As filed with the Securities and Exchange Commission on January 18, 2002
================================================================================
Registration No. 333-53384
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
BIOSANTE PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 58-2301143
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
111 BARCLAY BOULEVARD, SUITE 280
LINCOLNSHIRE, ILLINOIS 60069
(Address of Principal Executive Offices) (Zip Code)
-----------------------
1998 STOCK OPTION PLAN
(Full title of the plan)
-----------------------
PHILLIP B. DONENBERG
CHIEF FINANCIAL OFFICER
BIOSANTE PHARMACEUTICALS, INC.
111 BARCLAY BOULEVARD, SUITE 280
LINCOLNSHIRE, ILLINOIS 60069
(847) 478-0500
(Name, address and telephone number,
including area code, of agent for service)
COPY TO:
AMY E. CULBERT, ESQ.
OPPENHEIMER WOLFF & DONNELLY LLP
PLAZA VII BUILDING, SUITE 3300
MINNEAPOLIS, MINNESOTA 55402
(612) 607-7287
-------------------------
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this "Post-Effective Amendment No.
1") to that certain Registration Statement on Form S-8 (File No. 333-53384) (the
"Registration Statement") is being filed pursuant to Rule 414 under the
Securities Act of 1933, as amended (the "Securities Act"), by BioSante
Pharmaceuticals, Inc., a Delaware corporation ("BioSante"), which is the
successor to BioSante Pharmaceuticals, Inc., a Wyoming corporation ("BioSante
Wyoming"), following a statutory merger of BioSante Wyoming with and into
BioSante, with BioSante as the surviving corporation, effective June 26, 2001
(the "Merger") for the purpose of changing BioSante Wyoming's state of
incorporation to Delaware. Prior to the Merger, BioSante had no assets or
liabilities other than nominal assets or liabilities. In connection with the
Merger, BioSante succeeded by operation of law to all of the assets and
liabilities of BioSante Wyoming. The Merger was approved by the stockholders of
BioSante Wyoming at an annual meeting of stockholders on June 13, 2001, for
which proxies were solicited by the Board of Directors of BioSante Wyoming
pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
Except as modified by this Post-Effective Amendment No. 1, BioSante, by
virtue of this Post-Effective Amendment No. 1, expressly adopts the Registration
Statement as its own registration statement for all purposes of the Securities
Act and the Exchange Act.
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents as originally filed with the Securities and
Exchange Commission (the "Commission") by BioSante Wyoming (except as noted
below) are incorporated herein by reference:
(a) BioSante Wyoming's annual report on Form 10-KSB for the fiscal year
ended December 31, 2000;
(b) BioSante Wyoming's quarterly report on Form 10-QSB for the fiscal
quarter ended March 31, 2001, BioSante's quarterly report on Form 10-QSB for the
fiscal quarter ended June 30, 2001 and BioSante's quarterly report on Form
10-QSB for the fiscal quarter ended September 30, 2001; and
(c) BioSante's current report on Form 8-K as filed with the SEC on
November 20, 2001; and
(d) The description of BioSante's common stock contained in BioSante's
current report on Form 8-K as filed with the SEC on November 20, 2001, including
any amendments or reports filed for the purpose of updating the description.
All documents filed by BioSante with the SEC pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date
of the Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered pursuant to the
Registration Statement have been sold or that deregisters all securities 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.
