<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIOSHIELD TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Georgia 58-2181628
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4405 International Blvd.
Suite B-109
Norcross, GA 30093
BioShield Technologies, Inc. 1996 Directors' Stock Option Plan
(Full Title of the Plan)
Timothy C. Moses, 4405 International Blvd., Suite B-109, Norcross, GA 30093
(Name and address of agent for service)
Copies of Communications to:
Timothy C. Moses
4405 International Blvd.
Suite B-109
Norcross, GA 30093
(770) 925-3432
CALCULATION OF REGISTRATION FEE
1996 Directors' Stock Option Plan
<TABLE>
<CAPTION>
Title of
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
Common Stock
<S> <C> <C> <C> <C>
(no par value) 1,000,000 Shares (1) $33.00 33,000,000 $8,712.00
</TABLE>
(1) Represents 1,000,000 shares of Common Stock, authorized for issuance
under the BioShield Technologies, Inc. (the "Company") 1996 Directors' Stock
Option Plan (the "Stock Option Plan"). This Registration Statement also covers
such indeterminable additional number of shares as may be issuable under the
Stock Option Plan by reason of adjustments in the number of shares covered
thereby as described in the Prospectus.
(2) The price of shares of Common Stock is estimated in accordance with
Rule 457(c), solely for purposes of calculating the registration fee by
reference as the average of the high and low sales prices of the Common Stock on
the Nasdaq SmallCap Stock Market on March 29, 2000, which was $33.00 per share.
<PAGE> 2
Item 6. Indemnification of Directors and Officers
The Company's Bylaws provide for the Company to indemnify each director
and officer of the Company against liabilities imposed upon him (including
reasonable amounts paid in settlement) and expenses incurred by him in
connection with any claim made against him or any action, suit or proceeding to
which he may be a party by reason of his being or having been a director or
officer of the Company. The Company has also entered into Indemnification
Agreements with each officer and director pursuant to which the Company will, in
general, indemnify such persons to the maximum extent permitted by the Company's
Bylaws and the laws of the State of Georgia against any expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement incurred in
connection with any actual or threatened action or proceeding to which such
director or officer is made or threatened to be made a party by reason of the
fact that such person is or was a director or officer of the Company. The
foregoing provisions may reduce the likelihood of derivative litigation against
directors and may discourage or deter shareholders or management from suing
directors for breaches of their duty of care, even though such an action, if
successful, might otherwise benefit the Company and its shareholders.
Insofar as indemnification of liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, or persons controlling the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been informed 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.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Reference is made to the Exhibit Index.
Item 9. Undertakings
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:
<PAGE> 3
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; provided,
however, that paragraphs (1)(i) and (1) (ii) do not apply if the registration
statement is on Form S-3, Form S-8, or Form F-3, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15
(d) of Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions 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 a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or by the registrant or 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 City of Norcross, State of Georgia, on the 30th day of March,
2000.
Bioshield Technologies, Inc.
By /s/ Timothy C. Moses
-----------------------
Timothy C. Moses, President and
Chief Executive Officer
BIOSHIELD TECHNOLOGIES, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy C. Moses and Jacques Elfersy, and
each of them, his or her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and 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 and any other regulatory
authority, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing required and 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 or her substitute, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on March 30, 2000, by the following
persons in the capacities indicated.
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Timothy C. Moses President; Chief Executive Officer; March 30, 2000
- ------------------- Director (Principal Executive Officer)
Timothy C. Moses
/s/ Jacques Elfersy Chairman of the Board; Vice President of March 30, 2000
- ------------------------ Operations and Director of Regulatory
Jacques Elfersy Affairs
/s/ Scott Parliament Chief Financial Officer (Principal March 30, 2000
- ------------------------ Financial and Accounting Officer)
Scott Parliament
/s/ Carl T. Garner Director March 30, 2000
- ------------------------
Carl T. Garner
/s/ Michel Azran Director March 30, 2000
- ------------------------
Michel Azran
</TABLE>
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EXHIBIT INDEX
The following exhibits are filed as a part of the Registration
Statement:
Exhibit 4 BioShield Technologies, Inc. 1996 Directors Stock Option Plan
Exhibit 5 Opinion of Sims Moss Kline & Davis LLP
Exhibit 23.1 Consent of Grant Thornton LLP
Exhibit 23.2 Consent of Sims Moss Kline & Davis LLP (included in Exhibit 5)
Exhibit 24 Power of Attorney (included on signature page herein)
<PAGE> 1
EXHIBIT 4
BIOSHIELD TECHNOLOGIES, INC.
1996 DIRECTORS' STOCK OPTION PLAN
1. PURPOSE
The purpose of this Directors' Stock Option Plan (the "PLAN") is to secure for
Bioshield Technologies, Inc., a Georgia corporation (the "COMPANY"), and its
shareholders the benefits arising from capital stock ownership by Directors of
the Company who are expected to contribute to the Company's future growth and
success.
