btcforms8.htm
As
filed with the Securities and Exchange Commission on October 5,
2007 Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
BIOSPECIFICS
TECHNOLOGIES CORP.
(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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11-3054851
(I.R.S.
Employer Identification No.)
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35
Wilbur Street
Lynbrook,
NY
(Address
of Principal Executive Offices)
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11563
(Zip
Code)
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2001
STOCK OPTION PLAN
(Full
title of the plan)
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Thomas
L. Wegman, President
BioSpecifics
Technologies Corp.
35
Wilbur Street
Lynbrook,
NY 11563
(Name
and address of Agent for Service)
(516)
593-7000
(Telephone
Number, including area code, of Agent for Service)
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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)
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Proposed
maximum
offering
price per
share(2)
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Proposed
maximum
aggregate
offering
price(2)
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Amount
of
registration
fee
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Common
stock, $0.001 (including the associated rights under the Rights
Agreement)
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1,750,000
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$5.80
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$10,150,000
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$311.61
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(1) In
accordance with Rule 416 under the Securities Act of 1933, as amended,
this registration statement shall be deemed to cover any additional
securities that may from time to time be offered or issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions, at the sole and absolute discretion of the Board of
Directors (or an authorized committee of the Board of Directors)
of the
Registrant.
(2) Estimated
solely for the purpose of calculating the registration fee pursuant
to
Rule 457(h) under the Securities Act of 1933, as amended for the
1,750,000 shares
registered hereunder (based on the last reported sale price for the
Registrant's Common Stock as quoted on the Pink Sheets on October 1,
2007).
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM
1. Plan
Information.
The
information required by Item 1
is included in documents sent or given to participants in the plan covered
by
this registration statement pursuant to Rule 428(b)(1) of the Securities
Act of 1933, as amended (the “Securities Act”).
ITEM
2. Registrant
Information and Employee Plan Annual Information.
The
written statement required by
Item 2 is included in documents sent or given to participants in the plan
covered by this registration statement pursuant to Rule 428(b)(1) of the
Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
The
registrant is subject to the informational and reporting requirements of
Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the “Commission”). The following documents, which are on file with the
Commission, are incorporated in this registration statement by
reference:
(a) The
Registrant’s latest annual report filed pursuant to Section 13(a) or 15(d) of
the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under
the Securities Act that contains audited financial statements for the
registrant’s latest fiscal year for which such statements have been
filed.
(b) All
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act
since
the end of the fiscal year covered by the document referred to in
(a) above.
(c) The
description of the securities contained in the registrant’s registration
statement on Form 8-A filed under the Exchange Act, including any amendment
or
report filed for the purpose of updating such description.
All
documents subsequently filed by the Registrant 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 securities offered hereby 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 part hereof
from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the 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
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.
Thelen
Reid Brown Raysman & Steiner LLP has opined as to the legality of the
securities being offered by this registration statement.
ITEM
6. Indemnification
of Directors and Officers.
Section 102
of the General
Corporation Law of the State of Delaware permits a corporation to eliminate
the
personal liability of directors of a corporation to the corporation or its
stockholders for monetary damages for a breach of fiduciary duty as a director,
except where the director breached his duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or knowingly violated a law, authorized
the payment of a dividend or approved a stock repurchase in violation of
Delaware corporate law or obtained an improper personal benefit. The
Registrant’s certificate of incorporation, as amended, provides that no director
of the Registrant shall be personally liable to it or its stockholders for
monetary damages for any breach of fiduciary duty as a director, provided that
such liability is not eliminated or limited (i) for any breach of the director’s
duty of loyalty to the Registrant or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) arising under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
an
improper personal benefit.
Section 145
of the General Corporation Law of the State of Delaware provides that a
corporation has the power to indemnify a director, officer, employee, or agent
of the corporation and certain other persons serving at the request of the
corporation in related capacities against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlements actually and reasonably
incurred by the person in connection with an action, suit or proceeding to
which
he is or is threatened to be made a party by reason of such position, if such
person acted in good faith and in a manner he reasonably believed to be in
or
not opposed to the best interests of the corporation, and, in any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful, except that, in the case of actions brought by or in the right of
the
corporation, no indemnification shall be made with respect to any claim, issue
or matter as to which such person shall have been adjudged to be liable to
the
corporation unless and only to the extent that the Court of Chancery or other
adjudicating court determines that, despite the adjudication of liability but
in
view of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnify for such expenses which the Court of Chancery
or such other court shall deem proper.
