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As filed with the Securities and Exchange Commission on June 21, 1996
Registration No. 333-___
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
CALGENE, INC.
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(Exact name of registrant as specified in its charter)
Delaware 68-0369863
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1920 Fifth Street, Davis, California 95616
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(Address of principal executive offices) (Zip code)
1996 Stock Option Plan
1991 Stock Option Plan, as amended
1990 Employee Stock Purchase Plan
1981 Stock Option Plan
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(Full title of the plans)
Roger H. Salquist
Chief Executive Officer
Calgene, Inc.
1920 Fifth Street,
Davis, Calfornia 95616
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(Name and address of agent for service)
(916) 753-6313
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(Telephone number, including area code, of agent for service)
Mark G. Borden, Esq.
Hale and Dorr
60 State Street
Boston, Massachusetts 02109
(617) 526-6000
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share(1) Price(1) Fee(1)
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<S> <C> <C> <C> <C>
1996 Stock 1,325,082 $ 5.75(2) $ 7,619,222 $ 2,627.32
Option Plan 150,000 5.88(2) 882,000 304.14
Common Stock 57,500 5.94(2) 341,550 117.77
(Par Value $.001) 3,467,418 6.00(2) 20,804,508 7,173.97
- -------------------------------------------------------------------------------------
1991 Stock 13,000 $ 4.75(2) $ 61,750 $ 21.29
Option Plan, 75,000 4.94(2) 370,500 127.76
as amended 61,000 5.13(2) 312,930 107.91
Common Stock 13,975 5.44(2) 76,024 26.15
(Par Value $.001) 35,000 5.50(2) 192,500 66.38
103,500 5.69(2) 588,915 203.07
7,000 5.88(2) 41,160 14.93
339,091 6.00(2) 2,034,546 701.57
49,882 6.25(2) 311,763 107.50
6,000 6.50(2) 39,000 13.45
3,000 6.56(2) 19,680 6.79
1,000 6.65(2) 6,650 2.29
62,845 6.75(2) 424,204 146.28
144,267 6.88(2) 992,557 342.26
18,000 6.94(2) 124,920 43.08
5,000 7.00(2) 35,000 12.06
10,000 7.38(2) 73,800 25.45
1,151,962 7.50(2) 8,639,715 2,979.21
50,000 7.63(2) 381,500 131.55
1,000 8.31(2) 8,310 2.87
144,618 8.63(2) 1,248,053 430.36
9,000 10.00(2) 90,000 31.03
10,000 10.94(2) 109,400 37.72
6,000 11.13(2) 66,780 23.03
1,500 12.38(2) 18,570 6.40
10,000 13.13(2) 131,300 45.28
9,000 14.13(2) 127,170 43.85
10,000 14.63(2) 146,300 50.45
12,000 15.25(2) 183,000 63.10
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1990 Employee
Stock Purchase
Plan
Common Stock
(Par Value $.001) 366,168 6.00(1) 2,197,008 757.59
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1981 Stock
Option Plan 104,762 $ 5.25 $ 550,001 $ 189.66
Common Stock 12,000 5.75 69,000 23.79
(Par Value $.001) 21,279 7.50 159,592 55.03
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TOTAL 7,866,849 $49,478,878 $ 17,061.68
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(1) Price estimated solely for the purpose of calculating the
registration fee pursuant to Rules 457(c) and (h) under the
Securities Act of 1933, as amended, and based on the average
of the high and low prices of the Registrant's Common Stock
on June 14, 1996 as quoted on the Nasdaq National Market.
(2) All such shares are issuable upon exercise of outstanding
options with fixed exercise prices. Pursuant to Rule 457(h)(1)
under the Securities Act of 1933, the aggregate offering
price and the fee have been computed upon the basis of the
price at which the options may be exercised.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1996 Stock Option Plan, 1991 Stock Option Plan, as
amended, 1990 Employee Stock Purchase Plan and the 1981 Stock Option Plan of
Calgene, Inc., a Delaware corporation (the "Registrant"), pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
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The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). The following documents, which are on file with the
Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act or of the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such statements
have been filed.
(b) The Registrant's Proxy Statement/Prospectus contained in its
Registration Statement on Form S-4 as filed with the Commission on February 6,
1996.
(c) The Registrant's Form 8-K as filed with the Commission on
April 15, 1996.
(d) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the Registrant
document referred to in (a) above.
(e) The description of the Registrant's Common Stock, $.001 par
value per share ("Common Stock"), contained in a registration statement filed
under the Exchange Act, including any amendment or report filed for the purpose
of updating such description.
All documents subsequently 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 hereby have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be 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 other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
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Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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Not applicable.