2. ADMINISTRATION
(a) SHAREHOLDER CONTROL. The Plan is effective only upon adoption by the
shareholders and will remain in effect at the pleasure of the shareholders of
the Company. The Shareholders reserve the right to terminate or modify the Plan
at any time, although such modification or termination shall not affect any
options granted prior to the time of such modification or termination.
(b) ADMINISTRATION. The Plan shall be administered by the Board of Directors of
the Company or the Board may appoint a Plan committee (the "COMMITTEE") of one
or more of its members to administer this Plan. The Committee shall have the
authority, subject to the rights of the shareholders and other express
provisions of the Plan, to construe the respective option agreements and the
Plan, to prescribe, amend and rescind rules and regulations relating to the
Plan, and to make all other determinations which, in the judgment of the
Committee, are necessary or desirable for the administration of the Plan. The
Committee may correct any defect, supply any omission, or reconcile any
inconsistency in the Plan or in any option agreement in the manner and to the
extent it shall be deemed expedient to carry the Plan into effect, and it shall
be the sole and final judgment of such expediency.
(c) INDEMNIFICATION. In addition to such other rights and indemnification that
they may have as Directors of the Company or as members of the Committee, the
members of the Committee shall be indemnified by the Company against the
reasonable expenses, including attorney's fees actually and necessarily incurred
in connection with the defense of any action, suit or proceeding, or in
connection with the defense of any action, or appeal therefrom, to which they or
any of them may be a party by reason of any action taken or failure to act under
or in connection with the Plan or any option granted thereunder, and against all
amounts paid by them in settlement thereof (provided such settlement is approved
by independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment, except in relation to matters as to which it shall
be adjudged in such action that such Committee member is liable for negligence
or misconduct in the performance of his or her duties; provided that within 60
days after institution of any such action a Committee member shall in writing
offer the Company the opportunity, at its own expense, to handle and defend the
same.
3. STOCK SUBJECT TO PLAN.
Subject to adjustment as provided in Sections 9 and 10 hereof, the Company will
reserve 1,000,000 shares of common stock of the Company for issuance under the
Plan. If an option granted under the Plan shall expire or terminate for any
reason without having been exercised in full, the unpurchased shares subject to
such option shall again be available for subsequent option grants under the
Plan. If the Company repurchases such shares which are issued pursuant to the
Plan and repurchased by the Company from the grantee in accordance with the
Stockholder
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Agreement entered into in connection with the exercise of the option, if any,
the repurchase shares shall again be available for subsequent option grants
under the Plan. Stock issuable upon exercise of an option granted under the Plan
may be subject to such restrictions or transfer, repurchase rights, or other
restrictions as shall be determined by the Committee.
4. TERMS AND CONDITIONS OF DIRECTORS' OPTIONS.
(a) INITIAL GRANT. Upon their initial election to the Board of Directors of the
Company, each new Director shall receive an option to acquire 10,000 shares of
common stock of the Company (the "INITIAL Option"), subject to the terms and
conditions contained herein.
(b) SUBSEQUENT OPTIONS. On each of the first, second, third and fourth
anniversary of a Director's initial election to the Board of Directors, the
Director shall receive an additional option to acquire 5,000 shares of common
stock of the Company (the "SUBSEQUENT OPTIONS"), subject to the terms and
conditions contained herein.
(c) OPTION PRICE. The purchase price per share of Common Stock (the "OPTION
PRICE") for all options granted hereunder shall be the Fair Market Value of a
share of Common Stock as of the date of the grant as determined herein;
provided, however, that the first series of Initial Options granted to Directors
on January 1, 1996 shall be set at an Option Price of $2.00 per share regardless
of the Fair Market Value.
(d) DETERMINATION OF FAIR MARKET VALUE. The Committee shall determine the Fair
Market Value of the stock from all relevant available facts, which may (but need
not) include opinions of independent experts as to the value and may take into
account any recent sales and purchases of such stock to the extent they are
represented.
(e) PAYMENT OF PURCHASE PRICE. The Option Price shall be payable upon the
exercise of the option in an amount equal to the number of shares being
purchased times the per share Option Price. The Option Price shall be paid in
cash or by check in United States currency; provided, however, the Committee
may, in its discretion, provide that the exercise price of an option can also be
paid by delivery to the Company of shares of stock of the Company already owned
by the optionee having a fair market value (as determined pursuant to paragraph
(c) of this section as of the date of transfer) equal in amount to the exercise
price of the options being exercised, or by a combination of delivery of such
stock and cash or check.
