As filed with the Securities and Exchange Commission on September 10,
1996
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SEPRAGEN CORPORATION
(Exact name of registrant in its charter)
California 68-0073366
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
30689 Huntwood Avenue
Hayward, California 94544
(Address of principal executive offices)
SEPRAGEN CORPORATION
1996 STOCK OPTION PLAN
(Full title of the plan)
Vinit Saxena
Sepragen Corporation
30689 Huntwood Avenue
Hayward, California 94544
(Name and address of agent for service)
(510) 476-0650
(Telephone number, including area code, of agent for service)
Copy to: H. Ray Peffer, Esq.
Smith, Merrill & Peffer, A Professional Corporation
P.O. Box 10, San Ramon, California 94583
Proposed Proposed
Amount Maximum Maximum Amount
Title of Securities to be Offering Aggregate of
to be Registered Register Price per Offering Registr
ed (1) Share (2) Price ation
Fee
Class A Common Stock 250,000(3) $4.00 $1,000,000 $344.83
(no par value)
Class A Common Stock 0(4) $4.00 $0 $0.00
TOTAL $1,000,000 $344.83
(1) Pursuant to Rule 416, this Registration Statement also covers such
indeterminable number of additional shares as may become issuable
pursuant to terms designed to prevent dilution resulting from stock
splits, stock dividends or similar events.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee. In accordance with Rule 457(h), the price shown is
based upon the last sale price of the Registrant's Units which consist
of one share Class A Common Stock, one Class A Warrant and one Class B
Warrant as of September 6, 1996, as reported on the Nasdaq SmallCap
Market.
(3) Represents shares of Class A common Stock reserved for issuance
pursuant to options available for grant (but not yet granted) under
the Registrant's 1996 Stock Option Plan (the "Option Plan").
(4) Represents Shares of Common Stock reserved for issuance pursuant
to options granted under the Option Plan.
PAGE 1 OF 32. EXHIBIT INDEX APPEARS ON PAGE 8.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Documents containing the information specified in Part I of this
Registration Statement will be given or sent to all persons who
participate in the Sepragen Corporation 1996 Stock Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents or portions thereof, as filed with the
Securities and Exchange Commission (the "Commission") by Sepragen
Corporation, a California corporation (the "Registrant"), are
incorporated herein by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or, if the financial statements therein
are more current, the Registrant's latest prospectus, other than the
prospectus of which this document is a part, filed pursuant to Rule
424(b) with the Commission under the Securities Act of 1933, as
amended (the "Securities Act").
(2) All other reports filed by the Registrant pursuant to
Sections 13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the annual report or the prospectus referred to
in (1) above.
(3) The description of the Class A Common Stock, no par value
("Common Stock"), of the Registrant contained in the section entitled
"Description of Securities") of the Registrant's Registration
Statement on Form SB-2 declared effective on March 23, 1995 (File No.
33-86888)(which is incorporated by reference in Item 1 of the
Registrant's Registration Statement on Form 8-A (File No. 0-025726)
dated March 20, 1995 filed pursuant to Section 12 of the Exchange
Act).
All documents subsequently filed by the Registrant pursuant to
Sections 13(a) or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which
deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement
and to be 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 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 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 317 of the California General
Corporation Law ("CGCL"), Article V of the Restated Articles of
Incorporation of the Registrant, and Article II of the Bylaws of the
Registrant.
The Registrant is a California corporation. Section 317 of the
CGCL generally provides that a corporation is empowered to indemnify
any person who is made a party to any threatened, pending or completed
action, suit or proceeding by reason of the fact that he is or was a
director, employee or agent of the corporation or is or was serving,
at the request of the corporation, in any of such capacities of
another corporation or other enterprise, if such director, officer,
employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. This
statute describes in detail the right of the Registrant to indemnify
any such person.
Pursuant to Article V of the Registrant's Restated Articles of
Incorporation and Article II, Section 8 of the Registrant's Bylaws,
the Registrant shall indemnify, to the fullest extent permitted by the
CGCL, any person, including officers and directors, with regard to any
action or proceeding.
Section 204(a)(10) of the CGCL enables a corporation in its
articles to incorporation to eliminate or limit the personal liability
of a director for monetary damages in an action brought by or in the
right of the corporation for breach of a director's duties to the
corporation or its shareholders, provided, however, that such
provision may not eliminate or limit the liability of directors: (i)
for acts or omissions that involve intentional misconduct or a knowing
and culpable violation of law, (ii) for acts or omissions that a
director believes to be contrary to the best interests of the
corporation or its shareholders that involve the absence of good faith
on the part of the director, (iii) for any transaction from which a
director derived an improper personal benefit, (iv) for acts or
omissions that show a reckless disregard for the director's duty to
the corporation or its shareholders in circumstances in which the
director was, or should have been aware, in the ordinary course of
performing a director's duties, of risk of serious injury to the
corporation or its shareholders, (v) for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the corporation or its
shareholders, (vi) under Section 310 of the CGCL which involves
transactions between the corporation and directors or corporations
having interrelated directors, or (vii) under Section 316 which
involves directors liabilities for certain distributions, loans and
guarantees. The Registrant's Restated Articles of Incorporation
limits the liability of directors to the extent permitted by Section
204(a)(10) of the CGCL.