The
Registrant’s Amended and Restated
By-laws authorize and require the Registrant’s indemnification of its directors,
officers, employees and agents to the fullest extent permitted by the General
Corporation Law of Delaware, as amended from time to time. The
Registrant’s Amended and Restated By-laws provide that the Registrant
will indemnify each person who was or is a party or
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 the Registrant) by reason of the
fact that he or she is or was, or has agreed to become, a director or officer
of
the Registrant, or is or was serving, or has agreed to serve, at the request
of
the Registrant, as a director, officer, partner, employee or trustee of, or
in a
similar capacity with, another corporation, partnership, joint venture, trust
or
other enterprise (including any employee benefit plan) (all such persons being
referred to hereafter as an “Indemnitee”), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by or on behalf of Indemnitee in connection with such
action, suit or proceeding and any appeal therefrom, if Indemnitee acted in
good
faith and in a manner which Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The Registrant’s Amended and Restated By-laws
further provide that the Registrant will indemnify any Indemnitee who was or
is
a party to or threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Registrant to procure a
judgment in its favor by reason of the fact that Indemnitee is or was, or has
agreed to become, a director or officer of the Registrant, or is or was serving,
or has agreed to serve, at the request of the Registrant, as a director,
officer, partner, employee or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (including
any employee benefit plan), or by reason of any action alleged to have been
taken or omitted in such capacity, against all expenses (including attorneys’
fees) and, to the extent permitted by law, amounts paid in settlement actually
and reasonably incurred by or on behalf of Indemnitee in connection with such
action, suit or proceeding and any appeal therefrom, if Indemnitee acted in
good
faith and in a manner which Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Registrant, except that no indemnification
shall be made with respect to any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Registrant, unless, and only to
the
extent, that the Court of Chancery of Delaware, or the court in which such
action or suit was brought, shall determine upon application that, despite
the
adjudication of such liability but in view of all the circumstances of the
case,
Indemnitee is fairly and reasonably entitled to indemnity for such expenses
(including attorneys’ fees) which the Court of Chancery of Delaware, or the
court
in
which such action or suit was brought, shall deem
proper. Notwithstanding the foregoing, to the extent that an
Indemnitee has been successful, on the merits or otherwise, in defense of any
action, suit or proceeding referred to above, or in defense of any claim, issue
or matter therein, or on appeal from any such action, suit or proceeding,
Indemnitee shall be indemnified against all expenses (including attorneys’ fees)
actually and reasonably incurred by or on behalf of Indemnitee in connection
therewith.
The
Registrant’s Amended and Restated
By-laws also provide that the Registrant may purchase and maintain insurance,
at
its expense, to protect itself and any director, officer, employee or agent
of
the Registrant or another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan) against any expense,
liability or loss incurred by him in any such capacity, or arising out of his
status as such, whether or not the Registrant would have the power to indemnify
such person against such expense, liability or loss under the General
Corporation Law of Delaware. The registrant maintains a general
liability insurance policy which covers certain liabilities of directors and
officers of the registrant arising out of claims based on acts or omissions
in
their capacities as directors or officers.
ITEM
7. Exemption
from Registration Claimed.
Not
Applicable.
ITEM
8. Exhibits.
The
Exhibit Index immediately preceding
the exhibits is incorporated herein by reference.
(A) Item
512(a) of Regulation S-B. 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
of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this 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 this 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 and of the estimated maximum offering range may be reflected in the form
of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20 percent 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 additional or changed material information with respect to the
plan
of distribution not previously disclosed in this 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;
(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.
(4) For
determining liability of the undersigned Registrant under the Securities Act
to
any purchaser in the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this registration statement, regardless
of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of
the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(ii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant.
(B) Item
512(e) of Regulation
S-B. 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.
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 Lynbrook, State of New York, on this 5th day of October, 2007.
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BIOSPECIFICS
TECHNOLOGIES CORP.
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By:
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/s/
Thomas L. Wegman
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Thomas
L. Wegman |
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President
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POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Thomas L. Wegman
and Carl A. Valenstein, acting singly, his true and lawful attorney-in-fact
and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead in any and all capacities, to sign any and all amendments
(including post-effective amendments) and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, acting singly, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes
as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has
been
signed by the following persons in the capacities indicated on October 5,
2007.
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/s/
Thomas L. Wegman
Thomas
L. Wegman
Director
and President
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/s/
Paul A. Gitman
Paul
A. Gitman
Director
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/s/
Michael Schamroth
Michael
Schamroth
Director
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/s/
Henry Morgan
Henry
Morgan
Director
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Index
to Exhibits
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Exhibit
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Description
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3.1
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Registrant’s
Certificate of Incorporation, as amended (incorporated by reference
to
Exhibit 3.1 of the Registrant’s Form 10-KSB filed with the SEC on March 2,
2007).
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3.2
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Registrant’s
Amended and Restated By-laws (incorporated by reference to Exhibit
3.2 of
the Registrant’s Form 10-KSB filed with the SEC on March 2,
2007).
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4.1
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BioSpecifics
Technologies Corp. 2001 Stock Option Plan (incorporated by reference
to
Exhibit 10.15 of the Registrant’s Form 10-KSB filed with the SEC on May
17, 2001).
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4.2
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Amendment
to BioSpecifics Technologies Corp. 2001 Stock Option Plan of Registrant
(incorporated by reference to the Registrant’s Form 14A filed with the SEC
on November 12, 2003).
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4.3
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4.4
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5.1
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23.1
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23.2
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Consent
of Thelen Reid Brown Raysman & Steiner LLP (included in 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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