(f) TERM OF OPTIONS. Each option granted hereunder shall be exercisable
immediately upon grant, and shall expire on the fifth anniversary following the
day on which the option is granted. Notwithstanding the foregoing, in the event
that any Director is no longer a member of the Board, whether the Director's
termination is voluntary or involuntary by death or otherwise, all options
granted to such Director shall expire 60 days following the last date on which
the Director is a member of the Board of Directors. The option may be exercised
at any time during such 60 day period by the Director, his or her executor or
personal representative, but if not exercised in full, all options shall expire
on the 60th day following the Director's last day as a member of the Board of
Directors.
(g) EXERCISE OF OPTIONS. Each option granted under the Plan shall be exercisable
either in full or in part at such time or times as the holder of the option may
choose during the option period.
5. METHOD OF EXERCISE; CLASSIFICATION OF SHARES ACQUIRED PURSUANT TO
EXERCISE OF CERTAIN INCENTIVE STOCK OPTIONS.
All options granted hereunder shall be exercised by written notice
directed to the Treasurer of the Company (or such other person that the
Committee may designate) at its principal place of business, accompanied by
payment, make in accordance with the terms of paragraph (e) of Section 4 hereof,
of the Option Price for the number of shares specified in the notice of
exercise, and by any documents otherwise required. The Company shall make
delivery of such shares within a reasonable period of time; provided, however,
that if any law or regulation required the Company to take any action
(including, but not limited to, the filing of a registration statement under
2
<PAGE> 3
the Securities Act of 1933 and causing such registration statement to become
effective) with respect tot he shares specified in such notice before the
issuance thereof, then the date of delivery of such shares shall be extended for
the period necessary to take such action.
6. NONTRANSFERABILITY OF OPTIONS.
No option granted under the Plan shall be assignable or
transferable by the person to whom it is granted, either voluntarily or by
operation of law, except by will or the laws of descent and distribution. During
the life of the recipient, the option shall be exercisable only by such person
or his guardian or legal representative.
7. GENERAL RESTRICTIONS.
(a) INVESTMENT REPRESENTATIONS. The Company may require any Director to
whom an option is granted, as a condition of exercising such option, to give
written assurances in substance and form satisfactory to the Company to the
effect that such person is acquiring the Stock subject to the option for his or
her own account for investment and not with any present intention of selling or
otherwise distributing the same, and to such other effects as the Company deems
necessary or appropriate in order to comply with federal and applicable state
securities laws.
(b) COMPLIANCE WITH SECURITIES LAWS. Each option shall be subject to
the requirement that, if at any time counsel to the Company shall determine that
the listing, registration, or qualification of the shares subject to such option
upon any securities exchange or under any state or federal law, or the consent
to approval of any governmental or regulatory body, is necessary as a condition
of, or in connection with, the issuance or purchase of shares thereunder, such
option may not be accepted or exercised in whole or in part unless such listing,
registration, qualification, consent, or approval shall have been affected or
obtained on conditions acceptable to the Committee. Nothing herein shall be
deemed to require the Company to apply for or to obtain such listing,
registration, or qualification.
8. RIGHTS AS A SHAREHOLDER.
The holder of an option shall have no rights as a shareholder
with respect to any shares covered by the option until the date of issue of a
stock certificate to him or her for such shares and only after such shares are
fully paid. Except as otherwise expressly provided in the Plan, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the date such stock certificate is issued.
9. RECAPITALIZATION.
In the event that the outstanding shares of Stock of the Company are
changed into or exchanged for a different number or kind of shares or other
securities of the Company by reason of any recapitalization, reclassification,
stock split, stock dividend, combination, or subdivision, appropriate adjustment
shall be made in the number and kind of shares available under the Plan and
under any options granted under the Plan. No fractional shares shall be issued
or optioned in making the foregoing adjustments. All adjustments made by the
Committee under this Section shall be conclusive.
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<PAGE> 4
10. REORGANIZATION.
In case the Company is merged or consolidated with another corporation
and the Company is not the surviving corporation, or in case all or
substantially all of the assets or more then 50% of the outstanding voting stock
of the Company is acquired by another corporation, or in case of a
reorganization or liquidation of the Company, the Committee, or the Board of
Directors of any corporation assuming the obligations of the Company, shall, as
to outstanding options, either (a) make appropriate provisions for the
protection of any such outstanding options by the substitution on an equitable
basis of appropriate stock of the Company, or of the merged, consolidated, or
otherwise reorganized corporation that will be issuable in respect to the shares
of Stock of the Company, or (b) upon written notice to the optionees, provide
that all unexercised options must be exercised within a specified number of days
of the date of such notice or they will be terminated. In any such case, the
Committee may, in its discretion, accelerate the date on which outstanding
options become exercisable.
