View:
As
filed with the Securities and Exchange Commission on June 13, 2008
Registration
No. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
___________________________
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
___________________________
BIOSANTE
PHARMACEUTICALS, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
(State
or other jurisdiction of incorporation or organization)
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58-2301143
(I.R.S.
Employer
Identification
Number)
|
111
Barclay Boulevard, Suite 280, Lincolnshire, IL 60069
(Address
of principal executive office) (Zip Code)
___________________________
BioSante
Pharmaceuticals, Inc. Amended and Restated 1998 Stock Plan
(Full
title of the plan)
Phillip
B. Donenberg
Chief
Financial Officer, Treasurer and Secretary
BioSante
Pharmaceuticals, Inc.
111
Barclay Boulevard, Suite 280
Lincolnshire,
IL 60069
(847)
478-0500
(Name and
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
requested to:
Amy
E. Culbert, Esq.
Oppenheimer
Wolff & Donnelly LLP
45
South Seventh Street, Suite 3300
Minneapolis,
Minnesota 55402-1509
(612)
607-7287
___________________________
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See definitions of “large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act. (Check one):
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Large
accelerated filer o
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Accelerated
filer x
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Non-accelerated
filer (Do not check if a smaller reporting company) o
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Smaller
reporting company o
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities
to
be Registered
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Amount
to be
Registered(1)
|
Proposed
Maximum
Offering
Price Per Share(2)
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Proposed
Maximum
Aggregate
Offering Price(2)
|
Amount
of
Registration
Fee
|
|
Common
Stock, par value $0.001 per share
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408,664
shares
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$3.33
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$1,360,851.10
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$53.48
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_________________
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(1)
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The
number of shares of common stock, par value $0.001 per share, of BioSante
(“Common Stock”), stated above represents shares subject to stock options
previously granted under the BioSante Pharmaceuticals, Inc. Amended and
Restated 1998 Stock Plan (the “Plan”) but not yet registered under the
Securities Act of 1933, as amended (the “Securities Act”). An
aggregate of 2,000,000 shares have been previously registered under
Registration Statements on Form S-8 (File No. 333-53384, File No.
333-100238 and File No. 333-109474). In addition, the maximum
number of shares of Common Stock that may be issued under the Plan is
subject to adjustment in accordance with certain provisions of the
Plan. Accordingly, pursuant to Rule 416 under the Securities
Act, to the extent additional shares of Common Stock may be issued or
issuable as a result of a stock split, stock dividend or other similar
transaction while this Registration Statement is in effect, this
Registration Statement is hereby deemed to cover all such additional
shares of Common Stock.
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(2)
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Estimated
solely for the purpose of calculating the amount of the registration fee
and calculated pursuant to Rule 457(h) under the Securities Act on the
basis of the weighted average exercise price of the outstanding stock
options previously granted under the
Plan.
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STATEMENT
UNDER GENERAL INSTRUCTION E—
REGISTRATION
OF ADDITIONAL SECURITIES
The
registrant, BioSante Pharmaceuticals, Inc. (the “Registrant” or “BioSante”),
previously filed Registration Statements on Form S-8 (SEC File No. 333-53384,
File No. 333-100238 and File No. 333-109474) with the Securities and Exchange
Commission (the “Commission”) in connection with the registration of 700,000,
300,000 and 1,000,000 shares, respectively, of BioSante’s common stock to be
issued under the BioSante Pharmaceuticals, Inc. Amended and Restated 1998 Stock
Plan (the “Plan”).
Pursuant
to General Instruction E of Form S-8, this Registration Statement is filed by
BioSante solely to register an additional 408,664 shares of BioSante’s common
stock reserved for issuance under the Plan and subject to outstanding stock
options previously granted by BioSante under the Plan. The increase in the
number of shares of BioSante’s common stock authorized under the Plan was
approved by BioSante’s board of directors and stockholders. Pursuant
to Instruction E, the contents of BioSante’s previously filed Registration
Statements on Form S-8 (SEC File No. 333-53384, File No. 333-100238 and File No.
