UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
Under
the Securities Act of 1933
BIODRAIN
MEDICAL, INC.
(Exact
Name of Registrant as Specified in its Charter)
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Minnesota
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33-1007393
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(State
or Other Juris-
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(I.R.S.
Employer
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diction
of Incorporation
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Identification
Number)
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or
Organization)
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2060
Centre Pointe Boulevard, Suite 7
Mendota
Heights, Minnesota 55120
(Address
of Principal Executive Office and Zip Code)
BioDrain
Medical, Inc. 2008 Equity Incentive Plan, as amended
(Full
Title of the Plan)
Kevin R.
Davidson
Chief
Executive Officer
BioDrain
Medical, Inc.
2060
Centre Pointe Boulevard, Suite 7
Mendota
Heights, Minnesota 55120
(651)
389-4800
(Name,
Address and Telephone Number, Including Area Code, of Agent for
Service)
Copies
to:
Ryan C.
Brauer, Esq.
Fredrikson
& Byron, P.A.
200 South
Sixth Street, Suite 4000
Minneapolis,
MN 55402
Fax:
(612) 492-7077
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer
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¨
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Accelerated
filer
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¨
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Non-accelerated
filer
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¨
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Smaller
Reporting Company
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x
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CALCULATION
OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount to be
Registered(1)
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Proposed Maximum
Offering Price
Per Share(2)
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Proposed
Maximum
Aggregate
Offering Price(2)
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Amount of
Registration Fee
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Common
Stock Issuable under the 2008 Equity Incentive Plan
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3,000,000 | $ |
.19
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$ |
570,000
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$ |
41
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(1)
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Pursuant
to Rule 416, this Registration Statement also covers an indeterminate
number of additional shares of Common Stock that may be offered or sold as
a result of any adjustments based on stock splits, stock dividends or
similar events provided under the
Plan.
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(2)
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Estimated
pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee and based upon the average of the high and low prices of
the Registrant’s Common Stock as reported by the Over-the-Counter Bulletin
Board on September 21,
2010.
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PART
I
The information specified in Items 1
and 2 of Part I of this Registration Statement is omitted from this filing in
accordance with the provisions of Rule 428 under the Securities Act and the
instructions to Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the plan covered by
this Registration Statement as required by Rule 428.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The following documents, previously
filed with the Securities and Exchange Commission (the “Commission”), are hereby
incorporated by reference herein:
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1.
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Annual
Report on Form 10-K for the fiscal year ended December 31, 2009, filed
with the Commission by the Registrant on March 31, 2010, as amended by the
Registrant’s Annual Report on Form 10-K/A filed with the Commission on
April 28, 2010.
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2.
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All
other reports filed by the Registrant pursuant to Sections 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
since December 31, 2009.
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3.
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The
description of the Registrant’s common stock set forth in the prospectus
filed with the Commission by the Registrant pursuant to Rule 424(b) of the
Securities Act on May 7, 2010, and all amendments and reports filed by the
Registrant to update that
description.
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All documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all such securities then
remaining unsold, shall be deemed to be 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 by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document which also is incorporated by reference
herein) modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof except as so modified
or superseded.
Item
4. Description of Securities.
Not applicable.
Item
5. Interests of Named Experts and Counsel.
Richardson
& Patel LLP (“R&P”), an outside law firm for the Registrant, issued an
opinion to the Registrant relating to the securities registered pursuant to the
Registrant’s registration statement on Form S-1, as amended (File No.
333-155299). R&P owns 60,714 shares of the Registrant’s common stock. Nimish
Patel, a principal of R&P, holds 481,194 shares of the Registrant’s common
stock and 45,595 shares of common stock of the Registrant underlying certain
warrants. Erick Richardson, a principal of R&P, holds 468,326 shares of the
Registrant’s common stock and 45,595 shares of common stock of the Registrant
underlying certain warrants. RP Capital, a limited liability company owned by
Messrs. Richardson and Patel, holds 206,277 shares of the Registrant’s common
stock and warrants to purchase 142,857 shares of the Registrant’s common stock.
Other R&P employees and principals beneficially own 325,315 shares of the
Registrant’s common stock and warrants to purchase 28,571 shares of common stock
of the Registrant.
Nimish
Patel and Erick Richardson, both principals of R&P, held notes in the amount
of $12,500 each, as participants in the Registrant’s convertible bridge loan
financing from on or around July 23, 2007. These notes and accrued interest were
satisfied upon issuance of 68,783 shares of the Registrant’s common stock to
each of Messrs. Richardson and Patel.