11. RESTRICTION ON TRANSFER.
The Company reserves to itself or its assignee the right of first
refusal to purchase the Shares, or any portion thereof, that an Optionee (or a
subsequent transferee) proposes to transfer to a third party. The purchase shall
be completed within thirty (30) days of the receipt of notice by the Company
that an offer has been made by a third party to purchase the Shares. The price
to be paid for the Shares shall be the lesser of (i) their fair market value on
the date of purchase, which fair market value shall be determined by the Board
of Directors of the Company who may use such methods and methodology as it deems
appropriate, and (ii) the price per Share offered by the proposed purchaser.
Payment shall be made in cash on the date of the purchase unless the Optionee
and Company shall agree otherwise. In the event that the Company fails to
exercise its option, then the Optionee may sell the Shares to the proposed
transferee at a price per Share not less than the price offered by the proposed
transferee at any time within 90 days following the receipt by the Company of
the original notice.
12. NO SPECIAL EMPLOYMENT RIGHTS.
Nothing contained in the Plan or in any option granted under
the Plan shall confer upon any option holder any right with respect to the
continuation of his or her employment by the Company (or any Parent of
Subsidiary) or interfere in any way with the right of the company (or any Parent
of Subsidiary), subject to the terms of any separate employment agreement to the
contrary, at any time to terminate such employment or to increase or decrease
the compensation of the option holder from the rate in existence at the time of
the grant of an option.
13. DEFINITION OF SUBSIDIARY AND PARENT.
(a) SUBSIDIARY. The term "Subsidiary" as used in the Plan
shall mean any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company if, at the time of the determination,
each of the corporations other than the last corporation in the unbroken chain
owns stock possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
(b) PARENT. The term "Parent" used in the Plan shall mean any
corporation (other than the Company) in an unbroken chain of corporations ending
with the Company if each of the corporations other than the Company owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
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<PAGE> 5
14. WITHHOLDING.
The Company's obligation to deliver shares upon the exercise of any
option granted under the Plan shall be subject to the option holder's
satisfaction of all applicable federal, state, and local income and employment
tax and withholding requirements in a manner and form satisfactory to the
Company.
15. EFFECTIVE DATE AND DURATION OF THE PLAN.
(a) EFFECTIVE DATE. The plan shall become effective when
adopted by the Board of Directors and Shareholders. Subject to this limitation,
options may be granted under the Plan at any time after the effective date and
before the date fixed for termination of the Plan.
(b) TERMINATION. Unless sooner terminated in accordance with
the terms herein, the Plan shall terminate upon the earlier of (i) the close of
the business on the day next preceding the tenth anniversary of the date of its
adoption by the Board of Directors, or (ii) the date on which all shares
available for issuance under the Plan shall have been issued pursuant to the
exercise of options granted under the Plan. If the date of termination is
determined under (i) above, then options outstanding on such date shall continue
to have force and effect in accordance with the provisions of the instruments
evidencing such options.
5
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EXHIBIT 5
March 30, 2000
BioShield Technologies, Inc.
Suite B109
4405 International Boulevard
Norcross, Georgia 30083
Re: Registration Statement on Form S-8 Relating to the BioShield
Technologies, Inc. 1996 Directors Stock Option Plan (the "Stock Option
Plan")
Gentlemen:
With respect to the Registration Statement on Form S-8 (the "Registration
Statement"), filed by BioShield Technologies, Inc., a Georgia corporation (the
"Company"), with the Securities and Exchange Commission for the purpose of
registering under the Securities Act of 1933, as amended, 1,000,000 shares of
the Company's Common Stock, no par value per share, for issuance pursuant to the
Stock Option Plan, we have examined such documents and questions of law we
consider necessary or appropriate for the purpose of giving this opinion. On the
basis of such evaluation, we advise you that in our opinion the 1,000,000 shares
covered by the Registration Statement, upon the exercise of stock options, at
the prices described in the Registration Statement, and upon delivery of such
shares and payment therefor in accordance with the terms stated in the Stock
Incentive Plan and the Registration Statement, will be duly and legally
authorized, issued and outstanding and will be fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or under the rules and regulations of
the Securities and Exchange Commission relating thereto.
Sincerely,
SIMS MOSS KLINE & DAVIS LLP
/s/ Raymond L. Moss
-------------------
By: Raymond L. Moss, Partner
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
BioShield Technologies, Inc.
Atlanta, Georgia
We have issued our reports dated August 19, 1999, accompanying the financial
statements of BioShield Technologies, Inc. and Subsidiary appearing in the 1999
Annual Report of the Company to its shareholders and accompanying the schedules
included in the Amendment No. 1 to the Annual Report on Form 10-KSB for the year
ended June 30, 1999 which are incorporated by reference in this Registration
Statement. We consent to the incorporation by reference in the Registration
Statement of the aforementioned reports and to the use of our name as it appears
under the caption "Experts."
Atlanta, Georgia
March 27, 2000
