As filed with the Securities and Exchange Commission on January 9, 2006
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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BIOPHAN TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Nevada 82-0507874
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
150 Lucius Gordon Drive, Suite 215
West Henrietta, New York 14586
(585) 214-2441
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
----------------------
Michael L. Weiner
Chief Executive Officer
Biophan Technologies, Inc.
150 Lucius Gordon Drive, Suite 215
West Henrietta, New York 14586
(585) 214-2441
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copy to:
William E. Kelly, Esq.
Nixon Peabody LLP
100 Summer Street
Boston, MA 02110
(617) 345-1000
----------------------
Approximate date of commencement of proposed sale to public: From time to
time after this registration statement becomes effective.
If any of the securities being registered on this form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of To Be Offering Price Aggregate Registration
Securities To Be Registered Registered(1) Per Share(2) Offering Price(2) Fee(3)
--------------------------------------------------------------------------------------------------------------------
Common Stock, $0.005 par value 13,281,692 $ 1.55 $ 20,586,622 $ 2,202.77
====================================================================================================================
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
outstanding shares of Common Stock of the Registrant.
(2) Computed in accordance with Rule 457(c) under the Securities Act of 1933
(the "Securities Act"), solely for the purpose of calculating the
registration fee, and based on the average of the high and low bid prices
of the Common Stock of the Registrant as reported on January 5, 2006 on
the NASDAQ OTC Bulletin Board.
(3) Computed in accordance with Section 6(b) under the Securities Act, solely
for the purpose of calculating the registration fee.
----------------------
The Registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with section 8(a) of the
Securities Act of 1933, as amended, or until the registration statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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2
================================================================================
The information in this prospectus is not complete and may be changed. These
securities will not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, Dated January 9, 2006
PROSPECTUS
BIOPHAN TECHNOLOGIES, INC.
13,281,692 Shares
Common Stock
----------------------
This prospectus relates to 13,281,692 shares of our Common Stock that may be
sold from time to time by the selling stockholders as follows:
o by SBI Brightline XI, LLC, up to 10,000,000 shares of our Common
Stock issuable pursuant to a Stock Purchase Agreement dated May 27,
2005;
o by Boston Scientific Scimed, Inc., 1,653,193 shares of our Common
Stock acquired pursuant to an Investment Agreement dated June 30,
2005;
o by Biomed Solutions, LLC, 1,209,209 shares of our Common Stock
issued or issuable pursuant to a Convertible Promissory Note and
Warrants dated May 27, 2005;
o by 2 entities each of which were issued 100,000 shares of our Common
Stock in connection with our acquisition of Biophan Europe, GmbH;
o by 13 individuals, an aggregate of 219,290 shares of our Common
Stock issuable upon exercise of outstanding Warrants; and
----------------
This offering is not being underwritten. The selling stockholders may offer the
shares through public or private transactions at the market price for our Common
Stock at the time of the sale, a price related to the market price, a negotiated
price or such other prices as the selling stockholders determine from time to
time. See "Plan of Distribution" beginning on page 13.
All of the net proceeds from the sale of these shares of Common Stock will go to
the selling stockholders. We will not receive any proceeds from sales of these
shares. We will bear the costs relating to the registration of these shares.
Our Common Stock is quoted on the Nasdaq OTC Bulletin Board under the symbol
"BIPH". On January 6, 2006, the last reported sale price on the Nasdaq OTC
Bulletin Board for our Common Stock was $1.56 per share.
You should read this prospectus carefully before you invest.
3
Investing in our Common Stock involves substantial risks. See "Risk Factors"
beginning on page 6.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is ______ , 2006.
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TABLE OF CONTENTS
Page
----
Summary 6
Risk Factors 6
Forward-Looking Statements 9
Use of Proceeds 10
Selling Stockholders 10
Plan of Distribution 13
Legal Matters 13
Experts 14
Where You Can Find More Information 14
Incorporation of Documents by Reference 14
Disclosure of Commission Position on Indemnification for Securities Act
Liabilities 15
5
BIOPHAN TECHNOLOGIES, INC.
SUMMARY
Biophan is an early-stage research and development company. Our primary mission
is to develop and commercially exploit technologies for improving the
performance, and the corresponding competitiveness, of biomedical devices and
pharmaceutical compounds manufactured by third party companies. We do not employ
our own distribution but rather rely on that of the larger biomedical device
manufacturers. We build strong intellectual property "patent thickets" around
vertically oriented markets within the medical technology sector.
We possess technologies for enabling biomedical devices, both implantable and
those used in diagnostic and interventional procedures, to be safe (do not harm
the patient or physician) and compatible (allow effective imaging of the device
and its surrounding tissue) with MRI (magnetic resonance imaging). We have also
developed technologies for improving MRI contrast agents; technologies for
improved drug elution and drug delivery systems, including an MRI safe and image
compatible ceramic motor; a system for generating power for implantable devices
from body heat, and a series of implantable devices including an MRI-visible
vena cava filter.
We incorporated on August 1, 1968 and began our current line of business on
December 1, 2000. From that date through our fiscal quarter ended August 31,
2005, we have had no material revenues from operations and have incurred
cumulative net losses of $20,895,113. Since December 1, 2000, we have relied
almost entirely on sales of our securities and loans to fund our operations.
In this prospectus, the terms "Biophan", "Company", "we", "us" and "our" refer
to Biophan Technologies, Inc. and its wholly-owned subsidiaries. We are
incorporated in the State of Nevada. Our principal executive offices are located
at 150 Lucius Gordon Drive, Suite 215, West Henrietta, New York 14586 and our
telephone number is (585)-214-2441.
