As filed with the Securities and Exchange Commission on July 2, 2007
Registration No. 333-________
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NEOSTEM, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-2343568
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
420 Lexington Avenue, Suite 450, New York, New York 10170
(Address of Principal Executive Offices; Zip Code)
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NEOSTEM, INC. 2003 EQUITY PARTICIPATION PLAN
(Full title of the plan)
Catherine M. Vaczy
Vice President and General Counsel
NeoStem, Inc.
420 Lexington Avenue, Suite 450, New York, NY 10170
(212)-584-4814
(Name, address and telephone number,
including area code, of agent for service)
with a copy to:
Alan Wovsaniker, Esq.
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
(973) 597-2500
CALCULATION OF REGISTRATION FEE
========================= ================ ===================== ===================== ======================
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered Registered price per share (2) offering price (2) registration fee
- ------------------------- ---------------- --------------------- --------------------- ----------------------
Common Stock, par 20,000,000 $0.44 $8,400.000 $271.00
value $.001 per share shares (1)
========================= ================ ==================== ====================== ======================
(1) Reflects a 1-for-10 reverse stock split of the common stock, par value $.001
per share (the "Common Stock") of NeoStem, Inc. (the "Company") which occurred
August 31, 2006. Prior to the reverse stock split, the Company previously
registered 50,000,000 shares pursuant to the 2003 Equity Participation Plan,
filed on Form S-8, Registration Statement No. 333-107438 with the Securities and
Exchange Commission on July 29, 2003, as amended on August 19, 2005. The Company
hereby seeks to register an additional 20,000,000 shares pursuant to the 2003
Equity Participation Plan with the Securities and Exchange Commission.
(2) Pursuant to Rule 457, the proposed maximum offering price per share is
estimated solely for the purpose of computing the amount of the registration fee
and is based on the average of the high and low sales price of the Common Stock
of the registrant reported on the National Association of Securities Dealers OTC
Electronic Bulletin Board on June 25, 2007.
EXPLANATORY NOTE
This Registration Statement on Form S-8 (File No. 333-107438) is being filed by
the registrant, NeoStem, Inc., formerly known as Phase III Medical, Inc. (the
"Company"), for the purpose of registering 20,000,000 shares of common stock
issuable under the Company's 2003 Equity Participation Plan (the "Plan"),
pursuant to General Instruction E on Form S-8 (Registration of Additional
Securities).
The Company previously registered 50,000,000 shares of its common stock pursuant
to the 2003 Equity Participation Plan, filed on Form S-8, Registration Statement
No. 333-107438, on July 29, 2003, as amended on August 19, 2005. Such previously
filed Form S-8 is incorporated herein by reference. The number of shares
issuable under the Plan was subsequently reduced from 50,000,000 to 5,000,000,
pursuant to a 1-for-10 reverse stock split of the Company's common stock on
August 31, 2006. The stockholders of the registrant approved an amendment to the
Plan, for the purpose of adding an additional 20,000,000 shares following the
reverse stock split, at the annual meeting of stockholders on August 29, 2006.
The Company hereby seeks to register the additional 20,000,000 shares of common
stock with the Securities and Exchange Commission.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission (the "SEC") are hereby incorporated by reference:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 2006 filed with the SEC on March 29, 2007.
(b) the Company's Quarterly Report on Form 10-QSB for the
three-month period ended March 31, 2007 filed with the SEC on
May 10, 2007;
(c) the Company's Definitive Proxy Statement on Schedule 14A filed
with the SEC on April 30, 2007;
(d) the Company's Current Report on Form 8-K filed with the SEC on
April 30, 2007;
(e) the Company's Current Report on Form 8-K filed with the SEC on
March 16, 2007;
(f) the Company's Current Report on Form 8-K filed with the SEC on
February 28, 2007;
(g) the Company's Current Report on Form 8-K filed with the SEC on
February 12, 2007;
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(h) the Company's Current Report on Form 8-K filed with the SEC on
February 1, 2007;
(i) the description of the Common Stock of the Company contained
in the Company's Form 8-A filed with the SEC on February 16,
1983.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 to be incorporated by reference in this registration statement and to
be part hereof from the date of filing of such documents. Any statement
contained herein or 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 such statement is modified or
superseded by a subsequently filed document which also is or is deemed to be
incorporated by reference herein. Any such statement so modified or superseded
shall not be deemed to constitute a part of this registration statement except
as so modified or superseded.
