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Registration No. 333-_____
As filed with the Securities and Exchange Commission on February 7, 2000
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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HYSEQ, INC.
(Exact name of registrant as specified in its charter)
NEVADA 36-3855489
(State or other Jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
670 ALMANOR AVENUE, SUNNYVALE, CALIFORNIA 94086
(Address of registrant's principal executive offices)
HYSEQ, INC. SCIENTIFIC ADVISORY BOARD / CONSULTANTS STOCK OPTION PLAN
AND MISCELLANEOUS OPTION AGREEMENTS
(Full title of the plan)
MR. LEWIS S. GRUBER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
HYSEQ, INC.
670 ALMANOR AVENUE
SUNNYVALE, CALIFORNIA 94086
(Name, address of agent for service)
TELEPHONE: (408) 524-8100
(Telephone Number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of each Amount to be Proposed maximum Proposed maximum Amount of
class of securities registered(1) offering price per aggregate offering registration fee(2)
to be registered share(2) price(2)
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<S> <C> <C> <C> <C>
Common Stock, par
value $.001 per share 1,119,180(3) $29.813 $33,366,113 $8,809
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement includes any additional shares of the
registrant's Common Stock that may be issued pursuant to antidilution
provisions contained in the plan.
(2) Pursuant to Rule 457 (c) and (h), the registration fee was computed on
the basis of the average of the high and low prices of the registrant's
Common Stock on the Nasdaq National Market on January 31, 2000.
(3) The number of shares to be registered under the respective plans are as
follows: Scientific Advisory Board / Consultants Stock Option Plan--30,000;
and Miscellaneous Option Agreements--1,089,180.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required to be included herewith.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be included herewith.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by Hyseq, Inc.
(the "Company") with the Securities and Exchange Commission (the
"Commission"), are incorporated by reference in this Registration Statement,
except to the extent that any statement or information therein is modified,
superseded or replaced by a statement or information contained in any other
subsequently filed document incorporated herein by reference:
i. the Company's Annual Report on Form 10-K for the year ended December
31, 1998;
ii. the Company's Quarterly Report on Form 10-Q for the quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999;
iii. the Company's Proxy Statement on Form 14A, filed on May 14, 1999;
iv. the Company's Current Report on Form 8-K, filed on December 16,
1999; and
v. the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, dated July 23, 1997.
All documents filed by the Company or the plans pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof, and 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
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unsold, shall be deemed to be incorporated by reference herein and to be 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Nevada General Corporation Law, the Company's
Articles and By-Laws provide that officers and directors of the Company shall
not be personally liable for monetary damages to the Company for certain
breaches of their fiduciary duty as directors, unless they violated their
duty of loyalty to the Company or its stockholders, acted in bad faith,
knowingly or intentionally violated the law, authorized illegal dividends or
redemptions, or derived an improper personal benefit from their action as
directors. This provision would have no effect on the availability of
equitable remedies or nonmonetary relief, such as an injunction or rescission
for breach of the duty of care. Directors will, however, no longer be liable
for monetary damages arising from decisions involving violations of the duty
of care which could be deemed grossly negligent.
The By-Laws provide that directors of the Company shall be indemnified by
the Company to the fullest extent authorized by Nevada law, as it now exists
or may in the future be amended, against all expenses and liabilities
reasonably incurred in connection with service for or on behalf of the
Company. The By-Laws also authorize the Company to enter into one or more
agreements with any person which provide for indemnification greater or
different from that provided in the Articles. The Company has entered into
indemnification agreements with all current officers and members of the Board
of Directors. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index which is incorporated herein by reference.
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ITEM 9. UNDERTAKINGS.
(a) 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 (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;
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 (a)(1)(i) and
(a)(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 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.
(b) 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 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.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to officers, directors, and
controlling persons of the registrant pursuant to the
registrant's certificate of incorporation or by-laws, 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.
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 Sunnyvale, State of California, on
the 31st day of January, 2000.
Hyseq, Inc.
By: /s/ Lewis S. Gruber
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Lewis S. Gruber
President and Chief Executive Officer
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Lewis S. Gruber and Mark E. Gitter, and each
of them singly, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities (including his capacity as a director and/or
officer of Hyseq, Inc.) to sign any and all amendments (including
post-effective amendments) to this registration statement, 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, and each of them, 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 to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned have executed this power of attorney
on the 31st day of January, 2000.
/s/ Robert D. Weist /s/ Lewis S. Gruber
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Robert D. Weist Lewis S. Gruber
/s/ Mark E. Gitter /s/ Greta E. Marshall
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Mark E. Gitter Greta E. Marshall
/s/ Radoje T. Drmanac /s/ Ernst Schweizer
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Radoje T. Drmanac. Ernst Schweizer
/s/ Raymond F. Baddour /s/ Thomas N. McCarter III
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Raymond F. Baddour Thomas N. McCarter III
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in their
respective capacities on the 31st day of January, 2000.