This prospectus relates to 13,281,692 shares of our Common Stock that may be
sold from time to time by the selling stockholders named in this prospectus. The
stockholders are identified in the section headed "Selling Stockholders." We
will not receive any of the proceeds from the resale of these shares.
RISK FACTORS
You should carefully consider the risks described below before making an
investment decision regarding our securities. If any of the following risks
actually occurs, our business, financial condition and results of operations
could be harmed. In that case, the trading price of our securities could decline
and you could lose all or part of your investment. Additional risks not
presently known to us or that we currently deem immaterial may also impair our
business operations.
WE ARE A NEW BUSINESS WITH A LIMITED OPERATING HISTORY AND NO MATERIAL REVENUES
TO DATE AND ARE NOT LIKELY TO SUCCEED UNLESS WE CAN OVERCOME THE MANY OBSTACLES
WE FACE.
We are an early-stage research and development company with limited prior
business operations and no material revenues to date. We are presently engaged
in the development of certain technologies for use with medical procedures and
biomedical devices. Because of our limited operating history, you may not have
adequate information on which you can base an evaluation of our business and
prospects. To date, our efforts have been devoted primarily to the following:
o organizational activities;
o developing a business plan;
o obtaining funding;
o conducting research and working toward the ultimate successful
development of our technologies;
o aggressively patenting our intellectual property;
o licensing technology from third parties related to our business; and
o marketing to major biomedical device manufacturers.
6
In order to establish ourselves in the medical device market, we are dependent
upon continued funding and the successful development and marketing of our
products. You should be aware of the increased risks, uncertainties,
difficulties and expenses we face as a research and development company and that
an investment in our common stock may be worthless if our business fails.
WE HAVE GENERATED NO MATERIAL REVENUES AND IF WE ARE UNABLE TO GENERATE
SUFFICIENT REVENUES IN THE FUTURE, WE MAY NOT BE ABLE TO CONTINUE OUR BUSINESS.
We are still in our formative and development stage. As an investor, you should
be aware of the difficulties, delays and expenses normally encountered by an
enterprise in its development stage, many of which are beyond our control,
including unanticipated research and developmental expenses, employment costs,
and administrative expenses. We cannot assure our investors that our proposed
business plans as described in this prospectus will materialize or prove
successful, or that we will ever be able to finalize development of our products
or operate profitably. If we cannot operate profitably, you could lose your
entire investment. As a result of the start-up nature of our business, initially
we expect to sustain substantial operating expenses without generating
significant revenues.
WE HAVE A HISTORY OF LOSSES AND A LARGE ACCUMULATED DEFICIT AND WE EXPECT FUTURE
LOSSES THAT MAY CAUSE OUR STOCK PRICE TO DECLINE.
For the fiscal years ended February 28, 2005, 2004 and 2003, we incurred net
losses of $5,793,547, $3,718,570, and $3,438,252, respectively, and for the six
months ended August 31, 2005 we incurred a net loss of $9,433,316. We expect to
continue to incur losses as we spend additional capital to develop and market
our technologies and establish our infrastructure and organization to support
anticipated operations. We cannot be certain whether we will ever earn a
significant amount of revenues or profit, or, if we do, that we will be able to
continue earning such revenues or profit. Also, our current economic weakness
may limit our ability to develop and ultimately market our technologies. Any of
these factors could cause our stock price to decline and result in you losing a
portion or all of your investment.
OUR INABILITY TO RETAIN AND ATTRACT KEY PERSONNEL COULD ADVERSELY AFFECT OUR
BUSINESS.
We believe that our future success will depend on the abilities and continued
service of certain of our senior management and executive officers, particularly
our President and CEO and those persons involved in the research and development
of our products. If we are unable to retain the services of these persons, or if
we are unable to attract additional qualified employees, researchers and
consultants, we may be unable to successfully finalize and eventually market our
medical devices and other products being developed, which will have a material
adverse effect on our business.
OUR RESEARCH AND DEVELOPMENT EFFORTS MAY NOT RESULT IN COMMERCIALLY VIABLE
PRODUCTS, WHICH COULD RESULT IN A DECLINE OF OUR STOCK PRICE AND A LOSS OF YOUR
INVESTMENT.
Our technologies are in the development stage. Further research and development
efforts will be required to develop these technologies to the point where they
can be incorporated into commercially viable or salable products. We have set
forth in this prospectus our proposed research and development program as it is
currently conceived. We cannot assure you, however, that this program will be
accomplished in the order or in the time frame set forth. We reserve the right
to modify the research and development program. We may not succeed in developing
commercially viable products from our technologies. Also, our research and
development efforts are aimed at technology that will enable certain medical
procedures and biomedical devices to become safe and compatible with MRI
diagnostics. If MRI diagnostics are replaced by the healthcare industry, our
technology and products, if any, may become obsolete. If we are not successful
in developing commercially viable products or if such products become obsolete,
our ability to generate revenues from our technologies will be severely limited.
This would result in the loss of all or part of your investment.
WE MAY NOT BE ABLE TO DEVELOP A MARKET FOR OUR TECHNOLOGY, WHICH WILL MOST
LIKELY CAUSE OUR STOCK PRICE TO DECLINE.
7
The demand and price for our technology and related products will be based upon
the existence of markets for the technology and products and the markets for
products of others, which may utilize our technology. The extent to which we may
gain a share of our intended markets will depend, in part, upon the cost
effectiveness and performance of our technology and products when compared to
alternative technologies, which may be conventional or heretofore unknown. If
the technology or products of other companies provide more cost-effective
alternatives or otherwise outperform our technology or products, the demand for
our technology or products may be adversely affected. Our success will be
dependent upon market acceptance of our technology and related products. Failure
of our technology to achieve and maintain meaningful levels of market acceptance
would materially and adversely affect our business, financial condition, results
of operations and market penetration. This would likely cause our stock price to
decline.
