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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 27, 2000
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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EDEN BIOSCIENCE CORPORATION
(Exact name of registrant as specified in its charter)
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WASHINGTON 91-1649604
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
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11816 NORTH CREEK PARKWAY NORTH
BOTHELL, WASHINGTON 98011-8205
(Address of principal executive offices, including zip code)
EDEN BIOSCIENCE CORPORATION 2000 STOCK INCENTIVE PLAN
EDEN BIOSCIENCE CORPORATION 2000 EMPLOYEE STOCK PURCHASE PLAN
EDEN BIOSCIENCE CORPORATION 1995 COMBINED INCENTIVE
AND NONQUALIFIED STOCK OPTION PLAN
(Full title of the plans)
JERRY L. BUTLER
CHIEF EXECUTIVE OFFICER AND PRESIDENT
EDEN BIOSCIENCE CORPORATION
11816 NORTH CREEK PARKWAY NORTH
BOTHELL, WASHINGTON 98011-8205
(425) 806-7300
(Name, address and telephone number, including area code, of agent for service)
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COPIES TO:
ANDREW BOR
ANDREW B. MOORE
PERKINS COIE LLP
1201 THIRD AVENUE, SUITE 4800
SEATTLE, WASHINGTON 98101-3099
(206) 583-8888
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CALCULATION OF REGISTRATION FEE
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AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES BE OFFERING PRICE PER AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE OFFERING PRICE FEE
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Common Stock, par value $.0025 per
share, subject to outstanding options 2,468,000 $ 6.93(2) $ 17,103,240 $4,517.26
under the 1995 Combined Incentive and
Nonqualified Stock Option Plan
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Common Stock, par value $.0025 per
share, not subject to outstanding
options under the:
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2000 Stock Incentive Plan 6,000,000 $ 15.00(3) $ 90,000,000 $23,762.00
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2000 Employee Stock Purchase Plan 1,250,000 $ 15.00(3) $ 18,750,000 $ 4,952.00
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TOTAL: 9,718,000 $125,853,240 $33,231.26
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(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant
to such employee benefit plans as the result of any future stock split,
stock dividend or similar adjustment of the registrant's outstanding
Common Stock.
(2) Computed pursuant to Rule 457(h) under the Securities Act of 1933, as
amended. The proposed maximum offering price of $6.93 per share under
the 1995 Combined Incentive and Nonqualified Stock Option Plan
represents the weighted average of the per share exercise prices of
currently outstanding options, which range from $.40 per share to
$14.00 per share.
(3) Estimated as of September 27, 2000, solely for the purpose of
calculating the registration fee pursuant to Rule 457(c) under the
Securities Act of 1933, as amended. The proposed maximum offering price
is $15.00 per share, which is the initial offering price of the Common
Stock.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference in this
Registration Statement:
(a) The registrant's prospectus filed on September 27, 2000,
pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"); and
(b) The description of the registrant's Common Stock contained
in the Registration Statement on Form 8-A filed on September 11, 2000, under
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendments or reports filed for the purpose of updating
such description.
All documents filed by the registrant 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 the securities offered
hereby have been sold or which deregisters the securities covered hereby then
remaining unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a court to award, or a corporation's
board of directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act. Section 10 of the registrant's
Third Amended and Restated Bylaws (the "Bylaws") provides that the registrant
will indemnify any individual made a party to a proceeding because that
individual is or was a director or officer or, in some circumstances, an
employee of the registrant, and will reimburse reasonable expenses incurred by
such individual in advance of the final disposition of the proceeding to the
fullest extent permitted by Washington law.
Section 23B.08.320 of the WBCA authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, knowing violations of law or unlawful distributions, or
any transaction from which the director personally receives a benefit in money,
property or services to which the director is not legally entitled. Article 9 of
the registrant's Restated Articles of Incorporation (the "Articles") contains
provisions implementing, to the fullest extent permitted by Washington law, such
limitations on a director's liability to the registrant and its shareholders.
Any repeal of or modification to the Bylaws and Articles may not
adversely affect any right of indemnification under the Bylaws or Articles of a
director or officer who is or was a director or officer of the registrant at the
time of such repeal or modification.
The registrant has entered into separate indemnification agreements
with its directors and certain officers that could require the registrant to
indemnify them against certain liabilities that arise because of their status or
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service as directors or officers and to advance their expenses incurred as a
result of any proceeding against them as to which they could be indemnified. The
registrant also maintains a liability insurance policy pursuant to which its
directors and officers may be indemnified against liability incurred as a result
of their service as directors and officers of the registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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Exhibit
Number Description
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5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock
being registered
23.1 Consent of Arthur Andersen LLP, Independent Auditors
23.2 Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 EDEN Bioscience Corporation 2000 Stock Incentive Plan (incorporated by
reference to Exhibit 10.4 to the Registration Statement on Form S-1)
99.2 EDEN Bioscience Corporation 2000 Employee Stock Purchase Plan, as
amended (incorporated by reference to Exhibit 10.5 to the Registration
Statement on Form S-1)
99.3 EDEN Bioscience Corporation 1995 Combined Incentive and Nonqualified
Stock Option Plan (incorporated by reference to Exhibit 10.3 to the
Registration Statement on Form S-1)
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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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above 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 Exchange Act that are incorporated by
reference in this 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.
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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.
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 benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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.
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 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.
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SIGNATURES
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 Bothell, State of Washington, on the 27th day of
September, 2000.
EDEN BIOSCIENCE CORPORATION
By: /s/ Jerry L. Butler
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Jerry L. Butler
Chief Executive Officer and President
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Jerry L. Butler and Bradley S. Powell, or either of them, as attorneys-in-fact
with full power of substitution, to execute in the name and on the behalf of
each person, individually and in each capacity stated below, and to file, any
and all amendments to this Registration Statement, including any and all
post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 27th day of September, 2000.
SIGNATURE TITLE
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/s/ Jerry L. Butler Chief Executive Officer, President and
---------------------------------- Director (Principal Executive Officer)
Jerry L. Butler
/s/ Bradley S. Powell Chief Financial Officer, Vice President of
---------------------------------- Finance and Secretary (Principal Financial
Bradley S. Powell and Accounting Officer)
/s/ Jon E. M. Jacoby Director
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Jon E. M. Jacoby
/s/ Albert A. James Director
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Albert A. James
/s/ Agatha L. Maza Director
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Agatha L. Maza
/s/ Oscar C. Sandberg Director
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Oscar C. Sandberg
/s/ John W. Titcomb, Jr. Director
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John W. Titcomb, Jr.
/s/ William T. Weyerhaeuser, Ph.D. Director
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William T. Weyerhaeuser, Ph.D.
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INDEX TO EXHIBITS
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Exhibit
Number Description
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5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock
being registered
23.1 Consent of Arthur Andersen LLP, Independent Auditors
23.2 Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 EDEN Bioscience Corporation 2000 Stock Incentive Plan (incorporated by
reference to Exhibit 10.4 to the Registration Statement on Form S-1)
99.2 EDEN Bioscience Corporation 2000 Employee Stock Purchase Plan, as
amended (incorporated by reference to Exhibit 10.5 to the Registration
Statement on Form S-1)
99.3 EDEN Bioscience Corporation 1995 Combined Incentive and Nonqualified
Stock Option Plan (incorporated by reference to Exhibit 10.3 to the
Registration Statement on Form S-1)
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