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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON NOVEMBER 19, 2002
REGISTRATION NO. 333-_______
HUMAN BIOSYSTEMS
(Exact Name of Registrant as Specified in Its Charter)
CALIFORNIA 8731 77-0481056
(State or Other Jurisdiction of (Primary Standard (I.R.S. Employer
Incorporation or Organization) Industrial Identification Number)
Classification Code)
1127 HARKER AVENUE
PALO ALTO, CALIFORNIA 94301
650-323-0943
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Executive Offices)
2001 Stock Option Plan
1998 Statutory Incentive Stock Option Plan
1998 Non-Statutory Stock Option Plan
Consulting Agreement
Cancellation of Debt
HARRY MASUDA
PRESIDENT AND CHIEF EXECUTIVE OFFICER
HUMAN BIOSYSTEMS
1127 HARKER AVENUE
PALO ALTO, CALIFORNIA 94301
650-323-0943
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
-----------------------
COPY TO:
CATHRYN S. GAWNE, ESQ.
SILICON VALLEY LAW GROUP
152 NORTH THIRD STREET, SUITE 900
SAN JOSE, CALIFORNIA 95112
(408) 286-6100
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If any of the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
CALCULATION OF REGISTRATION FEE
<table>
- --------------------------------------------------------------------------------------------------------
<s> <c> <c> <c> <c>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE FEE
- --------------------------------------------------------------------------------------------------------
Common Stock,
no par value (2) 1,585,500 shares $0.27 $ 428,085 $ 39.38
Common Stock,
no par value (3) 600,000 shares $0.27 $ 162,000 $ 14.90
Common Stock,
no par value (4) 2,000,000 shares $0.27 $ 540,000 $ 49.68
Common Stock,
no par value (5) 66,000 shares $0.27 $ 17,820 $ 1.64
Common Stock,
no par value (6) 630,488 shares $0.27 $ 170,232 $ 15.66
Total 4,881,988 shares $ 1,318,137 $ 121.26
- ---------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(h).
(2) Represents shares of common stock issued or issuable pursuant to the
2001 Stock Option Plan.
(3) Represents shares of common stock issued or issuable pursuant to the
1998 Statutory Incentive Stock Option Plan.
(4) Represents shares of common stock issued or issuable pursuant to the
1998 Non-Statutory Incentive Stock Option Plan.
(5) Represents shares of common stock issued to consultant under a
consulting agreement.
(6) Represents shares of common stock issued to employees in consideration
for debt cancellation.
</table>
2
EXPLANATORY NOTE
Human BioSystems (formerly known as HyperBaric Systems) (the "Company") has
prepared this registration statement in accordance with the requirements of Form
S-8 under the Securities Act of 1933, as amended (the "Securities Act"), to
register resales of certain shares of Company common stock, no par value, issued
under three option plans: the Company's 2001 Stock Option Plan, pursuant to
which 1,585,500 shares of common stock have been reserved for issuance, the
Company's 1998 Statutory Incentive Stock Option Plan, pursuant to which 600,000
shares of common stock have been reserved for issuance, and the Company's 1998
Non-Statutory Incentive Stock Option Plan, pursuant to which 2,000,000 shares of
common stock have been reserved for issuance. In addition, this registration
statement registers for resale shares of common stock issued to a consultant and
shares of common stock issued or issuable to employees in consideration for the
cancellation of debt.
This registration statement contains two parts. The first part contains a
reoffer prospectus prepared in accordance with the requirements of Part I of
Form S-3 under the Securities Act. The second part contains information required
in the registration statement under Part II of Form S-8.
REOFFER PROSPECTUS
______________
HUMAN BIOSYSTEMS
1127 HARKER AVENUE
PALO ALTO, CALIFORNIA 94301
650-323-0943
______________
1,266,488 Shares of Common Stock
Up to an aggregate of 1,266,488 shares of common stock of Human BioSystems, a
California corporation, may be offered and sold from time to time by the selling
stockholders identified in this reoffer prospectus. See "Selling Stockholders"
beginning on page 10. Our common stock is traded on the NASD O-T-C Bulletin
Board under the symbol "HBSC".
On November 13, 2002, the closing bid price for our common stock, as
reported on the NASD O-T-C Bulletin Board, was $ 0.30 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 4, FOR A DISCUSSION OF MATERIAL ISSUES TO
CONSIDER BEFORE PURCHASING SHARES OF OUR COMMON STOCK.
As of the date of this prospectus, neither the Securities and Exchange
Commission ("SEC"), nor any state securities commission has approved or
disapproved of these securities or made a determination with regard to the
truthfulness or completeness of this prospectus. Any representation to the
contrary is a criminal offense.
The date of this prospectus is November 19, 2002.
