UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Earliest event reported) February 24, 2005
BIOPHAN TECHNOLOGIES, INC.
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(Exact name of registrant as specified in its charter)
Nevada 0-26057 82-0507874
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) file number) Identification No.)
150 Lucius Gordon Drive, Suite 215
West Henrietta, New York 14586
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(Address of principal executive offices) (Zip code)
(585) 214-2441
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(Registrant's telephone number
including area code)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
|_| Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On February 24, 2005, the registrant Biophan Technologies, Inc.
("Biophan") signed definitive agreements to consummate its acquisition of a 51%
interest in aMRIs GmbH, a German company, from Dr. Andreas Melzer and Tomovation
GmbH, a German company controlled by Dr. Michael Friebe (Melzer and Tomovation
are referred to collectively as the "Sellers"), and license several patents
covering stents and other medical devices with resonant circuits to enhance
imaging, devices and methods to determine the location of positionable objects,
vena cava filters, and related technology (collectively, the "Technology") from
aMRIs Patent GmbH, a German company, also owned by Sellers. aMRIs is a
German-based developer of MRI-safety and image-compatible technology solutions
and biomedical devices.
The parties to the purchase agreement ("Purchase Agreement"), dated
February 24, 2005, are Biophan, the Sellers, Dr. Michael Friebe, Dipl.-Ing.
Gregor Schaefers ("Schaefers"), and Dipl.-Beriebswirt Andreas Pieper ("Pieper").
Under the terms of the Purchase Agreement, the Sellers contributed to aMRIs GmbH
("aMRIs") all of their interests in MR COMP ("MRC"), a German company, for a
nominal consideration in addition to the transaction. Collectively, the Sellers
each owned shares with a nominal amount of 7,300 euros in MRC, of the total
shares outstanding with a nominal amount of 25,000 euros, giving aMRIs a 58.4%
ownership interest in MRC. The balance of the outstanding shares of MRC are
owned by Schaefers and Pieper. MRC is an independent laboratory primarily
engaged in testing of medical devices for use in tomographic imaging
environments. Biophan then purchased shares with a nominal amount of 12,750
euros (the "aMRIs Shares"), constituting a 51% interest ownership interest in
aMRIs, for a $40,000 initial payment and a promissory note in the amount of
$200,000, payment of which is secured by a pledge from Biophan to Sellers of
aMRIs shares with a nominal value of 1,150 euros, pursuant to a note and pledge
agreement ("Note and Pledge"), dated February 24, 2005. The Purchase Agreement
contains representations and warranties of the parties and cross indemnities.
The Note and Pledge requires Biophan to pay to Sellers the $200,000
principal amount, together with interest at 2.74% per year, compounded monthly,
on June 1, 2005. Upon the occurrence of an event of default under the Note and
Pledge, the principal amount and accrued interest thereon will become due and
payable upon demand by the Sellers or, if the default relates to certain
bankruptcy and insolvency events, immediately. Events of default under the Note
and Pledge include failure to pay principal and interest on the Note and Pledge
when due, suspension of Biophan's obligations to make capital contributions to
aMRIs, as described below, default by Biophan under the License Agreement and
the Capital Pledge Agreement, described below, bankruptcy and insolvency events,
and certain events constituting a change of control of Biophan, including sale
of all or substantially all of its assets or a transfer of 50% or more of the
stock of Biophan in a stock purchase, share exchange, merger or consolidation.
The Note and Pledge and the Capital Pledge Agreement are governed by German law.
