aethlon_s8-021610.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
AETHLON
MEDICAL, INC.
(Exact
name of registrant as specified in its charter)
Nevada |
13-3632859 |
(State or
other jurisdiction of
incorporation or
organization)
|
(I.R.S.
Employer
Identification
No.)
|
|
|
8910
University Center Lane, Suite 255
San Diego,
California
|
92122 |
(Address of
principal executive offices) |
(Zip
Code) |
AMENDED
AND RESTATED 2003 CONSULTANT STOCK PLAN
(Full
title of the plan)
James A.
Joyce
8910
University Center Lane, Suite 255
San
Diego, California 92122
(Name and
address of agent for service)
(858)
458-7800
(Telephone
number, including area code, of agent for service)
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.
Large
accelerated filer o
|
Accelerated
filer o
|
Non-accelerated
filer o
|
Smaller
reporting company x
|
(Do
not check if a smaller reporting company)
|
|
CALCULATION
OF REGISTRATION FEE
TITLE OF SECURITIES
TO BE REGISTERED |
|
AMOUNT TO BE
REGISTERED (1) |
|
|
PROPOSED
MAXIMUM OFFERING PRICE PER
SHARE
(2)
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|
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PROPOSED MAXIMUM
AGGREGATE OFFERING PRICE (2) |
|
|
AMOUNT OF
REGISTRATION FEE (2) |
|
Common
Stock |
|
|
1,500,000 |
|
|
$ |
0.325 |
|
|
$ |
487,500 |
|
|
$ |
34.76 |
|
(1)
Pursuant to Rule 416 of the Securities Act, this registration statement
shall
also cover any additional shares of common stock that shall become issuable
by reason of any stock dividend, stock split, recapitalization, or other
similar transaction by the Registrant.
(2)
Estimated pursuant to Rule 457(h) solely for purposes of calculating the amount
of
registration fee, based upon the average of the high and low prices reported
on
February 10, 2010, as reported on the OTC Bulletin Board.
EXPLANATORY
NOTE
This
Registration Statement is being filed for the purpose of increasing the
number of
securities of the same class as other securities for which a Registration
Statement of the Registrant on Form S-8 relating to the same employee
benefit plan is currently effective.
On March
29, 2004, Aethlon Medical, Inc., a Nevada corporation, filed a Registration
Statement (333-114017) in accordance with the requirements of Form S-8 under
the Securities Act of 1933, as amended, to register 1,000,000 shares
of its
common stock which had been authorized and reserved for issuance under
the 2003
Consultant Stock Plan. An additional 2,000,000 shares of common stock
were
registered pursuant to a Registration Statement on Form S-8 (333-127911)
filed
with the Securities and Exchange Commission (the "Commission") on August
29, 2005.
On August 9, 2007, a Registration Statement on Form S-8 (333-145290) was filed
with the Commission to register an additional 2,000,000
shares of common stock under the Amended and Restated 2003 Consultant
Stock
Plan. On July 10, 2009, a Registration Statement on Form S-8 (333-160532) was
filed with the Commission to register an additional 1,000,000 shares of common
stock under the Amended and Restated 2003 Consultant Stock Plan. The contents of
these Registration Statements are hereby incorporated by
reference into this Registration Statement.
This
Registration Statement will register an additional 1,500,000 shares of
common
stock under the Amended and Restated 2003 Consultant Stock Plan. The
Board of
Directors of the Registrant has approved the increase in the number of
shares
available for grant under the Plan.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information
required in Part I of Form S-8 to be contained in a prospectus meeting
the requirements of Section 10(a) of the Securities Act is not required
to be
filed with the Commission and is
omitted from this Registration Statement in accordance with the explanatory
note to
Part I of Form S-8 and Rule 428(b)(1) under the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3.
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INCORPORATION
OF DOCUMENTS BY REFERENCE.
|
The
following documents are hereby incorporated by reference into this
Registration Statement:
(a) The
Annual Report for the fiscal year ended March 31, 2009,
filed by the Registrant with the Commission on Form 10-K on July 2, 2009, which
contains audited consolidated financial
statements for the most recent fiscal year for which such statements
have been
filed.
(b) The
Quarterly Report on Form 10-Q for the period ended June 30, 2009, filed by the
Registrant with the Commission on August 14, 2009;
(c) The
Current Report on Form 8-K filed by the Registrant with the Commission on August
25, 2009;
(d) The
Quarterly Report on Form 10-Q for the period ended September 30, 2009, filed by
the Registrant with the Commission on November 16, 2009;
(e) The
Quarterly Report on Form 10-Q for the period ended December 31, 2009, filed by
the Registrant with the Commission on February 16, 2010;
(f) The
description of the Registrant's common stock, which is included
in the Registration Statement on Form SB-2, filed with the Commission
on
December 19, 2000.