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Section 302A.521
of the Minnesota Business Corporation Act provides that unless prohibited or
limited by a corporation’s articles of incorporation or bylaws, the corporation
must indemnify its current and former officers, directors,
employees and agents against expenses (including attorneys’ fees), judgments,
penalties, fines and amounts paid in settlement and which were incurred in
connection with actions, suits, or proceedings in which such persons are parties
by reason of the fact that they are or were an officer,
director, employee or agent of the corporation, if they:
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·
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have
not been indemnified by another
organization;
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acted
in good faith;
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received
no improper personal benefit;
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in
the case of a criminal proceeding, had no reasonable cause to believe the
conduct was unlawful; and
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reasonably
believed that the conduct was in the best interests of the
corporation.
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Section 302A.521
requires payment by a corporation, upon written request, of reasonable expenses
in advance of final disposition of the proceeding in certain instances. A
decision as to whether indemnification is required is made by a disinterested
majority of the board of directors present at a meeting at which a disinterested
quorum is present, or by a designated committee of the board, by special legal
counsel, by the shareholders, or by a court. Section 302A.521 also permits
a corporation to purchase and maintain insurance on behalf of its officers, directors, employees and agents against any liability which
may be asserted against, or incurred by, such persons in their capacities as
officers, directors, employees and agents of the corporation,
whether or not the corporation would have been required to indemnify the person
against the liability under the provisions of such section.
Pursuant to the Registrant’s By-Laws,
the Registrant may indemnify its directors and executive officers to the fullest
extent not prohibited by any applicable law; provided, however, that the
Registrant may modify the extent of such indemnification by individual contracts
with its directors and executive officers. The Registrant is not
required to indemnify any director or executive officer in connection with any
proceeding (or part thereof) initiated by such person unless: (i) such
indemnification is expressly required to be made by law; (ii) the proceeding was
authorized by the Registrant’s Board of Directors; or (iii) such indemnification
is provided by the Registrant, in its sole discretion, pursuant to the powers
vested in the Registrant under any applicable law. The Registrant may
indemnify its other officers, employees and agents as provided under any
applicable law.
In addition, the Registrant’s By-Laws
provide that it will advance to any person who was or is a party to a
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director or executive officer, of the Registrant, prior to the final
disposition of the proceeding, promptly following request therefore, all
expenses incurred by any director or executive officer in connection with such
proceeding; provided, however, that the advancement of expenses shall be made
only upon delivery to the Registrant of an undertaking by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal that such indemnitee is not entitled to be indemnified for such expenses.
Notwithstanding the foregoing, unless otherwise determined, no advance shall be
made by the Registrant to an officer of the Registrant (except by reason of the
fact that such officer is or was a director of the Registrant) in any action,
suit or proceeding, whether civil, criminal, administrative or investigative, if
a determination is reasonably and promptly made: (i) by a majority vote of
directors who are not parties to the proceeding; (ii) by a committee of such
directors designated by a majority vote of such directors; or (iii) if there are
no such directors, or such directors so direct, by a written opinion from
independent legal counsel, that the facts known to the decision-making party at
the time such determination is made demonstrate clearly and convincingly that
such person acted in bad faith or in a manner that such person did not believe
to be in the best interests of the Registrant.
Item
7. Exemption from Registration Claimed.
Not applicable.
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Item
8. Exhibits.
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5.1
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Opinion
of Fredrikson & Byron, P.A.
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23.1
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Consent
of Fredrikson & Byron, P.A. (included in Exhibit
5.1).
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23.2
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Consent
of Olsen Thielen & Co., Ltd.
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24.1
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Power
of Attorney (included on signature page
hereof).
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99.1
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2008
Equity Incentive Plan (incorporated herein by reference to Exhibit 10.35
to the Registrant’s registration statement on Form S-1 (Registration No.
333-155299) filed with the Commission on November 12,
2008).
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99.2
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Amendment
No. 1 to 2008 Equity Incentive Plan (incorporated herein by reference to
Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the
Commission on June 23, 2010).
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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;
(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;
(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) of this section do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, 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, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) 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.
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(c) 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 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 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 Mendota Heights, State of
Minnesota, on September 23, 2010.
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BIODRAIN
MEDICAL, INC.