IF WE ARE NOT ABLE TO COMPETE EFFECTIVELY IN THE COMPETITIVE MEDICAL DEVICE
INDUSTRY, OUR FUTURE GROWTH AND OPERATING RESULTS WILL SUFFER.
Our future success depends on our ability to compete effectively with
manufacturers of medical devices, including major manufacturers of pacemakers
and other implantable devices that may have internal development programs. We
are an early-stage research and development company engaged exclusively in
developing our initial technologies. Products using our technologies have not
yet been commercialized and we have generated no material revenue from
operations. As a result, we may have difficulty competing with larger,
established medical device companies. Most of our potential competitors will be
established, well-known companies that have:
o substantially greater financial, technical and marketing resources;
o larger customer bases;
o better name recognition;
o related product offerings; and
o larger marketing areas.
Companies such as Medtronic Incorporated, Guidant Corporation, St. Jude Medical,
Boston Scientific Corporation and Johnson & Johnson are major, international
providers of active medical devices currently contraindicated for MRI. Because
these companies may possibly develop MRI safe solutions for their own product
lines, they may ultimately be in competition with us. These companies represent
a wide array of medical devices and products, technologies and approaches. All
of these companies have more resources than we do and, therefore, a greater
opportunity to develop comparable products and bring those products to market
more efficiently than we can. If we do not compete effectively with current and
future competitors, our future growth and operating results will be adversely
affected.
WE MAY NOT BE ABLE TO OBTAIN NECESSARY GOVERNMENT APPROVAL TO MARKET OUR
TECHNOLOGY WHICH WILL MOST LIKELY CAUSE OUR STOCK PRICE TO DECLINE AND OUR
BUSINESS TO FAIL.
Our marketing partners must obtain the approval of the U.S. Food and Drug
Administration in order to market our MRI-safe technology. If these approvals
are not obtained, or are significantly delayed, our ability to generate revenues
may be adversely affected and our development and marketing efforts inhibited.
This would most likely cause our stock price to decline and result in the loss
of all or part of your investment.
WE MAY NOT BE ABLE TO PROTECT OUR PROPRIETARY RIGHTS AND WE MAY INFRINGE THE
PROPRIETARY RIGHTS OF OTHERS. OUR INABILITY TO PROTECT OUR RIGHTS COULD IMPAIR
OUR BUSINESS AND CAUSE US TO INCUR SUBSTANTIAL EXPENSE TO ENFORCE OUR RIGHTS.
Proprietary rights are critically important to us. We have exclusive licenses to
four issued U.S. patents for MRI safety-related technology and multiple patents
pending. Biophan now holds or has been licensed to use and sublicense a total of
156 U.S. patents, licenses, or applications. This total includes 42 issued U.S.
patents, 8 recently-allowed applications that we expect to have issued as
patents in the near future, and 106 pending applications at various stages of
examination at the U.S. Patent and Trademark Office. In addition, there are 49
international patents pending. Although we intend to aggressively pursue
additional patent protection for our technologies as we continue to develop
them, we cannot assure you that any additional patents will be issued. Although
we will seek to defend our patents and to protect our other proprietary rights,
our actions may be inadequate to protect our patents and other proprietary
rights from infringement by others, or to prevent others from claiming
infringement by us of their patents and other proprietary rights.
8
Policing unauthorized use of our technology is difficult, and some foreign laws
do not provide the same level of protection as U.S. laws. Litigation may be
necessary in the future to enforce our intellectual property rights, to protect
our trade secrets or patents that we may obtain, or to determine the validity
and scope of the proprietary rights of others. Such litigation could result in
substantial costs and diversion of resources and have a material adverse effect
on our future operating results.
BECAUSE TWO OF OUR DIRECTORS ARE EQUITY OWNERS AND MANAGERS OF BIOMED SOLUTIONS,
LLC, A SIGNIFICANT SHAREHOLDER OF BIOPHAN, THERE MAY BE CONFLICTS OF INTEREST.
Michael L. Weiner, our President, CEO and director, is the Manager and a 24.3%
beneficial owner of Biomed, a company engaged in the business of identifying and
acquiring technologies in the biomedical field for exploitation. Mr. Weiner and
Ross Kenzie, also a director of Biophan, make up the Biomed Board of Members.
Biomed is a selling stockholder in this offering and, following the offering,
will continue to be the beneficial owner of approximately 8.70% of our
outstanding Common Stock. Mr. Weiner is also the Manager and 42.3% equity member
of Technology Innovations, LLC, which is a 57% equity member of Biomed. Further,
Mr. Weiner is on the board of Nanoset, LLC, an entity owned in part by Biomed
and with which we have entered into a technology license agreement, and Myotech,
LLC, an entity in which Biomed is a 25% owner. Mr. Weiner is also on the Board
of NaturalNano, Inc., the principal owner of which is Technology Innovations,
LLC. NaturalNano has entered into a research and development agreement with us
for drug eluting technology.
Because of the nature of our business and the business of these other entities,
the relationships of Messrs. Weiner and Kenzie with these other entities may
give rise to conflicts of interest with respect to certain matters affecting us.
All potential conflicts may not be resolved in a manner that is favorable to us.
We believe it is impossible to predict the precise circumstances under which
future potential conflicts may arise and therefore intend to address potential
conflicts on a case-by-case basis. Under Nevada law, directors have a fiduciary
duty to act in good faith and with a view to the best interests of the
corporation.