1
ITEM 4. DESCRIPTION OF SECURITIES
BioSante's common stock is registered pursuant to Section 12 of the
Exchange Act and, therefore, the description of securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of BioSante's common stock offered hereby
will be passed upon for BioSante by Oppenheimer Wolff & Donnelly LLP,
Minneapolis, Minnesota.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
BioSante's Certificate of Incorporation limits the liability of its
directors to the fullest extent permitted by the Delaware General Corporation
Law. Specifically, Article VII of BioSante's Certificate of Incorporation
provides that no director of BioSante shall be personally liable to BioSante or
its stockholders for monetary damages for any breach of fiduciary duty by such a
director as a director, except to the extent provided by applicable law (i) for
any breach of the director's duty of loyalty to BioSante or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which such
director derived an improper personal benefit. If the Delaware General
Corporation Law is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of BioSante shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law as so amended. No amendment to or repeal of
Article VII shall apply to or have any effect on the liability or alleged
liability of any director of BioSante for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
BioSante's Certificate of Incorporation provides for indemnification of
BioSante's directors and officers. Specifically, Article VI provides that
BioSante shall indemnify, to the fullest extent authorized or permitted by law,
as the same exists or may thereafter be amended, any person who was or is made
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of BioSante), by reason
of the fact that such person is or was a director or officer of BioSante, or is
or was serving at the request of BioSante as a director, officer, employee or
agent of any other company, partnership, limited liability company, joint
venture, trust, employee benefit plan or other enterprise; provided, however,
that BioSante shall not indemnify any director or officer in connection with any
action by such director or officer against BioSante unless BioSante shall have
consented to such action. BioSante may, to the extent authorized from time to
time by BioSante's Board of Directors, provide rights to indemnification to
employees and agents of BioSante similar to those conferred in Article VI to
directors and officers of BioSante. No amendment or repeal of Article VI shall
apply to or have any effect on any right to indemnification provided thereunder
with respect to any acts or omission occurring prior to such amendment or
repeal.
BioSante maintains an insurance policy for its directors and executive
officers pursuant to which its directors and executive officers are insured
against liability for certain actions in their capacity as directors and
executive officers of BioSante.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to BioSante's directors, officers or persons controlling
BioSante pursuant to the foregoing provisions, BioSante is aware that in the
opinion of the Securities and Exchange Commission that this indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
2
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit No. Description
- ----------- -----------
5.1 Opinion of Oppenheimer Wolff & Donnelly LLP (filed herewith)
23.1 Consent of Deloitte & Touche LLP (filed herewith)
23.2 Consent of Deloitte & Touche LLP (Canada) (filed herewith)
23.3 Consent of Oppenheimer Wolff & Donnelly LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page to this registration statement)
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 the 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 hereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b)
under the Securities Act of 1933, as amended (the
"Securities Act") if, in the aggregate, the changes
in volume and price represent no more than a 20%
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(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)
above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
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
(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, 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 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 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 SEC 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.
4
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 of filing on Form S-8 and has duly caused this
Post-Effective Amendment No. 1 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Lincolnshire, State of Illinois, on
January 14, 2002.
BIOSANTE PHARMACEUTICALS, INC.
By: /s/ Stephen M. Simes
------------------------------------------------
Stephen M. Simes
President and Chief Executive Officer
(principal executive officer)
By: /s/ Phillip B. Donenberg
------------------------------------------------
Phillip B. Donenberg
Chief Financial Officer, Treasurer and Secretary
(principal financial and accounting officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Stephen M. Simes and Phillip B. Donenberg, and each of them, his or her true and
lawful attorney-in-fact and agent with full powers of substitution and
resubstitution, for and in his or her name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to the Registration Statement (including this Post-Effective Amendment No. 1),
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 has been signed on January 14, 2002 by the
following persons in the capacities indicated.
SIGNATURE TITLE
/s/ Stephen M. Simes Vice Chairman, President and Chief
- ----------------------------------- Executive Officer
Stephen M. Simes
/s/ Louis W. Sullivan, M.D. Chairman of the Board
- -----------------------------------
Louis W. Sullivan, M.D.
Director
- -----------------------------------
Avi Ben-Abraham, M.D.
/s/ Victor Morgenstern Director
- -----------------------------------
Victor Morgenstern
/s Edward C. Rosenow, III, M.D. Director
- -----------------------------------
Edward C. Rosenow, III, M.D.
5
/s/ Fred Holubow Director
- -----------------------------------
Fred Holubow
/s/ Ross Mangano Director
- -----------------------------------
Ross Mangano
/s/ Angela Ho Director
- -----------------------------------
Angela Ho
/s/ Peter Kjaer Director
- -----------------------------------
Peter Kjaer
6
BIOSANTE PHARMACEUTICALS, INC.
