Registration No.
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.)
1035 Swabia Court
Durham, North Carolina 27703
(Address of Principal Executive Offices) (Zip Code)
INCENTIVE STOCK OPTION AND NONSTATUTORY STOCK OPTION 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.
SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.
Post Office Box 2611
Raleigh, North Carolina 27602
(919) 821-1220
CALCULATION OF REGISTRATION FEE
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Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price per aggregate offering Registration fee
share* price*
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Common Stock, 700,000 shares $7.3125 $5,118,750 $1,765.09
no par value
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* This price is estimated solely for the purpose of calculating the registration
fee. Pursuant to Rule 457(c), shares that may be the subject of the plan are
deemed to be offered at $7.3125 per share, the average of the high and low
prices for the Company's Common Stock on May 16, 1996 in the NASDAQ National
Market System.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement is filed to register additional securities
of the same class as other securities for which registration statements,
Registration Numbers 33-51582 and 33-63318, relating to the Incentive Stock
Option and Nonstatutory Stock Option Plan are effective. The contents of said
registration statements are incorporated herein by reference.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed with the Commision and are
incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
(b) Quarterly Report on Form 10-Q for the three months
ended March 31, 1996.
(c) Registration Statement on Form 8-A filed with the
Commission on August 29, 1991, and amended October
24, 1991 and November 5, 1991, containing a
description of the Common Stock of the Company.
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
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Exhibit
No.
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5 Opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. as to
the legality of additional securities being registered and consent to reference
to it in the registration statement.
24.1 Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. is
contained in the opinion submitted as Exhibit 5 hereto.
24.2 Consent of Ernst & Young to the incorporation by reference of their report on
the Company's 1995 audited financial statements contained in Form 10-K for
the fiscal year ended December 31, 1995.
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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 Town of Morrisville, State of North Carolina, on the
16th day of May, 1996.
EMBREX, INC.
By: /s/ Randall L. Marcuson
Randall L. Marcuson
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this 16th day of May, 1996.
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Signature Title
<S> <C>
/s/ Randall L. Marcuson President, Chief Executive Officer and
Randall L. Marcuson Director
/s/ John L. Bradley, Jr. Vice President, Finance and Administration (Principal
John L. Bradley, Jr. Financial and Accounting Officer)
/s/ Charles E. Austin Director
Charles E. Austin
/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.
/s/ Stephen Hartogensis Director
Stephen Hartogensis
/s/ Arthur M. Pappas Director
Arthur M. Pappas
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EMBREX, INC.
EXHIBIT INDEX
Exhibit Page
No. Description No.
5 Opinion of Smith, Anderson, Blount, Dorsett, Mitchell
& Jernigan, L.L.P. regarding the legality of securities
being registered
23.1 Consent of Smith, Anderson, Blount, Dorsett,
Mitchell & Jernigan, L.L.P. is contained in the opinion
submitted as Exhibit 5 hereto
23.2 Consent of Ernst & Young LLP
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EXHIBIT 5
Opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
regarding the legality of securities being registered
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SMITH, ANDERSON, BLOUNT,
DORSETT, MITCHELL & JERNIGAN, L.L.P.
LAWYERS
RALEIGH, NORTH CAROLINA
May 16, 1996
Embrex, Inc.
1035 Swabia Court
Morrisville, North Carolina 27560
Dear Sirs:
As counsel for Embrex, Inc. (the "Company"), we furnish the following
opinion in connection with the proposed issuance by the Company of 700,000
additional shares of its common stock, no par value (the "Common Stock"),
pursuant to the Incentive Stock Option and Nonstatutory Stock Option Plan (the
"Plan"). These securities are the subject of a Registration Statement to be
filed by the Company with the Securities and Exchange Commission on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended (the
"1933 Act"), to which the opinion is to be attached as an exhibit.
We have examined the Restated Articles of Incorporation and Bylaws of
the Company, the minutes of meetings of its Board of Directors, and such other
corporate records of the Company and other documents, and have made such
examinations of law as we have deemed relevant for purposes of this opinion. We
also have received a certificate of an officer of the Company, dated of even
date herewith, relating to the issuance of the additional shares of Common Stock
pursuant to the Plan. Based on such examination and such certificate it is our
opinion that:
The 700,000 additional shares of Common Stock of the Company, which are
being registered pursuant to the Registration Statement,
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Embrex, Inc.
May 16, 1996
Page 2
may be legally issued in accordance with the Company's Restated Articles of
Incorporation and Bylaws, and when so issued and duly delivered against payment
therefor pursuant to the Plan as described in the Registration Statement, such
shares will be legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement that you are about to file with the Securities and
Exchange Commission. Such consent shall not be deemed to be an admission that
this firm is within the category of persons whose consent is required under
Section 7 of the 1933 Act or the regulations promulgated pursuant to the
1933 Act.
Sincerely yours,
SMITH, ANDERSON, BLOUNT, DORSETT,
MITCHELL & JERNIGAN, L.L.P.
By: /s/ Gerald F. Roach
Gerald F. Roach
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EXHIBIT 23.1
Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. is
contained in the opinion submitted as Exhibit 5 hereto.
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EXHIBIT 23.2
Consent of Ernst & Young LLP
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Embrex, Inc. Incentive Stock Option and Nonstatutory
Stock Option Plan of our report dated February 2, 1996, with respect to the
consolidated financial statements of Embrex, Inc. incorporated by reference in
its Annual Report (Form 10-K) for the year ended December 31, 1995 filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Raleigh, North Carolina
May 16, 1996