FORWARD LOOKING STATEMENTS
This prospectus, including the information incorporated by reference, contains
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, Section 21E of the Securities Exchange Act of 1934, as
amended, and the Private Securities Litigation Act of 1995. All statements other
than statements of historical facts contained in this prospectus, including
statements regarding our future operating results, financial position, and
business strategy, expectations regarding our growth and the growth of the
industry in which we operate, and plans and objectives of management for future
operations, are forward-looking statements. The words "believe," "may,"
"estimate," "continue," "anticipate," "intend," "expect" and similar
expressions, as they relate to us, are intended to identify forward-looking
statements.
Any or all of our forward-looking statements in this prospectus may turn out to
be inaccurate. We have based these forward-looking statements largely on our
current expectations and projections about future events and financial trends
that we believe may affect our financial condition, results of operations,
business strategy and financial needs. They may be affected by inaccurate
assumptions we might make or by known or unknown risks and uncertainties,
including the risks, uncertainties and assumptions described in "Risk Factors."
In light of these risks, uncertainties and assumptions, the forward-looking
events and circumstances discussed in this prospectus may not occur as
contemplated, and actual results could differ materially from those anticipated
or implied by the forward-looking statements.
Market data and forecasts used in this prospectus, have been obtained from
independent industry sources, unless otherwise noted. Forecasts and other
forward-looking information obtained from these sources are subject to the same
qualifications and the additional uncertainties accompanying any estimates of
future market size.
You should not unduly rely on these forward-looking statements, which speak only
as of the date of this prospectus. Unless required by law, we undertake no
obligation to publicly update or revise any forward-looking statements to
reflect new information or future events or otherwise. You should, however,
review the factors and risks we describe in the reports we will file from time
to time with the SEC after the date of this prospectus. See "Where You Can Find
More Information."
9
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares of Common Stock by
the selling stockholders. However, we did receive proceeds from the issuance in
private placement transactions of certain of the shares being offered by the
selling stockholders and will receive the proceeds from sales to certain other
of the selling stockholders of other shares included in this offering should
such sales occur. Specifically, we issued 1,653,193 shares of Common Stock on
August 2, 2005 to Boston Scientific Scimed, Inc. at a price of $3.0245 per share
for an aggregate consideration of $5,000,000 and 480,899 shares of Common Stock
on August 31, 2005 to Biomed Solutions, LLC at a price of $2.12 per share for an
aggregate consideration of $1,019,507. In addition, if we issue the entire
10,000,000 shares of Common Stock issuable to SBI Brightline XI, LLC, we will
receive the amount of $30,000,000, yielding a weighted average price of $3.00
per share. We will receive up to $500,000 in consideration if Biomed Solutions,
LLC elects to convert the remaining outstanding principal amount of its debt and
an aggregate amount of $1,353,000 if all of the warrants held by selling
stockholders are exercised.
SELLING STOCKHOLDERS
We are registering for resale a total of up to 13,281,692 shares of Common Stock
held by the selling stockholders or issuable pursuant to warrants, convertible
notes or other rights held by the selling stockholders. The selling stockholders
are:
o SBI Brightline XI, LLC, which may acquire up to 10,000,000 shares of
our Common Stock pursuant to a Stock Purchase Agreement dated May
27, 2005 (as amended);
o Boston Scientific Scimed, Inc., which acquired 1,653,193 shares of
our Common Stock pursuant to an Investment Agreement dated June 30,
2005;
o Biomed Solutions, LLC, which acquired 480,899 shares of our Common
Stock and which may acquire up to 728,310 additional shares of our
Common Stock pursuant to a Convertible Promissory Note and Warrants
in connection with a $2 million Line of Credit Agreement dated May
27, 2005 (assuming that the $500,000 principal amount currently
outstanding is converted into 228,310 shares of our Common Stock);
o Two (2)entities, each of which were issued 100,000 shares of our
Common Stock in connection with our acquisition of Biophan Europe,
GmbH;
o Thirteen (13) individuals, who have the right to acquire an
aggregate of 219,290 shares of our Common Stock upon exercise of
outstanding Warrants; and
Stock Purchase Agreement with SBI Brightline XI, LLC
On May 27, 2005, we entered into a stock purchase agreement with SBI Brightline
XI, LLC that obligates SBI to purchase, upon our election, up to 10,000,000
shares of our Common Stock for an aggregate purchase price of $30 million. At
our election, we may sell the shares to SBI in 10 tranches that must be sold in
the following order:
Number of Purchase Price
Shares Per Share
------ ---------
Tranche 1 1,000,000 $2.00
Tranche 2 1,000,000 $2.00
Tranche 3 1,000,000 $2.00
Tranche 4 1,000,000 $2.50
Tranche 5 1,000,000 $3.00
Tranche 6 1,000,000 $3.25
Tranche 7 1,000,000 $3.25
Tranche 8 1,000,000 $4.00
Tranche 9 1,000,000 $4.00
Tranche 10 1,000,000 $4.00
Except for the requirement to sell the tranches in order and the requirement
that the resale of the shares be registered as described below, there is no
limitation on when we may require SBI to purchase the shares included in any
tranche. We are not obligated to sell any shares to SBI unless and until we make
an election to do so. If we sell all the shares to SBI, the shares will be sold
at a weighted average purchase price of $3.00 per share. SBI is not obligated to
purchase shares pursuant to the Stock Purchase Agreement unless the resale of
the shares by SBI is registered under the Securities Act of 1933. We expect to
exercise our right to sell shares to SBI when and as we deem necessary to fund
our ongoing business operations and development activities, based on our cash
requirements, revenues from operations, third party research support, licenses
and potential strategic investments, and the availability of debt or equity
financing from other sources on more favorable terms.