Item 6. Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify any person who was or is a party or witness or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise. Depending on the character of the
proceeding, a corporation may indemnify against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if the person
indemnified acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. If the person indemnified is not wholly successful in
such action, suit or proceeding, but is successful, on the merits or otherwise,
in one or more but less than all claims, issues or matters in such proceeding,
he or she may be indemnified against expenses actually and reasonably incurred
in connection with each successfully resolved claim, issue or matter. In the
case of an action or suit by or in the right of the corporation, no
indemnification may be made in respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine that despite the adjudication of liability
such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper. Section 145 provides that to the extent a
director, officer, employee or agent of a corporation has been successful in the
defense of any action, suit or proceeding referred to above or in the defense of
any claim, issue or manner therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith.
Section 102(b)(7) of the Delaware General Corporation Law enables a
Delaware corporation to provide in its certificate of incorporation for the
elimination or limitation of the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided, however, that a director's liability is not
eliminated or limited: (1) for any breach of the
<PAGE>
director's duty of loyalty to the corporation or its stockholders; (2) for acts
or omissions not in good faith or which involve an intentional misconduct or a
knowing violation of law; (3) pursuant to Section 174 of the Delaware General
Corporation Law (which imposes liability on directors for unlawful payment of
dividends or unlawful stock purchases or redemptions); or (4) for any
transaction from which the director derived an improper personal benefit. The
Amended and Restated Certificate of Incorporation further provides that if the
Delaware General Corporation Law is amended to authorize the further elimination
or limitation of the liability of directors, then the liability of a director
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as amended.
The Registrant's Amended and Restated Certificate of Incorporation
provides except to the extent that the General Corporation Law of Delaware
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty, no director of the Registrant shall be personally liable to
the Registrant or its stockholders for monetary damages for any breach of
fiduciary duty as a director.
The Registrant's Amended and Restated Certificate of Incorporation
provides that the Registrant shall, to the fullest extent permitted by the
General Corporation Law of Delaware, indemnify any person who was or is a party
or is threatened to be made a party to any action, suit or proceeding of the
type described above by reason of the fact that such person is or was a director
or officer of the Registrant or is or was serving at the request of the
Registrant as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. No expenses will be paid
in advance, except as authorized by the Board of Directors for expenses incurred
while a director or officer was acting in his or her capacity as a director or
officer and upon the condition that such director or officer previously
delivered an understanding to the corporation to repay all amounts advanced if
it should be later determined that such person was not entitled to
indemnification. The indemnification is not exclusive of any other rights to
which the officers or directors may be entitled under any agreement or vote of
stockholders or disinterested directors or otherwise, continues after such
person has ceased to be a director or officer and inures to the benefit of such
person's heirs, executors and administrators.
The Registrant's Amended and Restated Certificate of Incorporation also
provides that the Registrant may purchase and maintain insurance on behalf of
any director, officer, employee or agent of the Registrant, or any person
serving at the request of the Registrant as a director, officer, employee or
agent of another enterprise, against any expenses, liability or loss, incurred
by such person in any such capacity or arising out of his status as such,
whether or not the Registrant would have the power to indemnify such person
against any such expense, liability or loss.
The Registrant carries a general liability insurance policy which covers
certain liabilities of directors and officers of the Registrant arising out of
claims based on acts or omissions in their capacity as directors or officers.
<PAGE>
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
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The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. Undertakings
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(a) The Registrant hereby undertakes:
(i) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
A. To include any prospectus required by
Section 10(a)(3) of the Securities Act;
B. To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement; and
C. To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement;
provided, however that paragraphs (A) and (B) of this section
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do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(ii) 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.
(iii) 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.
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(b) The 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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange 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 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Davis, State of California, on this twenty-first
day of June, 1996.
CALGENE, INC.
By: /s/ Roger H. Salquist
---------------------
Roger H. Salquist
Chief Executive Officer and Director
POWER OF ATTORNEY
We, the undersigned officers and directors of Calgene, Inc., hereby
severally constitute and appoint Roger H. Salquist, Michael J. Motroni and Mark
G. Borden, Esq., and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names, in
the capacities indicated below, the Registration Statement on Form S-8 filed
herewith, and any and all amendments to said Registration Statement and
generally to do all such things in our names and behalf in our capacities as
officers and directors to enable Calgene, Inc. to comply with the Securities
Act, and all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title (Capacity) Date
--------- ---------------- ----
/s/ Roger H. Salquist Chief Executive June 21, 1996
- ----------------------------- Officer and Director
Roger H. Salquist (Principal Executive
Officer)
/s/ Michael J. Motroni Vice President of Finance June 21, 1996
- ----------------------------- (Principal Financial Officer
Michael J. Motroni and Principal Accounting Officer)
<PAGE>
/s/ Robert E. Baker Director June 21, 1996
- ----------------------------
Robert E. Baker
Director June 21, 1996
- ----------------------------
Robert T. Fraley
Director June 21, 1996
- ----------------------------
Jeffrey D. Gargiulo
/s/ Howard D. Palefsky Director June 21, 1996
- ----------------------------
Howard D. Palefsky
/s/ John E. Robson Director June 21, 1996
- ----------------------------
John E. Robson
/s/ Allen J. Vangelos Director June 21, 1996
- ----------------------------
Allen J. Vangelos
Director June 21, 1996
- ----------------------------
Hendrik A. Verfaillie
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------- -------
4.1* Amended and Restated Certificate of
Incorporation of the Registrant
4.2* By-Laws of the Registrant
4.3* Specimen Stock Certificat of Common Stock
of the Registrant
5.1 Opinion of Hale and Dorr, Counsel to
the Registrant
23.1 Consent of Hale and Dorr
(included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.3.1 Consent of Deloitte & Touche LLP, St. Louis, Missouri
23.3.2 Consent of Deloitte & Touche LLP, Miami, Florida
23.4 Consent of Landa, Umpierre & Company
23.5 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included in the
signature pages of this Registration
Statement)
- ------------------------------
* Previously filed with the Commission as an Exhibit to the
Registrant's Registration Statement on Form S-4,
File No. 33-00739, which was originally filed with the
Commission February 6, 1996 and is incorporated
herein by reference.
