As filed with the Securities and Exchange Commission on September 26, 2005
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under the
Securities Act of 1933
PRESSURE BIOSCIENCES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Massachusetts 04-2652826
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
321 Manley Street, West Bridgewater, MA 02379
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(Address of Principal Executive Offices) (Zip Code)
PRESSURE BIOSCIENCES, INC. 2005 EQUITY INCENTIVE PLAN
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(Full Title of the Plan)
Richard T. Schumacher, President and Chief Executive Officer
Pressure BioSciences, Inc.
321 Manley Street
West Bridgewater, MA 02379
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(Name and Address of Agent For Service)
with a copy to:
Steven R. London, Esq.
Brown Rudnick Berlack Israels LLP
One Financial Center
Boston, MA 02111
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Each Class Proposed Maximum Aggregate
of Securities to Amount to Offering Price Per Offering Amount of
be Registered be Registered Share(1) Price(1) Registration fee
------------------ ------------- ------------------ ---------------- ----------------
Common Stock, $.01 1,000,000 (2) $ 5.60 $ 5,600,000 $ 659.12
par value shares
Preferred Share 1,000,000 ----- ----- -----
Purchase Rights
(3)(4)
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(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Securities Act"), on the basis of the average high and low prices for the
Registrant's common stock on the Nasdaq SmallCap Market on September 22,
2005.
(2) Pursuant to Rule 416 under the Securities Act, this registration statement
shall also cover such presently indeterminable number of additional shares
of common stock which may become issuable under the Registrant's 2005
Equity Incentive Plan in the event of a merger, consolidation,
reorganization, recapitalization, stock dividend, stock split, stock
combination, or other similar changes in the common stock.
(3) The rights are attached to the Registrant's common stock pursuant to a
Rights Agreement dated as of February 27, 2003, as amended, between the
Registrant and Computershare Trust Company, Inc. The value attributable to
the rights, if any, is reflected in the value of the common stock and the
registration fee for the rights is included in the fee for the common
stock.
(4) The 1,000,000 rights registered by this registration statement represent
each right that may be issued in connection with each share of common stock
issuable upon exercise of options or pursuant to awards granted or to be
granted under the Registrant's 2005 Equity Incentive Plan. Such presently
indeterminable number of additional rights are also registered by this
registration statement as may be issued in the event of a merger,
consolidation, reorganization, recapitalization, stock dividend, stock
split or other similar changes in the common stock. The rights are not
separately transferable apart from the Registrant's common stock, nor are
they exercisable until the occurrence of certain events. Accordingly, no
independent value has been attributed to the rights registered hereunder.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant hereby incorporates by reference into this registration
statement the following documents:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 2004 (the "Annual Report"), filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by the Annual Report referred to in (a) above.
(c) The description of (i) the Registrant's common stock contained
in the Registrant's registration statement on Form 8-A (File
No. 0-21615), filed under the Exchange Act with the Securities
and Exchange Commission on October 26, 1996; and (ii) the
Registrant's preferred share purchase rights contained in the
Registrant's registration statement on Form 8-A (File No.
0-21615), filed under the Exchange Act with the Securities and
Exchange Commission on March 12, 2003, including any
amendments or reports filed for the purposes of updating such
descriptions.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, subsequent to the date hereof and prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed hereby incorporated by reference in this registration
statement and to be a part hereof from the date of 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 purposes of
this registration statement to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
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Item 6. Indemnification of Directors and Officers.
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The Registrant's Restated Articles of Organization, as amended (the
"Articles"), eliminate, subject to certain exceptions, the personal liability of
directors to the Registrant or its stockholders for monetary damages for
breaches of fiduciary duties as directors. The Articles do not provide for the
elimination of or any limitation on the personal liability of a director for (i)
any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) certain unauthorized
dividends, redemptions, or distributions, (iv) certain loans of the Registrant's
assets to any of its officers or directors or (v) any transaction from which the
director derived an improper personal benefit. This provision of the Articles
will limit the remedies available to a stockholder in the event of breaches of
any director's duties to such stockholder or to the Registrant.
