REGISTRATION NO. 333-
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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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EPITOPE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Oregon 93-0779127
(STATE OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.)
8505 S.W. Creekside Place
Beaverton, Oregon 97008
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
EPITOPE, INC., 1993 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
John W. Morgan
President and Chief Executive Officer
Epitope, Inc.
8505 S.W. Creekside Place
Beaverton, Oregon 97008
Telephone (503) 641-6115
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF AMOUNT TO BE OFFERING PRICE PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE AGGREGATE REGISTRATION FEE
OFFERING PRICE
<S> <C> <C> <C> <C> <C>
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Common Stock, no par value (1) 250,000 shares (1) $1,515,000(1) $522.00
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(1) Pursuant to Rule 457(h), the proposed maximum aggregate offering price and
the registration fee have been computed on the basis of the average of the
high and low sales prices, $6.06, reported for shares of Epitope, Inc.
Common Stock, no par value (the "Common Stock"), on the National Market
Tier of the Nasdaq Stock Market on March 1, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed by the registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement:
(a) The registrant's Annual Report on Form 10-K for the year ended
September 30, 1998.
(b) The registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1998.
(c) The description of the registrant's capital stock included in
Exhibit 99.1 to the registrant's current report on Form 8-K dated
December 24, 1997.
(d) The description of the registrant's preferred stock purchase
rights contained in the registrant's Registration Statement on
Form 8-A dated December 23, 1997.
All documents filed by the registrant subsequent to the date of filing
of this Registration Statement pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended, 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 by reference herein and to be a part hereof from the date of
filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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None.
Item 6. Indemnification of Directors and Officers.
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The Oregon Business Corporation Act (the "Oregon Act") requires the
indemnification of an individual made a party to a proceeding because the
individual is or was a director, officer, employee, or agent of a corporation
(unless limited by the corporation's articles of incorporation) if the
individual is wholly successful in the proceeding, on the merits or otherwise.
In addition, the Oregon Act allows a corporation to indemnify such an individual
if: (a) the conduct of the individual was in good faith; (b) the individual
reasonably believed that the individual's conduct was in the best interests of
the corporation, or at least not opposed to its best interests; and (c) in the
case of any criminal proceeding, the individual had no reasonable cause to
believe that the individual's conduct was unlawful.
A corporation may also provide indemnification if (y) in the case of
any proceeding by or in the right of the corporation, such individual was not
adjudged liable to the corporation or (z) in connection with any proceeding
(other than a proceeding by or in the right of the corporation) charging
improper personal benefit to the individual, such individual was not adjudged
liable on the basis that he or she improperly received personal benefit.
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The Oregon Act also authorizes a court to order indemnification,
whether or not the above standards of conduct have been met, if the court
determines that the officer or director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances.
The indemnification described above is not exclusive of any other
rights to which officers or directors may be entitled under a corporation's
articles of incorporation or bylaws, or under any agreement, action of its board
of directors, vote of shareholders or otherwise.
Article III of the restated articles of incorporation of the Company
permits the Company to indemnify its current or former directors, officers,
employees, and agents to the fullest extent permitted by law. Article V of the
bylaws of the Company requires such indemnification for directors or former
directors, or any individual who may have served at its request as a director of
another corporation in which it owns shares of capital stock or of which it is a
creditor, against expenses and liability, including attorney fees, actually and
necessarily incurred by such individual in connection with any threatened,
pending, or completed action, suit, or proceeding to which the individual is a
party because of service to the Company. Article V of the bylaws further
provides that the foregoing right of indemnification shall not be deemed
exclusive of any other rights to which the individual may be entitled under the
restated articles of incorporation or the bylaws, or under any agreement, action
of the shareholders or otherwise. The Company may, but is not required to, offer
the same rights of indemnification, on a case-by-case basis, to the officers,
employees, and agents of the Company.
In addition to the foregoing right of indemnity, the Company has
entered into indemnification agreements with all current officers and directors.
Each indemnification agreement makes provisions of the Oregon Act relating to
permissive indemnification mandatory and therefore restates the Company's
obligation as set forth in the bylaws, as discussed above. Also, the
indemnification agreements set forth the Company's obligation to indemnify each
party to an agreement in the event that he or she is entitled to indemnification
of some but not all liabilities and expenses. Procedures are also set forth in
the indemnification agreements for the defense of claims by the Company and in
the event that there is a change or potential change in the control of the
Company.
ORS 60.367 provides that any director held liable pursuant to that
section for the unlawful payment of a dividend or other distribution of assets
of a corporation shall be entitled to contribution from (a) each shareholder who
accepted the dividend or distribution knowing the same to have been made in
violation of the Oregon Act or the articles of incorporation and (b) each
director who voted for or assented to the dividend or distribution without
complying with the applicable standards of conduct described in ORS 60.357.
The Company carries insurance protecting officers and directors against
certain liabilities that they may incur in their respective capacities with the
Company.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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The Index to Exhibits listing the exhibits required by Item 601 of
Regulation S-K is located at page II-6.
Item 9. Undertakings.