On January 8, 2006, we amended the Stock Purchase Agreement to remove any
ambiguity regarding the date and time at which SBI is obligated to purchase
shares under the Stock Purchase Agreement.
10
Investment Agreement with Boston Scientific Scimed, Inc.
On June 30, 2005, we entered into a License Agreement and an Investment
Agreement with Boston Scientific Scimed, Inc.("BSS"). The Investment Agreement
called for the purchase by BSS of shares of our Common Stock for a total
purchase price of $5 million at a purchase price per share equal to 110% of the
average of the closing price for the 30 calendar-day period prior to the
closing. On August 2, 2005, following the satisfaction of certain conditions, we
issued to BSS 1,653,193 shares at a purchase price of $3.02 per share. The
Investment Agreement requires us to file a registration statement with the
Securities and Exchange Commission to register the shares for resale by BSS.
Outstanding Convertible Debt and Accompanying Warrants Held by Biomed Solutions,
LLC
On May 27, 2005, we entered into an unsecured loan agreement with Biomed
Solutions, LLC, a related company, whereby Biomed agreed to provide us with a
line of credit facility of up to $2 million. Borrowings under the line bear
interest at 8% per annum (compounded monthly) and are payable on demand on or
after November 27, 2005. In June 2005 the entire facility was drawn down. The
outstanding principal and interest are convertible into shares of our Common
Stock at 90% of the average market closing price per share of our Common Stock
for the 20 trading days preceding the date of borrowings under the line ($2.12
per share for the first $1 million and $2.19 per share for the second $1
million). Additionally, Biomed received pro-rata warrant coverage of 500,000
shares, with the warrants priced at 110% of the average market closing price per
share of our Common Stock for the 20 trading days preceding the date of
execution of the loan agreement ($2.49 per share). On August 31, 2005, Biomed
elected to convert $1,000,000 of the outstanding debt plus accrued interest into
480,899 shares of our Common Stock. On October 7, 2005, we repaid $500,000 of
the outstanding debt plus the entire accrued interest to date, leaving an
outstanding principal balance of $500,000. Under the loan agreement, we may
reborrow, on or before November 30, 2005, all or any portion of the amount which
we have repaid; however, we have no current intention of doing so. The loan
agreement requires us to use our best efforts to include the shares issued and
issuable upon conversion of the loan in any registration statement we file
covering resale of shares of our Common Stock. Biomed is the beneficial owner of
6,565,065 shares of our Common Stock (assuming conversion of the outstanding
convertible debt and the exercise of the warrants). Michael Weiner, our
President and CEO and a member of our Board of Directors, is through his
ownership of a membership interest in Technology Innovations LLC, the principal
owner of Biomed, the indirect owner of approximately 24.36% of Biomed. Mr.
Weiner and another member of our Board of Directors, Ross B. Kenzie, constitute
the Board of Members of Biomed.
Prior Transactions with Selling Stockholders
Pursuant to a stock purchase agreement dated October 1, 2003, we issued and sold
to SBI Brightline Consulting, LLC ("SBI Consulting") an aggregate of 11,000,000
shares of our Common Stock for an aggregate purchase price of $2.9 million,
which shares were subsequently resold to the public by SBI Consulting. SBI
Consulting is an affiliate of SBI Brightline XI, LLC, a selling stockholder in
this offering.
On February 5, 2004, we entered into a further stock purchase agreement with SBI
Consulting that obligated SBI Consulting to purchase, at our election, up to
17,750,000 shares of our Common Stock at purchase prices ranging from $0.60 to
$2.00 per share.
We issued and sold 6,000,000 shares to SBI Consulting pursuant to the 2004 stock
purchase agreement, which shares were subsequently resold to the public by SBI
Consulting. In connection with our May 27, 2005 stock purchase agreement with
SBI Brightline XI, LLC, which provides for the sale of up to 10,000,000 shares
of our Common Stock at purchase prices ranging from $2.00 to $4.00 per share, we
terminated the 2004 stock purchase agreement with SBI Consulting.
In connection with our acquisition of certain intellectual property rights from
Biomed Solutions, LLC on December 1, 2000, we owed Biomed $500,000 under a
transfer agreement. Also, in June 2002 we entered into a line of credit with
Biomed that provided for borrowings of up to $250,000. The line of credit was
subsequently increased to provide for borrowings of up to $350,000. The transfer
agreement and the line of credit contained provisions making our payment
obligations convertible into shares of our Common Stock at a price of $0.10 per
share. On February 10, 2004, the following transactions occurred:
We paid to Biomed all accrued and unpaid interest due under the
transfer agreement and the line of credit;
Biomed sold, at a premium over face value, its rights with respect
to $300,000 of the $500,000 due under the transfer agreement to SBI
Consulting, which converted those rights into 3,000,000 shares of our
Common Stock;
Biomed sold, at a premium over face value, its rights with respect
to $50,000 due under the line of credit to an independent third party who
converted those rights into 500,000 shares of our Common Stock;
Biomed exercised its right to convert the balance of our obligations
under the transfer agreement and the line of credit into 3,513,000 shares
of our Common Stock;
Biomed released all of the collateral securing our obligations under
the transfer agreement and the line of credit was terminated; and
We entered into a registration rights agreement with Biomed and SBI
Consulting obligating us to register the resale by Biomed and SBI of the
6,513,000 shares of our Common Stock issued upon the conversion of our
obligations under the note and line of credit.