The Registrant has entered into Indemnification Agreements with
each officer and director of the Registrant which provide that the
Registrant will indemnify the indemnitee to the fullest extent
permitted by applicable law against expenses, including reasonable
attorneys' fees, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with
any action or proceeding arising out of his performance of his duties
as a director or officer of the Registrant. Such indemnification is
available if the indemnitee acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
the Registrant, and, with respect to any criminal action, had no
reasonable cause to believe his conduct was unlawful.
Under such Indemnification Agreements, the entitlement of a
director or officer to indemnification shall be determined by a
majority vote of a quorum of disinterested directors, or if such
quorum either is not obtainable or so directs, by independent counsel
or by the stockholders of the Registrant, as determined by such quorum
of disinterested directors. Under certain circumstances, a party to
the Indemnification Agreement will be conclusively presumed to have
met the applicable statutory standard of conduct unless the
Registrant's Board of Directors, stockholders or independent legal
counsel determine that the relevant standard has not been met. If a
change of control of the Registrant has occurred, the entitlement of
such director or officer to indemnification shall be determined by
independent counsel selected by such director or officer, unless such
director or officer requests that either the Board of Directors or the
stockholders make such determination.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Registrant, pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Commission
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
The Registrant currently maintains an officers' and directors'
liability insurance policy which covers, subject to the exclusions and
limitations of the policy, officers and directors of the Registrant
against certain liabilities which may be incurred by them solely in
such capacities.
For information regarding the Registrant's undertaking to submit
to adjudication the issue of indemnification for violation of the
securities laws, see Item 9 hereof. The Registrant has been informed
that it is the position of the Commission that insofar as the
foregoing provisions may be invoked to disclaim liability for damages
arising under the Securities Act, such provisions are against public
policy as expressed in the Securities Act and are therefore
unenforceable.
Item 7. Exemption From Registration Claimed.
Not Applicable
Item 8. Exhibits
The following is a complete list of exhibits files as a part
of this Registration Statement:
Exhibit No. Document
4.1 1996 Stock Option Plan
4.2 Specimen copy of Class A Common Stock Certificate of the
Registrant (incorporated by reference to Exhibit 4.3
contained in Amendment No.1 to the Registrant's
Registration Statement on Form SB-2 (Registration
Statement No. 33-86888) filed on January 10, 1995).
4.3 Restated Articles of Incorporation of Registrant
(Specimen copy of Redeemable Class A Warrant certificate
of the Registrant (incorporated by reference to Exhibit
3.1 contained in the Registrant's Registration Statement
on Form SB-2 (Registration Statement No. 33-86888) filed
on November 30, 1994.
4.4 Form of Incentive Stock Option Agreement under the 1994
Stock Option Plan of the Registrant.
4.5 Form of Nonqualified Stock Option Agreement under the
1994 Stock Option Plan of the Registrant.
5.1 Opinion of Smith, Merrill and Peffer, a Professional
Corporation.
23.1 Consent of Smith, Merrill and Peffer, a Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand LLP.
24.1 Powers of Attorney (included on the signature page of
this Registration Statement).
Item 9. Undertakings.
The undersigned registrant hereby undertakes that it will:
a. To file, during any period in which offers or sales are
being made, a post-effective amended to this Registration
Statement to:
i. Include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
ii. Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information in the Registration Statement; and
iii. 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;
provided, however, that paragraphs (a)(i) and (a)(ii) above do
not apply if the Registration Statement is no Form S-3 or Form S-
8 and 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 15(d) of the
Exchange Act that are incorporated by reference in the
Registration Statement;
b. To treat, 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 the securities at
that time to be the initial bona fide offering thereof;
c. 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;
d. 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 registration statement relating to the
securities offered therein, and the offering of the securities at
that time to be the initial bona fide offering thereof;
e. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to Item 6, or
otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange 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 competent jurisdiction the question whether
such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements of 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
San Leandro, State of California, on the 9th day of September, 1996.
Sepragen Corporation
By: /s/ Vinit Saxena
Vinit Saxena
President, Chief Executive
Officer, Chief Financial
Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Dr. Q. R.
Miranda and Vinit Saxena, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement and all documents
relating thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents,
full power and authority to do and perform each and every act and
thing necessary or advisable 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 said attorneys-in-fact and
agents, or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
In accordance with 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 stated.
Signature Title Date
/s/ Vinit Saxena Director & September 9, 1996
Vinit Saxena President
/s/ Armin Ramel Director & September 9, 1996
Armin Ramel Secretary
/s/Werner Kofod Nielsen Director September 9, 1996
Werner Kofod Nielsen
/s/ Robert Leach Director September 9, 1996
Robert Leach
INDEX TO EXHIBITS
Sequential
Page No.
4.1 1996 Stock Option Plan .............. 9
4.4 Form of Incentive Stock Option Agreement under the
1996 Stock Option Plan of the Registrant. ..... 17
4.5 Form of Nonqualified Stock Option Agreement under the
1996 Stock Option Plan of the Registrant. ..... 24
5.1 Opinion of Smith, Merrill and Peffer, a Professional
Corporation. ................... 31
23.2 Consent of Coopers & Lybrand LLP. ......... 32