3
TABLE OF CONTENTS
The Company ............................... 4
Risk Factors ............................... 4
Use of Proceeds ............................ 9
Selling Stockholders........................ 10
Plan of Distribution........................ 11
Legal Matters .............................. 12
Experts .................................... 13
Where You Can Find More Information ........ 13
Incorporation of Certain Documents by Reference.. 14
Indemnification of Officers and Directors ....... 14
You should rely only on the information contained in this prospectus. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. The information contained in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or of any sale of the common stock. In this
prospectus, "HBS," "the Company," "we," "us" and "our" refer to Human
BioSystems, a California corporation.
FORWARD-LOOKING STATEMENTS
This reoffer prospectus contains "forward-looking statements." Forward-looking
statements are our current expectations or forecasts of future events. You can
identify these statements by the fact that they do not relate strictly to
historic or current facts. They use words such as "anticipate," "estimate,"
"expect," "project," "intend," "plan," "believe," and other words and terms of
similar meaning. These include statements, among others, relating to our planned
future actions, our research and development plans, our prospective products,
our beliefs with respect to the sufficiency of our cash and cash equivalents,
plans with respect to funding operations, projected expense levels and the
outcome of contingencies, such as future financial results.
Any or all of our forward-looking statements in this reoffer prospectus may
turn out to be wrong. They can be affected by inaccurate assumptions we might
make or by known or unknown risks and uncertainties. Consequently, no forward-
looking statement can be guaranteed. Actual results may vary materially. The
uncertainties that may cause differences include, but are not limited to, our
ability to obtain collaborative or licensing arrangements; the availability of
necessary funds and our ability to raise capital when needed and on reasonable
terms, or at all; the market acceptance of our products and potential products;
developing or contracting for the necessary manufacturing processes; protecting
our intellectual property; and the impact of competition and technological
advances.
We will not update forward-looking statements, whether as a result of new
information, future events or otherwise, unless required by law. You are advised
to consult any further disclosures we make in our reports to the Securities and
Exchange Commission including our 10-QSB, 8-K and 10-KSB reports. Our filings
list various important factors that could cause actual results to differ
materially from expected results. We note these factors for investors as
permitted by the Private Securities Litigation Reform Act of 1995. You should
understand that it is not possible to predict or identify all such factors.
Consequently, you should not consider any such list to be a complete set of all
potential risks or uncertainties.
All trademarks, service marks or trade names referred to in this reoffer
prospectus are the property of their respective owners.
4
THE COMPANY
Human BioSystems is a development stage company incorporated on February 26,
1998 under the laws of the State of California. Our principal business objective
is to develop and provide economical, non-toxic methods of extending the shelf
life and improving the quality of blood platelets and other biological material.
We are in our fifth year of research and development. To date, we have been
successful in preserving blood platelets for ten days under refrigeration while
maintaining cell structure and morphology, which has never been done before to
our knowledge. We hope to validate our findings at an independent blood center
in California and submit them for government approval in the next quarter.
We will continue efforts on prototype development and the generation of pre-
clinical and clinical data in the months ahead. It is anticipated that we will
commence human studies by the end of summer of 2002 and submit our first
application for FDA approval and begin clinical testing of our first product for
blood platelet storage within six months thereafter. In April 2002, we began
research on kidney preservation and developing solutions that will operate under
refrigerated conditions.
RISK FACTORS
WE HAVE A HISTORY OF LOSSES, AND OUR ACCOUNTANTS HAVE RAISED DOUBTS ABOUT OUR
ABILITY TO CONTINUE AS A GOING CONCERN.
Since our inception in 1998, we have incurred substantial losses from
operations, resulting primarily from costs related to research and development
and building our infrastructure. Because of our status as a development stage
company and the need to conduct additional research and development prior to
introducing products and services to the market, we expect to incur net losses
for the foreseeable future. If our growth is slower than we anticipate or our
operating expenses exceed our expectations, our losses will be significantly
greater. We may never achieve profitability. Primarily as a result of these
recurring losses, our independent certified public accountants modified their
report on our December 31, 2001 financial statements, which are included in this
prospectus, to include an uncertainty paragraph wherein they expressed
substantial doubt about our ability to continue as a going concern.
5
We are in the fifth year of research and development, with an accumulated loss
during the development stage of $8,861,500. We currently do not know when our
research and development will be completed, or if a product will ever result
from this research and development activity. We anticipate that the funds spent
on research and development activities will need to increase significantly prior
to completion of research and development and commercialization of a product.
Additionally, we may not be able to secure funding in the future necessary to
complete our intended research and development activities.
