As Filed with the Securities and Exchange Commission on December 28, 2001
Registration Number
- --------------------------------------------------------------------------------
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
incorporation or organization) Identification Number)
4405 International Blvd. - Suite B109
Norcross, Georgia 30093
Telephone: (770) 925-4302
(Address of principal executive offices)
BioShield Technologies, Inc.
2001 Non-Statutory Stock Option Plan
(Full title of the Plan)
Gary B. Wolff, P.C.
747 Third Avenue
New York New York 10017
Telephone: (212) 644-6446
(Name, address and telephone number of agent for service.)
CALCULATION OF REGISTRATION FEE (1)
================================================================================
Title of Proposed Proposed
securities maximum maximum Amount of
to be Amount to be offering price aggregate registration
registered registered per share offering price fee
Common Stock
No par value 7,000,000 $0.47 $3,290,000 $822.50
(1) Registration fee has been calculated based upon closing bid price of $0.47
as of December 24, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents are incorporated by reference in the registration
statement:
(a) The registrant's latest annual report on Form 10-KSB, as amended to
date.
(b) All other reports filed by the registrant pursuant to sections 13
(a) or 15(d) of the Securities Exchange Act of 1934 since the end of
the year covered by the Form 10-KSB referred to in (a) above and
(c) Not Applicable.
All documents subsequently filed by the registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment to the registration statement which indicates that
all of the shares of common stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be a part hereof from the date of
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superseded for purposes of this registration statement to the extent that a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 4. Description of Securities.
The total number of shares authorized which the corporation shall have authority
to issue is 60,000,000 shares, of which 50,000,000 shares shall be Common Stock,
no par value per share without cumulative voting rights and without any
preemptive rights and 10,000,000 shares shall be Preferred Stock, no par value
per share. On December 21, 2001, at the Company's Annual Meeting of
Stockholders, the proposal to increase authorized shares of common stock to
100,000,000 was approved and an amended certificate for such purposes will be
filed with the applicable Georgia authorities shortly.
Item 5. Interest of Named Experts and Counsel.
Not Applicable
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.
Section 14-2-202(b)(4) of the Georgia Business Corporation Code provides that a
corporation's articles of incorporation may contain a provision eliminating or
limiting the personal liability of a director to the corporation or its
shareholders for monetary damages for breach of duty of care or other duty as a
director. This Section also provides, however, that such a provision shall not
eliminate or limit the liability of a director (i) for any appropriation, in
violation of his duties, of any business opportunities of the corporation, (ii)
for acts or omissions involving intentional misconduct or a knowing violation of
law, (iii) for certain other types of liabilities set forth in the Code and (iv)
for transactions from which the director derived an improper personal benefit.
Article VI of the Company's Articles of Incorporation contains a provision
eliminating or limiting the personal liability of a director of the Company to
the fullest extent authorized by the Georgia Business Corporation Code.
In addition, Sections 14-2-851 and 14-2-857 of the Georgia Business Corporation
Code, provides for indemnification of directors and officers of the Company for
liability and expenses reasonably incurred by them in connection with any civil,
criminal, administrative or investigative action, suit or proceeding in which
they may become involved by reason of being a director or officer of the
Company. Indemnification is permitted if the director or officer acted in a
manner which he believed in good faith to be in or not opposed to the best
interests of the Company, and with respect to any criminal action or proceeding,
if he had no reasonable cause to believe his conduct to be unlawful; provided
that the Company may not indemnify any director or officer (i) in connection
with a proceeding by or in the right of the corporation in which the director
was adjudged liable to the corporation or (ii) in connection with any other
proceeding in which he was adjudged liable on the basis that personal profit was
improperly received by him, except as determined by a court of competent
jurisdiction. Article 9 of the Company's Bylaws contains a provision providing
for the indemnification of officers and directors and advancement of expenses to
the fullest extent authorized by the Georgia Business Corporation Code.
The Company also maintains directors and officers liability insurance which
insures against liabilities that directors and officers of the Company may incur
in such capacities.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
The exhibits to the registration statement are listed in the Exhibit Index
elsewhere herein.
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 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 thereto) which, individually or in the
aggregate, represents a fundamental change in the
information set forth in the registration statement;
and
(iii)To include any material information with respect
to the plan of distribution not previously disclosed
in the registration statement;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) shall 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
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 124c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is
not set forth in the prospectus, to deliver, or cause to be delivered
to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described in Item 6, 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 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.
SIGNATURES
The Registrant. 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 for filing on Form S-8 and has duly caused this registration
statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in Norcross, Georgia on December 27, 2001.
BioShield Technologies, Inc.
/Timothy C. Moses/
__________________
By: Timothy C. Moses, Chairman,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement or amendment thereto has been signed by the following persons in the
capacities and on the dates indicated.
Name Date
/Timothy C. Moses/ Chairman, President Dec. 27, 2001
- ----------------- and Chief Executive Officer
Timothy C. Moses
/Angela B. Howell/ Secretary-Treasurer Dec. 27, 2001
- ----------------- and a Director
Angela B. Howell
/Rodothea Milatou/ Director Dec. 27, 2001
- --------------------
Dr. Rodothea Milatou
/Alan Lingo/ Director Dec. 27, 2001
- -----------
Alan Lingo
/Kevin Smith/ Director Dec. 27, 2001
- ---------------
Dr. Kevin Smith
Page in Sequential
Exhibit Index. Number system
(1) Not Applicable
(2) Not Applicable
(3) Not Applicable
(4) Instrument defining the rights of security holders -
2002 Non-Statutory Stock Option Plan 8
(5) Consent and Opinion of Gary B. Wolff, P.C., 747 Third
Avenue, New York, New York 10017 regarding legality of
securities registered under this Registration Statement
and to the references to such attorney in the
Registration Statement on Form S-8 16
(6) Not Applicable
(7) Not Applicable
(8) Not Applicable
(9) Not Applicable
(10)Not Applicable
(11)Not Applicable
(12)Not Applicable
(13)Not Applicable
(14)Not Applicable
(15)Not Applicable
(16)Not Applicable
(17)Not Applicable
(18)Not Applicable
(19)Not Applicable
(20)Not Applicable
(21)Not Applicable
(22)Not Applicable
(23)Consent of Feldman Sherb & Co., ,P.C.,
Certified Public Accountants for the Company
for years ended June 30, 2000 and 2001 17
(24)Not Applicable
(25)Not Applicable
(26)Not Applicable
(27)Not Applicable
(99)Prospectus dated December 21, 2001 18