The Articles provide that the Registrant may, either in its By-laws or
by contract, provide for the indemnification of directors, officers, employees
and agents, by whomever elected or appointed, to the full extent permitted by
law as the law may be amended from time to time.
The Registrant's Amended and Restated By-laws, as amended, include
provisions to permit the indemnification of the Registrant's officers and
directors for damages arising out of the performance of their duties unless such
damages arise out of the officer's or director's failure to exercise his duties
and to discharge the duties of his office in good faith and in the reasonable
belief that his action was in, or not opposed to, the best interest of the
Registrant, and with respect to any criminal action, do not have reasonable
cause to believe that his conduct was unlawful.
The Registrant enters into indemnification agreements with its officers
and directors from time to time. The indemnification agreements provide that the
Registrant will pay certain amounts incurred by a director or officer in
connection with any civil or criminal action or proceeding and specifically
including actions by or in the name of the Registrant (derivative suits) where
the individual's involvement is by reason of the fact that he is or was a
director or officer. Such amounts include, to the maximum extent permitted by
law, attorney's fees, judgments, civil or criminal fines, settlement amounts and
other expenses customarily incurred in connection with legal proceedings. Under
the indemnification agreements, a director or officer will not receive
indemnification if he is found not to have acted in good faith in the reasonable
belief that his action was in the best interests of the Registrant.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit No. Description
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4.1 Restated Articles of Organization of the Registrant, filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form
S-1 (File No. 333-10759).*
4.2 Articles of Amendment to Restated Articles of the Organization
of the Registrant, filed as Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September
30, 2004 (File No. 0-21615).*
4.3 Amended and Restated Bylaws of the Registrant, filed as
Exhibit 3.2 to the Registrant's Registration Statement on Form
S-1 (File No. 333-10759).*
4.4 Amendment to Amended and Restated Bylaws of the Registrant,
filed as Exhibit 3.3 to the Registrant's Annual Report on Form
10-K for the year ended December 31, 2002 (File No. 0-21615).*
4
4.5 Specimen Certificate for the Shares of the Registrant's Common
Stock, filed as Exhibit 4.1 to the Registrant's Annual Report
on Form 10-KSB for the year ended December 31, 2004 (File No.
0-21615).*
4.6 Description of Capital Stock (contained in the Registrant's
Restated Articles of Organization, as amended, filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form
S-1 (File No. 333-10759)).*
4.7 Rights Agreement dated as of February 27, 2003 between the
Registrant and Computershare Trust Company, Inc., filed as
Exhibit 4 to the Registrant's Current Report on Form 8-K (File
No. 0-21615) filed with the SEC on March 12, 2003.*
4.8 Amendment No. 1 to Rights Agreement dated April 16, 2004
between the Registrant and Computershare Trust Company, Inc.,
filed as Exhibit 4 to the Registrant's Current Report on Form
8-K (File No. 0-21615) filed with the SEC on April 16, 2004.*
5.01 Legal Opinion of Brown Rudnick Berlack Israels LLP.
23.01 Consent of Weinberg & Company, P.A. (Independent Registered
Public Accounting Firm for the Registrant).
23.02 Consent of Brown Rudnick Berlack Israels LLP (included in its
legal opinion filed as Exhibit 5.01 to this registration
statement).
24.01 Power of Attorney (included on the signature page of this
registration statement).
99.01 Registrant's 2005 Equity Incentive Plan.
_____________________
* Not filed herewith. In accordance with Rule 411(c) promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Securities and Exchange Commission, which
documents are hereby incorporated by reference.
5
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or
sells securities, a post-effective amendment to this registration statement to
include any additional or changed material information on the plan of
distribution.
