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As filed with the Securities and Exchange Commission on December 1, 1997.
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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ELECTROPHARMACOLOGY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 954315412
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2301 N.W. 33RD COURT, SUITE 102
POMPANO BEACH, FLORIDA 33069
(954) 975-9818
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
CONSULTING AGREEMENT, dated November 25, 1997,
between Electropharmacology, Inc.
and 20th Century Associates, Inc.
(Full title of the plan)
DR. ARUP SEN
President and Chief Executive Officer
Electropharmacology, Inc.
2301 N.W. 33rd Court, Suite 102
Pompano Beach, Florida 33069
(954) 975-9818
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
With copies to:
Stephen L. Fluckiger, Esq.
Jones, Day, Reavis & Pogue
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
(214) 220-3939
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price per Offering Registration
be Registered Registered (1) Share (2) Price (2) Fee (3)
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Common Stock, par value
$0.01 per share 350,000 $0.40 $140,000 $43.00
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(1) Represents shares issued as compensation pursuant to a Consulting
Agreement, dated November 25, 1997, by and between 20th Century Associates,
Inc. and Electropharmacology, Inc.
(2) The registration fee with respect to these shares has been computed in
accordance with paragraphs (c) and (h) of Rule 457, based upon the average
of the high and the low prices of the common stock, par value $0.01 per
share, of Electropharmacology, Inc. ("EPi Common Stock") on November 24,
1997 as reported on the Nasdaq OTC Bulletin Board.
(3) Represents 1/33rd of one percent of the proposed maximum aggregate offering
price of the EPi Common Stock registered pursuant to this Registration
Statement.
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EXPLANATORY NOTE
The information called for by Part I of Form S-8 is included in the
description of the Consulting Agreement (the "Agreement"), dated November 25,
1997, by and between 20th Century Associates, Inc. and Electropharmacology, Inc.
(the "Company") to be delivered to persons receiving shares pursuant to the
Agreement. Pursuant to the Note to Part I of Form S-8, this information is not
being filed with or included in this Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by the Company are incorporated by
reference, as of their respective dates, in this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB and Amendment Nos. 1, 2 and
3 thereto for the fiscal year ended December 31, 1996;
(b) The Company's Quarterly Reports on Form 10-QSB, as amended, for the
periods ended March 31, 1997, June 30, 1997 and September 30, 1997;
(c) The Company's Current Reports on Form 8-K filed January 17, 1997,
February 13, 1997, March 27, 1997, April 4, 1997, May 7, 1997, June 11,
1997, July 21, 1997, July 25, 1997, August 11, 1997, September 11, 1997
and September 25, 1997; and
(d) The description of the Company's common stock, par value $0.01 per
share (the "Common Stock"), contained in the Company's Registration
Statement on Form SB-2 (Commission File No. 33-87934-A), declared
effective on May 12, 1995.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents. Any statement contained herein or in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for all purposes of this Registration
Statement to the extent that a statement contained herein or therein or in any
other subsequently filed document that also is or is 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 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
corporation to indemnify its directors and officers or former directors or
officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers. Such law provides further
that the indemnification permitted thereunder shall not be deemed exclusive of
any other rights to which the directors and officers may be entitled under a
corporation's certificate of incorporation, bylaws, any agreement or otherwise.
Reference is made to Article Ninth of the Company's Certificate of
Incorporation, as amended (the "Certificate"), which Certificate appears as
Exhibit 4.1 to the Registration Statement of which this Prospectus is a part.
Article Ninth provides for the indemnification of directors and officers.
Reference is also made to Article Tenth of the Certificate which limits the
liability of directors to the full extent permitted by the DGCL.
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Reference is made to Article XVII of the Company's By-laws, which appear as
Exhibit 4.2 to the Registration Statement of which this Prospectus is a part.
Article XVII provides for the indemnification of directors and officers to the
full extent permitted by the DGCL.
Sections 7 and 8 of the Underwriting Agreement dated May 12, 1995 between
the Company and Paragon Capital Corporation provide for the indemnification of
the Company's officers, directors and control persons under certain
circumstances.
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 8. Exhibits.
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by
reference.
Exhibit
Number Description of Exhibit
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4.1 Certificate of Incorporation, as amended. (1)
4.2 By-laws. (2)
5.1 Opinion of Jones, Day, Reavis & Pogue. (3)
23.1 Consent of Ernst & Young LLP. (3)
23.2 Consent of BDO Seidman, LLP. (3)
23.3 Consent of Jones, Day, Reavis & Pogue is contained in the opinion
filed as Exhibit 5.1 hereto.
24.1 Power of attorney. (Included on Signature Page hereof.)
99.1 Consulting Agreement, dated November 25, 1997, by and between 20th
Century Associates, Inc. and the Company. (3)
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(1) Previously filed as an exhibit to the Company's Annual Report on Form 10-KSB
for the year ended December 31, 1995 and incorporated herein by reference.
