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As filed with the Securities and Exchange Commission on January 8, 2001
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Registration No. 333-______
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BIOSANTE PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
WYOMING 58-2301143
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
175 OLDE HALF DAY ROAD, SUITE 247
LINCOLNSHIRE, IL 60069
(Address of Principal Executive Offices) (Zip Code)
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1998 STOCK OPTION PLAN
(Full title of the plan)
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PHILLIP B. DONENBERG,
CHIEF FINANCIAL OFFICER
BIOSANTE PHARMACEUTICALS, INC.
175 OLDE HALF DAY ROAD, SUITE 247
LINCOLNSHIRE, IL 60069
(847) 793-2458
(Name, address and telephone number,
including area code, of agent for service)
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
IMMEDIATELY UPON THE FILING OF THIS REGISTRATION STATEMENT
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED(1) OFFERING PRICE PER AGGREGATE OFFERING PRICE REGISTRATION FEE
UNIT(2)
-------------------------- ------------------- ------------------------- -------------------------- -----------------
Common stock, no par
value per share 7,000,000 shares $2,940,000 $.42 $735.00
========================== =================== ========================= ========================== =================
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, this
registration statement includes an indeterminate number of additional
shares which may be offered and sold as a result of anti-dilution
provisions described in the 1998 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee and calculated pursuant to Rule 457(h) under the
Securities Act as follows: (i) with respect to options to purchase shares
previously granted under the 1998 Stock Option Plan, on the basis of the
weighted average exercise price of these option grants, and (ii) with
respect to options to be granted under the 1998 Stock Option Plan, on the
basis of the average between the high and low sales prices of the
registrant's common stock on January 3, 2001 on the over-the-counter
market, as reported by the Over-the-Counter Bulletin Board.
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PART I
INFORMATION REQUIRED
IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 have been or will be sent or given to participants as specified by Rule
428(b)(1) under the Securities Act.
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PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by BioSante Pharmaceuticals, Inc. (File
No. 0-28637) with the Securities and Exchange Commission are incorporated by
reference in this registration statement:
(1) BioSante's annual report on Form 10-KSB for the fiscal year ended
December 31, 1999.
(2) BioSante's quarterly reports on Form 10-QSB for the quarters ended
March 31, 2000, June 30, 2000 and September 30, 2000.
(3) BioSante's current report on Form 8-K as filed with the SEC on July
11, 2000.
(4) The description of BioSante's common stock contained in its
registration statement on Form 10-SB filed with the SEC on December 23, 1999
under the Securities Exchange Act of 1934, as amended, including any amendments
or reports filed for the purpose of updating the description.
All documents filed by BioSante with the SEC pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date
of this registration statement and prior to the filing of a post-effective
amendment which indicates that all securities offered pursuant to this
registration statement have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The description of our common stock to be offered pursuant to this
registration statement has been incorporated by reference into this registration
statement as described in Item 3 of this Part II.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of our common stock offered hereby will be
passed upon for BioSante by Holland & Hart LLP, Cheyenne, Wyoming.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Articles of Continuance limit the liability of our directors and
officers to the fullest extent permitted by the Wyoming Business Corporation
Act. Specifically, our directors will not be personally liable for monetary
damages for breach of fiduciary duty as our directors, except liability for (1)
the amount of financial benefit received by our director to which our director
is not entitled, (2) an intentional infliction of harm to us or our
shareholders, (3) a violation of Section 17-16-833 of the Wyoming Business
Corporation Act, and (4) an intentional violation of criminal law. Liability
under federal securities law is not limited by our Articles of Continuance.
We maintain an insurance policy for our directors and executive
officers pursuant to which our directors and executive officers are insured
against liability for certain actions in their capacity as our directors and
executive officers.
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The Wyoming Business Corporation Act requires that we indemnify any
director, made or threatened to be made a party to a proceeding, by reason of
the former or present official capacity of the person, against reasonable
expenses incurred in connection with the proceeding if certain statutory
standards are met. "Proceeding" means a threatened, pending or completed civil,
criminal, administrative, arbitration or investigative proceeding, including a
derivative action by us. Reference is made to the detailed terms of the Wyoming
indemnification statute, Section 17-16-852 of the Wyoming Business Corporation
Act, for a complete statement of such indemnification rights. Section 15 of our
Articles of Continuance also require us to provide indemnification beyond the
mandatory indemnification in Section 17-16-852 for our officers and directors.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers or persons controlling us
pursuant to the foregoing provisions, we are aware that in the opinion of the
Securities and Exchange Commission this indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable. No securities are to be re-offered or resold pursuant
to this registration statement.
ITEM 8. EXHIBITS.
EXHIBIT NO.
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5.1 Opinion of Holland & Hart LLP (filed herewith).
23.1 Consent of Deloitte & Touche LLP (filed herewith).
23.2 Consent of Holland & Hart LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page to this
registration statement).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
registration statement (or the most recent
post-effective amendment hereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in this registration statement. Notwithstanding
the foregoing, any increase or decrease in
volume of securities offered (if the total
dollar value of securities offered would not
exceed that which was registered) and any
deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus filed with
the SEC pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the
"Securities Act") if, in the aggregate, the
changes in volume and price represent no more
than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement;
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(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in this registration
statement or any material change to such
information in this registration statement.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) above 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 SEC by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
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) 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.
(b) The undersigned registrant hereby undertakes that, for 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 Exchange Act) that is incorporated by
reference in this 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.
(c) 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 SEC 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 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 Securities Act and will be governed by the final
adjudication of such issue.
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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 of 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 City of Lincolnshire, State of Illinois, on December 12,
2000.
BIOSANTE PHARMACEUTICALS, INC.
By: /s/ Stephen M. Simes
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Stephen M. Simes
President and Chief Executive Officer
(principal executive officer)
By: /s/ Phillip B. Donenberg
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Phillip B. Donenberg
Chief Financial Officer, Treasurer and
Secretary
(principal financial and
accounting officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Stephen M. Simes and Phillip B. Donenberg, and each of them, his or her true and
lawful attorney-in-fact and agent with full powers of substitution and
resubstitution, for and in his or her name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on December 12, 2000 by the following
persons in the capacities indicated.
SIGNATURE TITLE
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/s/ Stephen M. Simes President and Chief Executive Officer
------------------------------- and Director
Stephen M. Simes
/s/ Louis W. Sullivan, M.D. Chairman of the Board and Director
-------------------------------
Louis W. Sullivan, M.D.
/s/ Avi Ben-Abraham, M.D. Director
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Avi Ben-Abraham, M.D.
/s/ Victor Morgenstern Director
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Victor Morgenstern
/s/ Edward C. Rosenow, III, M.D. Director
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Edward C. Rosenow, III, M.D.
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/s/ Fred Holubow Director
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Fred Holubow
/s/ Ross Mangano Director
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Ross Mangano
/s/ Angela Ho Director
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Angela Ho
/s/ Peter Kjaer Director
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Peter Kjaer
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BIOSANTE PHARMACEUTICALS, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT
NO. ITEM METHOD OF FILING
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<S> <C> <C>
5.1 Opinion of Holland & Hart LLP...........................Filed herewith.
23.1 Consent of Deloitte & Touche LLP........................Filed herewith.
23.2 Consent of Holland & Hart LLP...........................Included in Exhibit 5.1.
24.1 Power of Attorney.......................................Included on the signature page to this
registration statement.
</TABLE>
