As
filed with the Securities and Exchange Commission on April 1, 2005. File No.
333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ARBIOS
SYSTEMS, INC.
(Exact
name of issuer as specified in its charter)
|
Nevada
(State
or other jurisdiction of
incorporation
or organization) |
91-1955323
(I.R.S.
Employer
Identification
No.) |
8797
Beverly Blvd., Suite 206
Los
Angeles, California 90048
(Address
of principal executive offices)
ARBIOS
SYSTEMS, INC. 2001 STOCK OPTION PLAN
(Full
title of the plan)
|
Jacek
Rozga, M.D., Ph. D
President
8797
Beverly Blvd., Suite 206
Los
Angeles, California 90048
(Name
and address of agent for service)
(310)
657-4898
(Telephone
number, including area code, of agent for service) |
|
Copy
to:
Istvan
Benko, Esq.
Troy
& Gould Professional Corporation
1801
Century Park East, Suite 1600
Los
Angeles, California 90067
(310)
553-4441 |
CALCULATION
OF REGISTRATION FEE
|
Title
of securities
to
be registered |
|
Amount
to be registered(1) |
|
Proposed
maximum
offering
price
per
share |
|
Proposed
maximum
aggregate
offering
price(1) |
|
Amount
of
registration
fee(1) |
|
|
Common
Stock, $.001 par value |
|
|
54,000
shares |
|
$ |
0.15(2 |
) |
$ |
8,100 |
|
$ |
0.95 |
|
|
Common
Stock, $.001 par value |
|
|
297,000
shares |
|
$ |
1.00(2 |
) |
$ |
297,000 |
|
$ |
34.96 |
|
|
Common
Stock, $.001 par value |
|
|
10,000
shares |
|
$ |
2.00(2 |
) |
$ |
20,000 |
|
$ |
2.35 |
|
|
Common
Stock, $.001 par value |
|
|
170,000
shares |
|
$ |
2.25(2 |
) |
$ |
382,500 |
|
$ |
45.02 |
|
|
Common
Stock, $.001 par value |
|
|
5,000
shares |
|
$ |
2.60(2 |
) |
$ |
13,000 |
|
$ |
1.53 |
|
|
Common
Stock, $.001 par value |
|
|
5,000
shares |
|
$ |
2.80(2 |
) |
$ |
14,000 |
|
$ |
1.65 |
|
|
Common
Stock, $.001 par value |
|
|
99,000
shares |
|
$ |
2.90(2 |
) |
$ |
287,100 |
|
$ |
33.79 |
|
|
Common
Stock, $.001 par value |
|
|
165,000
shares |
|
$ |
2.97(2 |
) |
$ |
490,050 |
|
$ |
57.68 |
|
|
Common
Stock, $.001 par value |
|
|
10,000
shares |
|
$ |
3.40(2 |
) |
$ |
34,000 |
|
$ |
4.00 |
|
|
Common
Stock, $.001 par value |
|
|
185,000
shares |
|
$ |
1.65(3 |
) |
$ |
305,250 |
|
$ |
35.95 |
|
|
TOTAL |
|
|
1,000,000
shares |
|
|
|
|
$ |
1,851,000 |
|
$ |
217.86 |
|
| (1) |
In
accordance with Rule 416(c) of the Securities Act of 1933, there also are
being registered such indeterminate number of additional shares of Common
Stock as may become issuable pursuant to anti-dilution provisions of the
2001 Stock Option Plan (the “Plan”). |
| (2) |
The
registration fee for shares of Common Stock issuable upon exercise of
outstanding options under the Plan was calculated pursuant to Rule 457(h)
using the prices at which such outstanding options may be exercised.
|
| (3) |
Options
to purchase a total of 185,000 shares of common stock are still available
for grant under the Plan. Since the option exercise price of these 185,000
option shares is not known, the proposed maximum offering price per share
and maximum aggregate offering price are calculated in accordance with
Rule 457(c) and Rule 457(h) under the Securities Act of 1933 based upon a
price of $1.65, which is the average of the bid and asked prices of the
Common Stock on the OTC Bulletin Board on March 30,
2005. |
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 the Registration Statement in accordance with Rule 428 of the
General Rules and Regulations under the Securities Act of 1933 and the
Note to Part I of Form S-8. |
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
3. Incorporation
of Documents by Reference
The
following documents filed by Arbios Systems, Inc. (the “Company”) with the
Securities and Exchange Commission (the “Commission”) under the Securities
Exchange Act of 1934 (the “Exchange Act”) (Commission File No. 0-32603) are
incorporated herein by reference: (a) the Company’s Annual Report on Form
10-KSB, as amended, for the fiscal year ended December 31, 2004; and (b) The
description of the Company’s Common Stock that is contained in the Registration
Statement on Form 10-SB, as amended filed on November 11, 2001 (Registration No.
0-32603); and any amendment or report filed for the purpose of updating such
description.
In
addition, any document filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof, but prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all shares of Common Stock
registered hereunder have been sold or that deregisters all such shares of
Common Stock then remaining unsold, will be deemed incorporated herein by
reference and to be a part hereof from the date of filing of such
document.
Item
6. Indemnification
of Directors and Officers
The
Company’s Articles of Incorporation provide that no officer or director shall be
personally liable to this corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director or officer of this corporation.
Sections 78.7502, 78.751 and 78.752 of the Nevada Revised Statutes authorize a
corporation, under certain circumstances to indemnify its directors, officers,
employees and agents. The Company’s bylaws and Articles of Incorporation also
provide that it shall, to the maximum extent and in the manner permitted by the
Nevada Revised Statutes, indemnify each person who serves at any time as a
director, officer, employee or agent of the Company from and against any and all
expenses, judgments, fines, settlements and other amounts actually and
reasonable incurred in connection with any proceeding arising by reason of the
fact that he is or was a director, officer, employee or agent of the Company.
