SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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.)
1040 Swabia Court
Durham, North Carolina 27703
(Address of Principal Executive Offices) (Zip Code)
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
1040 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)
Copies 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
- --------------------------------------------------------------------------------------------------------
Common Stock 300,000 shares $9.42 $2,826,000 $228.62
$.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 $9.42 per share, the average of
the high and low prices for the common stock on June 4, 2003 on the Nasdaq
National Market System.
PART I
Information Required in the Section 10(a) Prospectus
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this registration statement omits the information specified in
Part I of Form S-8. The documents containing the information specified in Part I
will be delivered to the participants in the Amended and Restated Employee Stock
Purchase Plan, as amended (the "Purchase Plan"), and the Amended and Restated
Non-U.S. Employee Stock Purchase Plan, as amended (the "Non-U.S. Purchase Plan"
and together with the Purchase Plan, the "Plans"), of Embrex, Inc. (the
"Company"), as required by Rule 428(b) under the Securities Act of 1933. Such
documents are not being filed with the Commission as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424.
PART II
Information Required in the Registration Statement
This registration statement is filed to register 300,000 additional shares of
common stock of the Company for issuance pursuant to the Plans. Registration
statements on Form S-8 relating to the Plans, File Nos. 33-63318 and 333-42676,
are effective, and such registration statements are incorporated in this
registration statement by reference.
Item 3. Incorporation of Documents by Reference
The following additional 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, 2002 as
filed with the Commission on March 28, 2003.
(b) Quarterly Report on Form 10-Q for the three months ended March 31, 2003 as
filed with the Commission on May 13, 2003.
(c) Registration Statement on Form 8-A as filed with the Commission on August
29, 1991, and amended October 24, 1991 and November 5, 1991; and Registration
Statement on Form 8-A as filed with the Commission on March 22, 1996, and
amended January 6, 2003.
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 8. Exhibits
Exhibit No. Description
- ----------- -----------
4(1) Amendment to Rights Agreement dated as of January 6, 2003 between
Embrex and Branch Banking and Trust Company, as Rights Agent
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
2
Exhibit No. Description
- ----------- -----------
24 Power of Attorney (included as part of the signature page hereof)
99.1 Amendment dated February 6, 2003 to Amended and Restated Non-U.S.
Employee Stock Purchase Plan
99.2 Amendment dated May 15, 2003 to Amended and Restated Employee
Stock Purchase Plan
99.3 Amendment dated May 15, 2003 to Amended and Restated Non-U.S.
Employee Stock Purchase Plan
(1) Exhibit to the Company's Form 8-K as filed with the Securities and Exchange
Commission on January 9, 2003 and incorporated herein by reference
3
SIGNATURES
The Registrant. 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 Durham, State of North Carolina, on the 6th day of
June, 2003.
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,
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 6th day of June, 2003.
Signature Title Date
- --------- ----- ----
/s/ Randall L. Marcuson President, Chief Executive Officer June 6, 2003
- ----------------------- and Director
Randall L. Marcuson
/s/ Don T. Seaquist Vice President, Finance and June 6, 2003
- ------------------- Administration (Principal Financial
Don T. Seaquist and Accounting Officer)
/s/ C. Daniel Blackshear Director June 6, 2003
- ------------------------
C. Daniel Blackshear
/s/ David L. Castaldi Director June 6, 2003
- ---------------------
David L. Castaldi
/s/ Peter J. Holzer Director June 6, 2003
- -------------------
Peter J. Holzer
/s/ Ganesh M. Kishore, Ph.D. Director June 6, 2003
- ----------------------------
Ganesh M. Kishore, Ph.D.
/s/ John E. Klein Director June 6, 2003
- -----------------
John E. Klein
4
EMBREX, INC.
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4(1) Amendment to Rights Agreement dated as of January 6, 2003 between
Embrex and Branch Banking and Trust Company, as Rights Agent
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 Amendment dated February 6, 2003 to Amended and Restated Non-U.S.
Employee Stock Purchase Plan
99.2 Amendment dated May 15, 2003 to Amended and Restated Employee
Stock Purchase Plan
99.3 Amendment dated May 15, 2003 to Amended and Restated Non-U.S.
Employee Stock Purchase Plan
(1) Exhibit to the Company's Form 8-K as filed with the Securities and Exchange
Commission on January 9, 2003 and incorporated herein by reference
5