(2) For determining liability under the Securities Act of
1933, as amended (the "Securities Act"), to treat each post-effective amendment
as a new registration statement of the securities offered, and the offering of
the securities at that time to be the initial bona fide offering.
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of the
offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 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.
(h) 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.
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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 West Bridgewater, Commonwealth of Massachusetts, on
the 26th day of September, 2005.
PRESSURE BIOSCIENCES, INC.
By: /s/ RICHARD T. SCHUMACHER
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Richard T. Schumacher
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Richard T. Schumacher and Steven E. Hebert, and
each of them (with full power to each of them to act alone), his or her true and
lawful attorneys-in-fact and agents, 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 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 attorneys-in-fact and
agents, and each of them, 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 or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their 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 date indicated.
Signature Title Date
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/s/ R. WAYNE FRITZSCHE Director and Chairman of the Board September 26, 2005
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R. Wayne Fritzsche
/s/ RICHARD T. SCHUMACHER Director, President and September 26, 2005
---------------------------- Chief Executive Officer
Richard T. Schumacher (Principal Executive Officer)
/s/ STEVEN E. HEBERT Vice President of Finance, Chief Financial September 26, 2005
---------------------------- Officer and Assistant Treasurer
Steven E. Hebert (Principal Financial and Accounting Officer)
/s/ DR. CALVIN A. SARAVIS Director September 26, 2005
----------------------------
Dr. Calvin A. Saravis
/s/ J. DONALD PAYNE Director September 26, 2005
----------------------------
J. Donald Payne
/s/ P. THOMAS VOGEL Director September 26, 2005
----------------------------
P. Thomas Vogel
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INDEX TO EXHIBITS
Exhibit No. Description
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4.1 Restated Articles of Organization of the Registrant, filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form
S-1 (File No. 333-10759).*
4.2 Articles of Amendment to Restated Articles of the Organization
of the Registrant, filed as Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September
30, 2004 (File No. 0-21615).*
4.3 Amended and Restated Bylaws of the Registrant, filed as Exhibit
3.2 to the Registrant's Registration Statement on Form S-1 (File
No. 333-10759).*
4.4 Amendment to Amended and Restated Bylaws of the Registrant,
filed as Exhibit 3.3 to the Registrant's Annual Report on Form
10-K for the year ended December 31, 2002 (File No. 0-21615).*
4.5 Specimen Certificate for the Shares of the Registrant's Common
Stock, filed as Exhibit 4.1 to the Registrant's Annual Report on
Form 10-KSB for the year ended December 31, 2004 (File No.
0-21615).*
4.6 Description of Capital Stock (contained in the Registrant's
Restated Articles of Organization, as amended, filed as Exhibit
3.1 to the Registrant's Registration Statement on Form S-1 (File
No. 333-10759)).*
4.7 Rights Agreement dated as of February 27, 2003 between the
Registrant and Computershare Trust Company, Inc., filed as
Exhibit 4 to the Registrant's Current Report on Form 8-K (File
No. 0-21615) filed with the SEC on March 12, 2003.*
4.8 Amendment No. 1 to Rights Agreement dated April 16, 2004 between
the Registrant and Computershare Trust Company, Inc., filed as
Exhibit 4 to the Registrant's Current Report on Form 8-K (File
No. 0-21615) filed with the SEC on April 16, 2004.*
5.01 Legal Opinion of Brown Rudnick Berlack Israels LLP.
23.01 Consent of Weinberg & Company, P.A. (Independent Registered
Public Accounting Firm for the Registrant).
23.02 Consent of Brown Rudnick Berlack Israels LLP (included in its
legal opinion filed as Exhibit 5.01 to this registration
statement).
24.01 Power of Attorney (included on the signature page of this
registration statement).
99.01 Registrant's 2005 Equity Incentive Plan.
_________________
* Not filed herewith. In accordance with Rule 411(c) promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Securities and Exchange Commission, which
documents are hereby incorporated by reference.
8