As filed with the Securities and Exchange Commission on November 1, 2004
File No. 000-28638
UNITED STATES
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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KYTO BIOPHARMA INC.
(Exact name of registrant as specified in its charter)
Florida 65-1086538
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
41A AVENUE ROAD
TORONTO ON, CANADA M5R 2G3
(416) 955-0349
(Address of Principal Executive Offices)
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SERVICES AGREEMENT
WITH GERARD SERFATI
(Full title of the plan)
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LEDYARD H. DEWEES, P.A.
270 N.W. THIRD COURT
BOCA RATON, FLORIDA 33432-3720
(Name and address of agent for service)
(561) 368-1427
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Amount to be offering price aggregate offering Amount of
Title of securities to be registered registered (1) per share (1) price (1) registration fee
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Common Shares, par value $.0001 per
share ................................ 4,500,000 $0.05 $225,000 $90.00
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(1) Estimated solely for the purposes of computing the amount of the
registration fee under Rules 457(c) and (h) of the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The Company has entered into an agreement with certain consultants and
advisors which provide for the issuance of shares of our common stock for
services to us in lieu of cash compensation. In consideration for past and
continuing services rendered and to be rendered to us until the term of the
agreement expires or until such time as we shall generate sufficient cash flow
from operations, if ever, in order to pay cash compensation to certain
officers/directors, we have prepared this Form S-8 registration statement to
provide for the issuance and registration of an aggregate of 4,500,000 shares to
Gerard Serfati pursuant to a services agreement attached hereto as Exhibit 1.1.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, any of the documents incorporated by reference
in Item 3 of Part II of this Registration Statement (which documents are
incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees, non-employees, directors and
consultants, pursuant to Rule 428(b) are available without charge by contacting:
Jean-Luc Berger, President & C.E.O., Kyto Biopharma Inc., 41A Avenue Road
Toronto ON M5R 2G3 (416) 955-0349.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Kyto Biopharma Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") and
are hereby incorporated by reference in this Registration Statement:
a) The Company's Quarterly Report on Form 10-QSB for the period ended
Septemeber 30, 2004, as filed with the Securities and Exchange Commission (the
"Commission");
b) The Company's Annual Report on Form 10-KSB for the fiscal year ended
March 31, 2004, as filed with the Securities and Exchange Commission (the
"Commission");
c) The description of the Company's Common Shares contained in the Company's
10-KSB for the fiscal year ended March 31, 2004;
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of the filing of such documents with the
Commission.
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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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subject to certain provisions of our by-laws, every director, officer and
committee member shall be indemnified out of the Company's funds against all
liabilities, loss, damage or expense, including but not limited to liabilities
under contract, tort and statute or any applicable foreign law or regulation and
all reasonable legal and other costs and expenses properly payable, incurred or
suffered by him as director, officer or committee member; provided that the
indemnity contained in the by-laws will not extend to any matter which would
render it void under the laws of the State of Florida.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this registration statement are listed in the Exhibit Index
on page II-5 of this registration statement, which index is incorporated herein
by reference.
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:
(i) To include any prospectus required by section 10(a)(3) of the Securities
Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
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(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment is contained
in periodic reports filed by the registrant pursuant to section 13 or section
15(d) of the Exchange Act that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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.
(i) That, for the purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in this 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.
(ii) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or controlling persons of the
registrant pursuant to the foregoing provisions, 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
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 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filings on Form S-8 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in Toronto,
Ontario, Canada, on the 15th day of November, 2004.
KYTO BIOPHARMA INC.
By: /s/ Jean-Luc Berger
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Name: Jean-Luc Berger
Title: President
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Jean-Luc Berger and Georges Benarroch, and
each of them acting individually, as his attorney-in-fact, each with full power
of substitution, for him in any and all capacities, to sign any and all
amendments to this Registration Statement (including post-effective amendments),
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorney to any and
all amendments to said Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE NAME TITLE DATE
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/s/ Jean-Luc Berger Jean-Luc Berger President & November 1, 2004
Director
/s/ Georges Benarroch Georges Benarroch Director November 1, 2004
/s/ Don MacAdam Don MacAdam Director November 1, 2004
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
1.1 - Services Agreement between the Company and Gerard Serfati dated
November 1, 2004.
5.1 - Opinion of Ledyard H. DeWees, P.A. as to the legality of the
securities being registered dated November 1, 2004
23.1 - Consent of Independent Registered Public Accounting Firm.
24.1 - Power of Attorney (set forth on the signature page of this
Registration Statement) dated November 1, 2004
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* Incorporated by reference to the Form 10-KSB of Kyto Biopharma Inc. filed
with the Securities and Exchange Commission on June 28, 2004
** Incorporated by reference to the Form 10-QSB of Kyto Biopharma Inc. filed
with the Securities and Exchange Commission on November 15, 2004.
*** Incorporated by reference to Form S-8 Registration Statement of Kyto
Biopharma Inc. filed with the Securities and Exchange Commission on November
15, 2004.
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