As Filed With the Securities and Exchange Commission on August 27, 2004
Registration No. 333- _____
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
EPOCH BIOSCIENCES, INC.
| Delaware (State or other jurisdiction of incorporation or organization) | 91-1311592 (I.R.S. Employer Identification No.) |
21720 23rd Drive, S.E., Suite 150, Bothell, Washington 98021
(Address of Principal Executive Offices)
2003 STOCK INCENTIVE PLAN
William G. Gerber, M.D., Chief Executive Officer
(Name and address of agent for service)
(425) 482-5555
(Telephone number, including area code, of agent for service)
Copy to:
Lawrence B. Cohn, Esq.
Stradling Yocca Carlson & Rauth, A Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
CALCULATION OF REGISTRATION FEE
| Proposed Maximum | Proposed Maximum | |||||||||||||
| Title of Securities | Amount To Be | Offering Price | Aggregate Offering | Amount Of | ||||||||||
| To Be Registered | Registered | Per Share (2) | Price (2) | Registration Fee | ||||||||||
| Common Stock, $.01 par value | 843,596 shares (1) | $ | 1.61 | $ | 1,358,190 | $ | 173 | |||||||
| (1) | Includes 500,000 additional shares authorized to be issued under the 2003 Stock Incentive Plan pursuant to the terms thereof and 343,596 shares formerly granted or offered under Epoch’s Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan—1993 or Epoch’s Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan—1991 that became available for grant or issuance under the 2003 Plan following July 29, 2003 pursuant to the terms of the 2003 Stock Incentive Plan, when such shares could no longer under any circumstances be exercised or were reacquired by Epoch. |
| (2) | Estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457(h), on the basis of the price of securities of the same class, as determined in accordance with Rule 457(c), using the average of the high and low prices reported by the Nasdaq SmallCap Market for the Common stock on August 25, 2004 which was $1.61 per share. |
| PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT | ||||||||
| Item 3. Incorporation of Documents by Reference. | ||||||||
| Item 8. Exhibits. | ||||||||
| SIGNATURES | ||||||||
| POWER OF ATTORNEY | ||||||||
| EXHIBIT INDEX | ||||||||
| EXHIBIT 4.1 | ||||||||
| EXHIBIT 5.1 | ||||||||
| EXHIBIT 23.2 | ||||||||
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with General Instruction E to Form S-8, as amended, and relates to (i) an increase of 500,000 shares of common stock of Epoch Biosciences, Inc. (the “Registrant”), reserved under the Registrant’s 2003 Stock Incentive Plan, authorized pursuant to an “evergreen” clause increase for the 2004 fiscal year and (ii) an additional 343,596 shares of common stock formerly granted or offered under Epoch’s Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan—1993 or Epoch’s Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan—1991 that became available for grant or issuance under the 2003 Plan following July 29, 2003 pursuant to the terms of the 2003 Plan, when such shares could no longer under any circumstances be exercised.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.Incorporation of Documents by Reference.
The contents of the Registrant’s previously filed Registration statement on Form S-8 (Registration No. 333-112141), relating to shares issuable under the Registrant’s 2003 Stock Incentive Plan, are hereby incorporated by reference.
Item 8.Exhibits.
| 4.1 | 2003 Stock Incentive Plan. | |
| 5.1 | Opinion of Stradling Yocca Carlson & Rauth. | |
| 23.1 | Consent of Stradling Yocca Carlson & Rauth (included in Exhibit 5.1). | |
| 23.2 | Consent of KPMG LLP, Independent Registered Public Accounting Firm. | |
| 24.1 | Power of Attorney (included on the signature page to the Registration Statement). |
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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 19th day of August, 2004.
| EPOCH BIOSCIENCES, INC. | ||||
| By: | /s/ William G. Gerber, M.D. | |||
| William G. Gerber, M.D. | ||||
| Chief Executive Officer | ||||
POWER OF ATTORNEY
We, the undersigned directors and officers of Epoch Biosciences, Inc., do hereby make, constitute and appoint William G. Gerber, M.D. and Bert W. Hogue, and each of them acting individually, our true and lawful attorneys-in-fact and agents, with power to act without any other and with full power of substitution, to do any and all acts and things in our name and behalf in our capacities as directors and officers, to sign any and all amendments (including post-effective amendments) to this Registration Statement, or any related Registration Statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Frederick B. Craves, Ph.D. Frederick B. Craves, Ph.D. | Chairman of the Board of Directors | August 19, 2004 | ||
| /s/ William G. Gerber, M.D. William G. Gerber, M.D. | President, Chief Executive Officer and Director (Principal Executive Officer) | August 19, 2004 | ||
| /s/ Richard L. Dunning Richard L. Dunning | Director | August 19, 2004 | ||
| /s/ Herbert L. Heyneker, Ph.D. Herbert L. Heyneker, Ph.D. | Director | August 19, 2004 | ||
| /s/ Michael Y. Lucero Michael Y. Lucero | Director | August 19, 2004 | ||
| /s/ R. Janet Whitmore R. Janet Whitmore | Director | August 19, 2004 | ||
| /s/ Sanford S. Zweifach Sanford S. Zweifach | Director | August 19, 2004 | ||
| /s/ Bert W. Hogue Bert W. Hogue | Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | August 19, 2004 |
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EXHIBIT INDEX
| Exhibit | ||
| Number | Description | |
| 4.1 | 2003 Stock Incentive Plan. | |
| 5.1 | Opinion of Stradling Yocca Carlson & Rauth. | |
| 23.1 | Consent of Stradling Yocca Carlson & Rauth (included in Exhibit 5.1). | |
| 23.2 | Consent of KPMG LLP, Independent Registered Public Accounting Firm. | |
| 24.1 | Power of Attorney (included on the signature page to the Registration Statement). |
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