As filed with the Securities and Exchange Commission on August 19, 2005
Registration No. 333-107438
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PHASE III MEDICAL, 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)
330 South Service Road, Suite 120, Melville, New York 11747
(Address of Principal Executive Offices; Zip Code)
PHASE III MEDICAL, INC. 2003 EQUITY PARTICIPATION PLAN
(Full title of the plan)
Mark Weinreb
President and Chief Executive Officer
Phase III Medical, Inc.
330 South Service Road, Suite 120, Melville, New York 11747
(631) 574-4955
(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
============== ============ ================= ============= ================
Title of Amount Proposed maximum Proposed Amount of
securities to to be offering price maximum registration
to be registered per share (2) aggregate fee
registered offering
price (2)
- -------------- ------------- ----------------- -------------- ----------------
Common Stock, 50,000,000 $0.06 $3,000,000 $353.10
par value$.001 shares (1)
per share
============== ============= ================= ============== ================
(1) Plus such additional shares of Common Stock as may be issuable pursuant to
the anti-dilution provisions of the 2003 Equity Participation Plan.
(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 August 18, 2003.
(3) $103.15 previously paid; $249.95 paid herewith.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to Registration Statement File No.
333-107438 is being filed by the registrant, Phase III Medical, Inc. (the
"Company"), for the purpose of increasing the number of shares of common stock
to be issued under the Phase III Medical, Inc. 2003 Equity Participation Plan
(the "Plan") by 35,000,000 shares, from 15,000,000 shares to 50,000,000 shares,
pursuant to General Instruction E on Form S-8 (Registration of Additional
Securities). The stockholders of the registrant approved amending the Plan for
this purpose at the annual meeting of stockholders on July 20, 2005.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Phase III Medical, Inc. 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, 2004;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 2005;
(c) the Company's Definitive Proxy Statement on Schedule 14A filed with the
SEC on June 22, 2005;
(d) the Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 2005;
(e) the Company's Current Report on Form 8-K filed with the SEC on July 26,
2005;
(f) the Company's Current Report on Form 8-K filed with the SEC on July 22,
2005;
(g) the Company's Current Report on Form 8-K filed with the SEC on May 10,
2005;
(h) the Company's Current Report on Form 8-K filed with the SEC on April
25, 2005;
(i) the Company's Current Report on Form 8-K filed with the SEC on April 8,
2005;
(j) the Company's Registration Statement on Form S-8 File No. 333-107438
filed with the SEC on July 29, 2003; and
(k) 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
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
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.
(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 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 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 Post-Effective
Amendment No. 1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Melville, State of New York, on August 19, 2005.
PHASE III MEDICAL, INC.
By: /s/ Mark Weinreb
-------------------
Mark Weinreb
President
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
/s/ Mark Weinreb President, Chief Executive August 19, 2005
- ------------------------ Officer, Chairman of the
Mark Weinreb Board and Director
* Director August 19, 2005
- ------------------------
Wayne A. Marasco
* Director August 19, 2005
- ------------------------
Joseph D. Zuckerman
*/s/ Mark Weinreb
- ------------------------
Mark Weinreb
Attorney-in-Fact
EXHIBIT INDEX
Exhibit No. Description
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
Exhibit 5.1
[LETTERHEAD OF LOWENSTEIN SANDLER PC]
August 19, 2005
Phase III Medical, Inc.
330 South Service Road
Suite 120
Melville, NY 11747
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 50,000,000 shares of Common Stock, par value $.001 per share
("Common Stock"), of Phase III Medical, Inc. (the "Company") on Post-Effective
Amendment No. 1 to a Registration Statement on Form S-8 (the "Post-Effective
Amendment"). The shares of Common Stock to which the Post-Effective Amendment
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
Post-Effective Amendment and any amendment thereto.
Very truly yours,
LOWENSTEIN SANDLER PC
By:/s/ Alan Wovsaniker
---------------------
Alan Wovsaniker
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Post-Effective
Amendment No. 1 to the Registration Statement on Form S-8 of our report dated
February 18, 2005, relating to the consolidated financial statements of Phase
III Medical, Inc. appearing in the Company's Annual Report on Form 10-K for the
year ended December 31, 2004.
/s/ Holtz Rubenstein Reminick LLP
Melville, New York
August 18, 2005
Exhibit 24.1
POWER OF ATTORNEY
WHEREAS, the undersigned director of Phase III Medical, Inc. desires to
authorize Mark Weinreb to act as his attorney-in-fact and agent, for the purpose
of executing and filing a post effective amendment no. 1 to the registration
statement on Form S-8, including all amendments thereto,
NOW, THEREFORE,
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Mark Weinreb his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, to sign a Post
Effective Amendment No. 1 to the Registration Statement on Form S-8 registering
up to 50,000,000 shares of the Common Stock of Phase III Medical, Inc. issuable
pursuant to the Phase III Medical, Inc. 2003 Equity Participation Plan,
including any and all amendments and supplements thereto, 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 and necessary to be done in and about the premises, as fully and to
all intents and purposes as he 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 hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney in
the following capacities as of the 18th day of August, 2005.
Signatures Title
/s/ Joseph D. Zuckerman Director
- --------------------------
Joseph D. Zuckerman