-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FXKmjBPSqrrSArgwcXEyJQjbQI+v1i0deGFvRftCh35iU+l22EVyhjodidce9MGu m1uqnAZwCimXaI3BsSekAw== /in/edgar/work/0000912057-00-044468/0000912057-00-044468.txt : 20001012 0000912057-00-044468.hdr.sgml : 20001012 ACCESSION NUMBER: 0000912057-00-044468 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20001011 EFFECTIVENESS DATE: 20001011 FILER: COMPANY DATA: COMPANY CONFORMED NAME: KOSAN BIOSCIENCES INC CENTRAL INDEX KEY: 0001110206 STANDARD INDUSTRIAL CLASSIFICATION: [8731 ] IRS NUMBER: 943217016 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-47758 FILM NUMBER: 738562 BUSINESS ADDRESS: STREET 1: 3832 BAY CENTER PLACE CITY: HAYWARD STATE: CA ZIP: 94545 BUSINESS PHONE: 5107328400 MAIL ADDRESS: STREET 1: 3832 BAY CENTER PLACE CITY: HAYWARD STATE: CA ZIP: 94545 S-8 1 a2027530zs-8.txt FORM S-8 As filed with the Securities and Exchange Commission on October 11, 2000 REGISTRATION NO. 333- =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------------- KOSAN BIOSCIENCES INCORPORATED (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) --------------------------------- DELAWARE 3832 BAY CENTER PLACE 94-3217016 (STATE OF INCORPORATION) HAYWARD, CA 94545 (I.R.S. EMPLOYER (510) 732-8400 IDENTIFICATION NUMBER) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) ------------------------------------ 1996 STOCK OPTION PLAN 2000 EMPLOYEE STOCK PURCHASE PLAN 2000 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN (FULL TITLE OF THE PLANS) ------------------------- DANIEL V. SANTI, M.D., PH.D. CHAIRMAN AND CHIEF EXECUTIVE OFFICER KOSAN BIOSCIENCES INCORPORATED 3832 BAY CENTER PLACE HAYWARD, CA 94545 (510) 732-8400 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) --------------------- COPY TO: BLAIR W. STEWART, ESQ. WILSON SONSINI GOODRICH & ROSATI, P.C. 650 PAGE MILL ROAD PALO ALTO, CA 94304-1050 (650) 493-9300
=================================================================================================================================== CALCULATION OF REGISTRATION FEE =================================================================================================================================== PROPOSED PROPOSED TITLE OF MAXIMUM MAXIMUM SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF TO BE TO BE PRICE OFFERING REGISTRATION REGISTERED REGISTERED(1) PER SHARE PRICE FEE - -------------------------------------------------------------- ------------------- ----------------- ----------------- ------------ Common Stock, $.001 par value To be issued upon exercise of options under the 1996 Stock Option Plan 2,334,048 shares $ 8.62 (2) $20,115,460.92 $ 5,310.48 To be issued under the 2000 Employee Stock Purchase Plan 300,000 shares $ 11.90 (3) $ 3,570,000 $ 942.48 To be issued upon exercise of options under the 2000 Non-Employee Director Stock Option Plan 300,000 shares $ 14.00 (4) $ 4,200,000 $ 1,108.80 TOTAL 2,934,048 SHARES $27,885,460.92 $ 7,361.76 ============================================================== =================== ================= ================= ============
(1) For the sole purpose of calculating the registration fee, the number of shares to be registered under this Registration Statement has been broken down into three subtotals. (2) The Proposed Maximum Offering Price Per Share was estimated pursuant to Rule 457(h) under the Securities Act of 1933, as amended. With respect to the 1,057,341 shares which are subject to outstanding options to purchase Common Stock under the 1996 Stock Option Plan (the "Option Plan"), the Proposed Maximum Offering Price Per Share was estimated pursuant to Rule 457(h) under which the per share price of options to purchase stock under an employee stock option plan may be estimated by reference to the exercise price of such options. The weighted average exercise price of the 1,057,341 shares subject to outstanding options under the Option Plan is $2.12. With respect to the 1,276,707 shares of Common Stock available for future grant under the Option Plan, the estimated Proposed Maximum Offering Price Per Share was estimated in accordance with Rule 457(h) solely for purposes of calculating the registration fee on the basis of $14.00, the price per share of the public offering set forth on the cover page of the Company's Prospectus dated October 5, 2000 relating to its initial public offering (the "Market