As filed with the Securities and Exchange Commission on August 20, 1997
Registration No. 333-
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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ANTIVIRALS INC.
(Exact name of registrant as specified in charter)
OREGON 93-0797222
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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ONE S.W. COLUMBIA, SUITE 1105
PORTLAND, OREGON 97258
(503) 227-0554
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
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ANTIVIRALS INC.
1992 STOCK INCENTIVE PLAN
(Full Title of the Plan)
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DENIS R. BURGER, PH.D.
CHIEF EXECUTIVE OFFICER
ANTIVIRALS INC.
ONE S.W. COLUMBIA, SUITE 1105
PORTLAND, OREGON 97258
(503) 227-0554
(Name, address, including zip code and telephone number,
including area code, of agent for service)
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with copies to:
BYRON W. MILSTEAD, ESQ.
ATER WYNNE HEWITT DODSON & SKERRITT, LLP
222 S.W. COLUMBIA, SUITE 1800, PORTLAND, OREGON 97201
(503) 226-1191
CALCULATION OF REGISTRATION FEE
Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of
be Registered Registered Offering Price per Share Aggregate Offering Price Registration
(1) (1) Fee
Common Stock, no 1,333,333
par value shares $6.375 $5,391,324 $1,633.73
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h) the aggregate offering price is based on the
exercise prices of outstanding options.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
Registration Statement:
(a) Prospectus filed with the Securities and Exchange Commission (the
"SEC") under Rule 424(b) on June 5, 1997.
(b) Registration Statement on Form 8-A of the Company filed with the
SEC on May 29, 1997.
(c) All documents filed by the Company with the SEC pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and before the date of filing of a post-effective
amendment to this Registration Statement stating that all securities offered
have been sold or which deregisters all securities then remaining unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As an Oregon corporation the Company is subject to the Oregon Business
Corporation Act ("OBCA") and the exculpation from liability and indemnification
provisions contained therein. Pursuant to Section 60.047(2)(d) of the OBCA,
Article V of the Company's Third Restated Articles of Incorporation (the
"Articles") eliminates the liability of the Company's directors for monetary
damages to the Company or its shareholders, except for any liability related to
breach of the duty of loyalty, actions not in good faith and certain other
liabilities. The Articles require the Company to indemnify its directors and
officers to the fullest extent not prohibited by law.
Section 60.387, ET SEQ., of the OBCA allows corporations to indemnify their
directors and officers against liability where the director or officer has acted
in good faith and with a reasonable belief that actions taken were in the best
interests of the corporation or at least not adverse to the corporation's best
interests and, if in a criminal proceeding, the individual had no reasonable
cause to believe the conduct in question was unlawful. Under the OBCA,
corporations may not indemnify against liability in connection with a claim by
or in the right of the corporation in which the director or officer was adjudged
liable to the corporation, but may indemnify against the reasonable expenses
associated with such claims. Corporations may not indemnify against breaches of
the duty of loyalty. The OBCA mandates indemnification against all reasonable
expenses incurred in the successful defense of any claim made or threatened
whether or not such claim was by or in the right of the corporation. Finally, a
court may order indemnification if it determines that the director or officer is
fairly and reasonably entitled to indemnification in view of all the relevant
circumstances whether or not the director or officer met the good faith and
reasonable belief standards of conduct set out in the statute.
The OBCA also provides that the statutory indemnification provisions are
not deemed exclusive of any other rights to which directors or officers may be
entitled under a corporation's articles of incorporation or bylaws, any
agreement, general or specific action of the board of directors, vote of
shareholders or otherwise.
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In addition to the provisions contained in the Articles, the Bylaws of the
Company (the "Bylaws") also permit the Company to indemnify its directors and
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Number Description
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5.0 Opinion of Ater Wynne Hewitt Dodson & Skerritt, LLP as to the
legality of the securities being registered
23.1 Consent of Ater Wynne Hewitt Dodson & Skerritt, LLP (included in
legal opinion filed as Exhibit 5.0)
23.2 Consent of Arthur Andersen LLP
24.1 Powers of Attorney (included in signature page in Part II of the
Registration Statement)
99.1 AntiVirals Inc. 1992 Stock Incentive Plan (incorporated by
reference to Exhibit 10.1 to Registrant's Registration Statement
on Form SB-2 (Commission File No. 333-20513))
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes 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 of 1933;
(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; and
(iii)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; provided,
however, that subparagraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those subparagraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(b) The undersigned registrant hereby undertakes that, for the
purpose of determining liability under the Securities Act of 1933, 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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(c) The undersigned registrant hereby undertakes 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) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 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 such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 a director, officer or controlling person in
connection with 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 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 Portland, State of Oregon, on the 20th day of August,
1997.
