As filed with the Securities and Exchange Commission on May 17, 2004
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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POWER3 MEDICAL PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
New York
(State or other jurisdiction of incorporation or organization)
65-0565144
(IRS Employer Identification Number)
8374 Market Street, # 439
Bradenton, Florida 34202
(Address of principal executive offices)
Timothy S. Novak, Chairman & CEO
Power3 Medical Products, Inc.
8374 Market Street, # 439
Bradenton, Florida 34202
(Name and address of agent for service)
(941) 360-3039
(Telephone number, including area code of agent for service)
2004 Directors, Officers and Consultants
Stock Option, Stock Warrant and Stock Award Plan
(Full title of the Plans)
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered Registered(1) share(2) price(2) registration fee(3)
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Common Stock,
$.001 par value 4,500,000 $0.86 $3,870,000.00 $356.04
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TOTAL 4,500,000 $356.04
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(1) Includes Common Stock underlying Warrants plus such indeterminate
number of shares of Common Stock of the Registrant as may be issuable
by reason of the anti-dilution provisions of the Plan.
(2) Pursuant to Rule 457(h) under the Securities Act of 1933, as amended,
the registration fee was computed on the basis of the market value of
the shares of Common Stock underlying the Warrants to be registered
hereby estimated in accordance with Rule 457(c), solely for the purpose
of computing the registration fee, on the basis of the average of the
high and low sales prices per share of Common Stock of the Registrant
on May 17, 2004.
(3) The offering price is based upon the exercise price of the warrants
pursuant to Rule 457(f)(2).
PART I
The documents containing the information specified in this Part I will
be sent or given to participants in the 2004 Directors, Officers and Consultants
Stock Option, Stock Warrant and Stock Award Plan(the "Plan) as specified by Rule
428(b)(1). Pursuant to the instructions for Form S-8, such documents need not be
filed with the Commission either as part of the 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 Registration Statement, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended. See Rule 428(a)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The documents listed in(a) and(b) below have been filed by the
Registrant, Power3 Medical Products, Inc., a New York corporation(the
"Company"), with the Securities and Exchange Commission(the "Commission") and
are incorporated by reference in this Registration Statement. All documents
subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
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 the
Registration Statement and to be part thereof from the date of filing of such
documents.
(a) Form 10-KSB for the year ended December 31, 2003 and filed
on April 14, 2004. The above referenced reports, which were previously
filed with the Commission, are incorporated herein by reference.
(b) All other reports filed pursuant to Section 13 or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
Registrant's Form 10-KSB for the period ended December 31, 2003.
The above referenced reports, which were previously filed with the
Commission, are incorporated herein by reference.
Item 4: Description of Securities
Not Applicable
Item 5: Interests of Named Experts and Counsel.
None
Item 6: Indemnification of Directors and Officers.
722. Authorization for indemnification of directors and officers.
(a) A corporation may indemnify any person made, or threatened
to be made, a party to an action or proceeding ( other than one by or
in the right of the corporation to procure a judgment in its favor),
whether civil or criminal, including an action by or in the right of
any other corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the corporation served in
any capacity at the request of the corporation, by reason of the fact
that he, his testator or intestate, was a director or officer of the
corporation, or served such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any
capacity, against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys' fees actually and necessarily
incurred as a result of such action or proceeding, or any appeal
therein, if such director or officer acted, in good faith, for a
purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise, not opposed to, the
best interests of the corporation and, in criminal actions or
proceedings, in addition, had no reasonable cause to believe that his
conduct was unlawful.
(b) The termination of any such civil or criminal action or
proceeding by judgment, settlement, conviction or upon a plea of nolo
contendere, or its equivalent, shall not in itself create a presumption
that any such director or officer did not act, in good faith, for a
purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise, not opposed to, the
best interests of the corporation or that he had reasonable cause to
believe that his conduct was unlawful.
(c) A corporation may indemnify any person made, or threatened
to be made, a party to an action by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that he, his
testator or intestate, is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as
a director or officer of any other corporation of any type or kind,
domestic or foreign, of any partnership, joint venture, trust, employee
benefit plan or other enterprise, against amounts paid in settlement
and reasonable expenses, including attorneys' fees, actually and
necessarily incurred by him in connection with the defense or
settlement of such action, or in connection with an appeal therein, if
such director or officer acted, in good faith, for a purpose which he
reasonably believed to be in, or, in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise, not opposed to, the best interests of the
corporation, except that no indemnification under this paragraph shall
be made in respect of (1) a threatened action, or a pending action
which is settled or otherwise disposed of, or (2) any claim, issue or
matter as to which such person shall have been adjudged to be liable to
the corporation, unless and only to the extent that the court in which
the action was brought, or, if no action was brought, any court of
competent jurisdiction, determines upon application that, in view of
all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such portion of the settlement amount and
expenses as the court deems proper.
