Registration
No. 333-________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Biophan
Technologies, Inc.
(Exact
name of registrant as specified in its charter)
|
Nevada
(State
or other jurisdiction of
incorporation
or organization)
|
82-0507874
(I.R.S.
Employer
identification
No.)
|
15
Schoen
Place, Pittsford, NY 14534
(Address
of principal executive offices) (Zip Code)
2001
Stock Option Plan
(Full
title of the plan)
Michael
L. Weiner, President
Biophan
Technologies, Inc.
15
Schoen
Place
Pittsford,
NY 14534
(Name
and
address of agent for service)
(585)
267-4800
(Telephone
number, including area code, of agent for service)
With
a
copy to:
Gregory
Sichenzia, Esq.
Yoel
Goldfeder, Esq.
Sichenzia
Ross Friedman Ference LLP
61
Broadway
New
York,
NY 10006
Phone
(212) 930-9700
Fax
(212)
930-9725
CALCULATION
OF REGISTRATION FEE
|
Title
of each class of securities
to
be registered
|
|
Amount
to be Registered
|
|
Proposed
Maximum Offering Price Per Security
|
|
Proposed
Maximum Aggregate Offering Price
|
|
Amount
of Registration Fee
|
|
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Common
Stock, $.0005 par value
|
|
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4,300,000(1
|
)
|
|
0.205(2
|
)
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$
|
881,500
|
|
$
|
26.45
|
|
|
(1)
|
Represents
shares of common stock underlying our 2001 Stock Option
Plan.
|
| |
|
|
(2)
|
Estimated
solely for purposes of calculating the registration fee in accordance
with
Rule 457(c) of the Securities
Act of 1933, as amended, using the average of the high and low price
as
reported on the Over-The-Counter Bulletin Board on August 27,
2007.
|
EXPLANATORY
NOTE
Biophan
Technologies, Inc. ("We", "us", "our company" or "Biophan") filed a Registration
Statement on Form S-8 on September 26, 2003 (Reg. No. 333-109160) and a
Registration Statement on Form S-8 on September 16, 2004 (Reg. No. 333-119080)
relating to the registration of shares of the Company’s common stock, $.0005 par
value, underlying the Company’s 2001 Stock Option Plan.
This
Registration Statement is being filed in accordance with the requirements of
Form S-8 in order to register 4,300,000 shares, the remaining balance of shares
underlying the Company’s 2001 Stock Option Plan.
In
addition, the Prospectus filed as part of this Registration Statement has been
prepared in accordance with the requirements of Form S-3 and may be used for
reofferings and resales of up to an aggregate of 2,273,023 shares of our common
stock, under our 2001 Stock Option Plan.
PART
I
Item
1. Plan
Information.
Biophan
will provide each participant (the "Recipient") with documents that contain
information related to our 2001 Stock Option Plan, and other information
including, but not limited to, the disclosure required by Item 1 of Form S-8,
which information is not filed as a part of this Registration Statement on
Form
S-8 (the "Registration Statement"). The foregoing information and the documents
incorporated by reference in response to Item 3 of Part II of this Registration
Statement taken together constitute a prospectus that meets the requirements
of
Section 10(a) of the Securities Act. A Section 10(a) prospectus will be given
to
each Recipient who receives common shares covered by this Registration
Statement, in accordance with Rule 428(b)(1) under the Securities Act of 1933,
as amended (the “Securities Act”).
Item
2. Registrant
Information and Employee Plan Annual Information.
We
will
provide to each Recipient a written statement advising of the availability
of
documents incorporated by reference in Item 3 of Part II of this Registration
Statement and of documents required to be delivered pursuant to Rule 428(b)
under the Securities Act without charge and upon written or oral notice by
contacting:
Michael
L. Weiner, President
15
Schoen
Place
Pittsford,
NY 14534
Telephone:
(585) 267-4800
REOFFER
PROSPECTUS
Biophan
Technologies, Inc.
2,273,023 Shares
of
Common
Stock
This
reoffer prospectus relates to the sale of up to 2,273,023 shares of our common
stock, $.005 par value per share, that may be offered and resold from time
to
time by certain eligible participants and existing selling shareholders
identified in this prospectus for their own account issuable pursuant to our
2001 Stock Option Plan. It is anticipated that the selling shareholders will
offer common shares for sale at prevailing prices on the OTC Bulletin Board
on
the date of sale. We will receive no part of the proceeds from sales made under
this reoffer prospectus. The selling shareholders will bear all sales
commissions and similar expenses. Any other expenses incurred by us in
connection with the registration and offering and not borne by the selling
shareholders will be borne by us.
The
shares of common stock will be issued pursuant to awards granted under our
2001
Stock Option Plan. This reoffer prospectus has been prepared for the purposes
of
registering the common shares under the Securities Act to allow for future
sales
by selling shareholders on a continuous or delayed basis to the public without
restriction.
Our
common stock is quoted on the OTC Bulletin Board under the symbol BIPH. The
closing sale price for our common stock on August 27, 2007 was $0.19 per
share.
Investing
in our common stock involves risks. See "Risk Factors" on page 2 of this
reoffer prospectus. These are speculative securities.
Since
our
company does not currently meet the registrant requirements for use of Form
S-3,
the amount of common shares which may be resold by means of this reoffer
prospectus by each of the selling stockholders, and any other person with whom
he or she is acting in concert for the purpose of selling securities of our
company, must not exceed, in any three month period, the amount specified in
Rule 144(e) promulgated under the Securities Act.