ANTIVIRALS INC.
By: /s/ Denis R. Burger, Ph.D.
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Denis R. Burger, Ph.D.
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Denis R. Burger, Ph.D. and Alan P. Timmins, and
each of them singly, as 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 the registration statement filed
herewith and any or all amendments to said registration statement (including
post-effective amendments), 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 and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the foregoing, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agent or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Witness our hands on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Denis R. Burger, Ph.D. Chief Executive Officer and Director August 20, 1997
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Denis R. Burger, Ph.D. (Principal Executive Officer)
/s/ Alan P. Timmins Chief Operating Officer and Chief Financial August 20, 1997
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Alan P. Timmins Officer (Principal Financial Officer)
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/s/ John A. Beaulieu Director and Chairman of the Board August 20, 1997
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John A. Beaulieu
/s/ James E. Summerton, Ph.D. President and Director August 20, 1997
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James E. Summerton, Ph.D.
/s/ Dwight D. Weller, Ph.D. Vice President and Director August 20, 1997
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Dwight D. Weller, Ph.D.
/s/ Nick Bunick Director August 20, 1997
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Nick Bunick
/s/ James B. Hicks, Ph.D. Director August 20, 1997
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James B. Hicks, Ph.D.
/s/ Donald R. Johnson, Ph.D. Director August 20, 1997
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Donald R. Johnson, Ph.D.
/s/ James E. Reinmuth, Ph.D. Director August 20, 1997
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James E. Reinmuth, Ph.D.
/s/ Joseph Rubinfeld, Ph.D. Director August 20, 1997
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Joseph Rubinfeld, Ph.D.
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INDEX TO EXHIBITS
Exhibit Page
Number Exhibit No.
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5.0 Opinion of Ater Wynne Hewitt Dodson & Skerritt as to the
legality of the securities being registered
23.1 Consent of Ater Wynne Hewitt Dodson & Skerritt (included in
legal opinion filed as Exhibit 5.0)
23.2 Consent of Arthur Andersen LLP
24.1 Powers of Attorney (included in signature page in Part II of
the Registration Statement)
99.1 AntiVirals Inc. 1992 Stock Incentive Plan (incorporated by
reference to Exhibit 10.1 to Registrant's Registration
Statement on Form SB-2 (Commission File No. 333-20513))
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EXHIBIT 5.0
[LETTERHEAD OF ATER WYNNE HEWITT DODSON & SKERRITT]
August 20, 1997
AntiVirals Inc.
One S.W. Columbia, Suite 1105
Portland, OR 97258
Gentlemen:
In connection with the filing of a registration statement (the
"Registration Statement") under the Securities Act of 1933, as amended, with the
Securities and Exchange Commission on Form S-8, relating to the proposed sale by
AntiVirals Inc. (the "Company"), of an aggregate of 1,333,333 shares of its
common stock, .0001 par value (the "Common Stock"), issuable upon the exercise
of options granted pursuant to the Company's 1992 Stock Incentive Plan, we have
examined such corporate records, certificates of public officials and offerees
of the Company and other documents as we have considered necessary or proper for
the purpose of this opinion.
Based on the foregoing and having regard to legal issues which we deem
relevant, it is our opinion that the shares of Common Stock will, when sold, be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the above-
mentioned registration statement.
Very truly yours,
ATER WYNNE HEWITT DODSON & SKERRITT, LLP
By: /s/ Jack W. Schifferdecker, Jr.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 10, 1997
included in Antivirals Inc. Form SB-2 and to all references to our Firm included
in this Registration Statement.
ARTHUS ANDERSON LLP
Portland, Oregon
August 20, 1997