In addition, Biophan has agreed to contribute $2,000,000 over four
years to aMRIs for specific salaries and research and development expenses
agreed to by Biophan and aMRIs or in accordance with a budget. Capital
contributions by Biophan to aMRIs for 2005 are payable in four installments of
$125,000 each on March 1, June 1, September 1 and December 1, 2005. Payments by
Biophan of capital contributions to aMRIs in 2006, 2007, and 2008 will not
exceed $500,000 per year and will be made in accordance with the aMRIs budget,
or if no budget is approved, quarterly. Biophan's obligation to make capital
contributions is deferred in any year to the extent that cash in aMRIs at the
preceding fiscal year end exceeds $50,000. Biophan's obligation to make capital
contributions under the Purchase Agreement is secured by a pledge by Biophan to
the Sellers of the shares of aMRIs with a nominal amount of 11,400 euros,
pursuant to a Capital Pledge Agreement, dated February 24, 2005. The pledged
shares of aMRIs will be released from the pledge periodically as capital
contributions are made, with three shares of a nominal amount of 50 euros
released for each $26,315 of capital contribution payment.
2
Biophan may determine at any time to suspend making additional capital
contributions to aMRIs on written notice to aMRIs and Sellers. If Biophan fails
to pay a capital contribution for more than 60 days following its due date, the
Sellers may suspend Biophan's obligation to make additional capital
contributions. If Biophan's obligation to make capital contributions is
suspended, its obligation to make additional contributions terminates, any
shares of aMRIs not released (or entitled to release) from the pledge under the
Capital Pledge Agreement will be returned to Sellers, and Biophan is required to
make a payment of $100,000 to each of the two Sellers. The License, described
below, would also terminate, subject to any outstanding sublicenses.
Under the terms of the License Agreement ("License"), dated February
24, 2005, between Biophan and aMRIs Patent GmbH ("Licensor"), Biophan licensed
the Technology on an exclusive world-wide basis. Licensor is owned by the
Sellers. As a condition to the License, Licensor and aMRIs terminated the
previous license by Licensor to aMRIs of the Technology. Under the License,
Licensor granted to Biophan and its affiliates the rights to develop, make, have
made, use, sell, offer to sell, import, export, lease and perform the "Licensed
Product/Process" (defined as (i) stents or other medical devices with resonant
circuits to enhance imaging, (ii) vena cava filters, (iii) guidewires, and (iv)
other rights related to the patents) in the "Field" (defined as systems,
devices, components, compositions and processes for magnetic resonance imaging
that provide or enhance cost, safety, effectiveness, applicability, ease of use,
useful life, image quality, or image compatibility). Licensor also granted
Biophan certain rights to grant sublicenses. Biophan will prosecute and pay for
the costs of patent prosecution and has the initial right to enforce the patent
rights. The parties agreed to cooperate in the enforcement and defense of claims
for infringement or misappropriation and to share in any recovery. The License
is partially a "joint research agreement" under the CREATE Act, 35 U.S.C.
Section 103(c), among Licensor, Biophan and aMIRs.
In consideration for the License, in addition to future royalties,
Biophan paid to Licensor $92,500 on February 24, 2005, and promised to deliver
100,000 shares of the restricted common stock of Biophan no later than April 30,
2005. Upon the satisfaction of certain title clearance and related due diligence
with respect to certain of the licensed patents on or before December 31, 2005
(as extended at the election of Biophan), Biophan will pay to Licensor an
additional $92,500 and will issue 100,000 shares of the restricted common stock
of Biophan. If the additional payment is not made for any reason by December 31,
2005, Licensor may terminate the License upon reimbursing Biophan the initial
payment of $92,500 and returning the 100,000 shares of restricted common stock.
3
The License contains various representations and warranties and
covenants of the parties. In addition to termination of the License if Biophan's
obligations to provide capital contributions under the Purchase Agreement are
suspended, the License may be terminated by Licensor if Biophan breaches any
material provision of the License and does not cure within thirty days after
notice, ceases to conduct its business in the ordinary course or suffers a
bankruptcy, and by Biophan if Licensor breaches any material provision of the
License and does not cure within thirty days after notice or, without cause, on
thirty days' notice from Biophan upon payment of a termination payment. The
termination payment, if termination occurs prior to the third anniversary of the
License, is equal to the minimum royalties due through the second year of the
Agreement, and if termination occurs in the third or fourth year, 50% of the
minimum royalties for the year of termination. Upon a termination, Biophan is
entitled to sell Licensed Products then in existence or in process of
manufacture so long as Biophan continues to provide reports and make required
payments. The License also provides Licensor with certain registration rights if
Biophan registers securities for sale.
