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. 1997 Stock Incentive 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
1997 Stock Incentive Plan
Title of
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
Common Stock
(no par value) 1,200,000 Shares (1) N/A 20,700,000 $5,754.60
================================================================================
(1) Represents 1,200,000 shares of Common Stock, authorized for issuance
under the BioShield Technologies, Inc. (the "Company") Amended and Restated 1997
Stock Incentive 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 high and low sales prices of the Common Stock on the
Nasdaq Stock Market on May 20, 1999, which was 17-1/4 per share.
2
Pursuant to Rule 416(a) of the General Rules and Regulations under the
Securities Act of 1933, this Registration Statement shall cover such additional
securities as may be offered or issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company's financial statements for the year ended June 30, 1998, which has
been filed by the Company in its final prospectus filed pursuant to Rule 424(b)
with the Commission on September 30, 1998 (File No. 333-57767), is incorporated
herein by reference. All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") since the end of the fiscal year covered by the foregoing financial
statements are incorporated herein by reference. All other reports or documents
filed by the Company pursuant to the requirements of Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the termination of the offering of the securities offered
hereby shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such reports or documents. Any statements
contained in a document incorporated herein by reference shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any subsequently filed document which also is
incorporated 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.
The financial statements of BioShield Technologies, Inc. and
subsidiaries as of June 30, 1998 and for each of the years in the three-year
period ended June 30, 1998, have been incorporated in this Registration
Statement by reference in reliance upon the report, also incorporated in this
Registration Statement by reference, of Grant Thornton LLP, independent
certified public accountants, and upon the authority of said firm as experts in
accounting and auditing.
The description of the Company's Common Stock, the class of securities
offered pursuant to this Registration Statement, is contained in the Company's
Registration Statement filed pursuant to Section 12 of the Exchange Act, and is
incorporated herein by reference, including any subsequent amendments or reports
filed for the purpose of updating that description.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Not applicable.
3
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. However, these provisions may reduce the likelihood of derivative
litigation against directors and may discourage stockholders from bringing a
lawsuit against directors for a breach of their fiduciary duties.
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:
4
(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]
5
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 Atlanta, State of Georgia, on the 19th day of May,
1999.
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 Daniel E. Swaye, 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 May 19, 1999, by the following
persons in the capacities indicated.
By /s/ Timothy C. Moses
-----------------------------------
Timothy C. Moses, President and
Chief Executive Officer
/s/ Timothy C. Moses /s/ Michel Azran
-------------------------- ----------------------
Timothy C. Moses, Director Michel Azran, Director
/s/ Jacques Elfersy /s/ Tim Garner
------------------------- ----------------------
Jacques Elfersy, Director Tim Garner, Director
6
EXHIBIT INDEX
The following exhibits are filed as a part of the Registration
Statement:
Exhibit 4 BioShield Technologies, Inc. 1997 Stock Incentive Plan
Exhibit 5 Opinion 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)