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 September 4, 2007.
TABLE
OF CONTENTS
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Page
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| |
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Prospectus
Summary
|
|
2
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Risk
Factors
|
|
3
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|
Cautionary
Note Regarding Forward-Looking Statements
|
|
8
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|
Determination
of Offering Price
|
|
8
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|
Use
of Proceeds
|
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8
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Selling
Stockholders
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8
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Plan
of Distribution
|
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11
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|
Legal
Matters
|
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13
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Experts
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13
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Incorporation
of Certain Documents by Reference
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|
13
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|
|
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14
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Additional
Information Available to You
|
|
15
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NO
PERSON
HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS,
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN CONNECTION WITH THE OFFERING
MADE HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST
NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY OTHER PERSON.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER
ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OFFERED HEREBY BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION
IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
PROSPECTUS
SUMMARY
We
were
incorporated in the State of Idaho on August 1, 1968, under the name Idaho
Copper and Gold, Inc. On February 9, 1999, we changed our name to Idaho
Technical, Inc. On January 24, 2000, we changed our domicile to Nevada by
merging into our wholly-owned Nevada subsidiary. We began our current line
of
business on December 1, 2000. On December 1, 2000, we changed our name to
GreatBio Technologies, Inc. and on July 19, 2001, we changed our name to Biophan
Technologies, Inc.
From
inception through May 31, 2007, we have incurred cumulative net losses of
$49,510,105. Since December 1, 2000, we have relied almost entirely on sales
of
our securities and loans to fund our operations.
Our
principal executive offices are located at 15 Schoen Place, Pittsford, New
York
14534 and our telephone number is (585) 267-4800.
The
Offering
|
Common
stock outstanding before the offering
|
|
95,690,925
shares.
|
|
|
|
|
|
Common
stock issuable upon exercise of outstanding options which may be
offered
pursuant to this prospectus
|
|
2,273,023
shares
|
|
|
|
|
|
Common
stock to be outstanding after the offering
|
|
97,963,948
shares, which includes 2,273,023 shares issuable upon exercise of
outstanding stock options.
|
|
|
|
|
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Use
of proceeds
|
|
We
will receive the exercise price from the sale of shares to the selling
stockholders when, and if, such selling stockholders exercise their
stock
options. Any proceeds received by us from the exercise of such stock
options will be used for general working capital
purposes.
|
|
|
|
|
|
OTC
Bulletin Board Symbol
|
|
BIPH
|
|
|
|
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Risk
Factors
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|
The
purchase of common stock involves a high degree of risk. You should
carefully review and consider “Risk Factors” beginning on page
2.
|
RISK
FACTORS
Investing
in our common stock involves a high degree of risk. You should carefully
consider the following risk factors, as well as the other information in this
prospectus, before deciding whether to invest in our common stock. If any of
the
following risks actually materializes, our business, financial condition and
results of operations would suffer. The trading price of our common stock could
decline as a result of any of these risks, and you might lose all or part of
your investment in our common stock. You should read the section entitled
"Forward-Looking Statements" immediately following these risk factors for a
discussion of what types of statements are forward-looking statements, as well
as the significance of such statements in the context of this
prospectus.
WE
MAY BE SUBJECT TO LIABILITY IN THE FORM OF A CLAIM FOR RESCISSION
BY CERTAIN
SHAREHOLDERS.
As
a
result of our Forbearance Agreement with certain investors dated February 16,
2007, the Securities and Exchange Commission may take the position that the
sale
of the $7,250,000 of senior secured convertible notes had not been completed
before we filed the required registration statement, and as such we may have
issued securities without a valid exemption in violation of Section 5 of the
Securities Act of 1933, as amended, for such placement. The $7,250,000 of senior
secured convertible notes are convertible by the investors into 10,820,896
shares of common stock. As additional consideration for the senior secured
convertible notes we issued the investors warrants to purchase 10,820,896 shares
of our common stock and in connection with the execution of the Forbearance
Agreement we issued the investors addition warrants to purchase an aggregate
of
60,000 shares of our common stock.
If
the
Securities and Exchange Commission takes the position that the foregoing was
a
violation of Section 5 of the Securities Act of 1933, as amended, the investors
may be entitled to, among other penalties or fines which may be assessed against
us and the right to demand rescission of the offering. In that case, we would
be
required to pay each investor the amount we received as consideration for the
securities issued under an invalid exemption, plus any interest accrued with
respect to such amount at the applicable rate, and the securities would be
cancelled.
WE
MAY BE REQUIRED TO PAY LIQUIDATED DAMAGES AND/OR PENALTIES TO THE HOLDERS OF
THE
$7,250,000 OF SENIOR SECURED CONVERTIBLE NOTES DUE TO THE FACT THAT WE ARE
IN
DEFAULT UNDER THE TERMS THEREOF.
In
connection with our Securities Purchase Agreement dated October 11, 2006 with
Iroquois Master Fund Ltd and other private investors since our required
registration statement with respect to the shares underlying the $7,250,000
of
Senior Secured Convertible Notes had not yet been declared effective by the
Securities and Exchange Commission within the requisite time period, in
accordance with the Agreement, we are obligated to pay liquidated damages in
the
amount of 1.0% of the face amount of the issued and outstanding Senior Secured
Convertible Notes. In addition, pursuant to the terms of the Senior Secured
Convertible Notes we were required to make scheduled payments of principal
and
interest. Beginning on February 1, 2007 we were obligated to make monthly
payments of $219,696.97 principal and we were obligated to make interest
payments quarterly. While we made an initial interest payment of $165,081,
we
failed to make subsequent timely payments. In the event of a default of our
obligations under the Senior Secured Convertible Notes the investors are
entitled to, among other remedies, demand that we repurchase the outstanding
principal at a repurchase price equal to 110%.
