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As Filed with the Securities and Exchange Commission on April 14, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
ELECTROPURE, INC.
(Exact name of Registrant as specified in its charter)
CALIFORNIA
(State of Other Jurisdiction 33-0065212
or Incorporation of Organization) (I.R.S. Employer Identification No.)
23456 South Pointe, Laguna Hills, California 92653
(949) 770-9347
(Address and telephone number of principal executive offices)
--------------------------
Electropure, Inc. 1999 Stock Option Plan
(Full title of the plan)
--------------------------
FLOYD H. PANNING, President
ELECTROPURE, INC.
23456 South Pointe
Laguna Hills, California 92653
(949) 770-9347
(Name, address and telephone number of Agent for service of process)
--------------------------
Copies of communications to:
Ronald P. Givner, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP
300 South Grand Avenue, 34th Floor
Los Angeles, California 90071
(213) 687-5329
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Aggregate Registration
to be Registered Registered Price Per Offering Fee
Share(1)(2) Price
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<S> <C> <C> <C> <C>
Class A Common Stock,
par value $0.01 1,000,000 (3) $1.25 $1,250,000.00 $368.77
per share
</TABLE>
- ----------
(1) Calculated pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended (the "Securities Act"), based on the closing sale price
as reported on the Electronic Bulletin Board on March 28, 2000.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Pursuant to Rule 416(c) under the Securities Act, this registration
statement also covers an indeterminate number of additional shares of
Class A Common Stock that may become issuable pursuant to the
antidilution provisions of the Plan.
================================================================================
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of the
Form S-8 have been or will be sent or given to employees as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act").
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 (the "Commission") by Electropure, Inc. ("ELECTROPURE"),
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated by reference in this registration statement.
(1) Electropure's Annual Report on Form 10-KSB for the year ended October
31, 1999; and
(2) The description of the Class A Common Stock contained in Electropure's
Registration Statement on Form S-1 (File No. 33-10669) filed on December
15, 1986, including any amendment or report filed for the purpose of
updating such information.
All documents subsequently filed by Electropure 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 by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Electropure's Charter limits the liability of Electropure's directors
and officers to Electropure and its stockholders to the fullest extent permitted
from time to time by California law. California law presently permits the
liability of directors and officers to a corporation or its stockholders for
money damages to be limited, except (i) to the extent that it is proved that the
director or officer actually received an improper benefit or profit in money,
property or services for the amount of the benefit or profit in money, property
or services actually received, or (ii) if a judgment or other final adjudication
is entered in a proceeding based on a finding that the director's or officer's
action, or failure to act, was the result of active and deliberate dishonesty
and was material to the cause of action adjudicated in the proceeding. This
provision does not limit the ability of Electropure or its stockholders to
obtain other relief, such as an injunction or recission.
Electropure's Charter and Bylaws require Electropure to indemnify its
directors, officers and certain other parties to the fullest extent permitted
from time to time by California law. The California General Corporation Law
permits a corporation to indemnify its directors, officers and certain other
parties against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service to or at the request of the corporation,
unless it is established that (i) the act or omission of the indemnified party
was material to the matter giving rise to the proceeding and (x) was committed
in bad faith or (y) was the result of active and deliberate dishonesty, (ii) the
indemnified party actually received an improper personal benefit in money,
property or services or (iii) in the case of any criminal proceeding, the
indemnified party had reasonable cause to believe that the act or omission was
unlawful. Indemnification may be made against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by the director or officer
in connection with the proceeding; provided however, that if the proceeding is
one by or in the right of the corporation, indemnification may not be made with
respect to any proceeding in which the director or officer has been adjudged to
be liable to the corporation. In addition, a director or officer may not be
indemnified with respect to any proceeding charging improper personal benefit to
the director or officer in which the director or officer was adjudged to be
liable on the basis that personal benefit was improperly received. The
termination of any proceeding by conviction, or upon a plea of nolo contendere
or its equivalent, or an entry of any order of probation prior to judgment,
creates a rebuttable presumption that the director or officer did not meet the
requisite standard or conduct required for indemnification to be permitted. It
is the position of the Securities and Exchange Commission that indemnification
of directors and officers for liabilities arising under the Securities Act is
against public policy and is unenforceable pursuant to Section 14 of the
Securities Act.
Electropure has entered into agreements with certain of its officers and
directors, pursuant to which Electropure has agreed to indemnify such officers
and directors to the fullest extent permitted by applicable law.
