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)
_____________
Nevada 87-0380088
(State or other jurisdiction of incorporation) (I.R.S.
Employer
Identification No.)
2401 South Foothill Drive
Salt Lake City, Utah 84109
(801) 466-3441
(Address of principal executive offices and Zip Code and Telephone Number of
Issuer)
1993 Stock Option and Incentive Plan
1996 Stock Option and Incentive Plan
Employee and Consultant Shares
(Full Title of the Plans)
________________________________
David G. Derrick, Chief Executive Officer and President
BIOMUNE SYSTEMS, INC.
2401 South Foothill Drive
Salt Lake City, Utah 84109
(801) 466-3441
(Name, address and telephone number, including area code, of agent for
service)
Copies to:
Kevin R. Pinegar, Esq.
Durham, Evans, Jones & Pinegar, P.C.
50 South Main Street, Suite 850
Salt Lake City, Utah 84144
(801) 538-2424
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
______________________________________________________________________________________________________________________
Title of each class Proposed maximum Proposed maxi-
of securities to be Amount to be offering price per mum aggregate Amount of
registered registered(1) unit offering price registration fee(4)
<S> <C> <C> <C> <C>
Common Shares, 720,000 shares $1.50 $ 1,080,000(2) $ 318.60
par value $.0001
per share, granted
to consultants
Common Shares, 365,000 shares $0.50 $ 182,500(3) $ 53.84
par value $.0001
per share, subject
to stock options
granted to directors
and employees
Common Shares, 729,096 shares $1.50 $ 1,093,644(2) $ 322.62
par value $.0001
per share, subject
to stock awards,
stock options or
stock warrants to
be granted to
employees, directors,
or consultants
Total 1,814,096 shares -- $ 2,356,144 $ 695.06
</TABLE>
(1) This Registration Statement also covers an indeterminate number of Common
Shares that may be issuable by reason of stock splits, stock dividends or
similar transactions in accordance with Rule 416 under the Securities Act
of 1933, as amended.
(2) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, based
upon the average of the high and low prices of the Common Shares as
reported on NASDAQ on February 27, 1998 (within 5 business days prior to
the date of filing the Registration Statement).
(3) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, based upon the
price at which the options may be exercised.
(4) .000295 times the maximum aggregate offering price, pursuant to Section
6(b) of the Securities Act of 1933, as amended.
<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 and consultants 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").
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.Incorporation of Documents by Reference.
The following documents filed with the Commission by Biomune Systems, Inc.
(the "Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K and 10-K/A for the fiscal
year ended September 30, 1997;
(b) The Company's Current Report on Form 8-K, dated October 27, 1997,
as filed on November 10, 1997;
(c) The Company's Current Report on Form 8-K, dated November 7, 1997,
as filed on November 10, 1997 relating to the reverse stock split;
(d) The Company's Current Report on Form 8-K, dated November 7, 1997,
as filed on November 10, 1997 relating to the proposed Rockwood
acquisition;
(e) The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1997;
(f) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997;
(g) Description of the class of securities of the Company to be offered,
(incorporated by reference to the Company's Annual Report on Form
10-K for the fiscal year ended September 30, 1993); and
(h) Current Report on Form 8-K, dated January 9, 1998, as filed on
January 9, 1998.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement 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 date
of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 78.751 of the Nevada Private Corporations Act, as amended (the
"Nevada Act"), permits a corporation organized thereunder to indemnify its
directors, officers, employees and agents for certain of their acts. The
Company's Amended and Restated Articles of Incorporation (filed with the Nevada
Secretary of State on August 4, 1995) have been framed so as to conform to
Section 78.751 of the Nevada Act.
In general, under the Nevada Act, any director, officer, employee or agent
may be indemnified against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with an action, suit or proceeding to which such person is a party if that
person acted in good faith and in a manner that he reasonably believed to be in
or not opposed to the best interests of the corporation. To the extent that any
such person has been successful on the merits or otherwise in defense of any
such action, suit or proceeding or in defense thereof, he must be indemnified by
the corporation against expenses, including attorneys' fees, actually and
reasonably incurred. Any indemnification must be made by the corporation only
after a determination (i) by vote of the stockholders, (ii) by majority vote of
a quorum of the independent directors, or (iii) by independent legal counsel,
that the applicable standard of conduct was met by the person to be indemnified.