Although
we entered into a Forbearance Agreement with the investors dated February 16,
2007 to postpone the foregoing obligations, the Forbearance Agreement had
expired. Accordingly, we are still obligated to make payments of liquidated
damages and principal and interest payments under the Senior Secured Convertible
Notes, which had been postponed, but not waived under the Forbearance Agreement.
As of the date hereof, while principal and interest payments are current, we
are
in default of our obligations to make any payment to the investors of liquidated
damages, but the investors have not demanded payment. We are currently unable
to
make any payments due and owing to the investors in cash and since the Senior
Secured Convertible Notes are secured by all of our assets any demand from
the
investors would result in a foreclosure on our assets and a resulting
termination of our operations.
Furthermore,
we are party to an agreement to transfer and sell all of our interest in and
to
certain intellectual property for a purchase price of $11,000,000. The closing
of this sale is subject to our obtaining from the investors a release of the
security interest held by the investors in this intellectual property. There
can
be no assurance the investors will release their security interest. If the
investors do not release their security interest, we will not be able to close
the sale.
WE
ARE A BUSINESS WITH A LIMITED OPERATING HISTORY 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:
· organizational
activities;
· developing
a business plan;
· obtaining
funding;
· conducting
research and working toward the ultimate successful development of our
technologies;
· aggressively
patenting our intellectual property;
· licensing
technology from third parties related to our business; and
· marketing
to major biomedical device manufacturers.
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.
For
the
fiscal years ended February 28, 2007, 2006 and 2005, we incurred net losses
of
$17,722,411, $14,484,384, $5,793,547, respectively. We have incurred cumulative
net losses from inception through May 31, 2007 of $49,510,105. 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 financial condition
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.
THE
INABILITY TO RETAIN AND ATTRACT KEY PERSONNEL COULD ADVERSELY
AFFECT OUR
BUSINESS AND PLAN OF OPERATIONS.
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 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.
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:
· substantially
greater financial, technical and marketing resources;
· larger
customer bases;
· better
name recognition;
· related
product offerings; and
· 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 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 and Myovad 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 currently have 61 issued U.S. patents
and over 60 U.S. and 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.
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.
Sales
of
a substantial number of shares of our common stock, or the perception that
sales
could occur, whether at the then current market price or below the then current
market price, could adversely affect prevailing market prices for our common
stock. For example, in connection with our issuance of $7,250,000 of senior
secured amortizing convertible notes on October 12, 2006, the holders of the
notes may elect to convert the notes at any time into shares of our common
stock
at a price of $0.67 per share (the "Conversion Price"). Payments of interest
and
principal on the notes may be made, at our option, in cash or shares of our
common stock registered for resale under the Securities Act, and if we elect
to
make payments on the notes in shares, those payments will be based on the lower
of (i) the Conversion Price or (ii) 90% of the volume weighted trailing average
price per share of our common stock for the 20 trading days ending 23 trading
days prior to the date we make a payment. As additional consideration to the
purchasers of the notes, we issued five-year warrants that currently permit
the
investors to purchase an aggregate of 18,034,830 shares of our common stock
at
an exercise price of $0.51 per share. As further consideration to the purchasers
of the notes, we issued one-year warrants to purchase up to 10,820,896 shares
of
our common stock at a price of $0.67 per share. If the purchasers elect to
exercise this one-year warrant, they will also receive additional five-year
warrants to purchase our common stock equal to the number of shares purchased
under this one-year warrant, with 50% of the additional warrants having an
exercise price of 115% of the per share purchase price ($0.77 per share), and
the remaining 50% of the additional five-year warrants having an exercise price
of 125% of the per share purchase price ($0.84 per share). In addition, if
we
issue additional shares of our common stock for sale in future financings,
our
stockholders would experience additional dilution.
Michael
L. Weiner, our President and director, is the Manager and a 24.3% beneficial
owner of Biomed Solutions LLC, a company engaged in the business of identifying
and acquiring technologies in the biomedical field for exploitation. Biomed
is a
beneficial owner of 9.02% of our outstanding common stock and holds on aggregate
of $2,250,000 face amount of our convertible promissory notes. 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
Myotech, LLC, an entity in which Biomed is a 13% owner and John Lanzafame,
our
COO, is on the Board of NaturalNano, Inc., the largest shareholder 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 Lanzafame with these other entities may
give
rise to conflicts of interest with respect to certain matters affecting us.
Potential conflicts may not always 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.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains forward-looking statements. All statements other than
statements of historical facts contained in this prospectus, including
statements regarding our future results of operations and financial position,
business strategy and plans and objectives of management for future operations,
are forward-looking statements. These statements involve known and unknown
risks, uncertainties and other factors that may cause our actual results,
performance or achievements to be materially different from any future results,
performance or achievements expressed or implied by the forward-looking
statements.
In
some
cases, you can identify forward-looking statements by terms such as "may,"
"will," "should," "expects," "plans," "anticipates," "could," "intends,"
"target," "projects," "contemplates," "believes," "estimates," "predicts,"
"potential" or "continue" or the negative of these terms or other similar words.
