Registration No. 333-102526
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
BIOPHAN TECHNOLOGIES, INC.
(Exact name of issuer as specified in its charter)
Nevada 82-0507874
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
150 Lucius Gordon Drive, Suite 215, West Henrietta, New York 14586
(Address of Principal Executive Offices) (Zip Code)
Consulting Services Agreement with Eric Marton
Consulting Services Agreement with Steve Schiffman
(Full title of the plan)
Michael L. Weiner
Chief Executive Officer
150 Lucius Gordon Drive, Suite 215
West Henrietta, New York 14586
(Name and address of agent for service)
(585) 214-2441
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to Be Price Offering Registration
to be Registered Registered Per Share Price Fee
------------------------------------------------------------------------------
Common Stock, par value 2,000,000 $ 0.20 per $ 400,000 $ 32.36
$.005 (1) Shares Share
==============================================================================
TOTAL FEE $ 32.36
(1) Based upon 2,000,000 shares of common stock issuable under the
Consulting Services Agreements covered by this registration statement.
The fee with respect to these shares has been calculated pursuant to
Rule 457(c) under the Securities Act of 1933, as amended, and based upon
the last sale reported for the Issuer's common stock on August 13, 2003,
as reported by The OTC Bulletin Board.
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Part I - INFORMATION REQUIRED IN THE 10(a) PROSPECTUS
All information required by Part I to be contained in the prospectus is
omitted from this registration statement on Form S-8 in accordance with Rule
428 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 are incorporated by reference in this registration
statement by Biophan Technologies, Inc. (the "Company") and made a part
hereof. 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 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 part hereof from the date
of filing such documents.
(a) The Company's latest annual report on Form 10-KSB and Form 10-KSB/A
for the fiscal year ended February 28, 2003, filed with the
Commission on May 29, 2003 and June 13, 2003, respectively which
contains audited financial statements for the Company's fiscal year
ended February 28, 2003.
(b) The Company's Quarterly Report on Form 10-QSB for the quarter ended
May 31, 2003 filed with the Commission on July 15, 2003.
(c) The Company's definitive Proxy Statement for the Company's 2003
Annual Meeting of Shareholders filed with the Commission on July
30, 2003.
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form SB-2 effective on July 11,
2003.
All reports and other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1943, as amended
(the "Exchange Act"), subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment hereto, which indicates
that all securities offered hereunder 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.
For purposes of this Registration Statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or a statement contained herein or any
other subsequently filed document which also is or is deemed to be
incorporated herein by reference modifies or supersedes such document or such
statement in such document. Any 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.
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No description of the class of securities (i.e., the $.005 par value
common stock) is required under this item because the Common Stock is
registered under Section 12 of the Exchange Act.
Item 5. Interest of Named Experts and Counsel.
Not applicable pursuant to the amount limitations set forth in instruction
1 to Item 509 of Regulation S-B.
Item 6. Indemnification of Directors and Officers.
Under Nevada Revised Statutes Section 78.138, a director or officer is
generally not individually liable to the corporation or its shareholders for
any damages as a result of any act or failure to act in his capacity as a
director or officer, unless it is proven that:
(i) his act or failure to act constituted a breach of his fiduciary duties
as a director or officer; and
(iii) his breach of those duties involved intentional misconduct, fraud or
a knowing violation of law.
This provision is intended to afford directors protection against and to
limit their potential liability for monetary damages resulting from suits
alleging a breach of the duty of care by a director. As a consequence of this
provision, stockholders of the Company will be unable to recover monetary
damages against directors for action taken by them that may constitute
negligence or gross negligence in performance of their duties unless such
conduct falls within one of the foregoing exceptions. The provision, however,
does not alter the applicable standards governing a director's fiduciary duty
and does not eliminate or limit the right of the Company or any stockholder to
obtain an injunction or any other type of non-monetary relief in the event of
a breach of fiduciary duty.
As permitted by Nevada law, the Company's By-Laws include a provision
which provides for indemnification of a director or officer by the Company
against expenses, judgments, fines and amounts paid in settlement of claims
against the director or officer arising from the fact that he was an officer
or director, provided that the director or officer acted in good faith and in
a manner he or she believed to be in or not opposed to the best interests of
the Company.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, the Company has been advised that
in the opinion of the SEC, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) The following exhibits are filed with this registration statement:
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Exhibit No. Exhibit Name
----------- ------------
5.1 Opinion of Boylan, Brown, Code, Vigdor & Wilson LLP
23.1 Consent of Goldstein Golub Kessler LLP, Independent Auditor.
23.2 Consent of Boylan, Brown, Code, Vigdor & Wilson LLP (included in
Exhibit 5.1).
99.1 Consulting Services Agreement - Eric Marton.
99.2 Non-Qualified Stock Option Agreement - Eric Marton.
99.3 Consulting Services Agreement - Steve Schiffman.
99.4 Non-Qualified Stock Option Agreement - Steve Schiffman.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities,
a post-effective amendment to this registration statement 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) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time
to be the initial bona fide offering.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
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 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 Act
and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. 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 Town of Henrietta, State of New York, on
this 18th day of August 2003.
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BIOPHAN TECHNOLOGIES, INC. (REGISTRANT)
By:/S/ MICHAEL L. WEINER
-----------------------------
Michael. Weiner, President and
Chief Executive Officer
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/ Michael L. Weiner President, Chief Executive August 18, 2003
--------------------- Officer and Director
Michael L. Weiner (Principal Executive Officer)
/s/ Robert J. Wood Vice President, Treasurer and August 18, 2003
--------------------- (Principal Financial and Accounting
Robert J. Wood Officer)
/s/ David A. Miller Secretary August 18, 2003
---------------------
David A. Miller
/s/ Guenter H. Jaensch Director August 18, 2003
---------------------
Guenter H. Jaensch
/s/ Ross B. Kenzie Director August 18, 2003
---------------------
Ross B. Kenzie
/s/ Steven Katz Director August 18, 2003
---------------------
Steven Katz
/s/ Robert S. Bramson Director August 18, 2003
---------------------
Robert S. Bramson
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