As filed with the Securities and Exchange Commission on June 13, 1997
Registration No. 333-____________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------------------------------------------
BIOMUNE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Nevada 0-11472 87-0380088
<S> <C> <C>
(State or other jurisdiction (Commission file number) (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
2401 South Foothill Drive
Salt Lake City, Utah 84109-1405
(Address of Principal Executive Offices)
BIOMUNE SYSTEMS, INC. CONSULTANT AND EMPLOYEE COMPENSATION SHARES
(Full title of the plan)
--------------------------------------------------
David G. Derrick, Chief Executive Officer
Biomune Systems, Inc.
2401 South Foothill Drive
Salt Lake City, Utah 84109-1405
Telephone: (801) 466-3441
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
<TABLE>
<CAPTION>
================================================================================================
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Price Per Aggregate Offering Amount of
To Be Registered Registered Share(1) Price(1) Registration Fee
- ------------------------------------------------------------------------------------------------
Common Stock,
$0.0001 par value 1,272,000 shares $.53125 $675,750 $204.77
================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
based upon the average of the final bid and ask prices for Biomune Systems,
Inc. Common Stock as quoted on the NASDAQ SmallCap Market(sm) on June 9, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to employees as specified by Rule
428(b)(1). Such documents are not required to be and are not filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant
to Rule 424. These documents and the documents incorporated by reference in
this Registration Statement pursuant to Item 3 of Part II of this form S-8,
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933, as amended (the "Securities Act").
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1996.
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended December 31, 1996 and March 31, 1997.
(c) The Company's Form S-8 Registration Statement, Registration
No. 333-18157, filed with the Securities and Exchange Commission on December
19, 1996.
(d) The description of the Company's Common Stock included in
the Company's Registration Statement on Form 8-A filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as
amended, on January 12, 1984.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 after the date this
Registration Statement is filed with the Securities and Exchange Commission
but 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 in this
Registration Statement and to be a part hereof from the respective dates of
the filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration Statement to
the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 6. Indemnification of Directors and Officers.
Article VII of the Company's Articles of Incorporation, as amended, and
Sections 4.15, 4.16 and 4.17 of the Company's Bylaws, provide for mandatory
indemnification of the Company's directors and officers, and for discretionary
indemnification of the Company's officers, employees, fiduciaries or agents,
subject to the Company's determination in each instance that indemnification
is in accordance with the standards set forth in the Articles of Incorporation
and the Bylaws. The Company may purchase and maintain liability insurance on
behalf of a person who is or was a director, officer, employee, fiduciary, or
3
<PAGE>
agent of the Company against liability asserted against or incurred by him or
her in that capacity or arising from his or her status as a director, officer,
employee, fiduciary, or agent, whether or not the Company would have power to
indemnify him or her against the same liability under the provisions of the
Articles of Incorporation. In addition, the Articles of Incorporation and the
Bylaws of the Company provide for the mandatory payment of expenses of
directors and officers in defending any action, suit or proceeding in advance
of final disposition of such action, suit, proceeding, etc., provided such
person shall sign an undertaking to repay such expenses following final
determination to the extent the person is not entitled to be indemnified by
the Company under Nevada law. See the above-referenced sections of the
Articles of Incorporation and Bylaws of the Company which contain the full
terms and conditions relevant to such indemnification and which by this
reference are incorporated in and made a part of this Registration Statement.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
Item 8. Exhibits
The following exhibits are filed as a part of this Registration
Statement:
Exhibit No. Description
- ----------- -------------------------------------------
5.1 Opinion of Durham, Evans, Jones & Pinegar, P.C. (including
consent)
10.1 Agreement with Allan H. Barker
10.2 Agreement with Joy M. Erickson
10.3 Agreement with Larry Horowitz
10.4 Agreement with Adam Kristcher
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Durham, Evans, Jones & Pinegar, P.C. (included
in Exhibit 5.1 above)
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:
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<PAGE>
(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,
represent 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 (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the 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.
(b) 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 the 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 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
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.
5
<PAGE>
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 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 Salt Lake, State of Utah, on June
12, 1997.
BIOMUNE SYSTEMS, INC. (Registrant)
By: /s/ David G. Derrick
----------------------------------
David G. Derrick
Its: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers or
directors of the registrant, by virtue of their signatures to this
Registration Statement appearing below, hereby constitute and appoint David G.