These statements are only predictions. 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 business, financial
condition and results of operations. We discuss many of the risks in greater
detail under the heading "Risk Factors." Also, these forward-looking statements
represent our estimates and assumptions only as of the date of this prospectus.
Except as required by law, we assume no obligation to update any forward-looking
statements after the date of this prospectus.
This
prospectus also contains estimates and other statistical data made by
independent parties and by us relating to market size and growth and other
industry data. This data involves a number of assumptions and limitations,
and
you are cautioned not to give undue weight to such estimates. We have not
independently verified the statistical and other industry data generated by
independent parties and contained in this prospectus and, accordingly, we cannot
guarantee their accuracy or completeness. In addition, projections, assumptions
and estimates of our future performance and the future performance of the
industries in which we operate are necessarily subject to a high degree of
uncertainty and risk due to a variety of factors, including those described
in
"Risk Factors," "Management's Discussion and Analysis of Financial Condition
and
Results of Operation" and elsewhere in this prospectus. These and other factors
could cause results to differ materially from those expressed in the estimates
made by the independent parties and by us.
DETERMINATION
OF OFFERING PRICE
The
selling security holders may sell the common shares issued to them from
time-to-time at prices and at terms then prevailing or at prices related to
the
then current market price, or in negotiated transactions.
USE
OF PROCEEDS
This
prospectus relates to sale of shares of common stock issuable upon exercise
of
currently outstanding stock options that may be offered and sold from time
to
time by the selling stockholders. We will receive the exercise price from the
sale of shares to the selling stockholders when, and if, such selling
stockholders exercise their stock options. Any proceeds received by us from
the
exercise of such stock options will be used for general working capital
purposes.
The
selling shareholders named in this prospectus (the "Selling Shareholders")
are
offering all of the 2,273,023 shares offered through this prospectus pursuant
to
the exercise of stock options granted to the selling shareholders pursuant
to
our 2001 Stock Option Plan.
A
total
of 13,000,000 shares of common stock have been reserved for issuance under
all
awards that may be granted under our 2001 Stock Option Plan.
If,
subsequent to the date of this reoffer prospectus, we grant any further awards
under the 2001 Stock Option Plan, to any eligible participants who are
affiliates of our company (as defined in Rule 405 under the Securities Act),
Instruction C of Form S-8 requires that we supplement this reoffer prospectus
with the names of such affiliates and the amounts of securities to be reoffered
by them as selling stockholders.
The
following table provides, as of August 27, 2007 information regarding the
beneficial ownership of our common shares held by each of the selling
shareholders, including:
| |
1.
|
the
number of common shares owned by each selling shareholder prior to
this
offering;
|
| |
2.
|
the
total number of common shares that are to be offered by each selling
shareholder;
|
|
|
3.
|
the
total number of common shares that will be owned by each selling
shareholder upon completion of the offering;
and
|
|
|
4.
|
the
percentage owned by each selling
shareholder.
|
Information
with respect to beneficial ownership is based upon information obtained from
the
selling shareholders. Information with respect to "Shares Beneficially Owned
Prior to the Offering" includes the shares issuable upon exercise of the stock
options held by the selling shareholders to the extent these options are
exercisable within 60 days of August 27, 2007. The "Number of Shares Being
Offered" includes the common shares that may be acquired by the selling
shareholders pursuant to the exercise of stock options granted to the selling
shareholders pursuant to our 2001 Stock Option Plan. Information with respect
to
"Shares Beneficially Owned After the Offering" assumes the sale of all of the
common shares offered by this prospectus and no other purchases or sales of
our
common shares by the selling shareholders. Except as described below and to
our
knowledge, the named selling shareholder beneficially owns and has sole voting
and investment power over all common shares or rights to these common
shares.
Because
the selling shareholders may offer all or part of the common shares currently
owned or the common shares received upon exercise of the options, which they
own
pursuant to the offering contemplated by this reoffer prospectus, and because
its offering is not being underwritten on a firm commitment basis, no estimate
can be given as to the amount of options that will be held upon termination
of
this offering. The common shares currently owned and the common shares received
upon exercise of the options offered by this reoffer prospectus may be offered
from time to time by the selling shareholders named below.