These conditions give rise to substantial doubt about our ability to continue as
a going concern. Our financial statements do not include adjustments relating to
the recoverability and classification of reported asset amounts or the amount
and classification of liabilities that might be necessary should we be unable to
continue as a going concern. Our continuation as a going concern is dependent
upon our ability to obtain additional financing from the sale of our common
stock, as may be required, and ultimately to attain profitability.
WE REQUIRE IMMEDIATE ADDITIONAL CAPITAL.
We currently anticipate that based on our short-term forecast of raising
additional funds of $2.5 million, we will have sufficient funds to meet our
anticipated needs for working capital, capital expenditures and business
operations through December 31, 2002. However, we have raised only $1,490,000
through September 30, 2002. We therefore need to raise additional capital.
Obtaining capital will be challenging in a difficult environment, due to the
economic downturn in the United States economy. We currently have no
commitments for any future funding after December 31, 2002, and there can be no
assurance that we will be able to obtain additional funding in the future from
either debt or equity financings, bank loans, collaborative arrangements or
other sources on terms acceptable to us, or at all. If adequate funds are not
available or are not available on acceptable terms when required, we may be
required to significantly curtail our operations or may not be able to fund
expansion, take advantage of unanticipated acquisition opportunities, develop or
enhance services or products or respond to competitive pressures. Such inability
could have a material adverse effect on our business, results of operations and
financial condition. If additional funds are raised through the issuance of
equity or convertible debt securities, the percentage ownership of our
stockholders will be reduced, stockholders may experience additional dilution
and such securities may have rights, preferences and privileges senior to those
of our common stock.
6
OUR CHIEF EXECUTIVE OFFICER IS THE SUBJECT OF SEC AND JUSTICE DEPARTMENT
PROCEEDINGS FOR SECURITIES FRAUD.
On August 7, 2002, the United States Attorney for the Eastern District
of New York and the Securities and Exchange Commission announced that they were
bringing securities fraud charges against us as well as Harry Masuda, our Chief
Executive Officer, for allegedly paying an unregistered broker an undisclosed
commission in a 1999 and 2000 private placement. The allegations generally
charge Mr. Masuda and us with the failure to adequately disclose to investors in
this private placement a commission agreement with Larry Bryant, an unlicensed
broker-dealer. Remedies sought in these proceedings include criminal penalties
and a bar from service as an officer or director of a publicly-traded company.
Although we believe that the charges are unwarranted, and that the issues
involved in this matter were resolved over two years ago to the full
satisfaction of all investors, there can be no assurance that Mr. Masuda will be
able to continue to serve as our Chief Executive Officer in the event that the
Securities and Exchange Commission receives the remedies that it seeks.
WE ARE A DEVELOPMENT STAGE COMPANY, AND HAVE A LIMITED OPERATING HISTORY ON
WHICH TO EVALUATE OUR POTENTIAL FOR FUTURE SUCCESS.
We are a development stage company, and have yet to produce or sell any products
or services. We have only a limited operating history upon which you can
evaluate our business and prospects, and have yet to develop sufficient
experience regarding actual revenues to be received from our products and
services. You must consider the risks and uncertainties frequently encountered
by early stage companies in new and rapidly evolving markets. If we are
unsuccessful in addressing these risks and uncertainties, our business, results
of operations and financial condition will be materially and adversely affected.
7
ACTS OF TERRORISM, RESPONSES TO ACTS OF TERRORISM AND ACTS OF WAR MAY IMPACT OUR
BUSINESS AND OUR ABILITY TO RAISE CAPITAL.
The September 11, 2001 terrorist attacks in the United States are unprecedented
acts of international terrorism. We cannot predict the continued effect of
those acts on the economy of the United States or on the global economy. Future
acts of war or terrorism, national or international responses to such acts, and
measures taken to prevent such acts may harm our ability to raise capital or our
ability to operate, especially to the extent we depend upon activities conducted
in foreign countries, such as Russia where we currently perform research and
development. In addition, the threat of future terrorist acts or acts of war
may have effects on the general economy or on our business that are difficult to
predict. We are not insured against damage or interruption of our business
caused by terrorist acts or acts of war.
OUR FUTURE REVENUES ARE UNPREDICTABLE AND OUR QUARTERLY OPERATING RESULTS MAY
FLUCTUATE SIGNIFICANTLY.
We have a very limited operating history, and have no revenue to date. We cannot
forecast with any degree of certainty whether any of our products or services
will ever generate revenue or the amount of revenue to be generated by any of
our products or services. In addition, we cannot predict the consistency of our
quarterly operating results. Factors which may cause our operating results to
fluctuate significantly from quarter to quarter include:
- - our ability to attract new and repeat customers;
- - our ability to keep current with the evolving requirements
of our target market;
- - our ability to protect our proprietary technology;
- - the ability of our competitors to offer new or enhanced
products or services; and
- - unanticipated delays or cost increases with respect to
research and development.