The table below sets forth, to the Company's knowledge, the following
information regarding each selling stockholder as of January 6, 2006:
o The name of the selling stockholder;
o The number of shares of our Common Stock owned by the selling
stockholder on the date of this prospectus prior to the offering
for resale of any of the shares being registered by the registration
statement of which this prospectus is a part;
o The number of shares of our Common Stock that may be offered for
resale by the selling stockholder pursuant to this prospectus;
o The number of shares of our Common Stock to be held by the selling
stockholder after the resale of the offered shares; and
o The percent of the outstanding shares of our Common Stock to be held
by the selling stockholder after the resale of the offered shares.
11
Beneficial Ownership Prior to Offering Beneficial Ownership After Offering
---------------------------------------- ----------------------------------------- -----------------------------------------
Percent of
Name of Beneficial Owner Number of Shares Shares to be Sold Number of Shares (1) Class (2)
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
SBI Brightline XI, LLC (3) 10,000,000(4) 10,000,000(4) -0- -
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Boston Scientific Scimed, Inc. (5) 1,653,193 1,653,193 -0- -
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Biomed Solutions, LLC (6) 6,565,066(7) 1,209,209(7) 5,355,857 6.45%
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Robert E. Brown 21,341(8) 17,385(8) 3,956 *
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Ralph J. Code 21,341(8) 17,385(8) 3,956 *
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Catherine A. Foerster 12,648(8) 8,692(8) 3,956 *
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Michael A. Howard 21,341(8) 17,385(8) 3,956 *
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Steven Kessler 50,000 50,000 -0- -
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Susan S. Laluk 17,348(8) 14,776(8) 2,572 *
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Alan S. Lockwood 21,341(8) 17,385(8) 3,956 *
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Melissa A. Mahler 45,129(8) 16,129(8) 29,000 *
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Patrick M. Malgieri 13,079(8) 11,299(8) 1,780 *
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
James E. Metzler 21,341(8) 17,385(8) 3,956 *
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Robert J. Neborsky 8,000 8,000 -0- -
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
Charles W. Russell 7,823(8) 7,823(8) -0- -
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
John M. Wilson 19,602(8) 15,646(8) 3,956 *
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
aMRIs Patente GmbH (9) 100,000 100,000 -0- -
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
aMRIs Patente Verwaltungs
GmbH & Co. KG (9) 100,000 100,000 -0- -
---------------------------------------- ------------------- --------------------- ------------------------ ----------------
----------
(1) Assumes that all the shares of Common Stock that may be offered hereunder
are sold and the selling stockholders acquire no additional shares of our
Common Stock before the completion of this offering.
(2) Based on 81,805,243 shares outstanding as of January 6, 2006, together
with applicable options, warrants and other derivatives for such
stockholder. Beneficial ownership is determined in accordance with the
rules of the SEC and includes voting and investment powers with respect to
shares. Shares subject to options, warrants or convertibility within 60
days after January 6, 2006 are included in the number of shares
beneficially owned and are deemed outstanding for purposes of computing
the percentage of ownership of the person holding such options, warrants
or other derivatives, but are not deemed outstanding for computing the
percentage of any other stockholder.
(3) SBI Brightline XI, LLC is a California limited liability company owned 98%
by Shelly Singhal and 2% by Robert E. Brown. Mr. Brown is also a selling
stockholder for his own account.
(4) Assumes sale to SBI Brightline of all the shares issuable pursuant to the
May 27, 2005 Stock Purchase Agreement.
(5) Boston Scientific Scimed, Inc. is a Minnesota corporation and a
wholly-owned subsidiary of Boston Scientific Corporation, a publicly-held
company.
(6) Michael L. Weiner, our President, CEO and director, is the Manager and,
indirectly, the owner of approximately 24.36% of the outstanding equity
interest in, Biomed Solutions, LLC. Mr. Weiner and Ross B. Kenzie, also a
director of Biophan, make up the Biomed Board of Members. Biomed
Solutions, LLC is a New York limited liability company. The members of
Biomed Solutions are Technology Innovations LLC (57%) and Biophan Ventures
LLC (43%). Mr. Weiner is the Manager and a 42.74% owner of Technology
Innovations; the balance of the ownership interests in Technology
Innovations are held directly or indirectly by 28 individuals, family
partnerships and trusts, one of which is an affiliate of Mr. Kenzie.
Biophan Ventures is owned by 31 individuals, family partnerships and
trusts, a number of which are also indirect owners of interests in
Technology Innovations and one of which is an affiliate of Mr. Kenzie.
(7) Includes (i) 480,899 shares issued on August 31, 2005 upon conversion of
$1,019,506 of principal and interest under the Convertible Promissory Note
dated as of May 27, 2005, (ii) 228,310 shares issuable upon conversion of
the remaining $500,000 credit available under the Convertible Promissory
Note, and (iii) 500,000 shares issuable upon exercise of outstanding
warrants.
(8) Shares to be sold are issuable upon exercise of warrants received as a
result of a distribution from 900 Midtown Investments, a partnership.
(9) These entities are controlled by Drs. Michael Friebe and Andreas Melzer
who are employees and minority owners of Biophan Europe GmbH, our 51%
owned subsidiary. Dr. Friebe is also a member of our Board of Directors.
aMRIs Patente GmbH is owned 50% by Tomovation GmbH and 50% by Dr. Melzer.
Tomovation is a German company which is owned 80.8% by Dr. Friebe and
19.2% by four individuals. aMRIs Patente Verwaltungs GmbH & Co KG is owned
50% each by Dr. Friebe and Dr. Melzer.
* Less than one percent.
12
The information regarding the selling stockholders may change from time to time.
If required, we will describe these changes in one or more prospectus
supplements.