|
|
|
SHARES
BENEFICIALLY OWNED PRIOR
TO THIS OFFERING(1)
|
|
|
|
SHARES
BENEFICIALLY OWNED UPON
COMPLETION
OF THE OFFERING(1)
|
|
|
NAME
|
|
NUMBER
|
|
PERCENT(2)
|
|
OFFERED(3)
|
|
NUMBER
|
|
PERCENT(2)
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
Bradford
C. Berk
|
|
|
33,332
|
|
|
*
|
|
|
16,666
|
|
|
16,666
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert
S. Bramson
|
|
|
535,000
|
(4)
|
|
*
|
|
|
55,000
|
|
|
480,000
|
(4)
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Darryl
L. Canfield
|
|
|
300,000
|
(5)
|
|
*
|
|
|
600,000
|
|
|
0
|
(5)
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David
Glocker
|
|
|
24,582
|
|
|
*
|
|
|
10,416
|
|
|
14,166
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Herbert
A. Hauptman
|
|
|
33,332
|
|
|
*
|
|
|
16,666
|
|
|
16,666
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeffrey
L. Helfer
|
|
|
765,000
|
(6)
|
|
*
|
|
|
25,000
|
|
|
740,000
|
(6)
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Guenter
H. Jaensch
|
|
|
1,568,500
|
(7)
|
|
1.62
|
%
|
|
55,000
|
|
|
1,513,500
|
(7)
|
|
1.56
|
%
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Steven
Katz
|
|
|
332,500
|
|
|
*
|
|
|
55,000
|
|
|
277,500
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ross
B.Kenzie
|
|
|
197,500
|
|
|
*
|
|
|
55,000
|
|
|
142,500
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Raymond
Kurzweil
|
|
|
49,998
|
|
|
*
|
|
|
16,666
|
|
|
33,332
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John
F. Lanzafame
|
|
|
1,476,667
|
(8)
|
|
1.52
|
%
|
|
725,000
|
|
|
751,667
|
(8)
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stuart
G. MacDonald
|
|
|
1,400,000
|
(9)
|
|
1.44
|
%
|
|
25,000
|
|
|
1,375,000
|
(9)
|
|
1.42
|
%
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andreas
Melzer
|
|
|
132,333
|
(10)
|
|
*
|
|
|
291,500
|
|
|
27,083
|
(11)
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kevin
Parker
|
|
|
49,998
|
|
|
*
|
|
|
16,666
|
|
|
33,332
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andreas
Pieper
|
|
|
15,000
|
|
|
*
|
|
|
15,000
|
|
|
0
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kristine
M. Reifsteck
|
|
|
25,000
|
|
|
*
|
|
|
25,000
|
|
|
0
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gregor
Schaefers
|
|
|
37,500
|
|
|
*
|
|
|
25,000
|
|
|
12,500
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Frank
G. Shellock
|
|
|
106,944
|
(12)
|
|
*
|
|
|
186,111
|
|
|
8,333
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Henry
M. Spotnitz
|
|
|
33,332
|
|
|
*
|
|
|
16,666
|
|
|
16,666
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert
J. Wood
|
|
|
1,205,000
|
|
|
1.24
|
%
|
|
25,000
|
|
|
1,180,000
|
|
|
1.22
|
%
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jianhui
Zhong
|
|
|
49,998
|
|
|
*
|
|
|
16,666
|
|
|
33,332
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL
SHARES OFFERED
|
|
|
|
|
|
|
|
|
2,273,023
|
|
|
|
|
|
|
|
*
less
than one percent
| (1) |
The
number and percentage of shares beneficially owned is determined
in
accordance with Rule 13d-3 of the Securities Exchange Act of 1934,
as
amended, and the information is not necessarily indicative of beneficial
ownership for any other purpose. Under such rule, beneficial ownership
includes any shares as to which the selling shareholder has sole
or shared
voting power or investment power and also any shares, which the selling
shareholder has the right to acquire within 60
days.
|
| (2) |
Based
upon 95,690,925 share of common stock issued and outstanding as of
August
27, 2007.
|
| (3) |
Represents
options to purchase shares of our common stock issued under our 2001
Stock
Option Plan.
|
| (4) |
Does
not include 47,500 options that have not
vested.
|
| (5) |
Does
not include 300,000 options that have not
vested.
|
| (6) |
Does
not include 85,000 options that have not
vested.
|
| (7) |
Includes
225,000 shares owned by Dr. Jaensch’s wife. Dr. Jaensch disclaims
beneficial ownership of the shares owned by his
wife.
|
| (8) |
Does
not include 243,333 options that have not
vested.
|
| (9) |
Does
not include 85,000 options that have not
vested.
|
| (10) |
Does
not include 242,500 options that have not
vested.
|
| (11) |
Does
not include 56,250 options that have not
vested.
|
| (12) |
Does
not include 87,500 options that have not
vested.
|
Since
our company does not currently meet the registrant requirements for use of
Form
S-3, the amount of common shares which may be resold by means of this reoffer
prospectus by each of the selling stockholders, and any other person with whom
he or she is acting in concert for the purpose of selling securities of our
company, must not exceed, in any three month period, the amount specified in
Rule 144(e) promulgated under the Securities Act.
PLAN
OF DISTRIBUTION
Under
our
2001 Stock Option Plan (the “Plan”), we are authorized to issue up to 13,000,000
shares of our common stock.
Subject
to the foregoing, the selling stockholders may offer and sell the shares covered
by this prospectus at various times. The selling stockholders may offer and
sell
the shares covered by this prospectus at various times. The selling stockholders
will act independently of our company in making decisions with respect to the
timing, manner and size of each sale.
No
Known Agreements to Resell the Shares
To
our
knowledge, no selling stockholder has any agreement or understanding, directly
or indirectly, with any person to resell the common shares covered by this
prospectus.
The
sales
price offered by the selling stockholders to the public may be:
|
1.
|
the
market price prevailing at the time of
sale;
|
|
2.
|
a
price related to such prevailing market price;
or
|
|
3.
|
such
other price as the selling shareholders determine from time to
time.
|
Manner
of Sale
The
common shares may be sold by means of one or more of the following methods:
|
1.
|
a
block trade in which the broker-dealer so engaged will attempt to
sell the
common shares as agent, but may position and resell a portion of
the block
as principal to facilitate the
transaction;
|
|
2.
|
Purchases
by a broker-dealer as principal and resale by that broker-dealer
for its
account pursuant to this
prospectus;
|
|
3.
|
ordinary
brokerage transactions in which the broker solicits
purchasers;
|
|
4.
|
through
options, swaps or derivatives;
|
|
5.
|
in
transactions to cover short sales;
|
|
6.
|
privately
negotiated transactions; or
|
|
7.
|
in
a combination of any of the above
methods.
|
The
selling shareholders may sell their common shares directly to purchasers or
may
use brokers, dealers, underwriters or agents to sell their common shares.
