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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
AMARILLO BIOSCIENCES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
TEXAS 75-1974352
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(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
800 W. 9TH AVENUE, AMARILLO, TEXAS 79101
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(Address of Principal Executive Offices)
1999 EMPLOYEE STOCK OPTIONS FOR SALARY BENEFIT PLAN
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(Full Title of the Plan)
JOSEPH M. CUMMINS
801 W. 9TH STREET
AMARILLO, TEXAS 79101
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(Name and Address of Agent For Service)
(806) 376-1741
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(Telephone Number, Including Area Code, of Agent For Service)
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Proposed
Class of Maximum Maximum
Securities Amount Offering Aggregate Amount Of
To Be To Be Price Offering Registration
Registered Registered Per Unit Price Fee
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<S> <C> <C> <C> <C>
COMMON STOCK, 405,932 (1) $0.875 (2) $355,190.50 $93.77
$0.01 PAR VALUE
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</TABLE>
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Notes to Calculation of Registration Fee Chart
(1) The number of shares of common stock set forth to be registered is the
maximum aggregate number of shares that we anticipate will be purchased
under the 1999 Employee Stock Options for Salary Benefit Plan (the
"Plan"). This Registration Statement shall also cover any additional
shares of common stock which become issuable under the Plan by reason
of any stock dividend, stock split, recapitalization, or other similar
transaction effected without the receipt of consideration which results
in an increase in the number of outstanding shares of common stock of
Amarillo Biosciences, Inc.
(2) Calculated on the basis of the price at which the options may be
exercised, pursuant to Rule 457(h) of the Securities Act of 1933, as
amended.
PART I.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting Part I of this Registration Statement will
be sent or given to employees of Amarillo Biosciences, Inc. (the "Registrant")
as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act") and the Note to Part I of Form S-8.
ITEM 1. PLAN INFORMATION
Pursuant to Rule 428(b)(1) of the Securities Act and the Note to Part I
of Form S-8, the information required by this item has been omitted from this
Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Pursuant to Rule 428(b)(1) of the Securities Act and the Note to Part I
of Form S-8, the information required by this item has been omitted from this
Registration Statement.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, previously filed with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
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(a) Registrant's annual report for the year ended December 31,
1999, dated March 28, 2000, filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act").
(b) 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.
(c) The class of securities to be offered is registered under
Section 12(g) of the Exchange Act. The description of the
class of securities contained in the Form 8-A Registration
Statement is as follows:
"This Registration Statement relates to the Common Stock, par
value $.01 per share (the Common Stock), of Amarillo
Biosciences, Inc., a Texas corporation (the "Registrant"). A
Registration Statement on Form SB-2 (Registration No.
333-04413) relating to an offering of up to 2,300,000 shares
of Common Stock (the Registration Statement) was filed with
the Securities and Exchange Commission on May 23, 1996,
pursuant to the Securities Act of 1933, as amended (the
Securities Act). The description of the Common Stock to be
contained in the final Prospectus to be filed by the
Registrant pursuant to Rule 424(b) under the Securities Act
shall be deemed incorporated by reference."
The description of the Common Stock is as follows:
The company is authorized to issue 20,000,000 shares of Common
Stock, par value $.01 per share. As of the date of this
Registration Statement, there are 7,472,157 shares outstanding
which are held by 311 holders of record.
The holders of the Common Stock are entitled to one vote for
each share held of record on all matters to be voted on by the
shareholders. There is no cumulative voting with respect to
the election of directors, with the result that the holders of
more than 50% of the shares voting for the election of
directors can elect all of the directors. The holders of
Common Stock are entitled to receive dividends when, as and if
declared by the Board of Directors in its discretion, out of
funds legally available therefor. In the event of liquidation,
dissolution or winding up of the Company, the holders of
Common Stock are entitled to share ratably in the assets of
the Company, if any, legally available for distribution to
them after payment of debts and liabilities of the Company and
after provision has been made for each class of stock, if any,
having liquidation preference over the Common Stock. Holders
of shares of Common Stock have no conversion, preemptive or
other subscription rights, and there are no redemption or
sinking fund provisions applicable to the Common Stock.
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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 have been
sold or which de-registers all securities then remaining unsold, shall be deemed
to by incorporated by reference in the Registration Statement and to be part
thereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The opinion of counsel as to the legality of the securities, attached
as Exhibit 5, has been rendered by the law firm of Sprouse, Smith & Rowley, P.C.
Mr. Edward L. Morris, a shareholder and principal of that firm and the attorney
signing said opinion, is the corporate secretary of the Registrant. Mr. Morris
is not a director, executive officer, or employee of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Texas Law
Article 2.02-1 of the Texas Business Corporation Act allows a Texas
corporation to indemnify a person who was, is, or is threatened to be made a
defendant or respondent in a proceeding because the person is or was a director
if it is determined that the person (1) conducted himself in good faith, (2)
reasonably believed that his conduct in his official capacity as director was in
the best interest of the corporation and in all other cases was at least not
opposed to the corporation's best interest, and (3) in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful.
Indemnification under Article 2.02-1 may be made for judgments, penalties,
fines, settlements, and reasonable expenses actually incurred by the person in
connection with the proceeding, subject to limitations provided therein. Article
2.02-1(H) requires indemnification of a defendant / respondent director against
reasonable expenses incurred by him in connection with a proceeding in which he
has been wholly successful, on the merits or otherwise, in the defense of the
proceeding.
To the same extent as a director, Article 2.02-1(O) of the Texas
Business Corporation Act provides that an officer of the corporation shall be
indemnified against reasonable expenses incurred by him in connection with a
proceeding in which he is a named defendant or respondent because he is or was
an officer if he was wholly successful, on the merits or otherwise, in the
defense of the proceeding.