Because of these and other factors, we believe that quarter-to-quarter
comparisons of our results of operations are not good indicators of our future
performance. If our operating results fall below the expectations of securities
analysts and investors in some future periods, then our stock price may decline.
8
ESTABLISHING OUR REVENUES AND ACHIEVING PROFITABILITY WILL DEPEND ON OUR ABILITY
TO DEVELOP AND COMMERCIALIZE OUR PRODUCTS.
Much of our ability to establish revenues and to achieve profitability and
positive cash flows from operations will depend on the successful introduction
of our products in development. Products based on our technologies will
represent new methods of treatment and preservation. Our prospective customers,
including blood banks, hospitals and clinics, will not use our products unless
they determine that the benefits provided by these products are greater than
those available from competing products. Even if the advantage from our planned
products is clinically established, prospective customers may not elect to use
such products for a variety of reasons.
We may be required to undertake time-consuming and costly development activities
and seek regulatory clearance or approval for new products. The completion of
the development and commercialization of any of our products under development
remains subject to all of the risks associated with the commercialization of new
products based on innovative technologies, including unanticipated technical or
other problems, manufacturing difficulties and the possible insufficiency of the
funds allocated for the completion of such development.
WE MAY NOT BE ABLE TO COMPETE SUCCESSFULLY.
As a development stage company, we are entering a biological material
preservation market that is presently addressed by large companies with
extensive financial resources. Those companies include DuPont and Baxter, among
others. Additionally, smaller companies with which we may compete include
LifeCell Corporation for platelet preservation, Cerus for viral inactivation of
platelets and other blood products and Cryo Life for preserving heart valves by
cryo-preservation. We have limited funds with which to develop products and
services, and many of our competitors have significantly more resources than we
do. These companies are active in research and development of biological
material preservation, and we do not know the current status of their
development efforts. Most of the above competitors have significantly greater
financial resources, technical expertise and managerial capabilities than we
currently possess.
9
WE MAY FAIL TO OBTAIN GOVERNMENT APPROVAL OF OUR PROCESSES.
The United States Food & Drug Administration ("FDA") regulates the commercial
distribution and marketability of medical solutions and equipment. In the event
that we determine that these regulations apply to our proposed products, we will
need to obtain FDA approval for such distribution. The process of obtaining FDA
approval may be expensive, lengthy and unpredictable. We have not developed our
products to the level where these approval processes can be started. We do not
know if such approval could be obtained in a timely fashion, if at all. In the
event that we do not receive any required FDA approval for certain products, we
would not be able to sell such products in the United States.
The regulation of our processes and products outside the United States will vary
by country. Noncompliance with foreign country requirements may include some or
all of the risks associated with noncompliance with FDA regulation as well as
other risks.
WE MAY FAIL TO ESTABLISH AND MAINTAIN STRATEGIC RELATIONSHIPS.
We believe that the establishment of strategic partnerships will greatly benefit
the growth of our business, and we intend to seek out and enter into strategic
alliances. We may not be able to enter into these strategic partnerships on
commercially reasonable terms or at all. Even if we enter into strategic
alliances, our partners may not attract significant numbers of customers or
otherwise prove advantageous to our business. Our inability to enter into new
strategic alliances could have a material and adverse effect on our business.
SHARES ELIGIBLE FOR FUTURE SALE BY OUR CURRENT STOCKHOLDERS MAY ADVERSELY AFFECT
OUR STOCK PRICE.
To date, we have had a very limited trading volume in our common stock. As long
as this condition continues, the sale of a significant number of shares of
common stock at any particular time could be difficult to achieve at the market
prices prevailing immediately before such shares are offered. In addition,
sales of substantial amounts of common stock, including shares issued upon the
exercise of outstanding options and warrants, under Securities and Exchange
Commission Rule 144 or otherwise could adversely affect the prevailing market
price of our common stock and could impair our ability to raise capital at that
time through the sale of our securities.
10
OUR COMMON STOCK PRICE IS LIKELY TO BE HIGHLY VOLATILE; OUR COMMON STOCK IS
"PENNY STOCK".
The market price of our common stock is likely to be highly volatile as the
stock market in general, and the market for technology companies in particular,
has been highly volatile. The trading prices of many technology companies'
stocks have recently been highly volatile and have recorded lows well below
historical highs.
Factors that could cause such volatility in our common stock may include, among
other things:
- - actual or anticipated fluctuations in our quarterly operating results;
- - announcements of technological innovations;
- - changes in financial estimates by securities analysts;
- - conditions or trends in our industry; and
- - changes in the market valuations of other comparable companies.