Derrick as attorney-in-fact in his name, place and stead to execute any and
all amendments to this Registration Statement in the capacities set forth
opposite their names and hereby ratify all that said attorney-in-fact may do
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registrati
on Statement has been signed below by the following persons in the capacities
and on the dates indicated:
SIGNATURE TITLE DATE
- ------------------------ ----------------------------------- -------------
/s/ David G. Derrick President, Chief Executive Officer, June 12, 1997
- ------------------------ Chairman of the Board and
David G. Derrick Director (Principal Executive
Officer)
/s/ Milton G. Adair Director June 12, 1997
- ------------------------
Milton G. Adair
/s/ Michael G. Acton Chief Financial Officer June 12, 1997
- ------------------------ (Principal Financial and
Michael G. Acton Accounting Officer)
/s/ Aaron Gold Director June 12, 1997
- ------------------------
Aaron Gold
/s/ Charles J. Quantz Director June 12, 1997
- ------------------------
Charles J. Quantz
6
<PAGE>
/s/ Thomas Q. Garvey, III Director June 10, 1997
- -------------------------
Thomas Q. Garvey, III
/s/ Christopher D. Illick Director June 12, 1997
- -------------------------
Christopher D. Illick
7
EXHIBIT 5.1
[DURHAM, EVANS, JONES & PINEGAR, P.C. LETTERHEAD]
(801) 538-2424
June 11, 1997
Securities and Exchange Commission,
Division of Corporate Finance
450 Fifth Street, N.W., Judicial Plaza
Washington, D.C. 20549
Re: Biomune Systems, Inc. Form S-8 Registration Statement Relating to
1,272,000 Shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel for Biomune Systems, Inc., a Nevada corporation
(the "Company"), in connection with its proposed registration of a total of
1,000,000 post-split shares of Common Stock, $0.0001 par value per share. In
that connection, it is our opinion that the securities being registered will,
upon receipt by the Company of consideration for the securities and the
issuance of the securities, be legally issued, fully-paid and non-assessable.
We consent to the inclusion of our opinion as an Exhibit to the
Registration Statement of Biomune Systems, Inc. on Form S-8 under the
Securities Act of 1933, as amended. We express no opinion on the law of any
jurisdiction other than the Nevada Private Corporations Act, as amended, and
the Securities Act of 1933, as amended.
Cordially,
/s/ Durham, Evans, Jones & Pinegar
DURHAM, EVANS, JONES & PINEGAR, P.C.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated November
5, 1996, included in Biomune Systems, Inc.'s Annual Report on Form 10-K for
the year ended September 30, 1996 and to all references to our Firm included
in this Form S-8 Registration Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Salt Lake City, Utah
June 12, 1997
Exhibit 10.1
LETTER OF AGREEMENT
This is a Letter of Agreement between Biomune Systems, Inc. (the "Company")
and Dr. Allan H. Barker ("Consultant") effective as of June 3, 1997.
CONSULTING DUTIES
Consultant has performed services for the Company which includes but are not
limited to the following:
A. Designed and reviewed protocols for clinical trials.
B. Reviewed research data the Company receives from various Universities.
C. Designed and reviewed information regarding IND's.
D. Various communication with the FDA.
COMPENSATION
Consultant will be compensated as follows:
a. 90,000 free-trading shares of the Company's Common Stock.
The above description of duties and compensation are agreed to by the
undersigned.
Biomune Systems, Inc.
By: /s/ Michael G. Acton /S/ Allan H. Barker
- ---------------------------- --------------------------
Michael G. Acton Allan H. Barker
Its: Chief Financial Officer
and Controller
June 2, 1997 June 2, 1997
- ------------ ------------
Date Date
Exhibit 10.2
LETTER OF AGREEMENT
This is a Letter of Agreement between Biomune Systems, Inc. (the "Company")
and Joy M. Erickson ("Consultant") effective as of June 2, 1997.
CONSULTING DUTIES
Consultant has performed services for the Company which includes but are not
limited to the following:
A. Marketing in the AIDS/HIV market
B. Commercial Projects
COMPENSATION
Consultant will be compensated as follows:
a. 32,000 free-trading shares of the Company's Common Stock.
The above description of duties and compensation are agreed to by the
undersigned.
Biomune Systems, Inc.
By: /s/ Michael G. Acton
- --------------------------- -----------------------------
Michael G. Acton Joy M. Erickson
Its: Chief Financial Officer
June 2, 1997
- ------------- ---------------
Date Date
Exhibit 10.3
AGREEMENT
This Agreement, made effective May 30, 1997 by and between Larry Horowitz, an
individual ("Horowitz") and Biomune Systems, Inc., a Nevada Corporation
("Biomune");
NOW THEREFORE, the parties agree as follows:
1. Engagement, Duties and Acceptance.
1.1 Engagement by Biomune. Biomune hereby agrees to retain
Horowitz for the following purposes:
(a) Provide introductions to potential business partners;
(b) Provide introductions and information and about
potential business partners.
