As filed with the Securities and Exchange Commission on July 19, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under the Securities Act of 1933
TRANSGENOMIC, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 91-1789357
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5600 South 42nd Street,
Omaha, NE 68107
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(Address of principal executive offices) (Zip code)
TRANSGENOMIC, INC.
SECOND AMENDED AND RESTATED 1997 STOCK OPTION PLAN
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(Full title of the plan)
Collin J. D'Silva
Chairman and Chief Executive Officer
Transgenomic, Inc.
5600 South 42nd Street,
Omaha, NE 68107 (402) 738-5480
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(Name and address of agent for service) (Telephone number, including area
code, of agent for service)
Copies to:
-----------------
Steven P. Amen, Esq.
Kutak Rock LLP
1650 Farnam Street
Omaha, Nebraska 68102
(402) 346-6000
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------
Proposed
Maximum
Proposed Maximum Aggregate
Title of Securities to be Amount to Be Offering Price Offering Amount of
Registered Registered (1) Per Share (2) Price (3) Registration Fee
- -----------------------------------------------------------------------------------------------------------
Common Stock, par value
$0.01 per share 6,000,000 shares $25.89 $77,355,386 $20,422
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(1) This Registration Statement shall also cover any additional shares of
Registrant's common stock which become issuable under the Second
Amended and Restated 1997 Stock Option Plan, as amended from time to
time, with respect to the securities registered hereunder by reason of
any stock dividend, stock split, recapitalization or other similar
transaction effected without the
Registrant's receipt of consideration which results in an increase in
the number of the Registrant's outstanding shares of common stock.
(2) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the registration fee. The price per share is estimated to
be $[ ] based on the average of the high ($25.88) and low ($30.02)
sale prices for the Common Stock in the Nasdaq National Market on
July 18, 2000, as reported in the WALL STREET JOURNAL on July 19, 2000.
(3) Calculated pursuant to Rule 457(h) and equal to the sum of the
following: (a) $16,390,250 from the issuance of 3,278,050 shares under
outstanding options with an exercise price of $5.00 per share; (b)
$1,405,000 from the issuance of 140,500 shares under outstanding
options with an exercise price of $10.00 per share; (c) $7,325,500 from
the issuance of 563,500 shares under outstanding options with an
exercise price of $13.00 per share; and (d) $52,234,636 from the
issuance of 2,017,950 shares at an exercise price calculated in the
manner set forth in note 2.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
("Securities Act") and the Note to Part I of Form S-8.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed with the Securities and
Exchange Commission by Transgenomic, Inc. (the "Registrant") pursuant to the
Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated herein by reference:
(a) Prospectus, dated July 18, 2000, relating to issuance of 4,480,000
shares of our common stock filed under Rule 424(b) on July 18,
2000 (File No. 333-32174).
(b) All reports filed under Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 after the date of this Registration
Statement.
(c) Description of our common stock incorporated into our Registration
Statement on Form 8-A filed with the SEC on July 11, 2000 (File
No. 000-30975).
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any subsequently
filed document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation to grant, indemnity to directors and officers in
terms sufficiently broad to permit such indemnification under certain
circumstances for liabilities (including reimbursement of expenses incurred)
arising under the Securities Act of 1933.
As permitted by the Delaware General Corporation Law, our Restated
Certificate of Incorporation eliminates the personal liability of its directors
for monetary damages for breach of fiduciary duty as a director, except for
liability (1) for any breach of the director's duty of loyalty to us or its
stockholders, (2) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (3) under Section 174 of
the Delaware General Corporation Law (regarding unlawful dividends and stock
purchases) or (4) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law is amended to
authorize further elimination or limiting of directors' personal liability, then
the Restated Certificate provides that the personal liability of directors will
be eliminated or limited to the fullest extent provided under the Delaware
General Corporation Law.
As permitted by the Delaware General Corporation Law, our Amended and
Restated Certificate of Incorporation and our Bylaws provide that (1) we are
required to indemnify our directors and officers to the fullest extent permitted
by the Delaware General Corporation Law, subject to certain very limited
exceptions, (2) we may indemnify our other employees and agents as set forth in
the Delaware General Corporation Law, (3) we are required to advance expenses,
as incurred, to its directors and executive officers in connection with a legal
proceeding to the fullest extent permitted by the Delaware General Corporation
Law, subject to certain conditions and (4) the rights conferred by the Restated
Certificate of Incorporation and Bylaws are not exclusive.