As a condition to the Purchase Agreement, aMRIs entered into employment
agreements ("Employment Agreements"), each dated February 24, 2005, with Dr.
Michael Friebe and Dr. Andreas Melzer. Biophan is also a party to the Employment
Agreements. Under the Friebe Employment Agreement, Friebe serves as managing
director and chief executive officer of aMRIs for an initial four-year term. For
his base compensation of $70,000 a year and bonus, Friebe agrees to work at
least 40% of his entire business time for aMRIs. His annual bonus is based on
the revenue of aMRIs and derived by Biophan under the License. Under the
Employment Agreement, Biophan agreed to elect Friebe to its Board of Directors
and nominate him for re-election during the term of the Employment Agreement. In
addition, Biophan agreed to grant Friebe a restricted stock grant for 100,000
shares of its common stock under its 2001 Stock Option Plan and options to
purchase 115,000 shares of its common stock with an exercise price equal to
$1.18 per share. The closing price of Biophan's common stock on February 24,
2005 was $1.34 per share. The right to exercise this option will be fully vested
on March 31, 2006, provided, however, that a portion of the option grant may be
forfeited if certain revenue targets are not achieved. In addition, Biophan
agreed to grant Friebe options to purchase 75,000 shares of its common stock on
each of the first four anniversaries of the Employment Agreement. The options
are to be granted with an exercise price equal to the fair market value of
Biophan's common stock on the date of grant and to vest 25% on the date of grant
and 25% on each anniversary of the grant. The Employment Agreement provides for
termination payments under certain circumstances upon termination by aMRIs
without cause or resignation by Friebe for "good reason" as defined in the
Employment Agreement, in which case aMRIs is required to continue payment of
Friebe's base salary through the end of the term and his options will continue
to vest. If Friebe is terminated because of a disability, aMRIs must continue
payments of 50% of his base salary through the term of the Employment Agreement
and permit the continued vesting of options. The Employment Agreement provides
that Friebe will preserve the confidentiality of the confidential information of
aMRIs and its affiliates and will assign any invention relating to MRI safety or
image compatibility and safety of vascular and peripheral implants and resonant
technologies (defined therein and in the Melzer Employment Agreement as
"Intellectual Property"). The Employment Agreement also prohibits Friebe from
competing with aMRIs during the term of the Agreement and for a period of six
months thereafter on the terms set forth in the Employment Agreement, with
exceptions for preexisting investments, those outside the fields of vascular and
peripheral implants not competitive with aMRIs or Biophan, those constituting a
less than 5% interest in a publicly traded company, and those approved by the
Chief Executive Officer of Biophan. The Employment Agreement is governed by
German law.
4
The Employment Agreement with Melzer is substantially similar to that
of Friebe except that Melzer serves as research physician and chief research
officer of aMRIs also for 40% of his business time. The Employment Agreement
expressly acknowledges Dr. Melzer's position as professor at the University of
Applied Sciences in Gelsenkirchen, Germany. Melzer's base salary is $60,000 per
year for the four-year term of the Agreement. His bonus is also based on
revenues of aMRIs and derived by Biophan under the License. Melzer's initial
stock grant is for 100,000 shares of Biophan common stock. Under the Employment
Agreement, Biophan agreed to elect Melzer to its Clinical Advisory Board during
the term of the Employment Agreement. In addition, Biophan agreed to grant
Melzer a restricted stock grant for 100,000 shares of its common stock under its
2001 Stock Option Plan and options to purchase 115,000 shares of its common
stock with an exercise price equal to $1.18 per share. The right to exercise
this option will be fully vested on March 31, 2006, provided, however, that a
portion of the option grant may be forfeited if certain revenue targets are not
achieved. In addition, Biophan agreed to grant Melzer options to purchase 75,000
shares of its common stock on each of the first four anniversaries of the
Employment Agreement. The options are to be granted with an exercise price equal
to the fair market value of Biophan's common stock on the date of grant and to
vest 25% on the date of grant and 25% on each anniversary of the grant. The
Employment Agreement provides for termination payments under certain
circumstances upon termination by aMRIs without cause or resignation by Melzer
for "good reason" as defined in the Employment Agreement, in which case aMRIs is
required to continue payment of Melzer's base salary through the end of the term
and his options will continue to vest. If Melzer is terminated because of a
disability, aMRIs must continue payments of 50% of his base salary through the
term of the Employment Agreement and permit the continued vesting of options.