333-109474), including without limitation periodic reports that BioSante filed,
or will file, after this Registration Statement to maintain current information
about BioSante, are hereby incorporated by reference into this Registration
Statement pursuant to General Instruction E of Form S-8, with the exception of
Items 3, 4, 5, 6, 8 and 9 of Part II of such prior Registration Statements, each
of which is amended and restated in its entirety herein.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
As
permitted by the instructions to Form S-8, this Registration Statement omits the
information specified in Part I of Form S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
The
following documents previously filed by BioSante with the Commission are
incorporated by reference into, and shall be deemed to be a part of, this
Registration Statement:
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(a)
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BioSante’s
Annual Report on Form 10-K for the year ended December 31,
2007;
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(b)
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BioSante’s
Quarterly Report on Form 10-Q for the quarter ended March 31,
2008;
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(c)BioSante’s
Current Reports on Form 8-K filed on January 18, 2008, April 21, 2008 and
June 13, 2008; and
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(d)
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The
description of BioSante’s Common Stock contained in its Registration
Statement on Form SB-2 (File No 333-108550) filed with the Commission on
September 5, 2003, including any amendments or reports filed for the
purpose of updating such
description.
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In
addition, all documents filed with the Commission by BioSante (other than
portions of such documents which are furnished and not filed) pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the time
of filing of such documents.
Any
statement contained in the documents incorporated or deemed to be incorporated
by reference into this Registration Statement 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 incorporated or deemed to be incorporated by reference into this
Registration Statement 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
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
has entered into agreements with its directors and executive officers regarding
indemnification, in addition to indemnification provided for in BioSante’s
Certificate of Incorporation, Bylaws and the Delaware General Corporation Law
and intends to enter into indemnification agreements with any new directors and
executive officers in the future. Under these agreements, BioSante is
required to indemnify its current and former directors and executive officers
against expenses, judgments, penalties, fines, settlements and other amounts
actually and reasonably incurred, including expenses of a derivative action, in
connection with an actual or threatened proceeding if any of them may be made a
party because he or she is or was one of BioSante’s directors or executive
officers. BioSante will be obligated to pay these amounts only if the
director or executive officer acted in good faith and in a manner that he or she
reasonably believed to be in or not opposed to BioSante’s best
interests. With respect to any criminal proceeding, BioSante will be
obligated to pay these amounts only if the director or executive officer had no
reasonable cause to believe his or her conduct was unlawful. The
indemnification agreements also set forth procedures that will apply in the
event of a claim for indemnification.
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.
Item
8. Exhibits
The
following exhibits are filed with or incorporated by reference into this
Registration Statement:
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Exhibit
No.
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Description
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4.1
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Arrangement
Agreement, dated October 23, 1996, between Structured Biologicals Inc. and
BioSante Pharmaceuticals, Inc. (incorporated by reference to Exhibit
2.1 contained in BioSante’s Registration Statement on Form 10-SB, as
amended (File No. 000-28637)).
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4.2
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Amended
and Restated Certificate of Incorporation of BioSante Pharmaceuticals,
Inc. (incorporated by reference to Exhibit 3.1 contained in BioSante’s
Registration Statement on Form SB-2, as amended (Reg. No.
333-64218)).
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4.3
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Amendment
to Amended and Restated Certificate of Incorporation of BioSante
Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.2 contained
in BioSante’s Registration Statement on Form 8-A (File No.
001-31812)).
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4.4
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Bylaws
of BioSante Pharmaceuticals, Inc. (incorporated by reference to Exhibit
3.2 contained in BioSante’s Registration Statement on Form SB-2, as
amended (Reg. No. 333-64218).
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5.1
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Opinion
of Oppenheimer Wolff & Donnelly LLP (Filed
herewith)
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23.1
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Consent
of Deloitte & Touche LLP (Filed herewith)
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23.2
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Consent
of Oppenheimer Wolff & Donnelly LLP (included as part of Exhibit
5.1)
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24.1
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Power
of Attorney (included on the signature page to this Registration
Statement)
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Item
9. Undertakings
(a) The
undersigned Registrant hereby undertakes as follows:
(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. 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 Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective Registration Statement;
and
(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 Registration Statement
is on Form S-8, and 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 Commission 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) 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 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 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 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
Lincolnshire, State of Illinois on June 12, 2008.
BIOSANTE
PHARMACEUTICALS, INC.
By: /s/ Stephen M.
Simes
Stephen M. Simes
Vice
Chairman, 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 hereby authorizes and appoints Stephen M.
Simes and Phillip B. Donenberg, or either of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, 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 agents or any of them, their, or his or her, substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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.