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(a) The registrant hereby undertakes:
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(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 ("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
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 15(d) of the Securities Exchange Act of 1934 ("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 that 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, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
(h) 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 provisions described in Item 6 above, 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 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. The
undertaking of the registrant in the preceding sentence does not apply to
insurance against liability arising under the Securities Act.
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SIGNATURES
The Registrant.
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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 Beaverton, state of Oregon, on the 4th day of March,
1999.
(Registrant)
By /s/ Charles E. Bergeron
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Charles E. Bergeron
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 indicated as of the 4th day of March, 1999.
Signature Title
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(1) Principal Executive Officer
* JOHN W. MORGAN President, Chief Executive
Officer, and Director
(2) Principal Financial Officer:
/s/ Charles E. Bergeron
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CHARLES E. BERGERON Chief Financial Officer
(3) Principal Accounting Officer
/s/ Theodore R. Gwin
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THEODORE R. GWIN Controller
(4) A majority of the Board of Directors:
* ROGER L. PRINGLE Chairman of the Board
* W. CHARLES ARMSTRONG Director
* ANDREW S. GOLDSTEIN Director
* MARGARET H. JORDAN Director
* MICHAEL J. PAXTON Director
* G. PATRICK SHEAFFER Director
* ROBERT J. ZOLLARS Director
* By /s/ Charles E. Bergeron
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Charles E. Bergeron
Attorney-in-fact
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INDEX TO EXHIBITS
4.1 Restated Articles of Incorporation, as amended, of the registrant.
Incorporated by reference to Exhibit 3 to the registrant's Registration
Statement on Form 8-A filed December 26, 1997 (File No. 000-15337)
("Form 8-A").
4.2 Restated Bylaws of the registrant. Incorporated by reference to Exhibit
3.2 to the registrant's Annual Report on Form 10-K for the year ended
September 30, 1997.
4.3 Rights Agreement dated as of December 15, 1997, between the registrant
and ChaseMellon Shareholder Services, L.L.C. Incorporated by reference
to Exhibit 4.1 to Form 8-A.
5 Opinion of Miller, Nash, Wiener, Hager & Carlsen LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Miller, Nash, Wiener, Hager & Carlsen LLP. Included in
Exhibit 5.
24 Power of attorney of certain officers and directors.
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Other exhibits listed in Item 601 to Regulation S-K are not applicable.
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Exhibit 5
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March 2, 1999
Epitope, Inc.
8505 S.W. Creekside Place
Beaverton, Oregon 97008
Subject: Epitope, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
Reference is made to the registration statement on Form S-8
("Registration Statement") to be filed by Epitope, Inc., an Oregon corporation
("Company"), with the Securities and Exchange Commission for the purpose of
registering under the Securities Act of 1933, as amended, an additional 250,000
shares (the "Registered Shares") of the Company's common stock, no par value
("Common Stock"), to be issued in connection with the Company's 1993 Employee
Stock Purchase Plan, as amended (the "1993 Plan").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such corporate records, certificates of public
officials, and other documents as we have deemed necessary or relevant as a
basis for the opinion set forth herein.
Based on the foregoing, it is our opinion that:
1. The 1993 Plan has been duly adopted and approved by all
necessary corporate action.
2. When the Registered Shares are issued and sold by the Company
as provided in the 1993 Plan while the Registration Statement is effective, and
when payment for such shares to the extent and in the manner required by the
1993 Plan is received by the Company, the Registered Shares will be validly
issued, fully paid and non-assessable.
We consent to the use of this opinion in the Registration Statement and
in any amendments thereof. In giving this consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act.
Very truly yours,
MILLER, NASH, WIENER, HAGER & CARLSEN LLP
Exhibit 23
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 12, 1998, which appears in
the Epitope, Inc. Annual Report on Form 10-K for the year ended September 30,
1998.
PRICEWATERHOUSECOOPERS LLP
Portland, Oregon
February 26, 1999
Exhibit 24
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Charles E. Bergeron and Theodore R. Gwin, and each of them, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution, in any and
all capacities, to sign a registration statement on Form S-8 to be filed by
Epitope, Inc., relating to 250,000 shares of its common stock, no par value
("Common Stock"), issuable pursuant to its 1993 Employee Stock Purchase Plan,
and any and all amendments (including post-effective amendments) to such
registration statement and to file the same, with exhibits, with the Securities
and Exchange Commission. In addition, the undersigned grants unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act requisite and necessary to be done, 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 may lawfully do or cause
to be done.
IN WITNESS WHEREOF, this power of attorney has been signed by the
following persons in the capacities indicated as of January 19, 1999.
/s/ John W. Morgan President, Chief Executive Officer
John W. Morgan and Director
/s/ Charles E. Bergeron Chief Financial Officer
Charles E. Bergeron
/s/ Theodore R. Gwin Controller
Theodore R. Gwin
/s/ Roger L. Pringle Chairman of the Board
Roger L. Pringle
/s/ W. Charles Armstrong Director
W. Charles Armstrong
/s/ Andrew S. Goldstein Director
Andrew S. Goldstein
/s/ Margaret H. Jordan Director
Margaret H. Jordan
/s/ Michael J. Paxton Director
Michael J. Paxton
/s/ G. Patrick Sheaffer Director
G. Patrick Sheaffer
/s/ Robert J. Zollars Director
Robert J. Zollars