The circumstances under which indemnification is granted in connection with an
action brought by or on behalf of the corporation are generally the same as
those set forth above.
Under the Nevada Act, indemnification may also be granted pursuant to the
terms of agreements that may be entered into by the corporation. The Nevada Act
also grants Nevada corporations the power to purchase and maintain insurance
that protects its officers and directors against any liabilities incurred in
connection with their services in such positions, and such a policy of insurance
may be obtained by the Company in the future.
The Company's Amended and Restated Articles of Incorporation and Amended
and Restated Bylaws (which were adopted by the Company's Board of Directors on
March 22, 1996) provide for indemnification of the officers and directors of the
Company as set forth below.
Article VII of the Company's Amended and Restated Articles of Incorporation
provides as follows:
ARTICLE VII
Elimination of Liability; Indemnification
7.1. Elimination of Liability. No director or officer of the Corporation
will be liable to the Corporation or its shareholders for damages
for breach of fiduciary duty as a director or officer, excepting
only (a) acts or omissions that involve intentional misconduct,
fraud or a knowing violation of law or (b) the payment of dividends
in violation of Nevada Revised Statutes Section 78.300. In the
event that the Nevada Private Corporations Law is amended after the
filing of these Amended and Restated Articles of Incorporation to
authorize corporate action further eliminating or limiting the
personal liability of a director or officer, then the liability of
a director or officer of the Corporation shall be eliminated or
limited to the fullest extent permitted by the Nevada Private
Corporations Law, as so amended.
7.2. Mandatory Indemnification. The Corporation shall indemnify the
directors and officers of the Corporation to the fullest extent
permitted by the Nevada Private Corporations Law as the same now
exists or may hereafter be amended.
7.3. Mandatory Payment of Expenses. The Corporation shall pay the
expenses incurred by a director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding
in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it should be ultimately
determined that he or she is not entitled to be indemnified by the
Corporation as authorized by the Nevada Private Corporations Law.
7.4. Effect of Amendment or Repeal. Any amendment to or repeal of any of
the provisions in this Article VII shall not apply to or have any
effect on the liability or alleged liability of any director or
officer of the Corporation, or otherwise affect any right or
protection of a director or officer of the Corporation, for or with
respect to any acts or omissions of the director or officer
occurring prior to the amendment or repeal, except as otherwise
required by a mandatory provision of law.
Article IV of the Company's Amended and Restated Bylaws provides as
follows:
ARTICLE IV
BOARD OF DIRECTORS
Section 4.16. Indemnification; Advancement of Expenses. The
Corporation shall indemnify the officers and directors
of the Corporation to the fullest extent permitted by
the Nevada Private Corporations Act as the same now
exists or may hereafter be amended. In the event that
the Nevada Private Corporations Act is amended after the
filing of the Corporation's Amended and Restated
Articles of Incorporation with the Nevada Secretary of
State's Office so as to authorize corporate action
further eliminating or limiting the personal liability
of an officer or director, then the liability of an
officer or director of the Corporation shall be
eliminated or limited to the fullest extent permitted
by the Nevada Private Corporations Act as so amended.
The Corporation shall pay the expenses incurred by an
officer or director in defending any civil, criminal,
administrative or investigative action, suit or
proceeding in advance of the final disposition of such
action, suit or proceeding upon receipt of an
undertaking by or on behalf of such officer or director
to repay such amount if it should be ultimately
determined that he or she is not entitled to be
indemnified by the Corporation as authorized by the
Nevada Private Corporations Act. Any amendment to or
repeal of any of the provisions in this Section 4.16
shall not adversely affect any right or protection of
an officer or director of the Corporation for or with
respect to any act or omission of such director
occurring prior to such amendment or repeal.
Section 4.17. Indemnification of Employees and Agents. The Corporation
may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and
to the advancement of expenses to any employee or agent
of the Corporation to the fullest extent permitted by
the provisions of Section 4.16 of these Bylaws and
Article VII of the Corporation's Amended and Restated
Articles of Incorporation.
In addition, the Company has entered into separate Indemnification
Agreements with each of its directors and officers.
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 7.Exemption from Registration Claimed.
Not applicable.
