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As filed with the Securities and Exchange Commission on March 30, 2000
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
VYSIS, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 36-3803405
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
3100 Woodcreek Drive
Downers Grove, Illinois 60515
(Address of Principal Executive Offices) (Zip Code)
VYSIS, INC.
1998 Long Term Incentive Plan
(Full Title of the Plan)
John L. Bishop
President and Chief Executive Officer
Vysis, Inc.
3100 Woodcreek Drive
Downers Grove, Illinois 60515
(Name and Address of Agent For Service)
(630) 271-7000
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Per Aggregate Offering Registration
to be Registered Registered(1) Share(2) Price(2) Fee
<S> <C> <C> <C> <C>
Common Stock, $0.001 par
value........................................... 1,500,000 $5.40 $8,100,000 $2,139
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</TABLE>
(1) Also registered hereby are an indeterminate number of additional shares
that may become issuable pursuant to the anti-dilution provisions of the
plan.
(2) In accordance with Rule 457(h)(1), the offering price for the 495,734
shares currently subject to options was computed based upon a weighted
average exercise price of $5.38 per share; the offering price of the
remaining 4,266 shares for which options have not been awarded was computed
upon the basis of the average of the high and low sale prices of the shares
reported on the NASDAQ National Market System on March 23, 2000, which was
$12.92.
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by Vysis, Inc., a
corporation organized under the laws of the State of Delaware (the "Company" or
the "Registrant"), with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated by reference herein and shall be deemed to be
a part hereof:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999, filed with the
Commission pursuant to Section 13(a) under the
Exchange Act. (Exchange Act File No. 000- 23659)
(b) The description of the Company's common stock, par
value $.001 per share (the "Common Stock") under the
caption "Description of Registrant's Securities to be
Registered" included in the Company's Registration
Statement on Form 8-A. (Exchange Act File No.
000-23659)
All documents subsequently filed by the Company 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 herein by reference and shall be deemed a 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.
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by William E. Murray, General Counsel of the
Company. As of March 24, 2000, Mr. Murray owned options to purchase 91,424
shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) The Delaware General Corporation Law (Section 145) gives Delaware
corporations broad powers to indemnify their present and former directors and
officers and those of affiliated corporations against expenses incurred in the
defense of any lawsuit to which they are made parties by reason of being or
having been such directors or officers, subject to specified conditions and
exclusions, gives a director or officer who successfully defends an action the
right to be so indemnified, and authorizes the Company to buy directors' and
officers' liability insurance. Such indemnification is not exclusive of any
other rights to which those indemnified may be entitled under any by-laws,
agreement, vote of stockholders or otherwise.
(b) Article 10 of the Certificate of Incorporation of the Company and
Article 6 of the Company's By-laws provides for indemnification of directors and
officers to the fullest extent permitted by law.
The Company maintains directors and officers liability insurance for
the benefit of its directors and certain of its officers.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index which is incorporated herein by reference.
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:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933, as amended
(the "Securities Act");
(ii) 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.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high and of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii)
do not apply if the registration statement is on Form
S-3 or Form S-8, 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.
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.
4. 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 Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
II-2
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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.
5. 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.
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of Vysis, Inc. hereby constitutes and appoints John L. Bishop and
William E. Murray, and each of them, severally, as his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, in any and
all capacities, with full power to act alone, to sign any and all amendments to
this registration statement, and to file each such amendment to this
registration statement with all exhibits thereto, and any and all documents in
connection therewith, with the Securities and Exchange Commission, hereby
granting unto said attorney-in-fact and agent full power and authority to do and
perform any and all acts and things requisite and necessary to be done in and
about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof.
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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 Downers Grove, Illinois, on the 29th day of March, 2000.
VYSIS, INC.
By: /s/ John L. Bishop
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Name: John L. Bishop
Title: President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE (CAPACITY) DATE
<S> <C> <C>
President and Chief Executive Officer
/s/ John L. Bishop Officer and Director March 29, 2000
- -------------------------------------- (Principal Executive Officer and
John L. Bishop Director)
Vice President of Finance and
/s/ Alfred H. Ellsworth Chief Financial Officer March 29, 2000
- -------------------------------------- (Principal Financial and
Alfred H. Ellsworth Accounting Officer)
/s/ Eileen A. Kamerick Director March 29, 2000
- --------------------------------------
Eileen A. Kamerick
/s/ Kenneth L. Melmon Director March 29, 2000
- --------------------------------------
Kenneth L. Melmon
/s/ Anthony J. Nocchiero Director March 29, 2000
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Anthony J. Nocchiero
/s/ Walter R. Quanstrom Director March 29, 2000
- --------------------------------------
Walter R. Quanstrom
/s/ Frank J. Sroka Director March 29, 2000
- --------------------------------------
Frank J. Sroka
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
<S> <C>
4.1 Certificate of Incorporation of the Registrant (Incorporated
by reference to Exhibit 3.1.1 to 3.1.8 to the Registrant's
Registration Statement on Form S-1 (File No. 333-38109))
4.2 By-Laws of the Registrant, as amended (Incorporated by
reference to Exhibit 3.2 to the Registrant's Form 10-K for
the year ended December 31, 1999 (File No. 000-23659)
4.3 Specimen certificate evidencing the Common Stock of the
Registrant (Incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1 (File No.
333-38109))
4.4 The 1998 Long Term Incentive Plan of the Registrant
(Incorporated by reference to Exhibit A to the Registrant's
Proxy Statement for the 1998 Annual Meeting of Stockholders
filed pursuant to Section 14(a) of the Exchange Act
(Exchange Act File No. 000-23659)
5.1 Opinion of William E. Murray regarding the validity of the
offered securities
23.1 Consent of William E. Murray (appears in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of PriceWaterhouseCoopers LLP
24.1 Power of Attorney (appears on the page preceding the
signature page of this Registration Statement)
</TABLE>
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Exhibit 5.1
March 29, 2000
Vysis, Inc.
3100 Woodcreek Drive
Downers Grove, IL 60515
Re: VYSIS, INC. REGISTRATION STATEMENT ON FORM S-8
Dear Sirs:
I have represented Vysis, Inc., a Delaware corporation (the "Company"), in
connection with the registration of 1,500,000 shares of common stock, $0.001 par
value per share, of the Company (the "Shares").
In connection with my representation, I have examined the corporate records of
the Company, including its Certificate of Incorporation and all amendments
thereto, its Bylaws, and other corporate records and documents and have made
such other examinations as I consider necessary to render this opinion. Based
upon the foregoing, it is my opinion that:
1. The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware; and
2. The Shares are legally authorized and, upon receipt by the Company of
the purchase price therefor, will be legally issued and outstanding,
fully paid and nonassessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement referred to above and to all references to the undersigned in such
Registration Statement.
Sincerely yours,
William E. Murray
General Counsel & Secretary
Vysis, Inc.
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-8 pertaining to the Vysis, Inc. 1998 Long Term Incentive Plan of
our report dated March 10, 2000, appearing in the Annual Report on Form 10-K
of Vysis, Inc. for the year ended December 31, 1999.
DELOITTE & TOUCHE LLP
Chicago, Illinois
March 29, 2000
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EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Vysis, Inc. of our report dated March 13, 1998
relating to the consolidated financial statements and financial statement
schedule which appears on page 34 of the Vysis Inc. Annual Report on Form
10-K for the year ended December 31, 1999.
PRICEWATERHOUSECOOPERS LLP
Chicago, Illinois
March 29, 2000