(2) Previously filed as an exhibit to the Company's Registration Statement on
Form SB-2 (No. 33-87934-A) and incorporated herein by reference.
(3) Filed herewith.
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 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 a
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
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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 this Registration
Statement or any material change to such information in this
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 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; and
(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. 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. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer, or controlling person of the Company 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 Company 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 Company
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 Pompano Beach, State of Florida on November 26, 1997.
ELECTROPHARMACOLOGY, INC.
By: /s/ Dr. Arup Sen
---------------------------------
Dr. Arup Sen
President and Chief Executive Officer
Each person whose signature appears below authorizes Dr. Arup Sen and David
Saloff, each of whom may act without joinder of the other, to execute in the
name of each such person who is then an officer or director of the Registrant
and to file any amendments to this Registration Statement necessary or advisable
to enable the Registrant to comply with the Securities Act of 1933, as amended,
and any rules, regulations and requirements of the Securities and Exchange
Commission, in respect thereof, in connection with the registration of the
securities which are the subject of this Registration Statement, which
amendments may make such changes in the Registration Statement as such attorney
may deem appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on November 26, 1997.
Signatures Title
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/s/ Arup Sen Chairman of the Board
- ------------------------ and Chief Executive Officer
Arup Sen
/s/ David Saloff Chief Financial Officer
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David Saloff
/s/ Murray Feldman Director
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Murray Feldman
/s/ Larry Haimovitch Director
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Larry Haimovitch
Director
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Steven Mayer
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INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
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4.1 Certificate of Incorporation, as amended. (1)
4.2 By-laws. (2)
5.1 Opinion of Jones, Day, Reavis & Pogue. (3)
23.1 Consent of Ernst & Young LLP. (3)
23.2 Consent of BDO Seidman, LLP. (3)
23.3 Consent of Jones, Day, Reavis & Pogue is contained in the opinion
filed as Exhibit 5.1 hereto.
24.1 Power of attorney. (Included on Signature Page hereof.)
99.1 Consulting Agreement, dated November 25, 1997, by and between 20th
Century Associates, Inc. and the Company. (3)
_______________
(1) Previously filed as an exhibit to the Company's Annual Report on Form 10-KSB
for the year ended December 31, 1995 and incorporated herein by reference.
(2) Previously filed as an exhibit to the Company's Registration Statement on
Form SB-2 (No. 33-87934-A) and incorporated herein by reference.
(3) Filed herewith.
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Exhibit 5.1
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JONES, DAY, REAVIS & POGUE
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
December 1, 1997
Electropharmacology, Inc.
2301 N.W. 33rd Court, Suite 102
Pompano Beach, Florida 33069
Re: Registration on Form S-8 of 350,000 Shares of Common Stock,
par value $0.01 per share, of Electropharmacology, Inc.
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Ladies and Gentlemen:
We are acting as counsel to Electropharmacology, Inc., a Delaware
corporation (the "Company"), in connection with the registration of 350,000
shares (the "Shares") of Common Stock, par value $0.01 per share, of the Company
pursuant to the Company's Registration Statement on Form S-8 (the "Registration
Statement") in connection with the Consulting Agreement, dated November 25, 1997
(the "Agreement"), by and between the Company and 20th Century Associates, Inc.
We have examined such documents, records, and matters of law as we
have deemed necessary for purposes of this opinion. Based on such examination
and on the assumptions set forth below, we are of the opinion that the Shares
are duly authorized and, when issued and delivered in accordance with the
provisions of the Agreement against payment of the consideration therefor as
provided in the Agreement and having a value not less than the par value
thereof, will be validly issued, fully paid, and nonassessable.
In rendering the foregoing opinion, we have relied as to certain
factual matters upon certificates of officers of the Company and public
officials, and we have not independently checked or verified the accuracy of the
statements contained therein. In addition, our examination of matters of law
has been limited to the General Corporation Law of the State of Delaware and the
federal laws of the United States of America, in each case as in effect on the
date hereof.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
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Exhibit 23.1
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) for the registration of 350,000 shares of common stock of
Electropharmacology, Inc. pertaining to the Consulting Agreement, dated
November 25, 1997, between Electropharmacology, Inc. and 20th Century
Associates, Inc. of our report dated February 9, 1997 (except for the last
paragraph of Note 2, as to which the date is April 7, 1997, the third paragraph
of Note 10, as to which the date is April 12, 1997, and the sixth paragraph of
Note 11, as to which the date is March 27, 1997), with respect to the financial
statements of Electropharmacology, Inc. included in its Annual Report
(Form 10-KSB/A) for the year ended December 31, 1996, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
West Palm Beach, Florida
November 25, 1997
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Exhibit 23.2
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) for the registration of 350,000 shares of its common stock pertaining
to the Consulting Agreement, dated November 25, 1997, by and between 20th
Century Associates, Inc. and Electropharmacology, Inc. of our report dated April
2, 1996, relating to the financial statements of Electropharmacology, Inc., for
the year ended December 31, 1995 appearing in the Company's annual report on
Form 10-KSB/A for the year ended December 31, 1996.