Price"). The number referenced above in the table entitled "Proposed Maximum Offering Price per Share" represents a weighted average of the foregoing estimates calculated in accordance with Rules 457(h). (3) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $11.90 (85% of the Market Price). (4) Estimated in accordance with Rule 457(h) solely for purposes of calculating the registration fee on the basis of $14.00, the Market Price. KOSAN BIOSCIENCES INCORPORATED REGISTRATION STATEMENT ON FORM S-8 PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. There are hereby incorporated by reference in this Registration Statement the following documents and information heretofore filed with the Securities and Exchange Commission: (a) The Registrant's Prospectus filed on October 5, 2000 pursuant to Rule 424(b)(4) of the Securities Act, which contains audited financial statements for the Registrant's latest fiscal year for which such statements have been filed. (b) Not applicable (c) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A filed September 27, 2000, pursuant to Section 12(g) of the 1934 Act and declared effective on October 4, 2000. In addition, all documents filed by the Registrant 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 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. Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto, California, is corporate counsel to the Registrant and has rendered an opinion as to the Common Stock offered hereby. WS Investments, an investment partnership composed of current and former members of and persons associated with Wilson Sonsini Goodrich & Rosati, beneficially owns an aggregate of 16,437 shares of the Registrant's Common Stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant's certificate of incorporation limits the liability of directors to the maximum extent permitted by Delaware law. However, the Registrant will indemnify a person in connection with a proceeding initiated by such person only if such proceeding was authorized by the Registrant's board. Delaware law provides that directors of a corporation will not be held personally liable for monetary damages for breach of their fiduciary duties as directors, except for breaches of the director's duty of loyalty to Registrant or its stockholders, acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, and transactions from which a director derives an improper benefit. This limitation of II-1 liability does not apply to liabilities arising under the state or federal securities laws and does not affect the availability of equitable remedies such as injunctive relief or recission. The Registrant's bylaws provide that it must indemnify its directors and executive officers and may indemnify its other officers and employees and agents to the fullest extent permitted by law. The Registrant believes that indemnification under its bylaws covers at least negligence and gross negligence on the part of indemnified parties. The Registrant's bylaws also permit it to obtain insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in such capacity, regardless of whether the bylaws would permit indemnification. The Registrant has entered into agreements to indemnify its directors and officers, in addition to indemnification provided for in its bylaws. These agreements, among other things, provided that we will indemnify each of its directors and officers for various expenses, including attorneys' fees, judgments, fines and settlement amounts incurred by them in any action or proceeding, including any action by or arising out of their services as one of its directors or officers, any subsidiaries or any other company or enterprise to which he or she provides services at its request. In addition, the Registrant intends to obtain directors' and officers' insurance providing indemnification for its directors and officers. The Registrant believes that these provisions, agreements and insurance are necessary to attract and retain qualified directors and officers. At present, there is no pending litigation or proceeding involving any of Registrant's directors, officers, employees or agents where indemnification will be required or permitted. The Registrant is not aware of any threatened litigation or proceeding that might result in a claim for such indemnification. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS.