In addition, our stock is currently traded on the NASD O-T-C Bulletin Board and
it is uncertain that we will be able to successfully apply for listing on the
AMEX, the NASDAQ National Market, or the Nasdaq SmallCap Market in the
foreseeable future due to the trading price for our common stock, our working
capital and revenue history. Failure to list our shares on the AMEX, the Nasdaq
National Market, or the Nasdaq SmallCap Market, will impair the liquidity for
our common stock.
The Securities and Exchange Commission has adopted regulations which generally
define a "penny stock" to be any security that 1) is priced under five dollars,
2) is not traded on a national stock exchange or on NASDAQ, 3) may be listed in
the "pink sheets" or the NASD OTC Bulletin Board, 4) is issued by a company that
has less than $5 million in net tangible assets and has been in business less
than three years, or by a company that has under $2 million in net tangible
assets and has been in business for at least three years, or by a company that
has revenues of $6 million for three years. Penny stocks can be very risky:
penny stocks are low-priced shares of small companies not traded on an exchange
or quoted on NASDAQ. Prices often are not available. Investors in penny stocks
are often unable to sell stock back to the dealer that sold them the stock. Thus
an investor may lose his/her investment. Our common stock is a "penny stock" and
thus is subject to rules that impose additional sales practice requirements on
broker/dealers who sell such securities to persons other than established
customers and accredited investors, unless the common stock is listed on The
Nasdaq SmallCap Market. Consequently, the "penny stock" rules may restrict the
ability of broker/dealers to sell our securities, and may adversely affect the
ability of holders of our common stock to resell their shares in the secondary
market.
11
SOME OF THE INFORMATION IN THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS.
Some of the information in this prospectus contains forward-looking statements
that involve substantial risks and uncertainties. You can identify these
statements by forward-looking words such as "may", "will", "expect", "intend",
"anticipate", "believe", "estimate" and "continue" or similar words. You should
read statements that contain these words carefully because they:
- - discuss our expectations about our future performance;
- - contain projections of our future operating results or
of our future financial condition; or
- - state other "forward-looking" information.
We believe it is important to communicate our expectations to our stockholders.
There may be events in the future, however, that we are not able to predict
accurately or over which we have no control. The risk factors listed in this
section, as well as any cautionary language in this prospectus, provide examples
of risks, uncertainties and events that may cause our actual results to differ
materially from the expectations we describe in our forward-looking statements.
Before you invest in our common stock, you should be aware that the occurrence
of any of the events described in these risk factors and elsewhere in this
prospectus could have a material and adverse effect on our business, results of
operations and financial condition and that upon the occurrence of any of these
events, the trading price of our common stock could decline and you could lose
all or part of your investment.
OUR COMMON SHAREHOLDERS MAY EXPERIENCE SUBSTANTIAL DILUTION.
The sale of a substantial number of shares of our common stock in the public
market, or the prospect of such sales, could materially and adversely affect the
market price of our common stock. We are authorized to issue up to 50,000,000
shares of common stock. To the extent of such authorization, our Board of
Directors will have the ability, without seeking stockholder approval, to issue
additional shares of common stock in the future for such consideration as our
Board of Directors may consider sufficient. The issuance of additional common
stock in the future will reduce the proportionate ownership and voting power of
our common stock held by existing stockholders. Sales in the public market of
substantial amounts of our common stock, including sales of common stock
issuable upon exercise of options and warrants, could depress prevailing market
prices for our common stock. Even the perception that such sales could occur
might impact market prices for the common stock. The existence of outstanding
options and warrants may prove to hinder our future equity financings.
12
USE OF PROCEEDS
We will not receive any proceeds from the sale of stock by the selling
stockholders. All sales proceeds will be received by the selling stockholders.
SELLING STOCKHOLDERS
The shares of common stock to which this reoffer prospectus relates are being
registered for reoffers and resales by the selling stockholders, who acquired
the common stock pursuant to our 2001 Stock Option Plan, 1998 Statutory
Incentive Stock Option Plan, 1998 Nonstatutory Stock Option Plan, a consulting
agreement or in cancellation of debt owed by us.
The table below sets forth with respect to the selling stockholders, based upon
information available to us as of October 30, 2002, the number of shares of our
common stock owned (including, where applicable, the common stock covered by
this reoffer prospectus, shares of our common stock not covered by this reoffer
prospectus and options to purchase our common stock), the number of shares of
common stock registered by this reoffer prospectus and the number and percent of
outstanding shares of common stock that will be owned after the sale of the
registered common stock assuming the sale of all of the registered common stock.
