25, 1999. 3.2+ Certificate of Amendment of the Restated Certificate of Incorporation of Registrant, dated February 2, 2000. 3.3+ Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Registrant, dated April 5, 2000. 3.4+ Form of Restated Certificate of Incorporation of Registrant to be filed upon the closing of the offering made in connection with this Registration Statement. 3.5+ Amended and Restated Bylaws of Registrant to be filed upon the closing of the offering made in connection with this Registration Statement. 4.1+ Specimen Common Stock Certificate. 4.2+ Fourth Amended and Restated Registration Rights Agreement, dated February 26, 1999 among Registrant and Certain Stockholders of Registrant. 4.3+ Warrant, dated August 17, 1998, to Purchase 167,728 shares of Series A Preferred Stock in favor of Comdisco, Inc. (125,796 post-split shares). 4.4+ Warrant, dated August 17, 1998, to Purchase 20,486 shares of Series A Preferred Stock in favor of Greg Stento (15,365 post-split shares). 4.5+ Warrant, dated January 24, 1996, to Purchase 357,143 shares of Series B Convertible Stock in favor of MMC/GATX Partnership No. 1 (267,857 post-split shares). 4.6+ Warrant, dated September 25, 1997, to Purchase 85,000 shares of Common Stock in favor of MMC/GATX Partnership No. 1 (63,750 post-split shares). 4.7+ Warrant, dated November 15, 1999, to Purchase 12,000 shares of Common Stock in favor of Bristow Investments, L.P. (9,000 post-split shares). 4.8+ Warrant, dated November 15, 1999, to Purchase 135,000 shares of Common Stock in favor of Slough Estates USA, Inc. (101,250 post-split shares). 4.9+ Warrant, dated November 15, 1999, to Purchase 3,000 shares of Common Stock in favor of Laurence and Magdalena Shushan FamilyTrust (2,250 post-split shares). 5.1+ Opinion of Cooley Godward LLP. 10.1+ Form of Indemnity Agreement. 10.2+ 1994 Employee, Director and Consultant Stock Plan. 10.3+ 1997 Equity Incentive Plan. 10.4+ 2000 Equity Incentive Plan. 10.5+ 2000 Non-Employee Directors' Stock Option Plan. 10.6+ 2000 Employee Stock Purchase Plan. 10.7++ Collaboration Agreement, dated December 16, 1999, between Registrant, Bayer Corporation and GenOptera LLC. 10.8++ Operating Agreement, dated December 15, 1999, between Registrant, Bayer Corporation and GenOptera LLC. 10.9+ Cooperation Agreement, dated September 15, 1998, between Registrant and Artemis Pharmaceuticals GmbH.
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[Download Table] 10.10+ Sublease Agreement, dated June 1, 1997, between Arris Pharmaceutical Corporation and Registrant. 10.11+ Lease, dated May 12, 1999, between Registrant and Britannia Pointe Grand Limited Partnership. 10.12+ Master Services Agreement, dated November 15, 1999, between Registrant and Artemis Pharmaceuticals GmbH. 10.13+* Research Collaboration and Technological Transfer Agreement, dated September 14, 1999, between Registrant and Bristol-Myers Squibb. 10.14++ Corporate Collaboration Agreement, dated February 26, 1999, between Registrant and Pharmacia & Upjohn AB. 10.15++ Amendment to Corporate Collaboration Agreement, dated October, 1999, between Registrant and Pharmacia & Upjohn AB. 10.16+ Asset Purchase Agreement, dated July 11, 1999, between Registrant and MetaXen/Xenova. 10.17+ Employment Agreement, dated September 13, 1996, between Registrant and George Scangos, Ph.D. 10.18+ Employment Agreement, dated April 14, 1997, between Registrant and Geoffrey Duyk, M.D., Ph.D. 10.19+ Employment Agreement, dated October 19, 1999, between Registrant and Glen Y. Sato, Chief Financial Officer and Vice President of Legal Affairs. 23.1+ Consent of Independent Accountants (Exelixis). 23.2+ Consent of Independent Accountants (MetaXen). 23.3+ Consent of Cooley Godward LLP (included in Exhibit 5.1). 24.1+ Power of Attorney (contained on signature page). 27.1+ Financial Data Schedule. -------- + Previously filed. * Filed herewith. + Confidential treatment requested for certain portions of this exhibit.

Dates Referenced Herein   and   Documents Incorporated by Reference

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This ‘POS EX’ Filing    Date First  Last      Other Filings
Filed on / Effective on:4/11/00424B4
4/10/0018
4/5/0049
2/2/0049
12/16/9959
12/15/9959
11/15/99510
10/19/99510
9/14/99510
7/11/99510
5/12/99510
2/26/99410
1/25/9949
9/15/9859
8/17/9849
9/25/9759
6/1/97510
4/14/97510
1/1/974
9/13/96510
1/24/9649
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