The Company also has the power to defend such person from all suits or claims in
accord with the Nevada Revised Statutes. The rights accruing to any person under
the Company’s bylaws and Articles of Incorporation do not exclude any other
right to which any such person may lawfully be entitled, and the Company may
indemnify or reimburse such person in any proper case, even though not
specifically provided for by the bylaws and Articles of
Incorporation.
Generally,
under Nevada law, a corporation may indemnify officers, directors, employees and
agents of a corporation against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in connection with any threatened, pending or completed civil, criminal,
administrative or investigative proceeding (other than derivative actions) if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action, they had no reasonable cause to believe their conduct was
unlawful. With respect to derivative actions, officers, directors, employees and
agents of a corporation may be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by them in connection with the
defense or settlement of such action if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
corporation, except that no such indemnification may be made in respect of any
claim as to which such person shall have been adjudged to be liable to the
corporation, unless and only to the extent that the court in which the action
was brought determines that such person is entitled to indemnification despite
the adjudication of liability. To the extent that an officer, director, employee
or agent is successful on the merits or otherwise in defense of any action, suit
or proceeding referred to above, the corporation shall indemnify such officer,
director, employee or agent against expenses (including attorneys' fees)
actually and reasonably incurred in connection therewith. Any indemnification
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination that indemnification of the director or
officer is proper in the circumstances because the officer or director has met
the applicable standard of conduct. Such determination shall be made by the
Board of Directors by a majority vote of a quorum consisting of Directors who
were not parties to such action, suit, or proceeding, or, regardless of whether
or not such a quorum is obtainable and a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion, or by the
stockholders.
Insofar
as indemnification for liabilities for damages arising under the Securities Act
of 1933, (the “Act”) may be permitted to the Company’s directors, officers, and
controlling persons pursuant to the foregoing provision, or otherwise, the
Company has been advised that in the opinion of the Security and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
Item
8. Exhibits
The
following exhibits included herewith or incorporated herein by reference are
made a part of this Registration Statement:
| |
4.1 |
2001
Stock Option Plan. * |
| |
5.1 |
Opinion
of Troy & Gould Professional Corporation regarding the legality of the
securities registered hereunder. * |
| |
23.1 |
Consent
of Stonefeld Josephson, Inc., independent
auditors.* |
| |
23.2 |
Consent
of Troy & Gould Professional Corporation (included in Exhibit
5.1)* |
| |
24.1 |
Power
of Attorney (included on the signature page
hereto).* |
Item
9. Undertakings
(a) The
Company 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 is
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% 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 this Registration Statement or any material change to
such information in this Registration Statement;
(iv) provided,
however, that
paragraphs (a)(1)(i) and (a)(1)(ii) 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 Commission by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference 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
thereof.
(3) To remove
from registration by means of a post-effective amendment any of the securities
being registered hereunder which remain unsold at the termination of the
offering.
(b) The
Company hereby undertakes:
That for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Company’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 this
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 Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 of 1933 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 on Form S-8
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Los Angeles, State of California, on April 1, 2005.
| |
|
|
| |
ARBIOS SYSTEMS,
INC. |
|
|
|
|
By: |
/s/ Jacek Rozga, M.D.,
Ph.D. |
| |
|
| |
Jacek Rozga, M.D.,
Ph.D
President |
| |
|
POWER
OF ATTORNEY
The
undersigned officers and directors of Arbios Systems, Inc. hereby severally
constitute and appoint Jacek Rozga, M.D., Ph.D and Scott Hayashi and each of
them acting alone as their true and lawful attorneys-in-fact and agents with
full power of substitution, for them and in their 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 all 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 which they,
or any of them, may deem necessary or advisable to be done in connection with
this registration statement, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents or any substitute or substitutes for him, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement on Form
S-8 has been signed below by the following persons on behalf of the registrant
and in the capacities and on the dates indicated.
|
Signature |
|
Title |
|
Date |
| |
|
|
|
|
|
/s/
Jacek Rozga , M.D., Ph.D |
|
President
(principal executive officer) |
|
March
31, 2005 |
| Jacek
Rozga, M.D., Ph.D |
|
|
|
|
| |
|
|
|
|
|
/s/ Scott
Hayashi |
|
Chief
Financial Officer (principal financial |
|
March 31,
2005 |
| Scott
Hayashi |
|
officer and principal
accounting officer) |
|
|
| |
|
|
|
|
|
/s/
John M. Vierling, MD |
|
Chairman
of the Board and Director |
|
March
31, 2005 |
| John
M. Vierling, MD |
|
|
|
|
| |
|
|
|
|
|
/s/
Roy Eddleman |
|
Director |
|
March
31, 2005 |
| Roy
Eddleman |
|
|
|
|
| |
|
|
|
|
|
/s/
Marvin S. Hausman, MD |
|
Director |
|
March
31, 2005 |
| Marvin
S. Hausman, MD. |
|
|
|
|
| |
|
|
|
|
|
/s/
Jack E. Stover |
|
Director |
|
March
31, 2005 |
| Jack
E. Stover |
|
|
|
|
| |
|
|
|
|
| |
4.1 |
2001
Stock Option Plan. * |
| |
5.1 |
Opinion
of Troy & Gould Professional Corporation regarding the legality of the
securities registered hereunder. * |
| |
23.1 |
Consent
of Stonefield Josephson, Inc., independent
auditors. |
| |
23.2 |
Consent
of Troy & Gould Professional Corporation (included in Exhibit
5.1)* |
| |
24.1 |
Power
of Attorney (included on the signature page
hereto).* |