Brokers or dealers engaged by the selling shareholders may arrange for other
brokers or dealers to participate. Brokers or dealers may receive commissions,
discounts or concessions from the selling shareholders, or, if any such
broker-dealer acts as agent for the purchaser of common shares, from the
purchaser in amounts to be negotiated immediately prior to the sale. The
compensation received by brokers or dealers may, but is not expected to, exceed
that which is customary for the types of transactions involved.
Broker-dealers
may agree with a selling shareholder to sell a specified number of common shares
at a stipulated price per common share, and, to the extent the broker-dealer
is
unable to do so acting as agent for a selling shareholder, to purchase as
principal any unsold common shares at the price required to fulfill the
broker-dealer commitment to the selling shareholder.
Broker-dealers
who acquire common shares as principal may thereafter resell the common shares
from time to time in transactions, which may involve block transactions and
sales to and through other broker-dealers, including transactions of the nature
described above, in the over-the-counter market or otherwise at prices and
on
terms then prevailing at the time of sale, at prices then related to the
then-current market price or in negotiated transactions. In connection with
resales of the common shares, broker-dealers may pay to or receive from the
purchasers of shares commissions as described above.
If
our
selling shareholders enter into arrangements with brokers or dealers, as
described above, we are obligated to file a post-effective amendment to this
registration statement disclosing such arrangements, including the names of
any
broker-dealers acting as underwriters.
The
selling shareholders and any broker-dealers or agents that participate with
the
selling shareholders in the sale of the common shares may be deemed to be
"underwriters" within the meaning of the Securities Act. In that event, any
commissions received by broker-dealers or agents and any profit on the resale
of
the common shares purchased by them may be deemed to be underwriting commissions
or discounts under the Securities Act.
Any
common shares covered by this prospectus which qualify for sale pursuant to
Rule
144 under the Securities Act may be sold under Rule 144 rather than pursuant
to
this prospectus.
Accordingly,
during such times as a selling shareholder may be deemed to be engaged in a
distribution of the common stock, and therefore be considered to be an
underwriter, the selling shareholder must comply with applicable law and, among
other things:
|
1.
|
may
not engage in any stabilization activities in connection with our
common
stock;
|
|
2.
|
may
not cover short sales by purchasing shares while the distribution
is
taking place; and
|
|
3.
|
may
not bid for or purchase any of our securities or attempt to induce
any
person to purchase any of our securities other than as permitted
under the
Exchange Act.
|
In
addition, we will make copies of this prospectus available to the selling
shareholders for the purpose of satisfying the prospectus delivery requirements
of the Securities Act.
The
SEC
has adopted regulations which generally define "penny stock" to be any equity
security that has a market price (as defined) of less than $5.00 per share
or an
exercise price of less than $5.00 per share, subject to certain exceptions.
Our
securities are covered by the penny stock rules, which impose additional sales
practice requirements on broker-dealers who sell to persons other than
established customers and "institutional accredited investors." The term
"institutional accredited investor" refers generally to those accredited
investors who are not natural persons and fall into one of the categories of
accredited investor specified in subparagraphs (1), (2), (3), (7) or (8) of
Rule 501 of Regulation D promulgated under the Securities Act,
including institutions with assets in excess of $5,000,000.
The
penny
stock rules require a broker-dealer, prior to a transaction in a penny stock
not
otherwise exempt from the rules, to deliver a standardized risk disclosure
document in a form required by the Securities and Exchange Commission, obtain
from the customer a signed and dated acknowledgement of receipt of the
disclosure document and to wait two business days before effecting the
transaction. The risk disclosure document provides information about penny
stocks and the nature and level of risks in the penny stock market. The
broker-dealer also must provide the customer with current bid and offer
quotations for the penny stock, the compensation of the broker-dealer and its
salesperson in the transaction and monthly account statements showing the market
value of each penny stock held in the customer's account.
The
bid
and offer quotations, and the broker-dealer and salesperson compensation
information, must be given to the customer orally or in writing prior to
effecting the transaction and must be given to the customer in writing before
or
with the customer's confirmation. In addition, the penny stock rules require
that prior to a transaction in a penny stock not otherwise exempt from these
rules, the broker-dealer must make a special written determination that the
penny stock is a suitable investment for the purchaser and receive the
purchaser's written agreement to the transaction.
These
disclosure requirements may have the effect of reducing the level of trading
activity in the secondary market for the stock that is subject to these penny
stock rules. Consequently, these penny stock rules may affect the ability of
broker-dealers to trade our securities. We believe that the penny stock rules
discourage investor interest in and limit the marketability of our common
stock.
Under
the
securities laws of some states, the common shares may be sold in such states
only through registered or licensed brokers or dealers. In addition, in some
states the common shares may not be sold unless the shares have been registered
or qualified for sale in the state or an exemption from registration or
qualification is available and is complied with.
We
are
bearing all costs relating to the registration of the common stock. These
expenses are estimated to be $15,000, including, but not limited to, legal,
accounting, printing and mailing fees. The selling shareholders, however, will
pay any commissions or other fees payable to brokers or dealers in connection
with any sale of the common stock.
LEGAL
MATTERS
The
validity of the common stock has been passed upon by Sichenzia Ross Friedman
Ference LLP, New York, New York.
