Unassociated Document
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 1, 2007
BIOPHAN
TECHNOLOGIES, INC.
(Exact
name of registrant as specified in its charter)
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Nevada
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0-26057
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82-0507874
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(State
or other jurisdiction
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(Commission
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(I.R.S.
Employer
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of
incorporation)
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file
number)
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Identification
No.)
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15
Schoen Place
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Pittsford,
New York
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14534
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(Address
of principal executive offices)
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(Zip
code)
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(585)
267-4800
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(Registrant’s
telephone number
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including
area code)
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150
Lucius Gordon Drive, Suite 215, West Henrietta, New York
14586
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(Former
Name or Former Address, if Changed Since Last
Report)
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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:
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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| o |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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| o |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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| o |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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Item
1.01 -- Entry into a Material Definitive Agreement
(a)
Forbearance Agreement
On
February 21, 2007, we entered into a Forbearance Agreement dated
as
of February 16, 2007 (the “Forbearance Agreement”) with the holders (the
“Note Holders”) of our Senior Subordinated Convertible Notes due October 12,
2009 (the “Notes”) pursuant to which the Note Holders have agreed that, during
the period commencing on February 16, 2007 and ending on the earlier of (i)
March 31, 2007 or (ii) the date on which any Termination Event (as defined
in
the Forbearance Agreement) first occurs (the “Forbearance Period”), they will
forbear from exercising any and all of the rights and remedies which they may
have against us or any of our assets under the Notes or the Securities Purchase
Agreement between us and the Note Holders dated October 11, 2006 pursuant to
which the Notes were issued (the “Purchase Agreement”) or at law or in equity as
a result of any default under the Notes or as a result of the occurrence of
certain events with respect to the Purchase Agreement. In exchange for entering
into the Forbearance Agreement, we have issued pro rata to the Note Holders
the
Fee Warrants described in Item 3.02 below.
Upon
the
issuance of the Fee Warrants, the exercise prices of five-year warrants issued
in two series pursuant to the Purchase Agreement to the Note Holders (the
“Original Warrants”) for the purchase of an aggregate of 10,820,896 shares our
Common Stock $0.005 par value per share (the “of Common Stock") were
automatically adjusted from $0.81 per share and $0.89 per share, respectively,
to $0.51 per share, and the number of shares of Common Stock issuable upon
exercise of the Original Warrants was automatically adjusted, proportionately,
to an aggregate of 18,034,830 shares. In the Forbearance Agreement, the Note
Holders waived, with respect to the issuance of the Fee Warrants, application
of
similar anti-dilution adjustments contained in the Notes and in a third series
of warrants for the purchase, on or before October 12, 2007, of an aggregate
of
10,820,896 additional shares of Common Stock at an exercise price of $0.67
per
share (the “One Year Warrants”). C.E. Unterberg, Towbin, which holds a one-year
warrant for the purchase of 865,672 shares of Common Stock, issued to it in
connection with its services as exclusive placement agent under the Purchase
Agreement, has separately agreed to waive, with respect to the issuance of
the
Fee Warrants, application of the anti-dilution provisions of that
warrant.
Pursuant
to the Forbearance Agreement, we have agreed that we will not, without the
prior
written consent of Note Holders then holding Notes representing, in the
aggregate, at least sixty percent (60%) of the face amount of all outstanding
Notes, incur expenses (other than the accrual of interest, penalties and
liquidated damages on the Notes or under the Purchase Agreement) in excess
of
$500,000 during any thirty-day period commencing on February 20, 2007 and
terminating on the date on which our Registration Statement on Form S-1,
covering resale of the shares of Common Stock issuable upon conversion of the
Notes, in payment of principal and interest on the Notes or upon exercise of
the
One Year Warrants, is declared effective by the Securities and Exchange
Commission.
The
Forbearance Agreement is filed herewith as Exhibit 10.1 and incorporated herein
by reference, and the foregoing description is qualified in its entirety by
reference to such Exhibit.
(b)
Lease Amendment
On
February 15, 2007, we amended our Lease for our new corporate offices at
15
Schoen Place, Pittsford, New York to change the lease commencement date from
October 1, 2006 to March 1, 2007 to reflect delays in the landlord’s delivery of
possession of the premises. All other time periods in the Lease (including
the
dates for rent increases and the lease termination date) were also extended
by
five months.
Amendment
No. 2 to the Lease is filed herewith as Exhibit 10.2 and incorporated herein
by
reference, and the foregoing description is qualified in its entirety by
reference to such Exhibit.
Item
2.04 -- Triggering Events That Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
On
February 1, 2007, following
discussions with several of the Note Holders regarding preservation of our
operating cash, we elected not to make a scheduled installment repayment
of principal, in the aggregate amount of $219,696.75, under the Notes described
in Item 1.01 above (the “Payment Default”), which constituted an Event of
Default under the Notes. In the Forbearance Agreement described in Item 1.01,
the Note Holders have agreed, among other things, to forbear from exercising
any
and all of their rights and remedies against us or our assets as
a
result of the occurrence or continuance of the Payment Default or any other
default or Event of Default under the Notes.
Item
3.02. Unregistered Sales of Equity Securities
On
February 21, 2007, pursuant to the Forbearance Agreement described in Item
1.01
above, we issued to the ten Note Holders who are parties to the Forbearance
Agreement warrants for the purchase of an aggregate of 60,000 shares of Common
Stock at an exercise price of $0.51 per share (the “Fee Warrants”). The Fee
Warrants become exercisable on August 21, 2007 and may be exercised in whole
or
in part until 6:30 P.M., New York City time, on August 21, 2010.
The
Fee
Warrants were issued in a private placement not involving any public offering
and are exempt from registration under the Securities Act of 1933 (the
“Securities Act”) pursuant to the exemptions provided by Section 4(2) of such
Act and by Regulation D and Regulation S promulgated under such Act. The
Note
Holders to whom the Fee Warrants were issued are qualified institutional
buyers
(as such term is defined in Rule 144A under the Securities Act) and/or
accredited investors (as such term is defined in Rule 501(a) under the
Securities Act).
The
form
of the Fee Warrants is filed herewith as Exhibit 4.01 and incorporated herein
by
reference, and the foregoing description is qualified in its entirety by
reference to such Exhibit.
Item
9.01 -- Financial Statements and Exhibits.
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Exhibit
Number
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Description
of Exhibit
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4.1
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Form
of Three-year Warrant issued pursuant to the Forbearance Agreement
dated
as of February 16, 2007 by and among Biophan Technologies, Inc. and
the
Note Holders named therein.
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10.1
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Forbearance
Agreement dated as of February 16, 2007 by and among Biophan Technologies,
Inc. and the Note Holders named therein.
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10.2
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Amendment
No. 1 to Lease between Schoen Place LLC and Biophan Technologies,
Inc.
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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.
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BIOPHAN
TECHNOLOGIES, INC.
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| Date:
February 27, 2007 |
By: |
/s/
Darryl
L. Canfield |
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Darryl
L. Canfield |
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Chief
Financial Officer |