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Item 8. Exhibits.
5.1 Opinion of Lowenstein Sandler PC.
23.1 Consent of Independent Registered Public Accounting Firm
(Holtz Rubenstein Reminick LLP)
23.2 Consent of Lowenstein Sandler PC (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
Item 9. Undertakings.
(A) 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 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 a 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
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-3, Form S-8 or Form F-3,
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
Securities Exchange Act of 1934 that are incorporated by reference in the
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.
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(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 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 (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 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 of 1933 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 New York, State of New York, on June 29, 2007.
NEOSTEM, INC.
By: /s/ ROBIN L. SMITH
-----------------------------------
Robin L. Smith, Chief Executive
Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robin L. Smith and Catherine M. Vaczy as his or
her true and lawful attorneys-in-fact and agents, with full power of
substitution, 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 (or any other registration statement
for the same offering that is effective upon filing pursuant to Rule 462(b)
under the Securities Act of 1933) and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitute or substitutes, may do or
cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates stated
Signatures Title Date
/S/ ROBIN L. SMITH Chief Executive Officer and June 29, 2007
- -------------------------- Chairman of the Board
Robin L. Smith
/S/ MARK WEINREB President and Director June 29, 2007
- --------------------------
Mark Weinreb
/S/ LARRY A. MAY Chief Financial Officer June 29, 2007
- -------------------------- (Principal Financial and
Larry A. May Accounting Officer)
/S/ RICHARD BERMAN Director June 29, 2007
- --------------------------
Richard Berman
/S/ JOSEPH D. ZUCKERMAN Director June 29, 2007
- --------------------------
Joseph D. Zuckerman
/S/ STEVEN S. MYERS Director June 29, 2007
- --------------------------
Steven S. Myers
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EXHIBIT INDEX
Exhibit No. Description
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5.1 Opinion of Lowenstein Sandler PC
23.1 Consent of Independent Registered Public Accounting Firm
(Holtz Rubenstein Reminick LLP)
23.2 Consent of Lowenstein Sandler PC is included in Exhibit
5.1
24.1 Power of Attorney (included on signature page)
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Exhibit 5.1
[LETTERHEAD OF LOWENSTEIN SANDLER PC]
July 2, 2007
NeoStem, Inc.
420 Lexington Avenue
Suite 450
New York, NY 10170
Gentlemen:
You have requested our opinion in connection with the registration with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), of 20,000,000 shares of Common Stock, par value $.001 per share
("Common Stock"), of NeoStem, Inc. (the "Company") on a Registration
Statement on Form S-8 (the "Registration Statement"). The shares of Common Stock
to which the Registration Statement relates are issuable pursuant to the
Company's 2003 Equity Participation Plan (the "Plan").
We have examined and relied upon originals or copies, authenticated or certified
to our satisfaction, of all such corporate records of the Company,
communications or certifications of public officials, certificates of officers,
directors and representatives of the Company, and such other documents as we
have deemed relevant and necessary as the basis of the opinions expressed
herein. In making such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents tendered to us as originals, and
the conformity to original documents of all documents submitted to us as
certified or photostatic copies.
Based upon the foregoing and relying upon statements of fact contained in the
documents which we have examined, we are of the opinion that the shares of
Common Stock offered by the Company pursuant to the Plan, when registered
pursuant to the Act and paid for in full by the participants in accordance with
the Plan, will be, when issued, legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and any amendment thereto.
Very truly yours,
/s/
LOWENSTEIN SANDLER PC
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this the Registration
Statement on Form S-8 of our report dated March 27, 2007, relating to the
consolidated financial statements of NeoStem, Inc., formerly known as Phase III
Medical, Inc. appearing in the Company's Annual Report on Form 10-K for the year
ended December 31, 2006.
/s/ HOLTZ RUBENSTEIN REMINICK LLP
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Holtz Rubenstein Reminick LLP
Melville, New York
July 2, 2007