EXPERTS
INCORPORATION
OF CERTAIN DOCUMENTS BY
REFERENCE
The
Securities and Exchange Commission (“SEC”) allows us to incorporate by reference
certain of our publicly filed documents into this prospectus, which means that
such information is considered part of this prospectus. Information that we
file
with the SEC subsequent to the date of this prospectus will automatically update
and supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under all documents subsequently
filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until the selling stockholders have sold all of the shares
offered hereby or such shares have been deregistered.
The
following documents filed with the SEC are incorporated herein by
reference:
| |
·
|
Reference
is made to our annual report on Form 10-K for the fiscal year ended
February 28, 2007, as filed with the SEC on May 8, 2007, which is
hereby
incorporated by reference.
|
| |
·
|
Reference
is made to our report on Form 8-K filed with the SEC on June 19,
2007,
which is hereby incorporated by
reference.
|
| |
·
|
Reference
is made to our quarterly report on Form 10-Q for the quarter ended
May 31,
2007, as filed with the SEC on July 6, 2007, which is hereby incorporated
by reference.
|
| |
·
|
Reference
is made to our report on Form 8-K filed with the SEC on August 9,
2007,
which is hereby incorporated by
reference.
|
| |
·
|
The
description of our common stock is incorporated by reference to our
Registration Statement on Form 10-SB (File No. 000-26057), filed
with the
SEC on May 13, 1999.
|
We
will
provide without charge to each person to whom a copy of this prospectus has
been
delivered, on written or oral request a copy of any or all of the documents
incorporated by reference in this prospectus, other than exhibits to such
documents. Written or oral requests for such copies should be directed to
Michael L. Weiner.
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION
FOR
SECURITIES ACT LIABILITIES
As
permitted by the Nevada General Corporation Law, we have adopted provisions
in
our certificate of incorporation and by-laws to be in effect at the closing
of
this offering that limit or eliminate the personal liability of our directors.
Consequently, a director will not be personally liable to us or our stockholders
for monetary damages or breach of fiduciary duty as a director, except for
liability for:
·
any
breach of the director's duty of loyalty to us or our
stockholders;
·
any
act
or omission not in good faith or that involves intentional misconduct or
a
knowing violation of law;
·
any
unlawful payments related to dividends or unlawful stock repurchases,
redemptions or other distributions; or
·
any
transaction from which the director derived an improper personal
benefit.
These
limitations of liability do not alter director liability under the federal
securities laws and do not affect the availability of equitable remedies
such as
an injunction or rescission.
In
addition, our by-laws provide that:
·
we
will
indemnify our directors, officers and, in the discretion of our board of
directors, certain employees to the fullest extent permitted by the Nevada
General Corporation Law; and
·
we
will
advance expenses, including attorneys' fees, to our directors and, in the
discretion of our board of directors, to our officers and certain employees,
in
connection with legal proceedings, subject to limited
exceptions.
We
also
maintain general liability insurance that covers certain liabilities of our
directors and officers arising out of claims based on acts or omissions in
their
capacities as directors or officers, including liabilities under the Securities
Act of 1933, as amended.
These
provisions may discourage stockholders from bringing a lawsuit against our
directors for breach of their fiduciary duty. These provisions may also have
the
effect of reducing the likelihood of derivative litigation against directors
and
officers, even though such an action, if successful, might otherwise benefit
us
and our stockholders. Furthermore, a stockholder's investment may be adversely
affected to the extent we pay the costs of settlement and damage awards against
directors and officers pursuant to these indemnification provisions. We believe
that these provisions, the indemnification agreements and the insurance are
necessary to attract and retain talented and experienced directors and
officers.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company 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. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company
in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
ADDITIONAL
INFORMATION AVAILABLE TO YOU
This
prospectus is part of a Registration Statement on Form S-8 that we filed with
the SEC. Certain information in the Registration Statement has been omitted
from
this prospectus in accordance with the rules of the SEC. We file annual,
quarterly and special reports, proxy statements and other information with
the
SEC. You can inspect and copy the Registration Statement as well as reports,
proxy statements and other information we have filed with the SEC at the public
reference room maintained by the SEC at 100 F Street N.E. Washington, D.C.
20549, You can obtain copies from the public reference room of the SEC at 100
F
Street N.E. Washington, D.C. 20549, upon payment of certain fees. You can call
the SEC at 1-800-732-0330 for further information about the public reference
room. We are also required to file electronic versions of these documents with
the SEC, which may be accessed through the SEC's World Wide Web site at
http://www.sec.gov. No dealer, salesperson or other person is authorized to
give
any information or to make any representations other than those contained in
this prospectus, and, if given or made, such information or representations
must
not be relied upon as having been authorized by us. This prospectus does not
constitute an offer to buy any security other than the securities offered by
this prospectus, or an offer to sell or a solicitation of an offer to buy any
securities by any person in any jurisdiction where such offer or solicitation
is
not authorized or is unlawful. Neither delivery of this prospectus nor any
sale
hereunder shall, under any circumstances, create any implication that there
has
been no change in the affairs of our company since the date hereof.
BIOPHAN
TECHNOLOGIES, INC.
2,273,023
SHARES OF COMMON STOCK
PROSPECTUS
September
4, 2007
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed below. In addition, all documents subsequently
filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 (the “Exchange Act”), prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents:
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·
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Reference
is made to our annual report on Form 10-K for the fiscal year ended
February 28, 2007, as filed with the SEC on May 8, 2007, which is
hereby
incorporated by reference.