13
<table>
<s> <c> <c> <c> <c>
Number of Number of Number of Percent of Class
Shares Shares Being Shares to be Beneficially
Beneficially Offered Beneficially Owned After
Owned Prior to Owned After Offering
Offering Offering
Victoria Dampier 20,000 20,000 -- --
James Foster 60,000 60,000 -- --
Victor Ivashin 360,000 30,000 330,000 1.7%
David Lucas 22,222 22,222 -- --
Harry Masuda 1,281,800 260,000 1,021,800 5.3%
Hidaya Medizazeh 5,000 5,000 -- --
Jennie Meehan 5,000 5,000 -- --
Paul Okimoto 1,030,611 111,111 919,500 4.8%
Kenneth Schoniger 60,000 60,000 -- --
Ard Sealy 40,000 40,000 -- --
Eric Slayton 16,000 16,000 -- --
Robert Strom 63,329 53,333 9,996 *
Dr. Mike Strong 16,000 16,000 -- --
Dr. Luis Toledo 282,222 282,222 -- --
George Tsukuda 109,667 33,600 76,067 *
Rachmat Umar 252,000 252,000 -- --
----------- ---------- ---------- ---------
TOTAL 3,623,851 1,266,488 2,357,363 12.1%
* Less than one percent.
Shares listed as owned by Mr. Strom include 20,000 shares held of record
by Strom Sales, a corporation owned by Mr. Strom, and 9,996 shares held of
record by Mr. Strom and his spouse.
</table>
14
PLAN OF DISTRIBUTION
The selling stockholders and any of their pledgees, donees, assignees,
transferees, may sell any or all of the shares of common stock for value from
time to time under this reoffer prospectus in one or more transactions on the
Over-the-Counter Bulletin Board or any stock exchange, market or trading
facility on which the common stock is traded, in a negotiated transaction or in
a combination of such methods of sale, at market prices prevailing at the time
of sale, at prices related to such prevailing market prices or at prices
otherwise negotiated. The selling stockholders will act independently of us in
making decisions with respect to the timing, manner and size of each sale. The
selling stockholders may use any one or more of the following methods when
selling shares:
- ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- block trades in which the broker-dealer will attempt to sell
the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
- an exchange distribution in accordance with the rules of the
applicable exchange;
- privately negotiated transactions;
- underwritten offerings;
- short sales;
- agreements by the broker-dealer and a selling stockholder to
sell a specified number of such shares at a stipulated price
per share;
- a combination of any such methods of sale; and
- any other method permitted by applicable law.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act, if available, under Section 4(1) of the Securities Act or
directly to us in certain circumstances rather than under this reoffer
prospectus.
15
Unless otherwise prohibited, the selling stockholders may enter into hedging
transactions with broker-dealers or other financial institutions in connection
with distributions of the shares or otherwise. In such transactions, broker-
dealers or financial institutions may engage in short sales of the shares in the
course of hedging the position they assume with a selling stockholder. The
selling stockholders may also engage in short sales, puts and calls, forward-
exchange contracts, collars and other transactions in our securities or
derivatives of our securities and may sell or deliver shares in connection with
these trades. If a selling stockholder sells shares short, he or she may
redeliver the shares to close out such short positions. The selling stockholders
may also enter into option or other transactions with broker-dealers or
financial institutions which require the delivery to the broker-dealer or the
financial institution of the shares. The broker-dealer or financial institution
may then resell or otherwise transfer such shares pursuant to this reoffer
prospectus. In addition, the selling stockholder may loan his or her shares to
broker-dealers or financial institutions who are counterparties to hedging
transactions and the broker-dealers, financial institutions or counterparties
may sell the borrowed shares into the public market. A selling stockholder may
also pledge shares to his or her brokers or financial institutions and under the
margin loan the broker or financial institution may, from time to time, offer
and sell the pledged shares. To our knowledge, no selling stockholder has
entered into any agreements, understandings or arrangements with any
underwriters, broker-dealers or financial institutions regarding the sale of his
or her shares other than ordinary course brokerage arrangements, nor are we
aware of any underwriter or coordinating broker acting in connection with the
proposed sale of shares by a selling stockholder.
The selling stockholders and any broker-dealers that participate in the
distribution of the common stock may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions received by
them and any profit on the resale of the common stock sold by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
All selling and other expenses incurred by the selling stockholders will be
borne by the selling stockholders.
16
There is no assurance that the selling stockholders will sell all or any portion
of the shares of common stock offered.
We will pay all expenses in connection with this offering and will not receive
any proceeds from sales of any common stock by the selling stockholders.
LEGAL MATTERS
The validity of the issuance of the common stock offered hereby will be passed
upon for us by Silicon Valley Law Group, San Jose, California.