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<CAPTION>
Signature Title
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<S> <C>
/s/ Robert D. Weist
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Robert D. Weist Chairman of the Board
/s/ Lewis S. Gruber
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Lewis S. Gruber President and Chief Executive Officer, Director
(Principal Executive Officer)
/s/ Mark E. Gitter
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Mark E. Gitter Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Radoje T. Drmanac
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Radoje T. Drmanac Director
/s/ Raymond F. Baddour
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Raymond F. Baddour Director
/s/ Greta E. Marshall
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Greta E. Marshall Director
/s/ Thomas N. McCarter III
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Thomas N. McCarter III Director
/s/ Ernst Schweizer
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Ernst Schweizer Director
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
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<S> <C>
4.1 Specimen Stock Certificate *
4.2 Certificate of Incorporation of Hyseq, Inc. as amended to
date*
4.3 By-Laws of Hyseq, Inc., *
4.4 First Amendment to the By-Laws of Hyseq, Inc. **
5 Opinion of Sachnoff & Weaver, Ltd.
23 Consent of Ernst & Young LLP, Independent Auditors
24 Powers of Attorney (included as part of the signature page of
this Registration Statement)
</TABLE>
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* Filed as an exhibit to the Company's Registration Statement on Form
S-1, Registration Statement No. 333-29091, declared effective by the
Securities and Exchange Commission on August 7, 1997, and incorporated
herein by reference.
** Filed as an exhibit to the Company's Annual Report on Form 10-K for
the year ended December 31, 1998, and incorporated herein by reference.
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Exhibit 5
Sachnoff & Weaver, Ltd.
30 South Wacker Drive, Suite 2900
Chicago, Illinois 60606
February 4, 2000
Hyseq, Inc.
670 Almanor Avenue
Sunnyvale, California 94086
Re: REGISTRATION STATEMENT ON FORM S-8
HYSEQ, INC. SCIENTIFIC ADVISORY BOARD/CONSULTANTS STOCK
OPTION PLAN AND MISCELLANEOUS OPTION AGREEMENTS
Gentlemen:
We have acted as counsel for Hyseq, Inc. (the "Company") in connection
with the Registration Statement on Form S-8 filed by the Company with the
Securities and Exchange Commission to effect the registration, pursuant to
the Securities Act of 1933, of 1,119,180 shares of common stock, $0.001 par
value (the "Common Stock"), which may be offered by the Company under the
Hyseq, Inc. Scientific Advisory Board/Consultants Stock Option Plan and
miscellaneous option agreements.
In connection with this opinion, we have relied as to matters of fact,
without investigation, upon certificates of public officials and others and
upon affidavits, certificates and statements of directors, officers and
employees of, and the accountants for, the Company. We also have examined
originals or copies, certified or otherwise identified to our satisfaction,
of such corporate and other instruments, documents and records as we have
deemed relevant and necessary to examine for the purpose of this opinion,
including the Plan and stock option agreements. In addition, we have reviewed
such questions of law as we have considered necessary and appropriate for the
purposes of this opinion.
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Hyseq, Inc.
February 4, 2000
Page 2
We have assumed the accuracy and completeness of all documents and
records that we have reviewed, the genuineness of all signatures, the due
authority of the parties signing such documents, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all the documents submitted to us as certified or photostatic copies and
the authenticity of the originals of such latter documents.
Based upon and subject to the foregoing, we advise you that, in our
opinion, the shares of Common Stock proposed to be offered by the Company as
set forth in the Registration Statement have been duly authorized and, when
issued and sold as set forth in the Registration Statement, and in accordance
with the Hyseq, Inc. Scientific Advisory Board/Consultants Stock Option Plan
and miscellaneous option agreements referred to in the Registration
Statement, such shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement. In giving this consent, we do not
hereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933 or the rules and regulations of
the Securities and Exchange Commission.
We express no opinions as to matters under or involving any laws other
than the Federal laws of the United States of America and the General
Corporation Law of the State of Nevada.
Very truly yours,
/s/ SACHNOFF & WEAVER, LTD.
SACHNOFF & WEAVER, LTD.
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EXHIBIT 23
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Hyseq, Inc. Scientific Advisory
Boar/Consultants Stock Option Plan and Miscellaneous Option Agreements of our
report dated January 29, 1999, with respect to the consolidated financial
statements of Hyseq, Inc. for the year ended December 31, 1998 included in
its Annual Report on Form 10-K, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Palo Alto, California
February 1, 2000