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By:
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/s/ Kevin
R. Davidson
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Kevin
R. Davidson
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President,
Chief Executive Officer, Chief
Financial
Officer and Director
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Pursuant to the requirements of the
Securities Act of 1933, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Each of the undersigned constitutes and
appoints Lawrence W. Gadbaw and Kevin R. Davidson his true and lawful
attorney-in-fact and agent, each acting alone, with full powers of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Form S-8 Registration Statement of BioDrain Medical,
Inc. relating to the Registrant’s 2008 Equity Incentive Plan, as amended, and
any or all amendments or post-effective amendments to the Form S-8 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, each acting alone, 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
the undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, each acting alone, or their substitute
or 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 listed below.
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Signature
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Title
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Date
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/s/
Lawrence
W.
Gadbaw
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Chairman
of the Board of Directors
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September
23, 2010
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Lawrence
W. Gadbaw
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/s/
Kevin
R.
Davidson
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President,
Chief Executive Officer, Chief Financial
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September
23, 2010
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Kevin
R. Davidson
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Officer
and Director (Principal Executive Officer and
Principal
Financial Officer)
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/s/
Chad
A.
Ruwe
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Chief
Operating Officer and Director
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September
23, 2010
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Chad
A. Ruwe
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/s/
James
E.
Dauwalter
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Director
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September
23, 2010
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James
E. Dauwalter
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/s/
Peter
L.
Morawetz
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Director
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September
23, 2010
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Peter
L. Morawetz
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/s/
Thomas
J.
McGoldrick
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Director
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September
23, 2010
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Thomas
J. McGoldrick
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/s/
Andrew
P.
Reding
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Director
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September
23, 2010
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Andrew
P. Reding
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EXHIBIT
INDEX
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Exhibit
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Number
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Exhibit Description
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5.1
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Opinion
of Fredrikson & Byron, P.A.
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23.1
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Consent
of Fredrikson & Byron, P.A. (included in Exhibit
5.1).
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23.2
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Consent
of Olsen Thielen & Co., Ltd.
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24.1
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Power
of Attorney (included on signature page hereof).
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99.1
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2008
Equity Incentive Plan (incorporated herein by reference to Exhibit 10.35
to the Registrant’s registration statement on Form S-1 (Registration No.
333-155299) filed with the Commission on November 12,
2008).
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99.2
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Amendment
No. 1 to 2008 Equity Incentive Plan (incorporated herein by reference to
Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the
Commission on June 23,
2010).
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EXHIBIT
5.1
FREDRIKSON
& BYRON, P.A.
200 South
Sixth Street, Suite 4000
Minneapolis,
Minnesota 55402
Telephone: (612)
492-7000
Facsimile: (612)
492-7077
September
22, 2010
BioDrain
Medical, Inc.
2060
Centre Pointe Boulevard, Suite 7,
Mendota
Heights, MN 55120
Re: Registration Statement on
Form S-8
Ladies
and Gentlemen:
We are acting as corporate counsel to
BioDrain Medical, Inc. (the “Company”) in connection with the original
registration by the Company on Form S-8 (the “Registration Statement”) under the
Securities Act of 1933, as amended (the “Act”) of 3,000,000 shares of Common
Stock (the “Shares”) issuable pursuant to the Company’s 2008 Equity Incentive
Plan, as amended (the “Plan”).
In acting as such counsel and for the
purpose of rendering this opinion, we have reviewed copies of the following, as
presented to us by the Company: (i) the Company’s Articles of Incorporation, as
amended; (ii) the Company’s By-Laws, as amended; (iii) certain corporate
resolutions certified by the Secretary of the Company as having been adopted by
the Board of Directors and shareholders of the Company pertaining to the
approval and amendment of the Plan; (iv) the Plan; and (v) the Registration
Statement.
Based on,
and subject to, the foregoing and upon representations and information provided
by the Company or its officers or directors, it is our opinion as of this date
that, upon issuance and delivery of the Shares against receipt by the Company of
the consideration for the Shares pursuant to the terms of the Plan, the Shares
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules and regulations of the Securities and Exchange
Commission.
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FREDRIKSON
& BYRON, P.A.
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/s/
Melodie R. Rose
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Melodie
R. Rose, Vice President
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EXHIBIT
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated March
31, 2010, which expresses an unqualified opinion and includes an explanatory
paragraph relating to the Company’s ability to continue as a going concern,
appearing in the Annual Report on Form 10-K of BioDrain Medical, Inc, for the
year ended December 31, 2009.
/s/ Olsen
Thielen & Co., Ltd.
Minneapolis,
Minnesota
September
23, 2010