EXPERTS
The financial statements at December 31, 2001, and for the two years then ended,
incorporated by reference in this prospectus have been audited by L.L. Bradford
& Company, LLC, independent certified public accountants, to the extent and for
the periods set forth in their report, which contains an explanatory paragraph
regarding our ability to continue as a going concern, appearing elsewhere herein
and in the registration statement, and are included in reliance upon such report
given upon the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the Securities and Exchange Commission a Registration
Statement on Form S-8. This prospectus, which is a part of the registration
statement, does not contain all of the information included in the registration
statement. Some information is omitted, and you should refer to the registration
statement and its exhibits. With respect to references made in this prospectus
to any contract, agreement or other document of ours, such references are not
necessarily complete and you should refer to the exhibits attached to the
Registration Statement for copies of the actual contract, agreement or other
document. You may review a copy of the Registration Statement, including
exhibits, at the Securities and Exchange Commission's public reference room at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 or Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. The public
may obtain information on the operation of the public reference room by calling
the Securities and Exchange Commission at 1-800- SEC-0330. We will also file
annual, quarterly and current reports, proxy statements and other information
with the Securities and Exchange Commission. You may read and copy any reports,
statements or other information on file at the public reference rooms. You can
also request copies of these documents, for a copying fee, by writing to the
Securities and Exchange Commission. Our Securities and Exchange Commission
filings and the registration statement can also be reviewed by accessing the
Securities and Exchange Commission's Internet site at http://www.sec.gov, which
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Securities and Exchange
Commission. You should rely only on the information provided in this prospectus
or any prospectus supplement. We have not authorized anyone else to provide you
with different information. We are not making an offer to sell, nor soliciting
an offer to buy, these securities in any jurisdiction where that would not be
permitted or legal. Neither the delivery of this prospectus nor any sales made
hereunder after the date of this prospectus shall create an implication that the
information contained herein or our affairs have not changed since the date
hereof.
17
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents that we filed with the SEC are incorporated herein
by reference:
(a) Our latest annual report filed on Form 10-KSB for the fiscal year ended
December 31, 2001, filed with the Securities and Exchange Commission pursuant to
Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act").
(b) Our quarterly reports on Form 10-QSB for the quarterly periods ended
March 31, 2002, June 30, 2002 and September 30, 2002, filed with the Securities
and Exchange Commission pursuant to Section 13(a) of the Exchange Act.
(c) The description of our common stock contained in the section of our
Registration Statement on Form SB-2/A as filed on January 30, 2002 entitled,
"Description of Capital Stock."
In addition, all documents that we have filed with the SEC pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
reoffer prospectus, prior to the filing of a post-effective amendment which
indicates that all securities offered herein have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement of which this prospectus is a part, and
to be a part hereof from the date of filing of such documents.
18
We will provide without charge to each person, including any beneficial
owner, to whom a copy of this reoffer prospectus is delivered a copy of any or
all documents incorporated by reference into this reoffer prospectus except the
exhibits to such documents, unless such exhibits are specifically incorporated
by reference in such documents. You may request copies by writing Ms. Rosemarie
Repetto at rose@hyperbaricsystems.com or calling (650) 323-0943 .
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Amended and Restated Articles of Incorporation ("Articles") include
provisions to eliminate the personal liability of our directors to the fullest
extent permitted by Section 204(a)(10) under the General Corporation Law of
California (the "California Law"). Our Articles also include provisions that
authorize us to indemnify its directors and officers to the fullest extent
permitted by Sections 204 and 317 of the California Law. Our Bylaws also provide
us with the authority to indemnify its other officers, employees and other
agents as set forth in the California Law. Pursuant to Sections 204 and 317 of
the California Law, a corporation generally has the power to indemnify its
present and former directors, officers, employees and agents against expenses
incurred by them in connection with any suit to which they are, or are
threatened to be made, a party by reason of their serving in such positions so
long as they acted in good faith and in a manner they reasonably believed to be
in the best interests of the corporation, and with respect to a manner they
reasonably believed to be in the best interests of the corporation, and with
respect to any criminal action, they had no reasonable cause to believe their
conduct was unlawful.
19
A corporation may not eliminate liability: (i) for acts or omissions involving
intentional misconduct or knowing and culpable violations of law; (ii) for acts
or omissions that the individual believes to be contrary to the best interests
of the corporation or its shareholders or that involve the absence of good faith
on the part of the individual; (iii) for any transaction from which the
individual derived an improper personal benefit; (iv) for acts or omissions
involving a reckless disregard for the individual's duty to the corporation or
its shareholders when the individual was aware or should have been aware of a
risk of serious injury to the corporation or its shareholders; (v) for acts or
omissions that constitute an unexcused pattern of inattention that amounts to
any abdication of the individual's duty to the corporation or its shareholders;
or (vii) for improper distribution to shareholders and loans to directors and
officers. Also, a corporation may not eliminate liability for any act or
omission occurring prior to the date on which the corporation authorizes
indemnification of its directors, officers, employees and agents.
