As filed with the Securities and Exchange Commission on July 31, 2000
Registration No. 333-
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
Registration Statement
Under
The Securities Act of 1933
EMBREX, INC.
(Exact name of registrant as specified in its charter)
North Carolina 56-1469825
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1035 Swabia Court
Durham, North Carolina 27703
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED INCENTIVE STOCK OPTION AND
NONSTATUTORY STOCK OPTION PLAN
AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED NON-U.S. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Randall L. Marcuson, President and Chief Executive Officer
1035 Swabia Court
Durham, North Carolina 27703
(Name and address of agent for service)
(919) 941-5185
(Telephone number, including area code, of agent for service)
Copy to:
Gerald F. Roach, Esq.
Christopher B. Capel, Esq.
SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.
Post Office Box 2611
Raleigh, North Carolina 27602
(919) 821-1220
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Title of securities Amount to Proposed maximum Proposed maximum Amount of
To be registered be registered offering price per aggregate offering registration fee
share/1/ price
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Common Stock, 800,000 shares $14.4375 $11,550,000 $3,049.20
$.01 par value
=================================================================================================================
/1/ This price is estimated solely for the purpose of calculating the
registration fee. Pursuant to Rules 457(c) and (h), shares that may be the
subject of the Plan are deemed to be offered at 14.4375 per share, the average
of the high and low prices for the Company's Common Stock on July 24, 2000 in
the Nasdaq National Market System.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been filed with the Commission and are
incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1999.
(b) Quarterly Report on Form 10-Q for the three months ended March
31, 2000.
(c) Current Report on Form 8-K dated February 22, 2000.
(d) Exhibit to the Company's Annual Report on Form 10-K as filed with
the Securities and Exchange Commission for the fiscal year ended
December 31, 1996, as amended by Form 10-K/A.
All documents filed by the Company subsequent to the date hereof pursuant
to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered under the Plan 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 a part hereof from the date
of filing of such documents.
Item 6. Indemnification of Directors and Officers.
North Carolina law permits a corporation to indemnify its directors,
officers, employees or agents under either or both a statutory or non-statutory
scheme of indemnification. Under the statutory scheme, a corporation may, with
certain exceptions, indemnify a director, officer, employee or agent of the
corporation who was, is, or is threatened to be made, a party to any threatened,
pending or completed legal action, suit or proceeding, whether civil, criminal,
administrative, or investigative, because of the fact that such person was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. This indemnity may include the obligation to
pay any judgment, settlement, penalty, fine (including an excise tax assessed
with respect to an employee benefit plan) and reasonable expenses incurred in
connection with the proceeding (including attorneys' fees), but no such
indemnification may be granted unless such director, officer, agent or employee
(1) conducted himself in good faith, (2) reasonably believed (a) that any action
taken in his official capacity with the corporation was in the best interest of
the corporation or (b) that in all other cases his conduct at least was not
opposed to the corporation's best interest, and (3) in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful. Whether
a director has met the requisite standard of conduct for the type of
indemnification set forth above is determined by the board of directors, a
committee of directors, special legal counsel or the shareholders in accordance
with the statute. A corporation may not indemnify a director under the statutory
scheme in connection with the proceeding by or in the right of the corporation
in which the director was adjudged liable to the corporation or in connection
with the proceeding in which a director was adjudged liable on the basis of
having received an improper personal benefit.
In addition to, and separate and apart from the indemnification described
above under the statutory scheme, North Carolina law permits a corporation to
indemnify or agree to indemnify any of its directors, officers, employees or
agents against liability and expenses (including attorneys fees) in any
proceeding (including proceedings brought by or on behalf of the corporation)
arising out of their status as such or their activities in such capacities,
except for any liabilities or expenses incurred on account of activities that
were, at the time taken, known or believed by the person to be clearly in
conflict with the best interests of the corporation. The Company's Bylaws
provide for indemnification to the extent provided by North Carolina law, except
that in the event of an action or suit by or in the right of the Company, (1) a
person may be indemnified only to the extent of expenses (including attorneys
fees) reasonably incurred by him in connection with the defense or settlement
thereof and not for any judgments, fines or amounts paid in settlement and (2)
no indemnification may be made in respect of any
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claim, issue or matter as to which a person was adjudged to be liable for
negligence or misconduct in the performance of his duties, except as such
indemnification is determined to be proper by a court. Accordingly, the Company
may indemnify its directors, officers, employees and agents in accordance with
either the statutory or non-statutory standard.
