As filed with the Securities and Exchange Commission on May 24, 2007
Registration No. 333-107438
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2
TO
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
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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
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Common Stock, par 25,000,000 $0.46 $11,500,000 $353.05(3)
value $.001 per share shares (1)
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(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, 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 May 18, 2007.
(3) $282.44 paid herewith, reflecting the registration fee for the increase in
the number of shares issuable under the 2003 Equity Participation Plan by
20,000,000 shares, from 5,000,000 shares to 25,000,000 shares. Filing fee
previously paid with respect to 5,000,000 shares.
EXPLANATORY NOTE
This Post-Effective Amendment No. 2 to Registration Statement on Form S-8 (File
No. 333-107438), as amended on August 19, 2005, the contents of which are hereby
incorporated by reference, is being filed by the registrant, NeoStem, Inc.,
formerly known as Phase III Medical, Inc. (the "Company"), for the purpose of
increasing the number of shares of common stock to be issued under the Company's
2003 Equity Participation Plan (the "Plan") by 20,000,000 shares, from 5,000,000
shares to 25,000,000 shares, pursuant to General Instruction E on Form S-8
(Registration of Additional Securities).
The number of shares issuable under the Plan was 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.
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;
(h) the Company's Current Report on Form 8-K filed with the SEC on
February 1, 2007;
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(i) the Company's Current Report on Form 8-K filed with the SEC on
February 12, 2007;
(j) the Company's Current Report on Form 8-K filed with the SEC on
February 28, 2007;
(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.
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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 Post-Effective
Amendment No. 2 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on May 24, 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 May 24, 2007
- ----------------- Chairman of the Board
Robin L. Smith
/S/ MARK WEINREB President and Director May 24, 2007
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Mark Weinreb
/S/ LARRY A. MAY Chief Financial Officer (Principal May 24, 2007
- ---------------- Financial and Accounting Officer)
Larry A. May
/S/ RICHARD BERMAN Director May 24, 2007
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Richard Berman
/s/ JOSEPH D. ZUCKERMAN Director May 24, 2007
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Joseph D. Zuckerman
/S/ STEVEN S. MYERS Director May 24, 2007
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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]
May 24, 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 25,000,000 shares of Common Stock, par value $.001 per share
("Common Stock"), of NeoStem, Inc. (the "Company") on Post-Effective Amendment
No. 2 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
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 Post-Effective
Amendment No. 2 to 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
May 24, 2007