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As filed with the Securities and Exchange Commission on October 3, 2003
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)
| Delaware (State or other jurisdiction of incorporation or organization) |
58-2301143 (I.R.S. Employer Identification No.) |
|
111 Barclay Boulevard, Suite 280 Lincolnshire, Illinois (Address of Principal Executive Offices) |
60069 (Zip Code) |
BIOSANTE PHARMACEUTICALS, INC.
AMENDED AND RESTATED 1998 STOCK PLAN
(Full title of the plan)
Phillip B. Donenberg
Chief Financial Officer
BioSante Pharmaceuticals, Inc.
111 Barclay Boulevard, Suite 280
Lincolnshire, IL 60069
(Name, address and telephone number,
including area code, of agent for service)
(847) 478-0500
(Ttelephone number, including area code, of agent for service)
Amy E. Culbert, Esq.
Oppenheimer Wolff & Donnelly LLP
45 South Seventh Street, Suite 3300
Minneapolis, Minnesota 55402
(612) 607-7287
Approximate date of commencement of proposed sale to the public:
Immediately upon the filing of this registration statement
CALCULATION OF REGISTRATION FEE
| Title of each class of securities to be registered |
Amount to be registered(1) |
Proposed maximum offering price per share(2) |
Proposed maximum aggregate offering price |
Amount of registration fee(2) |
||||
|---|---|---|---|---|---|---|---|---|
| Common Stock, par value $0.0001 per share | 1,000,000 | $3.13 | $3,130,000 | $253.22 | ||||
- (1)
- Represents
the increase in the total number of shares reserved for issuance under the registrant's Amended and Restated 1998 Stock Plan. An aggregate of 1,000,000 shares has been
previously registered under registration statements on Form S-8 (File Nos. 333-53384 and 333-100238) In addition, pursuant to Rule 416 under the
Securities Act of 1933, this registration statement includes an indeterminate number of additional shares that may be offered and sold as a result of anti-dilution provisions described in
the registrant's Amended and Restated 1998 Stock Plan.
- (2)
- Estimated solely for the purpose of calculating the amount of the registration fee and calculated pursuant to Rule 457(h) under the Securities Act as follows: (i) with respect to stock options to purchase shares previously granted under the Amended and Restated 1998 Stock Plan, on the basis of the weighted average exercise price of these stock options, and (ii) with respect to stock options and other awards to be granted under the plan based on the average between the high and low prices of the registrant's common stock on October 1, 2003 on the American Stock Exchange.
STATEMENT UNDER GENERAL INSTRUCTION E—
REGISTRATION OF ADDITIONAL SECURITIES
The registrant, BioSante Pharmaceuticals, Inc., previously filed registration statements on Form S-8 with the Securities and Exchange Commission (SEC File Nos. 333-53384 and 333-100238) in connection with the registration of an aggregate of 1,000,000 (as adjusted to reflect a 1-for-10 reverse stock split effected on May 31, 2002) shares of BioSante's common stock to be issued under the BioSante Pharmaceuticals, Inc. Amended and Restated 1998 Stock Plan. BioSante amended the registration statement (SEC File No. 333-53384) by virtue of a post-effective amendment No. 1 pursuant to Rule 414 under the Securities Act of 1933, as amended, to reflect the reincorporation of BioSante from the State of Wyoming to the State of Delaware.
Pursuant to General Instruction E of Form S-8, this registration statement is filed by BioSante solely to register an additional 1,000,000 shares of common stock reserved for issuance under the BioSante Pharmaceuticals, Inc. Amended and Restated 1998 Stock Plan. This increase 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 Nos. 333-53384 and 333-100238) and the post-effective amendment No. 1 thereto, 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.
Part II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
| 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 Oppenheimer Wolff & Donnelly LLP (included in Exhibit 5.1) | |
| 24.1 | Power of Attorney (included on the signature page to this registration statement) |
1
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 registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lincolnshire, State of Illinois, on September 10, 2003.
| 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) |
||
2
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 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 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 registration statement has been signed on September 10, 2003 by the following persons in the capacities indicated.
| /s/ STEPHEN M. SIMES Stephen M. Simes |
Vice Chairman, President and Chief Executive Officer | |
/s/ LOUIS W. SULLIVAN, M.D. Louis W. Sullivan, M.D. |
Chairman of the Board |
|
/s/ VICTOR MORGENSTERN Victor Morgenstern |
Director |
|
Edward C. Rosenow, III, M.D. |
Director |
|
/s/ FRED HOLUBOW Fred Holubow |
Director |
|
/s/ ROSS MANGANO Ross Mangano |
Director |
|
/s/ ANGELA HO Angela Ho |
Director |
|
/s/ PETER KJAER Peter Kjaer |
Director |
3
BIOSANTE PHARMACEUTICALS, INC.
REGISTRATION STATEMENT ON FORM s-8
| 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 Oppenheimer Wolff & Donnelly LLP | Included in Exhibit 5.1. | ||
| 24.1 | Power of Attorney | Included on the signature page to this registration statement. |
STATEMENT UNDER GENERAL INSTRUCTION E— REGISTRATION OF ADDITIONAL SECURITIES
Part II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
SIGNATURES
POWER OF ATTORNEY
INDEX TO EXHIBITS
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[Oppenheimer Wolff & Donnelly LLP Letterhead]
October 3, 2003
BioSante
Pharmaceuticals, Inc.
111 Barclay Boulevard
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 registration by the Company of 1,000,000 shares of common stock, par value $0.0001 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 1,000,000 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:
- 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
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We consent to the incorporation by reference in this Registration Statement of BioSante Pharmaceuticals, Inc. on Form S-8 of our report dated February 14, 2003 (which report expresses an unqualified opinion and includes an explanatory paragraph indicating that BioSante Pharmaceuticals, Inc. is in the development stage), appearing in the Annual Report on Form 10-KSB of BioSante Pharmaceuticals, Inc. for the year ended December 31, 2002.
/s/ Deloitte & Touche LLP
DELOITTE &
TOUCHE LLP
Chicago, Illinois
October 2, 2003
INDEPENDENT AUDITORS' CONSENT