(c) Assist in the marketing of Biomune products.
(d) Provide introductions to potential retailers of
Biomune's products.
1.2 Acceptance of Engagement by Horowitz. Horowitz hereby
accepts such engagement and shall render engagement services as described
above.
2. Term of Agreement. The term of Horowitz's engagement under this
Agreement (the "Term") shall commence on February 11, 1997 (the "Commencement
Date") and shall continue through and expire on the 31st day of January,
1998, unless sooner terminated by either Biomune or Horowitz upon thirty (30)
days written notice. This Agreement may continue in effect beyond the Term if
mutually agreed in writing by both Biomune and Horowitz.
3. Compensation. As compensation for services to be rendered pursuant
to this Agreement, Biomune shall pay Horowitz 300,000 warrants and 200,000
shares of Biomune common stock that will be registered pursuant to an S-8
registration statement. The warrants will be exercisable at $.63 per share
for a period of two years from the date hereof.
4. Confidential Information. During the Term of Agreement and for a
period of five (5) years after the termination of this Agreement, Horowitz
shall keep secret and retain in strictest confidence and shall not use, for
the benefit of itself or others, all confidential matters of the Biomune
including, without limitation, "know-how", trade secrets, customer lists,
details of client or consultant contracts, pricing policies, operational
methods, marketing plans, methods of production and distribution, technical
processed, designs and design projects, inventions and research projects of
Biomune learned by Horowitz heretofore or during the Term hereof.
5. Other Provisions.
5.1 Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission
or, if mail, five days after the date of deposit in the United States mail, as
follows:
(i) if to Biomune, to:
Biomune Systems, Inc.
2401 South Foothill Drive
Salt Lake City, UT 84109
with a copy to:
Kevin Pinegar, Esquire
Durham, Evans, Jones & Pinegar
Suite 850 Key Bank Tower
50 South Main Street
Salt Lake City, Utah 84144
(ii) if to Larry Horowitz, to:
Larry Horowtiz
P.O. Box 179
Hewlett, New York 11557
5.2 Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, including an agreement dated and approved on
February 11, 1997, and any other agreements written or oral, with respect
thereto.
5.3 Governing Law; Venue. This Agreement shall be governed and
construed in accordance with the laws of the State of Utah applicable to
agreements made and to be performed entirely within such state. The parties
submit themselves tot the jurisdiction of the federal and state courts located
in Utah and agree to commence any lawsuit arising under or relating to this
Agreement in such courts.
5.4 Assignment. This Agreement, and any rights and obligations
hereunder, may not be assigned by any party hereto without the prior written
consent of the other party.
5.5 Headings. The Headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of
the date first above written.
BIOMUNE SYSTEMS, INC.
/s/ David G. Derrick
------------------------------------------
By: David G. Derrick
Its: President
/s/ Larry Horowitz
------------------------------------------
Larry Horowitz
Exhibit 10.4
EXTENSION AGREEMENT
This Agreement, made effective May 29, 1997, by and between AAM Group, Inc.
("AAM") and Biomune Systems, Inc., a Nevada Corporation ("Biomune");
RECITALS
A. An Agreement was made between AAM and Biomune Dated November 25, 1996
("Original Agreement "). The Original Agreement terminated on the 30th day of
March, 1997.
B. The parties hereto desire to continue and extend the consulting
arrangement.
NOW THEREFORE, in consideration of the mutual covenants made herein, the
parties hereto agree as follows:
1. Engagement. The terms and duties of the engagement are the same as
in the Original Agreement
2. Term of the Agreement. The term of AAM's engagement under this
Extension Agreement (the "Term") shall commence on April 1, 1997 (the
"Commencement Date") and shall continue through and expire on the 30th day of
March, 1998 unless sooner terminated by either Biomune or AAM upon thirty (30)
days written notice.
3. Compensation, As compensation for services to be rendered pursuant
to this Extension Agreement, Biomune shall pay AAM 15,000 shares of Biomune
common stock that will be registered pursuant to an S-8 registration
statement.
4. All other terms and conditions contained in the Original Agreement
are incorporated herein.
IN WITNESS WHEREOF, the parties have executed this Extension Agreement
effective as of the date first above-written.
BIOMUNE SYSTEMS, INC.
By: /s/ David G. Derrick
- ------------------------------------------------
Its: President
AAM GROUP, INC.
By: /s/ Adam Kristcher
- -----------------------------------------------
Its: President