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·
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Reference
is made to our report on Form 8-K filed with the SEC on June 19,
2007,
which is hereby incorporated by
reference.
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·
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Reference
is made to our quarterly report on Form 10-Q for the quarter ended
May 31,
2007, as filed with the SEC on July 6, 2007, which is hereby incorporated
by reference.
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·
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Reference
is made to our report on Form 8-K filed with the SEC on August 9,
2007,
which is hereby incorporated by
reference.
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·
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The
description of our common stock is incorporated by reference to our
Registration Statement on Form 10-SB (File No. 000-26057), filed
with the
SEC on May 13, 1999.
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Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Item
6. Indemnification of Directors and Officers.
As
permitted by the Nevada General Corporation Law, we have adopted provisions
in
our certificate of incorporation and by-laws to be in effect at the closing
of
this offering that limit or eliminate the personal liability of our directors.
Consequently, a director will not be personally liable to us or our stockholders
for monetary damages or breach of fiduciary duty as a director, except for
liability for:
·
any
breach of the director's duty of loyalty to us or our
stockholders;
·
any act
or omission not in good faith or that involves intentional misconduct or
a
knowing violation of law;
·
any
unlawful payments related to dividends or unlawful stock repurchases,
redemptions or other distributions; or
·
any
transaction from which the director derived an improper personal
benefit.
These
limitations of liability do not alter director liability under the federal
securities laws and do not affect the availability of equitable remedies such
as
an injunction or rescission.
In
addition, our by-laws provide that:
·
we will
indemnify our directors, officers and, in the discretion of our board of
directors, certain employees to the fullest extent permitted by the Nevada
General Corporation Law; and
·
we will
advance expenses, including attorneys' fees, to our directors and, in the
discretion of our board of directors, to our officers and certain employees,
in
connection with legal proceedings, subject to limited
exceptions.
We
also
maintain general liability insurance that covers certain liabilities of our
directors and officers arising out of claims based on acts or omissions in
their
capacities as directors or officers, including liabilities under the Securities
Act of 1933, as amended.
These
provisions may discourage stockholders from bringing a lawsuit against our
directors for breach of their fiduciary duty. These provisions may also have
the
effect of reducing the likelihood of derivative litigation against directors
and
officers, even though such an action, if successful, might otherwise benefit
us
and our stockholders. Furthermore, a stockholder's investment may be adversely
affected to the extent we pay the costs of settlement and damage awards against
directors and officers pursuant to these indemnification provisions. We believe
that these provisions, the indemnification agreements and the insurance are
necessary to attract and retain talented and experienced directors and
officers.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company 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. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company
in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
Item
7. Exemption from Registration Claimed.
The
2,273,023 shares of common stock to be sold by the selling stockholders pursuant
to this Registration Statement are issuable upon exercise of outstanding stock
options issued pursuant to the Company’s 2001 Stock Option Plan. The stock
options were issued pursuant to the exemption from registration provided by
Section 4(2) of the Securities Act of 1933, as amended.
Item
8. Exhibits.
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Exhibit
Number
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Description
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5.1
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Opinion
of Sichenzia Ross Friedman Ference LLP
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10.1
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Biophan
Technologies, Inc. 2001 Stock Option Plan
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23.1
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Consent
of Sichenzia Ross Friedman Ference LLP (included in Exhibit
5.1)
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23.2
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Consent
of Goldstein Golub Kessler LLP
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Item
9. Undertakings.
|
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The
undersigned Registrant hereby undertakes
to:
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(a)
File,
during any period in which it offers or sells securities, a post-effective
amendment to this Registration Statement to include any additional or changed
material information on the plan of distribution.
(b)
For
determining liability under the Securities Act, treat each post-effective
amendment as a new registration statement of the securities offered, and the
offering of the securities at the time to be the initial bona
fide
offering.
(c)
File
a post-effective amendment to remove from registration any of the securities
that remain unsold at the end of the offering.
(2)
The
undersigned Registrant hereby undertakes that, for the purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to
be a
new registration statement relating to the securities offered therein, and
the
offering of such securities at that time shall be deemed to be the initial
bona
fide offering thereof.
(3)
Insofar as indemnification for liabilities arising under the Securities Act
of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant in
the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of
such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the Town of
Pittsford, New York, on September 4, 2007.
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BIOPHAN
TECHNOLOGIES, INC.
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By: |
/s/
Michael L. Weiner
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Michael
L. Weiner
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President
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By: |
/s/
Robert J. Wood
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Robert
J. Wood
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Interim
Chief Financial Officer
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Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the date
indicated:
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Signature
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Title
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Date
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/s/
Michael L. Weiner
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President
and Director (principal executive officer)
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September
4, 2007
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Michael
L. Weiner
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/s/
Robert J. Wood
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Interim
Chief Financial Officer
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September
4, 2007
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Robert
J. Wood
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(principal
financial and principal accounting
officer)
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/s/
Guenter
H. Jaensch
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Director
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September
4, 2007
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Guenter
H. Jaensch
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/s/
Theodore A. Greenberg
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Director
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September
4, 2007
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Theodore
A. Greenberg
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/s/
Bonita
L. Labosky
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Director
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September
4, 2007
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Bonita
L. Labosky
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/s/
Stan Yakatan
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Director
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September
4, 2007
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Stan
Yakatan
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