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
EXHIBIT NO. ITEM METHOD OF FILING
- ------------ -------------------------------------------------------------- ---------------------------------------
5.1 Opinion of Oppenheimer Wolff & Donnelly LLP................... Filed herewith.
23.1 Consent of Deloitte & Touche LLP.............................. Filed herewith.
23.2 Consent of Deloitte & Touche LLP (Canada)..................... Filed herewith.
23.3 Consent of Oppenheimer Wolff & Donnelly LLP................... Included in Exhibit 5.1.
24.1 Power of Attorney............................................. Included on the signature page to this
registration statement.
EXHIBIT 5.1
[Oppenheimer Wolff & Donnelly LLP Letterhead]
January 18, 2002
BioSante Pharmaceuticals, Inc.
111 Barclay Boulevard, Suite 280
Lincolnshire, IL 60069
RE: BIOSANTE PHARMACEUTICALS, INC.
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to BioSante Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), in connection with the Post-Effective Amendment No.
1 to the Registration Statement on Form S-8 to be filed by the Company with the
Securities and Exchange Commission (the "SEC") on the date hereof (the
"Post-Effective Amendment No. 1"). The Post-Effective Amendment No. 1 amends
that certain Registration Statement on Form S-8 filed by BioSante
Pharmaceuticals, Inc., a Wyoming corporation ("BioSante Wyoming"), with the SEC
on January 8, 2001 (the "Original Registration Statement"). The Post-Effective
Amendment No. 1 is being filed pursuant to Rule 414 under the Securities Act of
1933, as amended (the "Securities Act"), by the Company, which is the successor
to BioSante Wyoming, following a statutory merger of BioSante Wyoming with and
into the Company, with the Company as the surviving corporation, effective April
30, 2001 for the purpose of changing BioSante Wyoming's state of incorporation
to Delaware. The 7,000,000 shares of common stock, par value $0.0001 per share
(the "Common Stock"), of the Company issuable under the Company's 1998 Stock
Option Plan (the "Plan") pursuant to the Original Registration Statement, as
amended by the Post-Effective Amendment No. 1, are collectively referred to
herein as the "Shares." The term "Registration Statement" in this opinion refers
to the Registration Statement as amended by Post-Effective Amendment No. 1 and
as amended hereafter from time to time.
In acting as counsel for the Company and arriving at the opinions expressed
below, we have examined and relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein. In
connection with our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents tendered to us as originals, the
legal capacity of all natural persons and the conformity to original documents
of all documents submitted to us as certified or photostatic copies.
Based on the foregoing, and subject to the qualifications and limitations stated
herein, it is our opinion that:
1. The Company has the corporate authority to issue the Shares in the manner
and under the terms set forth in the Registration Statement.
2. The Shares have been duly authorized and, when issued, delivered and paid
for in accordance with the Plan as set forth in the Registration Statement,
will be validly issued, fully paid and nonassessable.
We express no opinion with respect to laws other than those of the State of
Minnesota, the Delaware General Corporation Law and the federal laws of the
United States of America, and we assume no responsibility as to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration Statement.
Very truly yours,
/s/ Oppenheimer Wolff & Donnelly LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to the Registration Statement on Form S-8 of BioSante Pharmaceuticals,
Inc. of our report dated February 16, 2001 (which report expresses an
unqualified opinion and includes and explanatory paragraph referring to the
development state nature of BioSante), appearing in the Annual Report on Form
10-KSB of BioSante Pharmaceuticals, Inc. for the year ended December 31, 2000.
DELOITTE & TOUCHE LLP
/s/ Deloitte & Touche LLP
Chicago, Illinois
January 15, 2002
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to the Registration Statement on Form S-8 of BioSante Pharmaceuticals,
Inc. (formerly Ben-Abraham Technologies Inc.) of our report dated February 19,
1999 (which report expresses an unqualified opinion and includes and explanatory
paragraph referring to the development state nature of BioSante), appearing in
the Annual Report on Form 10-KSB of BioSante Pharmaceuticals, Inc. for the year
ended December 31, 2000.
DELOITTE & TOUCHE LLP
/s/ Deloitte & Touche LLP
Chartered Accountants
Toronto, Ontario
January 15, 2002