/s/ BDO Seidman, LLP
--------------------
BDO Seidman, LLP
Miami, Florida
November 24, 1997
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Exhibit 99.1
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20th Century Associates, Inc.
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14 Plaza 9
Manalapan, NJ 02276
Phone: (908) 294-0819
Fax: (908) 294-0792
November 25, 1997
Arup Sen, PhD.
Chairman of the Board & CEO
Electropharmacology, Inc.
2301 NW 33rd Court, Suite 102
Pompano Beach, FL 33069
Dear Dr. Sen:
This Agreement (the Agreement) is by and between 20th Century Associates,
Inc. and its assigns (the Advisor) and Electropharmacology, Inc. (EPi or the
Company) relating to advisory services to be rendered to the Company. The
service is detailed below:
Service: Planning, Implementation and Provision of Investor and Financial
Relations Services to the Company
Compensation: 350,000 newly issued shares of EPi common stock to be authorized
for issuance and to be issued by the Company upon completion of
services.
Terms: Schedule of Activities of Advisor is attached hereto as Schedule
1 and by this reference is incorporated herein as though fully
set forth. The shares are to be registered at no expense to
Advisor under Form S-8 or such qualification under necessary
Securities Act in order that the shares may be traded by
qualified entities or individuals.
Information and Cooperation: EPi shall cooperate with Advisor and provide
necessary financial and other business information, including confidential or
proprietary information, to Advisor as may be required for the services set
forth above. Advisor agrees to treat all confidential proprietary information
provided hereunder solely for the purpose of providing the services and for no
other purpose whatsoever. For the purpose of this Agreement, confidential or
proprietary information shall mean any information that is not readily available
to the general public about EPi.
Miscellaneous: The Agreement is the one and only agreement between the parties
with regard to the subject matter to which this Agreement relates and supersedes
all prior agreements, verbal, written or otherwise, including the Agreement
dated as of October 3, 1997 by and between EPi, Advisor and
Page 1 of 3
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Eurobiotech Group, Inc. and sets forth the principal financial terms. The
parties will execute a more detailed Agreement that will contain provisions
customary for such a service agreement without altering the financial terms set
forth in this letter agreement. The parties agree that the issuance and trading
of all shares issued pursuant to this Agreement shall be governed by and be
in compliance with all necessary regulations promulgated by the SEC and other
corporate governance regulations applicable to a publicly traded corporation.
By signing in the space provided below, each of the parties to the
Agreement have indicated their acceptance of the terms of the Agreement. In
witness whereof, the undersigned have executed this Agreement the 25th day of
November, 1997.
/s/ John Banas /s/ Arup Sen
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John Banas, President Arup Sen, PhD, Chairman & CEO
20th Century Associates, Inc. Electropharmacology, Inc.
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20th Century Associates, Inc.
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Schedule I - Schedule of Activities of 20th Century Associates, Inc.
Provision of Investor and Financial Relations Services to the Company
Services:
a. Attend meetings of the Company's Board of Directors or Executive Committee
at the Company's request, and as agreed by 20th Century;
b. At the Company's request, attend meetings to revise, analyze and report on
proposed business opportunities;
c. Arrange interviews for Company's representative and provide other forms of
exposure for the Company on various radio and television shows, and in the
domestic and international press;
d. Arrange for interview on an international internet media web program;
e. Bring in market makers to enhance support and activity for the Company's
stock;
f. Introduce the Company to advisory letter writers to develop both retail and
institutional interest in the Company; and
g. Assist the Company in developing domestic and international strategic
alliances.
Notwithstanding the above, it is agreed that Advisor's services will not
include any service that constitutes the rendering of legal opinions or
performance of work that is the ordinary purview of either certified public
accountants or registered broker/dealers.
Liability of Advisor
The parties acknowledge that 20th Century Associates, Inc. undertakes no
responsibility for the accuracy or any statements to be made by management
contained in press releases or other communications, including, but not limited
to, filings with the Securities and Exchange Commission and the NASD.
Independent Contractor
Advisor shall be deemed to be an independent contractor and, except as
expressly provided or authorized in this Agreement, shall have no authority to
act for or to represent the Company.
Miscellaneous
Neither party may modify this Agreement except in writing duly executed by
both parties hereto. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey. Any controversy or claim
arising out of or related to this Agreement shall be settled by arbitration in
accordance with the rules and under the auspices of the American Arbitration
Association and any arbitration shall be conducted in the State of Jersey.
This Agreement, consisting of three (3) pages, may be executed in duplicate
facsimile counterparts, each of which shall be deemed an original and together
shall constitute one and the same binding Agreement.
In witness whereof, the undersigned have executed this Agreement the 25th day of
November, 1997.
/s/ John Banas /s/ Arup Sen
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John Banas, President Arup Sen, PhD, Chairman & CEO
20th Century Associates, Inc. Electropharmacology, Inc.
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