PLAN OF DISTRIBUTION
The selling stockholders may use this prospectus to sell the shares at any time
while the prospectus is in effect, unless we have notified the selling
stockholders that the prospectus is not available at that particular time. Each
of the selling stockholders will determine if, when and how it will sell the
shares it owns. Any sales may occur in one or more of the following types of
transactions (including block transactions)and may involve one or more of the
selling stockholders:
o transactions on the OTC Bulletin Board or any other organized market
or quotation system where the shares may be traded,
o privately negotiated transactions between a selling stockholder and
a purchaser,
o in transactions involving an underwriter, or
o transactions effected with or through a broker-dealer acting as
either agent or principal.
These transactions may involve the transfer of the shares upon exercise or
settlement of put or call options, or the delivery of the shares to replace
shares that were previously borrowed from another stockholder or a combination
of such methods. If a broker-dealer is used in the sale of shares, that person
may solicit potential purchasers. The shares may also be transferred as a gift
or as a result of a pledge, or may be sold to a broker-dealer acting as
principal. These persons may then sell the shares to another person, either
directly or through another broker-dealer, subject to compliance with the
requirements of the Securities Act.
The price at which sales of the shares occur may be based on market prices or
may be negotiated between the parties, and the consideration may be cash or
another form negotiated between the parties. Broker-dealers acting as agents or
principals may be paid compensation in the form of discounts, concessions or
commissions from the selling stockholders and/or from the purchasers of the
shares, or both. Brokers or dealers may be deemed to be "underwriters" within
the meaning of the Securities Act. Any profits on the resale of shares by a
broker-dealer acting as principal might be deemed to be underwriting discounts
or commissions under the Securities Act. Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of shares
will be paid by the selling stockholders and/or the purchasers. We have agreed
to pay certain of the costs, expenses and fees of preparing, filing and
maintaining this prospectus and the registration statement of which this
prospectus is a part, but we will not receive any proceeds from sale of these
shares. The selling stockholders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the shares if
liabilities are imposed on it under the Securities Act.
Each of the selling stockholders has advised us that he, she or it has not
entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of such shares, nor is there
an underwriter or coordinating broker acting in connection with a proposed sale
of shares by any selling stockholder. If we are notified by any selling
stockholder that any material arrangement has been entered into with a
broker-dealer for the sale of shares, if required, we will file a supplement to
this prospectus. If the selling stockholders use this prospectus for any sale of
the shares, they will be subject to the prospectus delivery requirements of the
Securities Act. The anti-manipulation rules of Regulation M under the Securities
Exchange Act of 1934 may apply to sales of our Common Stock and activities of
the selling stockholders. The selling stockholders may be deemed to be
"underwriters" within the meaning of the Securities Act.
LEGAL MATTERS
Certain legal matters with respect to the shares of Common Stock offered hereby
will be passed upon for us by Nixon Peabody LLP.
EXPERTS
The consolidated financial statements appearing in the Annual Report on Form
10-KSB of Biophan Technologies, Inc. for the year ended February 28, 2005, have
been audited by Goldstein Golub Kessler LLP, an independent registered public
accounting firm, as set forth in their report thereon dated April 6, 2005,
except for Note 13 as to which the date is May 27, 2005, included therein and
incorporated herein by reference. Such financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in auditing and accounting.
13
WHERE YOU CAN FIND MORE INFORMATION
We file periodic reports, proxy statements and other information with the
Securities and Exchange Commission. You may inspect and copy these reports and
other information at the SEC's public reference facilities in Washington, D.C.
(located at 100 F Street, N.E., Room 1580, Washington, D.C. 20549). You can also
obtain copies of these materials from the SEC's public reference section at
prescribed rates. Please call the SEC at 1-800-SEC-0330 for further information
about the public reference rooms. The SEC also maintains a web site at
http://www.sec.gov. This site contains reports, proxy and information statements
and other information about companies that file these reports electronically
with the SEC. Our SEC filings are also available on our website at
http://www.biophan.com.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC permits us to "incorporate by reference" the information and reports we
file with it. This means that we can disclose important information to you by
referring to another document. The information that we incorporate by reference
is considered to be part of this prospectus, and later information that we file
with the SEC automatically updates and supersedes this information.
Specifically, we incorporate by reference:
1. Our Annual Report on Form 10-KSB for the year ended February 28,
2005;
2. Our Quarterly Reports on Form 10-Q for the periods ended May 31,
2005 and August 31, 2005;
3. The description of our Common Stock contained in our registration
statement on Form 10-SB/A, filed on July 20, 1999;
4. The following Current Reports on Form 8-K or 8-K/A furnished or
filed, as the case may be, to or with the SEC since February 28,
2005:
Current Report filed March 2, 2005
Current Report filed March 30, 2005
Current Report filed dated May 6, 2005
Current Report filed June 30, 2005
Current Report filed July 7, 2005
Current Report filed July 8, 2005
Current Report filed July 27, 2005
Current Report filed August 3, 2005
Current Report filed September 13, 2005
Current Report filed October 17, 2005
Current Report filed October 25, 2005
Current Report filed November 18, 2005
Current Report filed November 21, 2005
Current Report filed December 2, 2005
Current Report filed December 19, 2005
Current Report filed December 28, 2005
Current Report filed January 9, 2005;
5. All documents we file with the SEC pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this
prospectus and prior to the termination of the offering of the
shares offered by this prospectus.
We have also filed a registration statement on Form S-3 with the SEC, of which
this prospectus forms a part. This prospectus does not contain all of the
information set forth in the registration statement. You should read the
registration statement for further information about us and about our Common
Stock.
We will provide a copy of these filings to each person, including any beneficial
owner, to whom we deliver this prospectus, upon written or oral request. You may
request a copy of these filings at no cost by writing or telephoning us at the
following address:
14
Biophan Technologies, Inc.