We have entered into agreements with our directors and executive officers that
require us to indemnify such persons against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred (including
expenses of a derivative action) in connection with any proceeding, whether
actual or threatened, to which any such person may be made a party by reason of
the fact that such person is or was a director or officer or any of its
affiliated enterprises, provided such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to our best interests
and, with respect to any criminal proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The indemnification agreements also set forth
certain procedures that will apply in the event of a claim for indemnification
thereunder.
20
The above discussion of our Amended and Restated Articles of Incorporation and
the General Corporation Law of California is only a summary and is qualified in
its entirety by the full text of each of the foregoing.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference in this registration
statement:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 2001 and filed with the Securities and Exchange Commission;
(b) The Registrant's Quarterly Reports on Form 10-QSB for the quarterly
periods ended March 31, 2002, June 30, 2002 and September 30, 2002, and filed
with the Securities and Exchange Commission;
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form SB-2/A filed on January 30, 2002
with the Securities and Exchange Commission under Section 12 of the Securities
Exchange Act of 1934 (the "Exchange Act"), including any amendment or report
filed for the purpose of updating such description.
(d) All other documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act. Since the end of the fiscal year covered
by the annual report referred to in (a) above.
21
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended Articles of Incorporation and the Bylaws of the Registrant
provide for the indemnification of the directors and agents of the Registrant to
the fullest extent permissible under California law, and in excess of that
expressly permitted by Section 317 of the California Corporation Law.
Additionally, the Company has entered into Indemnification Agreements with each
of its officers and therefore, purchasers of these securities may have a more
limited right of action than they would have except for this limitation in the
Articles of Incorporation and By-laws. In the opinion of the Securities and
Exchange Commission, indemnification for liabilities arising under the
Securities Act of 1933 is contrary to public policy and, therefore,
unenforceable.
ITEM 8. EXHIBITS.
The following Exhibits are filed as part of this registration statement:
Exhibit Number Description of Exhibit
- ------------- ----------------------
4.1 2001 Stock Option Plan of the Registrant.(1)
4.2 1998 Statutory Incentive Stock Option Plan of the Registrant.(2)
4.3 1998 Non-Statutory Incentive Stock Option Plan of the Registrant.(2)
4.4 Form of Stock Option Agreement under the 2001 Stock Option-
Plan of the Registrant.(1)
4.5 Form of Stock Option Agreement under the 1998 Statutory-
Incentive Stock Option Plan of the Registrant.(2)
4.6 Form of Stock Option Agreement under the 1998 Non-Statutory-
Incentive Stock Option Plan of the Registrant.(2)
5.1 Opinion of Silicon Valley Law Group.
23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1).
23.2 Consent of L.L. Bradford & Company, LLC.
- ------------------------------
(1) Incorporated by reference to the Registrant's Definitive
Proxy Statement filed with the US Securities and Exchange
Commission on September 19, 2002
(2) Incorporated by reference to the Registrant's Registration
Statement on Form 10-SB, filed with the US Securities and
Exchange Commission on December 8, 2000
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each 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 that time shall be deemed to be the initial bona fide offering thereof.
(c) 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 under Item 6
above, 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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
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 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 Santa Clara, State of California, on November 18,
2002.
HUMAN BIOSYSTEMS
By: /s/Harry Masuda
--------------
Harry Masuda
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ HARRY MASUDA President, Chief Financial
------------- Officer,Chief Executive Officer
Harry Masuda and a Director November 19, 2002
/s/ PAUL OKIMOTO Chairman of the Board November 19, 2002
------------
Paul Okimoto
/s/ GEORGE TSUKUDA Director November 19, 2002
--------------
George Tsukuda
EXHIBIT INDEX
Exhibit Number Description of Exhibit
- ------------- ----------------------
4.1 2001 Stock Option Plan of the Registrant.(1)
4.2 1998 Statutory Incentive Stock Option Plan of the Registrant.(2)
4.3 1998 Non-Statutory Incentive Stock Option Plan of the Registrant.(2)
4.4 Form of Stock Option Agreement under the 2001 Stock Option-
Plan of the Registrant.(1)
4.5 Form of Stock Option Agreement under the 1998 Statutory-
Incentive Stock Option Plan of the Registrant.(2)
4.6 Form of Stock Option Agreement under the 1998 Non-Statutory-
Incentive Stock Option Plan of the Registrant.(2)
5.1 Opinion of Silicon Valley Law Group.
23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1).
23.2 Consent of L.L. Bradford & Company, LLC.
- ------------------------------
(1) Incorporated by reference to the Registrant's Definitive
Proxy Statement filed with the US Securities and Exchange
Commission on September 19, 2002
(2) Incorporated by reference to the Registrant's Registration
Statement on Form 10-SB, filed with the US Securities and
Exchange Commission on December 8, 2000