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) December 21, 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 December 21, 2005, we entered into a letter agreement (the "Amendment") to
amend the Securities Purchase Agreement (the "Agreement") dated November 30,
2005 between us and Myotech, LLC, a New York limited liability company
("Myotech"). Pursuant to the Agreement, we acquired an initial 35% minority
interest in Myotech by the exchange of newly issued shares of our common stock
for newly issued Class A (voting) units of Myotech. The significant terms of the
Agreement were previously disclosed in a Current Report on Form 8-K dated
November 30, 2005, which was filed on December 2, 2005.
The amended terms of the Agreement, as contained in the Amendment, now provide
for the aggregate issuance of up to 8,142,622 (previously 7,977,000) Class A
units of Myotech. We agreed to exchange 4,923,080 (previously 4,923,020) shares
of our common stock for 3,768,488 (previously 3,687,719) Class A units of
Myotech, and we may acquire up to an additional 4,374,134 (previously 4,289,281)
Class A units for further cash consideration, as described in greater detail in
Item 2.03 below. As previously disclosed and as originally set forth in the
Agreement, we will also receive .25 warrants (the "Warrants") for each Class A
unit purchased. The warrants will be exercisable upon issuance with a warrant
price equal to $2.7434 per unit (previously $2.8035 per unit) and a warrant term
of seven years from the date of issuance. These share and unit adjustments were
made to reflect additional outstanding options and warrants of Myotech.
Also, the Amendment waives the completion of an Employment Agreement between
Myotech and Jeffrey L. Helfer as a condition for closing the purchase. The
parties instead agreed that Biophan would enter into an employment agreement
with Mr. Helfer. Such agreement was entered into to be effective January 1, 2006
and is described under Item 5.02 below.
Item 2.01. Completion of Acquisition or Disposition of Assets.
On December 21, 2005, certain outstanding items of the Agreement were satisfied,
or otherwise waived as explained above, and we issued 4,923,080 shares of our
common stock in exchange for 3,768,488 Myotech units.
As previously disclosed and as originally set forth in the Agreement, there are
a total of four milestone payments. Upon the consummation of the additional
elective milestone investments provided for in the Agreement, we may acquire up
to a majority interest in Myotech.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
As previously disclosed and as originally set forth in the Agreement, in
addition to the issuance of shares of our common stock, we are obligated to
purchase for cash consideration of $2.225 million an additional 811,037
(previously 802,568) Class A units of Myotech over a six-month period. We will
have advanced $400,000 as of December 31, 2005. Thereafter, we will pay $456,250
on each of January 1, February 1, March 1, and April 1, 2006.
Further, at our discretion, we may purchase up to an additional 3,563,097
(previously 3,486,713) Class A units of Myotech for aggregate cash consideration
of $9.775 million upon achievement of certain milestones satisfactory to us
measured over a 24-month period. Upon the consummation of these additional
elective milestone investments, we may acquire up to a majority interest in
Myotech. Michael Weiner, our President and Chief Executive Officer, has an
equity interest in an entity that owns Class A units of Myotech. In addition,
Jeffrey Helfer and Stuart MacDonald, executive officers of Biophan, also own
Class A units of Myotech.
An independent committee of the Board of Directors of Biophan, consisting of
Steven Katz, Guenter Jaensch and Robert Bramson, negotiated, recommended and
approved all terms of this transaction. Our Board of Directors, including the
independent committee, determined that the transaction was in the best interests
of Biophan and our stockholders. In addition, the independent committee received
a fairness opinion from an NYSE-listed national investment banking firm stating
that the deal was fair from a financial point of view to our stockholders.
Item 3.02. Unregistered Sales of Equity Securities.
In accordance with the Agreement, as described in Item 1.01 above, we
transferred 4,923,080 newly issued shares of our common stock, par value $.005
per share, to Myotech in exchange for 3,768,488 Class A units of Myotech. Our
common stock was valued at $2.10 per share, and the Myotech units were valued at
$2.7434 per unit. 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 (the "Act"), pursuant to the exemption set forth in Section 4(2)of the
Act and Regulation D promulgated thereunder. As described in more detail under
Item 1.01 above, we will not receive any cash consideration for these shares of
common stock. No underwriters were involved in the placement of the common
stock. The shares are subject to the Rights Agreement (the "Rights Agreement")
entered into by and among us, the Myotech members and Myotech, dated as of
November 30, 2005. As previously disclosed and as originally set forth in the
Rights Agreement, we have agreed to, among other things, register the Biophan
shares issued to Myotech upon the later of (i) February 1, 2006, or (ii) 10
business days after the declaration of effectiveness of our currently filed
registration statement (no. 333-128774).
Item 5.02. Departure of Directors or Principal Officers, Election of Directors;
Appointment of Principal Officers.
In connection with the Agreement, to be effective January 1, 2006, we will enter
into a new Employment Agreement with Jeffrey L. Helfer, currently our
Vice-President-Engineering, who will be appointed to the position of
Vice-President and General Manager - Cardiovascular Products, at an annual base
salary of $180,000 and other terms similar to his current employment agreement.
Item 9.01. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired. We will file an amendment to
this Current Report on Form 8-K to include the financial statements of Myotech
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. We will file an amendment to this Current
Report on Form 8-K to include the pro forma financial information 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. The Agreement, the Amendment, the Rights Agreement, the form of
Warrant and the Employment Agreement referenced herein are expected to be filed
with our upcoming Form 10-Q filing, and the foregoing descriptions are qualified
in their entirety by reference to such agreements.
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: December 28, 2005 --------------------------
(Signature)
Robert J. Wood
CFO, Treasurer, Secretary
(Principal Financial Officer)