The Employment Agreement provides that Melzer will preserve the confidentiality
of the confidential information of aMRIs and its affiliates and will assign any
invention relating to the Intellectual Property, subject to Melzer's obligations
to the University of Applied Sciences. If his obligations under the Employment
Agreement and to the University are inconsistent, Melzer's has agreed to assist
aMRIs in negotiating a mutually acceptable agreement between the University and
aMRIs with respect to inventions and research. The Employment Agreement also
prohibits Melzer from competing with aMRIs during the term of the Agreement and
for a period of six months thereafter on the terms set forth in the Employment
Agreement, with exceptions for preexisting investments, those outside the fields
of vascular and peripheral implants not competitive with aMIRs or Biophan, those
constituting a less than 5% interest in a publicly traded company, those
approved by the Chief Executive Officer of Biophan, and his activities in the
scope of his employment at the University and any other university approved by
aMRIs. The Employment Agreement is governed by German law.
5
Item 2.01 Completion of Acquisition or Disposition of Assets
As described under Item 1.01 above, on February 24, 2005, Biophan
acquired a 51% equity interest in aMRIs from the Sellers pursuant to the
Purchase Agreement for an aggregate consideration of $240,000 which was paid
$40,000 at closing and $200,000 by the Note and Pledge, with the payment due on
June 1, 2005, together with interest. Biophan also agreed to contribute
$2,000,000 to the capital of aMRIs over a four-year period upon terms and
limitations described under Item 1.01 above. In addition, on February 24, 2005,
Biophan acquired certain rights to Technology from aMRIs Patent GmbH, a German
company owned by the Sellers, pursuant to the License. In addition to royalties
and similar payments, the aggregate consideration under the License consisted of
$185,000 and 200,000 shares of the restricted common stock of Biophan, paid
one-half at the closing and one-half upon the satisfaction of certain title
clearance and related due diligence with respect to certain of the licensed
patents on or before December 31, 2005 (as extended at the election of Biophan).
The additional description of the transactions in Item 1.01 above is
incorporated here by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-balance Sheet Arrangement of a Registrant
As described under Item 1.01 above, on February 24, 2005, Biophan
entered into a Note and Pledge pursuant to which it is obligated to pay the
Sellers under the Purchase Agreement $200,000, together with interest, on June
1, 2005. In addition, under the Purchase Agreement, Biophan is obligated to make
capital contributions of $2,000,000 to aMRIs over a four-year period as
described under Item 1.01. Biophan pledged a portion of the shares of aMRIs it
acquired as security for the payment of the capital contributions pursuant to
the Capital Pledge Agreement. The additional description of the transactions in
Item 1.01 above is incorporated here by reference.
Item 3.02 Unregistered Sales of Equity Securities
On February 24, 2005, pursuant to the terms of the License, Biophan
agreed to issue 200,000 shares of its unregistered common stock to aMRIs Patent
GmbH, the Licensor. The shares will be issued as follows: 100,000 shares no
later than April 30, 2005, and 100,000 shares upon the satisfaction of certain
title clearance and related due diligence with respect to certain of the
licensed patents on or before December 31, 2005. The shares will be issued in a
private placement exempt from the registration requirements of Section 5 of the
Securities Act of 1933, as amended, pursuant to the exemption set forth in
Section 4(2) and Regulation S. As described in more detail under Item 1.01
above, Biophan will not receive any cash consideration for the shares of common
stock. No underwriters were involved in the placement of the common stock. The
additional description of the transactions in Item 1.01 above is incorporated
here by reference.