Item 8.Exhibits
4(a) Form of Consulting Agreement ("Consulting Agreement") between the Company
and certain consultants to the Company, pursuant to which consultants
receive Common Stock and/or warrants to purchase Common Stock of the
Company, including, but not limited to the following persons:
David G. Derrick
James J. Dalton
Christopher D. Illick
Barry Mintz
David Pomerantz
5 Opinion of Durham, Evans, Jones & Pinegar, P.C. regarding validity of
Common Stock.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Durham, Evans, Jones & Pinegar, P.C. (included in the opinion
filed as Exhibit 5 to this Registration Statement).
Item 9. Undertakings.
(a) The undersigned Company 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 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 Company 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Company'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 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.
<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 City, State of Utah, on March 2, 1998.
Biomune Systems, Inc.
By /s/ David G. Derrick
David G. Derrick, President and CEO
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David G. Derrick, his attorney-in-fact,
with the power of substitution, for him and in any and all capacities, to sign
any and all amendments to this Registration Statement (including post effective
amendments), and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact or his substitute or
substitutes may 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 by the following persons in the
capacities indicated and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------- ----------------------- -------------
<S> <C> <C>
/s/ David G. Derrick Chief Executive Officer and March 2, 1998
David G. Derrick Chairman of the Board of
Directors (Principal
Executive Officer)
/s/ Michael G. Acton Chief Financial Officer and March 2, 1998
Michael G. Acton Controller (Principal
Financial and Accounting
Officer)
/s/ Thomas Q. Garvey III Director March 2, 1998
Thomas Q. Garvey III
/s/ Christopher D. Illick Director March 2, 1998
Christopher D. Illick
</TABLE>
AGREEMENT
This Agreement made effective ________________, by and between
_________________ ("Consultant") and Biomune Systems, Inc., a Nevada
Corporation ("Biomune");
WHEREAS, Consultant has provided legal services to the Company.
NOW THEREFORE, in consideration of the foregoing, and the agreements set forth
below, the parities agree as follows:
1. Engagement, Duties and Acceptance.
1.1 Engagement by Biomune. Biomune hereby agrees to retain
Consultant as a legal consultant to the Company.
1.2 Acceptance of Engagement by Consultant. Consultant
accepted such engagement and performed such services as described above.
2. Compensation. As compensation for services rendered pursuant to
this Agreement, Biomune shall pay Consultant ___________ free trading (S-8)
shares of Biomune common stock.
3. Confidential Information. During the engagement of duties and for
a period of five (5) years after the termination of this Agreement, Consultant
shall keep secret and retain in strictest confidence and shall not use, for
the benefit of itself or others, all confidential matters of the Company
including, without limitation, "know-how," trade secrets, customer lists,
details of client or consultant contracts, pricing policies, operational
methods, marketing plans or strategies, product development techniques or
plans, methods of production and distribution, technical processes, designs
and design projects, inventions and research projects of the Company learned
by Consultant heretofore or during the Term hereof.
4. Other Provisions.
4.1 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 mailed, five days after the date of deposit in the United States mail,
as follows:
(I) If to the Company, to:
Biomune Systems, Inc.
2401 South Foothill Drive
Salt Lake City, UT 84109
With a copy to:
Kevin R. Pinegar, Esquire
Durham, Evans, Jones & Pinegar
Suite 850
50 South Main Street
Salt Lake City, Utah 84144
(II) If to _________________, to:
_________________
__________________
__________________
__________________
Any party may change its address for notice hereunder by notice to the other
parties hereto.
4.2 Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreement, written or oral, with respect thereto.
4.3 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 to 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.
4.4 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.
4.5 Headings. The headings in this Agreement are for reference
purposes only and shall not in any 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.
By:
Dated: David G. Derrick, Chief Executive Officer
By:
Dated: _________________, Individual
March 3, 1998
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 1,814,096 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
1,814,096 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,
DURHAM, EVANS, JONES & PINEGAR
/s/ Durham, Evans, Jones & Pinegar, P.C.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated December 5, 1997
included in the Annual Report on Form 10-K of Biomune Systems, Inc. for the
year ended September 30, 1997 and to all references to our Firm included in
this Registration Statement.
ARTHUR ANDERSEN LLP
Salt Lake City, Utah
February 27, 1998