Section 8.6 of the 1999 Stock Option Plan of Electropure, Inc. (the
"Plan"), specifically provides that, to the fullest extent permitted by law,
each of the members of the Board of Directors of Electropure (the "Board"), the
Administrator of the Plan and each of the directors, officers and employees of
Electropure, and any successor of Electropure shall be held harmless
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and indemnified by Electropure for any liability, loss (including amounts paid
in settlement), damages or expenses (including reasonable attorney's fees)
suffered by virtue of any determinations, acts or failures to act, or alleged
acts or failures to act, in connection with the administration of the 1999 Plan
so long as such person is not determined by a final adjudication to be guilty of
willful misconduct with respect to such determination, action or failure to act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Specimen certificate for Class A Common Stock (incorporated by
reference from Electropure's registration statement on Form S-1
filed on December 15, 1986)
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom, L.L.P.
regarding the validity of the Securities offered hereby.
23.1 Consent of Kelly & Company.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom, L.L.P.
(included in its opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on page II-6).
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 and to
include any prospectus required by Section 10(a)(3) of the Securities Act; 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;
(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, 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 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
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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.
c. 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 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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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Laguna Hills, State of California, on this 28th day
of March, 2000.
ELECTROPURE, INC.
By /S/ CATHERINE PATTERSON
----------------------------------------
Name: Catherine Patterson
Title: Chief Financial Officer
POWER OF ATTORNEY
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Catherine Patterson and Floyd H. Panning,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
registration statement (including post-effective amendments), and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<S> <C> <C>
/S/ WILLIAM F. FARNAM Director March 28, 2000
- ------------------------------------------
WILLIAM F. FARNAM
Director
- ------------------------------------------
RANDALL P. FRANK
/S/ RANDOLPH S. HEIDMANN Director March 28, 2000
- ------------------------------------------
RANDOLPH S. HEIDMANN
/S/ ARTHUR LIPPER III Director March 28, 2000
- ------------------------------------------
ARTHUR LIPPER III
/F/ FLOYD H. PANNING Chief Executive Officer March 28, 2000
- ------------------------------------------ and Director
FLOYD H. PANNING
/S/ CATHERINE PATTERSON Chief Financial March 28, 2000
Officer (Principal
Financial and
- ------------------------------------------ Accounting Officer)
CATHERINE PATTERSON
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C>
4.1 Specimen certificate for Class A Common Stock (incorporated by
reference from Electropure's registration statement on Form S-1
filed on December 15, 1986).
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom, L.L.P. regarding
the validity of the Securities offered hereby.
23.1 Consent of Kelly & Company.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom, L.L.P. (included
in its opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on page II-6).
</TABLE>
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EXHIBIT 5.1
[Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP]
April 13, 2000
Electropure, Inc.
23456 South Pointe
Laguna Hills, California 92653
Re: Electropure, Inc.
Registration on Form S-8, Registration 333-
Ladies and Gentlemen:
We have acted as special counsel to Electropure, Inc., a
California corporation (the "Company"), in connection with the potential
issuance of 1,000,0000 shares (the "Shares") of the Company's Common Stock, par
value $0.01 per share (the "Common Stock") pursuant to options granted or which
may be granted under the Company's 1999 Stock Option Plan (the "Plan").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-B under the Securities Act of
1933, as amended (the "Act").
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement on Form S-8 (File No. 333-_______) as filed with the
Securities and Exchange Commission (the "Commission") on April 14, 2000 under
the Act, (such Registration Statement, as so amended, being hereinafter referred
to as the "Registration Statement"); (ii) a specimen certificate representing
the Common Stock; (iii) the Articles of Incorporation of the Company, as
presently in effect; (iv) the By-Laws of the Company, as presently in effect;
and (v) certain resolutions of the Board of Directors and Shareholders of the
Company relating to the adoption of the Plan and the form of options to be
<PAGE> 2
granted under the Plan. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company and
such agreements, certificates of public officials, certificates of officers or
other representatives of the Company and others, and such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than the
Company, we have assumed that such parties had or will have the power, corporate
or other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other, and
execution and delivery by such parties of such documents and the validity and
binding effect thereof. As to any facts material to the opinions expressed
herein which we have not independently established or verified, we have relied
upon statements and representations of officers and other representatives of the
Company and others.
Members of our firm are admitted to the bar in the State of
California and we do not express any opinion as to the laws of any other
jurisdiction.
Based upon and subject to the foregoing, we are of the opinion
that when the Registration Statement becomes effective, upon exercise of options
granted under the Plan in accordance with their respective terms, the issuance
and sale of such Shares will have been duly authorized, and the Shares will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. We also consent to the
reference to our firm under the caption "Legal Matters" in the Registration
Statement. In giving this consent, we do not thereby admit that we are included
in the category of persons whose consent is required under Section 7 of the Act
or the rules and regulations of the Commission.
Very truly yours,
[Skadden, Arps, Slate, Meagher & Flom]
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Electropure, Inc. on Form S-8, filed April 14, 2000 of our report dated December
23, 1999, on our audits of the financial statements as of October 31, 1999 and
1998, and for the two years then ended of Electropure, Inc., which report is
included in its Annual Report on Form 10-KSB.
Kelly & Company
Kelly & Company
Newport Beach, California
April 14, 2000