The Delaware General Corporation Law authorizes a corporation to
indemnify its directors and officers provided that the corporation shall not
eliminate or limit the liability of a director as follows:
(a) for any action brought by or in the right of a corporation where
the director or officer is adjudged to be liable to the corporation, except
where a court determines the director or officer is entitled to indemnity;
(b) for acts or omissions not in good faith or which involve conduct
that the director or officer believes is not in the best interests of the
corporation;
(c) for knowing violations of the law;
(d) for any transaction from which the directors derived an improper
personal benefit; and
(e) for payment of dividends or approval of stock repurchases or
redemptions leading to liability under Section 174 of the Delaware General
Corporation Law.
The Delaware General Corporation Law requires a corporation to
indemnify a director or officer to the extent that the director or officer has
been successful, on the merits or otherwise, in defense of any action, suit or
proceeding for which indemnification is lawful.
We maintain a director and officer insurance policy which insures our
directors and officers against damages, judgments, settlements and costs
incurred by reason of certain wrongful acts committed by such persons in their
capacities as directors and officers.
Reference is also made to the form of Underwriting Agreement filed as
Exhibit 1 to this Registration Statement for our and the Underwriters'
respective agreements to indemnify each other, and to provide contribution in
circumstances where indemnification is unavailable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed as part of this
Registration Statement. Exhibit numbers correspond to the numbers in the Exhibit
Table of Item 601 of Regulation S-K.
Exhibit Description
Number -----------
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4(a) Specimen of Certificate of the Registrant's Common Stock, par
value $0.01 per share (incorporated by reference to Exhibit 4 of
the Registrant's Registration Statement on Form S-1 (Commission
file No. 333-32174) dated March 10, 2000)
4(b) The Registrant's Second Amended and Restated 1997 Stock Option
Plan (incorporated by reference to Exhibit 10.6 of the
Registrant's Registration Statement on Form S-1 (Commission file
No. 333-32174) dated March 10, 2000)
5 Opinion of Kutak Rock LLP
23(a) Consent of Kutak Rock LLP (included as part of Exhibit 5)
23(b) Consent of Deloitte & Touche LLP
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a)(l) 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; and
(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) 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 15(d) of the Exchange Act that is incorporated by
reference in this 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.
(h) That, insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant as described in Item 6 hereof 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 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 Omaha, State of Nebraska, on July 19, 2000.
TRANSGENOMIC, INC.
By /s/ Collin J. D'Silva
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Collin J. D'Silva,
Chairman and Chief Executive Officer
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 indicated as of July 19, 2000.
Signature Title
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/s/ Collin J. D'Silva Chairman of the Board, Director,
- ------------------------------------ President and Chief Executive Officer
Collin J. D'Silva (Principal Executive Officer)
/s/ William P. Rasmussen Chief Financial Officer
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William P. Rasmussen
/s/ Mitchell L. Murphy Controller and Secretary (Principal
- ------------------------------------- Financial Officer)
Mitchell L. Murphy
/s/ Stephen F. Dwyer Director
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Stephen F. Dwyer
/s/ Douglas T. Gjerde Director
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Douglas T. Gjerde, Ph.D.
/s/ Jeffrey Sklar Director
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Jeffrey Sklar, M.D., Ph.D.
/s/ Roland J. Santoni Director
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Roland J. Santoni
/s/ Gregory J. Duman Director
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Gregory J. Duman
/s/ Parag Saxena Director
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Parag Saxena
EXHIBIT INDEX
Exhibit Description
Number -----------
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4(a) Specimen of Certificate of the Registrant's Common Stock, par
value $0.01 per share (incorporated by reference to Exhibit 4 of
the Registrant's Registration Statement on Form S-1 (Commission
file No. 333-32174) dated March 10, 2000)
4(b) The Registrant's Second Amended and Restated 1997 Stock Option
Plan (incorporated by reference to Exhibit 10.6 of the
Registrant's Registration Statement on Form S-1 (Commission file
No. 333-32174) dated March 10, 2000)
5 Opinion of Kutak Rock LLP
23(a) Consent of Kutak Rock LLP (contained in its opinion filed as
Exhibit 5)
23(b) Consent of Deloitte & Touche LLP