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Signature
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Title
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Date
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/s/
Stephen M. Simes
Stephen
M. Simes
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Vice
Chairman, President and Chief Executive Officer
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June
12, 2008
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/s/
Phillip B. Donenberg
Phillip
B. Donenberg
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Chief
Financial Officer, Treasurer and
Secretary
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June
12, 2008
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/s/
Loius W. Sullivan, M.D.
Louis
W. Sullivan, M.D.
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Chairman
of the Board
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June
12, 2008
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/s/
Fred Holubow
Fred
Holubow
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Director
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June
12, 2008
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/s/
Peter Kjaer
Peter
Kjaer
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Director
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June
12, 2008
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/s/
Ross Mangano
Ross
Mangano
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Director
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June
12, 2008
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/s/
Edward C. Rosenow, III M.D.
Edward
C. Rosenow, III M.D.
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Director
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June
12, 2008
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BIOSANTE
PHARMACEUTICALS, INC.
REGISTRATION
STATEMENT ON FORM S-8
EXHIBIT
INDEX
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Exhibit
No.
|
Description
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Method
of Filing
|
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4.1
|
Arrangement
Agreement, dated October 23, 1996, between Structured Biologicals Inc. and
BioSante Pharmaceuticals,
Inc.
|
Incorporated
by reference to Exhibit 2.1 contained in BioSante’s Registration Statement
on Form 10-SB, as amended (File No. 000-28637).
|
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4.2
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Amended
and Restated Certificate of Incorporation of BioSante Pharmaceuticals,
Inc.
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Incorporated
by reference to Exhibit 3.1 contained in BioSante’s Registration Statement
on Form SB-2, as amended (Reg. No. 333-64218).
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4.3
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Amendment
to Amended and Restated Certificate of Incorporation of BioSante
Pharmaceuticals, Inc.
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Incorporated
by reference to Exhibit 3.2 contained in BioSante’s Registration Statement
on Form 8-A (File No. 001-31812).
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4.4
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Bylaws
of BioSante Pharmaceuticals, Inc.
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Incorporated
by reference to Exhibit 3.2 contained in BioSante’s Registration Statement
on Form SB-2, as amended (Reg. No. 333-64218).
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5.1
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Opinion
of Oppenheimer Wolff & Donnelly LLP
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Filed
herewith
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23.1
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Consent
of Deloitte & Touche LLP
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Filed
herewith
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23.2
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Consent
of Oppenheimer Wolff & Donnelly LLP
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Included
as part of Exhibit 5.1
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24.1
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Power
of Attorney
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Included
on the signature page to this Registration
Statement
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Exhibit
5.1
[Oppenheimer
Wolff & Donnelly LLP Letterhead]
June 13,
2008
BioSante
Pharmaceuticals, Inc.
111
Barclay Boulevard, Suite 280
Lincolnshire,
IL 60069
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Re:
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BioSante
Pharmaceuticals, Inc.
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Registration
Statement on Form S-8
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Ladies
and Gentlemen:
We have
acted as counsel to BioSante Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), in connection with the registration by the Company of 408,664 shares
of common stock, par value $0.001 per share (the “Common Stock”), of the Company
issuable under the BioSante Pharmaceuticals, Inc. Amended and Restated 1998
Stock Plan (the “Plan”), pursuant to a registration statement on Form S-8 filed
with the Securities and Exchange Commission on the date hereof (the
“Registration Statement”). The 408,664 shares of Common Stock of the
Plan are collectively referred to herein as the “Shares.”
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:
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1.
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The
Company has the corporate authority to issue the Shares in the manner and
under the terms set forth in the Registration Statement and the
Plan.
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2.
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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.
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We
express no opinion with respect to laws other than those of the Delaware General
Corporation Law (including the statutory provisions, all applicable provisions
of the Delaware Constitution and reported judicial decisions interpreting the
foregoing) 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. In
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, the rules and regulations of the Securities and Exchange Commission
promulgated thereunder, or Item 509 of Regulation S-K.
Very
truly yours,
/s/
Oppenheimer Wolff & Donnelly LLP
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Exhibit
23.1
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CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form
S-8 of our reports dated March 17, 2008, relating to the financial statements of
BioSante Pharmaceuticals, Inc., and the effectiveness of BioSante
Pharmaceuticals, Inc.’s internal control over financial reporting, appearing in
the Annual Report on Form 10-K of BioSante Pharmaceuticals, Inc. for the year
ended December 31, 2007.
/s/
DELOITTE & TOUCHE LLP
Chicago,
Illinois
June 11,
2008