(d) For the purpose of this section, a corporation shall be
deemed to have requested a person to serve an employee benefit plan
where the performance by such person of his duties to the corporation
also imposes duties on, or otherwise involves services by, such person
to the plan or participants or beneficiaries of the plan; excise taxes
assessed on a person with respect to an employee benefit plan pursuant
to applicable law shall be considered fines; and action taken or
omitted by a person with respect to an employee benefit plan in the
performance of such person's duties for a purpose reasonably believed
by such person to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is
not opposed to the best interests of the corporation.
Item 7. Exemption From Registration Claimed.
Not Applicable
Item 8: Exhibits
The following documents are filed as Exhibits to this Registration
Statement:
4.1 -- 2004 Directors, Officers and Consultants
Stock Option, Stock Warrant and Stock
Award Plan*
5 -- Opinion of Sonfield & Sonfield as to the
authorization and issuance of the shares
being registered.
24.1 -- Consent of Sonfield & Sonfield(included in
Exhibit 5)
24.2 -- Consent of Kingery, Crouse & Hohl, P.A.,
Certified Public Accountant
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* Previously filed with the Company's Form S-8 on January 20, 2004.
Item 9: Undertakings
The undersigned registrant hereby undertakes:
(a) to file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement 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;
(b) 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; and
(c) 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.
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 to be signed on its behalf by the undersigned, thereunto
duly authorized, in Bradenton, Florida on the 17th day of May, 2004.
POWER3 MEDICAL PRODUCTS, Inc.
By: /s/Timothy S. Novak
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Timothy S. Novak, Chairman of the Board and Chief Executive Officer
Principal Executive Officer
By: /s/R. Paul Gray
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R. Paul Gray, Chief Financial Officer, Secretary, Treasurer and Director
Principal Accounting Officer and Principal Financial Officer
THE PLAN: Pursuant to the requirements of the Securities Act of 1933,
the Board of Directors who administer the 2004 Directors, Officers and
Consultants Stock Option, Stock Warrant and Stock Award Plan have duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Bradenton, Florida on the 17th day of May, 2004.
/s/Timothy S. Novak /s/R. Paul Gray
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Timothy S. Novak, Director R. Paul Gray, Director
EXHIBIT 5 & 24.1
SONFIELD AND SONFIELD
770 South Post Oak Lane, Suite 435
Houston, Texas 77056
Tel: 713-877-8333
Fax: 713-877-1547
robert@sonfield.com
www.sonfield.com
May 17, 2004
Board of Directors
Power3 Medical Products, Inc.
8374 Market Street, # 439
Bradenton, Florida 34202
Ladies and Gentlemen:
In our capacity as counsel for Power3 Medical Products, Inc., a New
York corporation (the "Company"), we have participated in the corporate
proceedings relative to the authorization and issuance by the Company of a
maximum of 10,000,000 shares of common stock pursuant to the Plan as set out and
described in the Company's Registration Statement on Form S-8 (File No.
000-24921) under the Securities Act of 1933(the "Registration Statement"). We
have also participated in the preparation and filing of the Registration
Statement.
Based upon the foregoing and upon our examination of originals (or
copies certified to our satisfaction) of such corporate records of the Company
and other documents as we have deemed necessary as a basis for the opinions
hereinafter expressed, and assuming the accuracy and completeness of all
information supplied us by the Company, having regard for the legal
considerations which we deem relevant, we are of the opinion that:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of New York;
(2) The Company has taken all requisite corporate action and
all action required by the laws of the State of New York with respect
to the authorization, issuance and sale of warrants and shares of
common and preferred stock to be issued pursuant to the Registration
Statement; and
(3) The 4,500,000 shares of common stock, when issued pursuant
to the Registration Statement, will be validly issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the references to our firm in the Registration
Statement.
Yours very truly,
/s/SONFIELD & SONFIELD
SONFIELD & SONFIELD
EXHIBIT 24.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Power3 Medical Products, Inc.
8374 Market Street, # 439
Bradenton, Florida 34202
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report dated April 13, 2004 in the Annual Report on Form 10-KSB of Power3
Medical Products, Inc. as of December 31, 2003 and for the years ended December
31, 2003 and 2002.
/s/Kingery, Crouse & Hohl, P.A.
May 17, 2004