-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LWIpZyyTk37XEz70IaDfFI0CHKYaxy05tAZOEKpDDAhRnYhyDVgCA9IAM18TLBwg MdhFbCTffaElgEfCHc6r4Q== 0001095811-00-001005.txt : 20000417 0001095811-00-001005.hdr.sgml : 20000417 ACCESSION NUMBER: 0001095811-00-001005 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000414 EFFECTIVENESS DATE: 20000414 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ELECTROPURE INC CENTRAL INDEX KEY: 0000808015 STANDARD INDUSTRIAL CLASSIFICATION: PATENT OWNERS & LESSORS [6794] IRS NUMBER: 330056212 STATE OF INCORPORATION: CA FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-34858 FILM NUMBER: 602355 BUSINESS ADDRESS: STREET 1: 23456 S POINTE DR CITY: LAGUNA HILLS STATE: CA ZIP: 92653-1512 BUSINESS PHONE: 9497709347 MAIL ADDRESS: STREET 1: 23456 S POINTE DR STREET 2: SUITE A CITY: LAGUNA HILLS STATE: CA ZIP: 92653 FORMER COMPANY: FORMER CONFORMED NAME: HOH WATER TECHNOLOGY CORP DATE OF NAME CHANGE: 19920703 S-8 1 FORM S-8 1 As Filed with the Securities and Exchange Commission on April 14, 2000 Registration No. 333- - -------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------- 2 CALCULATION OF REGISTRATION FEE
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 - -------------------------------------------------------------------------------- Class A Common Stock, par value $0.01 1,000,000 (3) $1.25 $1,250,000.00 $368.77 per share
- ---------- (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. ================================================================================ II-1 3 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. II-2 4 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 II-3 5 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 II-4 6 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. II-5 7 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. /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
II-6 8 EXHIBIT INDEX
Exhibit No. Description of Exhibit - ----------- ---------------------- 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).
EX-5.1 2 OPINION RE LEGALITY 1 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 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] EX-23.1 3 CONSENT OF EXPERTS AND COUNSEL 1 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 -----END PRIVACY-ENHANCED MESSAGE-----