Item 5.02 Departure of Directors or Principal Officers, Election of Directors;
Appointment of Principal Officers
Under the terms of the Employment Agreement entered into among Michael
Friebe, PhD, aMRIs and Biophan, Friebe has been elected as a member of the Board
of Directors of Biophan to serve until the next annual meeting of shareholders
of Biophan. Biophan has agreed to nominate him for re-election annually
throughout the four-year term of his Employment Agreement. Dr. Friebe, age 40,
is Chief Executive Officer and President of Tomovation GmbH, a German company
that owns and operates imaging centers in Germany and makes investments in early
stage European medical technology companies. Prior to forming Tomovation, Dr.
Friebe was the founder of Neuromed A.G. and the president of UMS-Neuromed. These
companies operated mobile MRI, CT and PET systems in a number of European
countries. Dr. Friebe received BSc and MSEE in Electrical Engineering from the
University of Stuttgart in Germany, and a PhD in medical engineering from the
University of Witten in Germany. He is a member of several professional
engineering and medical societies. Dr. Friebe is also a director of IntraOp
Medical, Inc.
6
The Employment Agreement provides for Friebe to serve as managing
director and chief executive officer of aMRIs and to devote 40% of his business
time to aMRIs for an annual salary of $70,000 and a bonus based on the revenues
of aMRIs and of Biophan under the License. It includes a restricted stock grant
of 100,000 shares of Biophan common stock pursuant to its 2001 Stock Option Plan
and a stock option award of 115,000 shares at an exercise price of $1.18 per
share, which will vest, subject to certain conditions, on March 31, 2006. The
closing price of Biophan's common stock on February 24, 2005 was $1.34 per
share. In addition, Biophan has agreed to grant Friebe an additional 75,000
options on each of the first four anniversaries of the Employment Agreement,
vesting 25% on the grant date and one-quarter annually thereafter, exercisable
at the fair market value of the Biophan common stock on the date of grant. The
Employment Agreement was entered into pursuant to the Purchase Agreement, also
dated February 24, 2005. Friebe has reported to Biophan that he owns 78.4% of
the outstanding capital of Tomovation, a Seller under the Purchase Agreement.
After the closing under the Purchase Agreement, Tomovation continues to own
shares with a nominal amount of 2,550 euros in aMRIs or 10.2% of the outstanding
capital. In connection with the transactions under the Purchase Agreement, the
Sellers contributed to aMRIs shares of the capital stock of MRC totaling 58.4%
of the outstanding capital stock, and Shaefers continues to hold in trust for
Tomovation shares of MRC with a nominal amount of 600 euros, or 2.4% of the
outstanding shares. In addition, Tomovation owns a 50% interest in the Licensor
under the License. A further description of the Employment Agreement and related
transactions in Item 1.01 is incorporated here by reference.
Item 9.01 Financial Statements and Exhibits
(a) Financial statements of businesses acquired. Registrant will file an
amendment to this Current Report on Form 8-K to include the financial statements
of aMRIs GmbH required by Rule 3-05(b) of Regulation S-X within 71 days after
the date on which this Form 8-K was required to be filed.
(b) Pro forma financial information. Registrant will file an amendment to this
Current Report on Form 8-K to include the financial statements of aMRIs GmbH
required by Article 11 of Regulation S-X within 71 days after the date on which
this Form 8-K was required to be filed.
(c) Exhibits. N/A
7
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BIOPHAN TECHNOLOGIES, INC.
/S/ Robert J. Wood
Date: 3/2/05 ----------------------------
(Signature)
Robert J. Wood
CFO, Treasurer, Secretary
(Principal Financial Officer)