Pursuant to Article 2.02-1(J) of the Texas Business Corporation Act,
upon application, a court may order the equitable indemnification of a director
or officer if it determines the person is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, regardless
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of other requirements of indemnification. However, if the person is adjudicated
liable to the corporation or it is found that personal benefit was improperly
received by the person, the indemnification shall be limited to reasonable
expenses actually incurred in connection with the proceeding.
By-laws and Indemnification Provisions
The Registrant's By-laws provide for the Registrant to indemnify each
director and officer of the Registrant against liabilities imposed upon him
(including reasonable amounts paid in settlement) and expenses incurred by him
in connection with any claim made against him or any action, suit or proceeding
to which he may be a party by reason of his being or having been a director or
officer of the Registrant. The Registrant has also entered into Indemnification
Agreements with each officer and director pursuant to which the Registrant will,
in general, indemnify such persons to the maximum extent permitted by the
Registrant's By-laws and the laws of the State of Texas against any expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
incurred in connection with any actual or threatened action or proceeding to
which such director or officer is made or threatened to be made a party by
reason of the fact that such person is or was a director of officer of the
Registrant. The foregoing provisions may reduce the likelihood of derivative
litigation against directors and may discourage or deter shareholders or
management from suing directors for breaches of their duty of care, even though
such an action, if successful, might otherwise benefit the Registrant and its
shareholders.
Insurance
The Registrant has purchased a Directors, Officers and Company
Liability Policy (the "Policy") that, subject to the limits therein, obligates
the Insurer to pay for claims against the directors and officers for wrongful
acts during or prior to the effective date of the Policy. The Insurer is also
obligated to pay for company loss due to the indemnification of directors and
officers as a result of a claim made during the effective period of the Policy.
The Policy is effective from September 7, 1999 to September 7, 2000. The limit
of liability under the Policy is $3,000,000.00.
"Wrongful Act" is defined as any actual or alleged error, misstatement,
misleading statement, act, omission, neglect or breach of duty, committed or
attempted by the directors and officers, in their capacity as such with the
Company or in an outside position, or, any matter claimed against the directors
and officers solely by reason of their serving in such capacity or in an outside
position. The Policy sets forth exclusions to coverage and limits of liability,
including, but not limited to actions for, based upon, arising from, or in any
way related to any deliberately dishonest, malicious or fraudulent act or
omission or any willful violation of law by the directors or executive officers
of the company if a judgment or other final adjudication establishes that such
person committed such an act, omission or willful violation.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT INDEX
Exhibit Number
(5) Opinion Regarding Legality................................I-2
(23) Consent of Ernst & Young .................................I-3
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; (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 end 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 a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and (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
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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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(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.
The undersigned registrant hereby undertakes that, for the 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
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 15(d) of the Securities
Exchange Act of 1934) 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
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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 City of Amarillo, State of Texas, on April 14, 2000.
AMARILLO BIOSCIENCES, INC.
By: /s/ JOSEPH M. CUMMINS
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Joseph M. Cummins, DVM, Ph.D.
Chairman, President, CEO and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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/s/ KATHLEEN KELLEHER Chief Operating Officer and Vice April 14, 2000
- ----------------------------- President of Business Development
Kathleen Kelleher
/s/ JOSEPH M. CUMMINS Director April 14, 2000
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Joseph M. Cummins
Director April __, 2000
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Katsuaki Hayashibara
/s/ JAMES COOK Director April 14, 2000
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James Cook
Director April __, 2000
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Dennis Moore
/s/ STEPHEN T. CHEN Director April 14, 2000
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Stephen T. Chen
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<TABLE>
<S> <C> <C>
/s/ JAMES A. PAGE Director April 16, 2000
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James A. Page
/s/ THOMAS W. D'ALONZO Director April 14, 2000
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Thomas W. D'Alonzo
Director April __, 2000
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Brian McLean
/s/ RICHARD A. FRANCO Director April 18, 2000
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Richard A. Franco
/s/ EDWARD P. AMENTO Director April 14, 2000
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Edward P. Amento
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
(5) Opinion Regarding Legality
(23) Consent of Ernst & Young
</TABLE>
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EXHIBIT 5
April 20, 2000
(806) 468-3311
[email protected]
Amarillo Biosciences, Inc.
801 W. 9th Avenue
Amarillo, Texas 77060
RE: Issuance of Stock Pursuant to S-8 Registration Statement
Gentlemen:
Pursuant to your request, we have examined the S-8 Registration
Statement to be filed with the Securities and Exchange Commission, registering
405,932 shares of common stock in the company. We have further examined the
Certificate of Incorporation, Articles of Incorporation, Bylaws, any amendments
thereto, and all such corporate records and documents that we believed were
necessary to enable us to render an opinion in this matter.
Based solely on the foregoing examination, it is our opinion that, when
sold and issued according the Employee Stock Options for Salary Benefit Plan,
the shares of common stock covered by the Registration Statement will be legally
issued, fully paid, and non assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
SPROUSE, SMITH & ROWLEY, P.C.
Edward L. Morris
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EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1999 Employee Stock Options for Salary Benefit Plan of
Amarillo Biosciences, Inc. of our report dated March 14, 1999, with respect to
the consolidated financial statements of Amarillo Biosciences, Inc. included in
its Annual Report (Form 10-K) for the year ended December 31, 1999, filed with
the Securities and Exchange Commission.
Dallas, TX ERNST & YOUNG LLP
April 10, 2000