<PAGE>
Exhibit 5.1
June 20, 1996
Calgene, Inc.
1920 Fifth Street
Davis, California 95616
Re: 1996 Stock Option Plan
----------------------
1991 Stock Option Plan, as amended
----------------------------------
1990 Employee Stock Purchase Plan
---------------------------------
1981 Stock Option Plan
----------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission relating to an aggregate of 7,866,849 shares of Common
Stock, $.001 par value per share (the "Shares"), of Calgene, Inc., a Delaware
corporation (the "Company"), issuable under the Company's 1996 Stock Option
Plan, 1991 Stock Option Plan, 1990 Employee Stock Purchase Plan and 1981 Stock
Option Plan (the "Plans").
We have examined the Amended and Restated Certificate of Incorporation and
By-laws of the Company and all amendments thereto, the Registration Statement
and originals, or copies certified to our satisfaction, of such records of
meetings, written actions in lieu of meetings or resolutions adopted at meetings
of the directors of the Company, and such other documents and instruments as in
our judgment are necessary or appropriate to enable us to render the opinions
expressed below.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as copies, and the authenticity of the originals of all such documents.
Based upon and subject to the foregoing, we are of the opinion that the
shares covered by the Registration Statement to be issued under the Plan have
been duly and validly authorized for issuance and, when issued and paid for in
accordance with the terms of the Plan, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr
HALE AND DORR
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<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Calgene, Inc. 1996 Stock Option Plan, 1991 Stock Option
Plan, as amended, 1990 Employee Stock Purchase Plan and 1981 Stock Option Plan
of our report dated August 18, 1995, with respect to the consolidated financial
statements and schedules of Calgene, Inc. included in its Annual Report (Form
10-K) for the year ended June 30, 1995, filed with the Securities and Exchange
Commission.
We also consent to the incorporation by references in such Registration
Statement (Form S-8) of our report dated December 18, 1995, with respect to the
consolidated balance sheet of Calgene II, Inc. as of December 15, 1995 included
in the Proxy Statement of Calgene, Inc. dated February 6, 1996, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Sacramento, California
June 14, 1996
<PAGE>
EXHIBIT 23.3.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
Calgene, Inc. on Form S-8, of our report dated October 2, 1995 accompanying the
combined financial statements of Tomato Investments and Associates, Inc. and
Produce Related Technology of Monsanto Company, appearing in the Prospectus
which is part of the Registration Statement on Form S-4 of Calgene II, Inc. for
the registration of 31,290,445 shares of its common stock.
DELOITTE & TOUCHE LLP
St. Louis, Missouri
June 18, 1996
<PAGE>
EXHIBIT 23.3.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
Calgene, Inc. on Form S-8, of our reports dated September 22, 1995 (except for
Note 9, as to which the date is December 29, 1995) and October 29, 1993
accompanying the consolidated financial statements of Gargiulo L.P. and
Subsidiaries and the combined financial statements of NTGargiulo Inc. and
Affiliates, respectively, appearing in the Prospectus which is part of the
Registration Statement on Form S-4 of Calgene II, Inc., for the registration of
31,290,445 shares of its common stock.
DELOITTE & TOUCHE LLP
Miami, Florida
June 19, 1996
<PAGE>
EXHIBIT 23.4
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in the Registration Statement
of Calgene, Inc. on Form S-8, of our reports dated August 18, 1995 and August
10, 1994 accompanying the Financial Statements of NT Gargiulo PR, Inc. and its
Subsidiary, respectively, appearing in the Prospectus which is part of the
Registration Statement on Form S-4 of Calgene II, Inc., for the registration of
31,290,445 shares of its common stock.
LANDA, UMPIERRE & COMPANY
San Juan, Puerto Rico
June 18, 1996
<PAGE>
EXHIBIT 23.5
CONSENT TO USE OF REPORTS OF
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
September 28, 1995, included in Calgene II, Inc.'s Form S-4 dated February 6,
1996, and to all references to our firm included in this registration statement.
Arthur Andersen LLP
Tampa, Florida
June, 14, 1996
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