150 Lucius Gordon Drive, Suite 215
West Henrietta, New York 14586
(585) 214-2441
Attention: Robert J. Wood, Chief Financial Officer
You should rely only on the information contained in this prospectus. We have
authorized no one to provide you with different information. These securities
are not offered in any state where the offer is not permitted. You should not
assume that the information in this prospectus is accurate as of any date other
than the date on the front of this prospectus.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR
SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Securities Act 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 Securities Act and
is, therefore, unenforceable.
15
----------------------
Biophan Technologies, Inc.
13,281,692 Shares
Common Stock
----------------------
PROSPECTUS
----------------------
________, 2006
16
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution
The following table sets forth all expenses payable by us in connection
with the offering of our Common Stock being registered hereby. All amounts are
estimated except the SEC registration fee.
Filing Fees--SEC Registration Fee $ 2,203
Printing Expenses 1,000
Legal Fees and Expenses 10,000
Accounting Fees and Expenses 4,000
-------------
Total $ 17,203
=============
Item 15. 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:
o his act or failure to act constituted a breach of his fiduciary
duties as a director or officer; and
o his breach of those duties involved intentional misconduct, fraud or
a knowing violation of law.
This provision is intended to afford directors and officers 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 or officer. As a consequence
of this provision, stockholders of Biophan will be unable to recover monetary
damages against directors or officers for action taken by them that may
constitute negligence or gross negligence in the 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 or
officer's fiduciary duty and does not eliminate or limit the right of Biophan 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, Biophan's By-Laws include a provision which provides
for indemnification of a director or officer by Biophan against expenses,
judgments, fines and amounts paid in settlement of claims against the director
or officer arising from the fact that he was a director or officer, provided
that the director or officer acted in good faith and in a manner he believed to
be in or not opposed to the best interests of Biophan. Biophan has purchased
insurance under a policy that insures both Biophan and its officers and
directors against exposure and liability normally insured against under such
policies, including exposure on the indemnities described above.
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, we have been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 16. Exhibits
Please see the exhibit index following the signature page of this
registration statement.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
17
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) 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;
(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 (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities Exchange Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) 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.
18
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 for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the Town of West Henrietta, State of New York on January 9, 2006.
BIOPHAN TECHNOLOGIES, INC.
By: /s/ Michael L. Weiner
---------------------------------
Michael L. Weiner
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Biophan Technologies, Inc., hereby
severally constitute and appoint Michael L. Weiner and Robert J. Wood, and each
of them singly, our true and lawful attorneys with full power to them, and each
of them singly, to sign for us and in our names in the capacities indicated
below, the registration statement of Form S-3 filed herewith and any and all
subsequent amendments to said registration statement, and generally to do all
such things in our names and on our behalf in our capacities as officers and
directors to enable Biophan Technologies, Inc. to comply with the provisions of
the Securities Act of 1933, as amended, and all requirements of the Securities
and Exchange Commission, hereby ratifying the confirming our signatures as they
may be signed by our said attorneys, or any of them, to said registration
statement and any and all amendments thereto.
SIGNATURES
Pursuant to 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 indicated:
Signature Title Date
--------- ----- ----
/s/ Michael L. Weiner President, CEO and Director January 9, 2006
------------------------- (Principal Executive Officer)
Michael L. Weiner
/s/ Robert J. Wood Vice President, Secretary, January 9, 2006
------------------------- Treasurer and CFO
Robert J. Wood (Principal Financial Officer
and Principal Accounting Officer)
/s/ Guenter H. Jaensch Chairman January 9, 2006
-------------------------
Guenter H. Jaensch
/s/ Ross B. Kenzie Director January 9, 2006
-------------------------
Ross B. Kenzie
/s/ Steven Katz Director January 9, 2006
-------------------------
Steven Katz
/s/ Robert S. Bramson Director January 9, 2006
-------------------------
Robert S. Bramson
/s/ Michael Friebe Director January 9, 2006
-------------------------
Michael Friebe
19
EXHIBIT INDEX
Exhibit No. Exhibit Description Location
----------- ------------------- --------
4.1 Stock Purchase Agreement dated May 27, 2005 Incorporated by reference to Exhibit
between Biophan and SBI Brightline XI, LLC 4.21 to Form 10-KSB/A for the year ended
February 28, 2005
4.2 Amendment No. 1 to Stock Purchase Agreement Incorporated by reference to Exhibit 4.2
to Form 8-K for January 8, 2006
4.3 Convertible Promissory Note of Biophan payable to Incorporated by reference to Exhibit
the order of Biomed Solutions, LLC dated May 27, 4.22 to Form 10-KSB/A for the year ended
2005 February 28, 2005
4.4 Stock Purchase Warrant issued to Biomed Solutions, Incorporated by reference to Exhibit
LLC dated May 27, 2005 4.23 to Form 10-KSB/A for the year ended
February 28, 2005
4.5 Form of Stock Purchase Warrant issued to Messrs. Filed herewith
Kessler and Pierson
4.6 Form of Stock Purchase Warrant issued to 900 Filed herewith
Midtown Investments
4.7 Investment Agreement dated June 30, 2005 between Incorporated by reference to Exhibit 4.5
Biophan and Boston Scientific Scimed, Inc. to Form 10-Q for the period ended
August 31, 2005
5.1 Opinion of Nixon Peabody LLP Filed herewith
10.1 License Agreement dated June 30, 2005 between Incorporated by reference to Exhibit 10.2
Biophan and Boston Scientific Scimed, Inc. to Form 10-Q/A for the period ended
August 31, 2005
23.1 Consent of Goldstein Golub Kessler LLP Filed herewith
23.2 Consent of Nixon Peabody LLP Contained in Exhibit 5.1
20