In addition, North Carolina law requires a corporation, unless its articles
of incorporation provide otherwise (unlike the Company's), to indemnify a
director or officer who has been wholly successful, on the merits or otherwise,
in the defense of any proceeding to which such director or officer was a party.
Unless prohibited by the articles of incorporation, a director or officer also
may make application and obtain court-ordered indemnification if the court
determines that such director or officer is fairly and reasonably entitled to
such indemnification.
Finally, North Carolina law provides that a corporation may purchase and
maintain insurance on behalf of an individual who is or was a director, officer,
employee or agent of the corporation against certain liabilities incurred by
such persons, whether or not the corporation is otherwise authorized by North
Carolina law to indemnify such party. The Company's directors and officers are
currently covered under directors' and officers' insurance policies maintained
by the Company.
As permitted by North Carolina law, the Company's Articles of Incorporation
limit the personal liability of directors for monetary damages for breaches of
duty as a director provided that such limitation will not apply to (1) acts or
omissions not made in good faith that the director at the time of the breach
knew or believed were in conflict with the best interests of the Company, (2)
any liability for unlawful distributions under North Carolina law, (3) any
transaction from which the director derived an improper personal benefit or (4)
acts or omissions occurring prior to the date the provision became effective.
Item 8. Exhibits
Exhibit
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No.
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4/1/ Specimen Common Stock Certificate.
5 Opinion of Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, L.L.P.
23.1 Consent of Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, L.L.P. (included in Exhibit 5 hereto).
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney (included as part of the signature page
hereof).
99.1 Amended and Restated Incentive Stock Option and
Nonstatutory Stock Option Plan.
99.2 Amended and Restated Employee Stock Purchase Plan.
99.3 Amended and Restated Employee Stock Purchase Plan for Non-
U.S. Employees.
______________________
/1/ Exhibit to the Company's Annual Report on Form 10-K as filed with the
Securities and Exchange Commission for the fiscal year ended December 31, 1996,
as amended by Form 10-K/A and incorporated herein by reference.
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Item 9. Undertakings
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 of 1933, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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.
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Durham,
State of North Carolina, on the 20th day of July, 2000.
EMBREX, INC.
By: /s/ Randall L. Marcuson
---------------------------
Randall L. Marcuson
President and
Chief Executive Officer
We, the undersigned directors and officers of Embrex, Inc. (the "Company"),
do hereby constitute and appoint Randall L. Marcuson and Don T. Seaquist or
either of them, our true and lawful attorneys-in-fact and agents, with full
powers of substitution, to sign any or all amendments (including post-effective
amendments) to this Registration Statement on Form S-8 and to file the same
granting unto said attorneys-in-fact and agents full power and authority, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully for all
intents and purposes as we might or could do in person; and we do hereby ratify
and confirm all that the said attorneys-in-fact and agents, or either of them,
shall do or cause to be done by virtue of this power of attorney.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of the
Company in the capacities indicated on the 20th day of July, 2000.
Signature Title
- --------- -----
/s/ Randall L. Marcuson President, Chief Executive Officer and
- --------------------------------------------
Randall L. Marcuson Director
/s/ Don T. Seaquist Vice President, Finance and Administration
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Don T. Seaquist (Principal Financial Accounting Officer)
/s/ Peter J. Holzer Chairman of the Board of Directors
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Peter J. Holzer
/s/ C. Daniel Blackshear Director
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C. Daniel Blackshear
/s/ Lester M. Crawford, D.V.M., Ph.D. Director
- --------------------------------------------
Lester M. Crawford, D.V.M., Ph.D.
/s/ Kenneth M. May, Ph.D. Director
- --------------------------------------------
Kenneth M. May, Ph.D.
Director
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Arthur M. Pappas
/s/ Walter V. Smiley Director
- --------------------------------------------
Walter V. Smiley
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EMBREX, INC.
EXHIBIT INDEX
Exhibit
No. Description
- --- -----------
4/1/ Specimen Common Stock Certificate.
5 Opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P.
23.1 Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P. (included in Exhibit 5 hereto).
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney (included as part of the signature page
hereof).
99.1 Amended and Restated Incentive Stock Option and Nonstatutory
Stock Option Plan.
99.2 Amended and Restated Employee Stock Purchase Plan.
99.3 Amended and Restated Employee Stock Purchase Plan for Non-U.S.
Employees.
_______________________
/1/ Exhibit to the Company's Annual Report on Form 10-K as filed with the
Securities and Exchange Commission for the fiscal year ended December 31, 1996,
as amended by Form 10-K/A and incorporated herein by reference.
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