As filed with the Securities and Exchange Commission on February 25, 2004
Registration No. 333-____
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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BIO-AMERICAN CAPITAL COPORATION
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(Exact Name of Registrant as Specified in Its Charter)
Nevada 93-1118938
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State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization Identification Number)
498 ELLIS STREET, 2nd FLOOR
PENTICTON, BRITISH COLUMBIA, CANADA, V2A 4M2
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(Address of Principal Executive Offices)
2004 EQUITY PERFORMANCE PLAN
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(Full Title of the Plan)
TED KOZUB
President
Bio-American Capital Corporation.
498 Ellis street, 2nd Floor
Penticton, British Columbia, Canada, V2A 4M2
(250) 497-6072
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
with a copy to:
ANDREW D. HUDDERS, ESQ.
Graubard Miller
600 Third Avenue
New York, New York 10016-2097
Telephone: (212) 818-8800
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed Maximum Proposed Maximum
Title of each Class of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share Offering Price Registration Fee
========================================= ============= ================ ================ ================
Common stock issuable upon exercise of 10,000,000 $2.25(2) $22,500.00 $2,850.75
Awards that may be granted under the 2004
Equity Performance Plan.................
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TOTAL.......................................................................................... $2,850.75
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(1) Pursuant to Rule 416, there are also being registered additional shares
of common stock as may become issuable pursuant to the anti-dilution
provisions of such plan.
(2) Based on the last sale price of a share of our common stock as reported
by The Nasdaq OTC Bulletin Board on February 24, 2004 in accordance
with Rules 457(c) and 457(h) promulgated under the Securities Act of
1933, as amended.
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In accordance with the provisions of Rule 462 promulgated under the
Securities Act, this registration statement will become effective upon filing
with the Securities and Exchange Commission.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information. *
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance
with Rule 428 under the Securities Act and the Note to Part I of
Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents that we have previously filed with the SEC are
incorporated by reference in this registration statement:
o our annual report on Form 10-KSB for the fiscal year ended
December 31, 2003;
o our current report on Form 8-K, dated January 5, 2004;
o our information statement on Schedule 14C, dated January 30, 2004;
and
o our statement regarding the change in the majority of directors,
dated January 5, 2004.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all the securities offered have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part of
this registration statement from the respective date of filing. Any statement
contained in a document incorporated by reference in this registration statement
will be modified or superseded for all purposes to the extent that a statement
contained in this registration statement or in any other subsequently filed
document which is incorporated by reference modifies or replaces such statement.
Item 4. Description of Securities.
The holders of common stock are entitled to one vote per share on all
matters submitted to a vote of the shareholders. In addition, the holders are
entitled to receive dividends ratably, if any, as may be declared from time to
time by the board of directors out of legally available funds. In the event of
our dissolution, liquidation or winding-up, the holders of common stock are
entitled to share ratably in all the assets remaining after payment of all our
liabilities and subject to the prior distribution to any senior securities that
may be outstanding at that time. The holders of common stock do not have
cumulative voting rights or preemptive or other rights to acquire or subscribe
for additional, unissued or treasury shares. The holders of more than 50% of
such outstanding shares, voting at an election of directors can elect all the
directors on the board of directors. All outstanding shares of common stock are,
when issued, the shares of common stock offered hereby, are full paid and
non-assessable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Nevada Business Corporation Act permits Nevada corporations such as
ours to include in the articles of incorporation a provision eliminating or
limiting directors' exposure to liability for monetary damages for breaches of
their duty of care as directors, if the director acted in good faith and with
ordinary care. The act does not eliminate the directors' liability for monetary
damages for acts or omissions not in good faith or involving the intentional
violations of law, the improper purchase or redemption of stock, payment of
improper dividends or any transaction from which the director received an
improper personal benefit.
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The act also permits Nevada corporations to include in the articles of
incorporation a provision to indemnify any and all persons it has the power to
indemnity. The act provides that a Nevada corporation may indemnify a person who
was, is or is threatened to be made, a named party in a proceeding because the
person is or was acting on behalf of the corporation. The indemnification by the
corporation may be made if it is determined that the person conducted himself in
good faith, reasonably believed that the conduct was in the corporation's best
interests if the indemnitee is a director, or was at least not opposed to the
corporations' best interests if the person was someone other than a director.
Directors may not be indemnified if the person improperly benefited personally
or the person is found liable to the corporation. The indemnification may be in
respect of judgments, penalties, fines, settlements and reasonable expenses
actually incurred.
We have implemented the above-described provisions in our articles of
incorporation. In addition, our by-laws provide for similar provisions. We do
not have separate agreements of indemnification or advancement of expenses. We
do not have directors and officers insurance.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling our company
pursuant to the foregoing provisions, we have been informed that in the opinion
of the SEC, indemnification is against public policy and is therefore
unenforceable. In the event that a claim for indemnification against
liabilities, other than the payment by us of expenses incurred by a director,
officer or controlling person in successful defense of any action, suit or
proceedings, is asserted by such director, officer or controlling person in
connection with the securities being offered or sold by us, we will, unless in
the opinion of its counsel that the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the federal
securities law, and will be governed by the final adjudication of such case.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Description
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4.1 2004 Equity Performance Plan (previously filed - see
index)
5.1 Opinion of Graubard Miller
23.1 Consent of Michael Johnson & Co., LLC, Certified Public
Accountants
23.2 Consent of Graubard Miller (included in Exhibit 5.1)
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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 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 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 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 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 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 registration of 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.
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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 Penticton, Province of British Columbia, Canada, on this 24th day
of February, 2004.
BIO-AMERICAN CAPITAL CORPORATION
By: /s/ Ted Kozub
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Ted Kozub, President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Ted Kozub President and Chairman of the February 24, 2004
----------------------- Board (Principal Executive
Ted Kozub and Financial Officer)
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EXHIBIT INDEX
Exhibit No. Description
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4.1 2002 Equity Performance Plan(1)
5.1 Opinion of Graubard Miller
23.1 Consent of Michael Johnson & Co., LLC, Certified Public
Accountants
23.2 Consent of Graubard Miller (included in Exhibit 5.1)
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(1) Incorporated by reference from Schedule 14C filed January 30, 2004.
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