Exhibit Number .........Description 4.1* Specimen of Common Stock Certificate 4.2* 1996 Stock Option Plan 4.3* 2000 Employee Stock Purchase Plan 4.4* 2000 Non-Employee Director Stock Option Plan 5.1 Opinion of Counsel as to legality of securities being registered. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of Counsel (contained in Exhibit 5.1). 24.1 Power of Attorney (see Page II-4 of this Registration Statement). - ------------------
* Incorporated by reference to the Registrant's Registration Statement on Form S-1, as amended (No. 333-33732), which was declared effective on October 4, 2000. II-2 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, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the of the 1934 Act) that is incorporated by reference in the registration statement 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. 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 hereunder, 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 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 Hayward, State of California, on this 11th day of October 2000. KOSAN BIOSCIENCES INCORPORATED By: /S/ DANIEL V. SANTI ------------------------------------ Daniel V. Santi, Chairman and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints each of Daniel V. Santi and Michael S. Ostrach or any of them, each acting alone, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, in connection with this Registration Statement, including to sign and file in the name and on behalf of the undersigned as director or officer of the Registrant (i) any and all amendments or supplements (including any and all stickers and post-effective amendments) to this Registration Statement, with all exhibits thereto, and other documents in connection therewith, and (ii) any and all additional registration statements, and any and all amendments thereto, relating to the same offering of securities as those that are covered by this Registration Statement that are filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission and any applicable securities exchange or securities self-regulatory body, 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 things requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she 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 or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. II-4 Pursuant to the requirements of the Securities Act, this registration statement has been signed on October 11, 2000 by the following persons in the capacities indicated.
SIGNATURE TITLE - ------------------------------------------------ -------------------------------------------------------------------------- /S/ DANIEL V. SANTI Chief Executive Officer and Chairman of the Board of Directors - ------------------------------------------------ (Principal Executive Officer) Daniel V. Santi /S/ SUSAN M. KANAYA Vice President, Finance and Chief Financial Officer (Principal Financial - ------------------------------------------------ and Accounting Officer) Susan M. Kanaya /S/ PETER DAVIS - ------------------------------------------------ Peter Davis Director - ------------------------------------------------ Jean Deleage Director /S/ CHAITAN KHOSLA - ------------------------------------------------ Chaitan Khosla Director /S/ CHRISTOPHER WALSH - ------------------------------------------------ Christopher Walsh Director /S/ RAYMOND WHITAKER - ------------------------------------------------ Raymond Whitaker Director
II-5
INDEX TO EXHIBITS EXHIBIT NUMBER DESCRIPTION - ------------------------------- -------------------------------------------------------------------------------------- 4.1* Specimen of Common Stock Certificate 4.2* 1996 Stock Option Plan. 4.3* 2000 Employee Stock Purchase Plan. 4.4* 2000 Non-Employee Director Stock Option Plan. 5.1 Opinion of counsel as to legality of securities being registered. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of counsel (contained in Exhibit 5.1). 24.1 Power of Attorney (see page II-4). - ------------------
* Incorporated by reference to the Registrant's Registration Statement on Form S-1, as amended (No. 333-33732), which was declared effective on October 4, 2000. EX-5.1 2 a2027530zex-5_1.txt EXHIBIT 5.1 EXHIBIT 5.1 October 10, 2000 Kosan Biosciences Incorporated 3832 Bay Center Place Hayward, CA 94545 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about October 10, 2000 (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of 2,334,048 shares under the 1996 Stock Option Plan, 300,000 shares under the 2000 Employee Stock Purchase Plan, and 300,000 shares under the 2000 Non-Employee Director Stock Option Plan (which Plans are referred to herein as the "Plans" and which Shares are referred to herein as the "Shares"). As your legal counsel, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the proposed sale and issuance of the Shares pursuant to the Plans. It is our opinion that, when issued and sold in the manner referred to in the Plans, the Shares will be legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement and any amendment thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation EX-23.1 3 a2027530zex-23_1.txt EXHIBIT 23.1 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 1996 Stock Option Plan, 2000 Employee Stock Purchase Plan and 2000 Non-Employee Directors Stock Option Plan of our report dated March 10, 2000 (except for the first paragraph of Note 9, as to which the date is September 28, 2000) with respect to the financial statements of Kosan Biosciences Incorporated as of December 31, 1998 and 1999 and for each of three years in the period ended December 31, 1999 included in its Registration Statement (Form S-1 No. 333-33732) and related Prospectus dated October 5, 2000, filed with the Securities and Exchange Commission. /S/ ERNST & YOUNG LLP Palo Alto, California October 6, 2000 -----END PRIVACY-ENHANCED MESSAGE-----