(g) In
addition, all documents subsequently filed by the Registrant
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 into this
Registration
Statement and to be a 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 a statement
contained herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes
such earlier statement. Any statement so modified or superseded shall
not be
deemed, except as so modified or superseded, to constitute a part of this
Registration
Statement.
ITEM
4.
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DESCRIPTION
OF SECURITIES
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Not
applicable. The class of securities to be offered is registered under
Section 12 of the Exchange Act.
ITEM
5.
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INTERESTS
OF NAMED EXPERTS AND COUNSEL.
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None.
ITEM
6.
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INDEMNIFICATION
OF DIRECTORS AND OFFICERS
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The
Registrant's Articles of Incorporation permit it to limit the liability
of its directors to the fullest extent permitted under Section 78.037
of the
Nevada General Corporation Law. As permitted by Section 78.037 of the
Nevada
General Corporation Law, the Registrant's Bylaws and Articles of Incorporation
also include provisions that eliminate the personal liability of each of
its officers and directors for any obligations arising out of any acts
or
conduct of such officer or director performed for or on behalf of the
Registrant.
To the fullest extent allowed by Section 78.751 of the Nevada General
Corporation Law, the Registrant will defend, indemnify and hold harmless
its
directors or officers from and against any and all claims, judgments and
liabilities
to which each director or officer becomes subject in connection with the
performance of his or her duties and will reimburse each such director
or
officer for all legal and other expenses reasonably incurred in connection
with any
such claim of liability. However, the Registrant will not indemnify any
officer
or director against, or reimburse for, any expense incurred in connection
with any claim or liability arising out of the officer's or director's
own negligence or misconduct in the performance of duty.
The
provisions of the Registrant's Bylaws and Articles of Incorporation regarding
indemnification are not exclusive of any other right we have to indemnify
or reimburse our officers or directors in any proper case, even if not
specifically
provided for in the Articles of Incorporation or Bylaws.
The
Registrant believes that the indemnity provisions contained in its bylaws
and the limitation of liability provisions contained in its certificate
of
incorporation are necessary to attract and retain qualified persons for these
positions.
No pending material litigation or proceeding involving our directors,
executive
officers, employees or other agents as to which indemnification is being
sought exists, and the Registrant is not aware of any pending or threatened
material litigation that may result in claims for indemnification by
any of
its directors or executive officers.
Insofar
as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed
that, in the opinion of the SEC, such indemnification is against public
policy as
expressed in the Securities Act and is therefore unenforceable.
ITEM
7.
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EXEMPTION
FROM REGISTRATION CLAIMED
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Not
applicable.
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5.
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Opinion
regarding legality
|
|
23.1
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Consent
of Squar, Milner, Peterson, Miranda & Williamson,
LLP
|
|
23.2
|
Consent
of Law Office of Jennifer A. Post (included in Exhibit
5)
|
|
99.1
|
Amended
and Restated 2003 Consultant Stock
Plan
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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:
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(i)
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To
include any prospectus required by section 10(a)(3) of the Securities
Act of 1933;
|
|
(ii)
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To
reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or
in the aggregate, represent a fundamental change in the information
set forth in this 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 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
and
|
|
(iii)
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To
include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
|
provided,
however, that paragraphs (1)(i) and (1)(ii) above do not apply if
this Registration Statement is on Form S-8, 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 this Registration Statement.
(2) For
determining liability under 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 as the initial bona fide
offering;
(3) To
remove from registration any of the securities that remain unsold at the
end of the offering by means of a post-effective amendment; and
(4) For
determining liability of the Registrant under the Securities Act to any
purchaser in the initial distribution of the securities, in a primary
offering
of securities of the Registrant pursuant to this Registration Statement,
regardless of the underwriting method used to sell the securities to
the
purchaser, if the securities are offered or sold to such purchaser by means
of any of
the following communications, to be a seller to the purchaser and to
be
considered to offer or sell such securities to such purchaser: a) any
preliminary
prospectus or prospectus of the Registrant relating to the offering required
to be filed pursuant to Rule 424; b) any free writing prospectus relating
to the offering prepared by or on behalf of the Registrant or used or
referred
to by the Registrant; c) the portion of any other free writing prospectus
relating to the offering containing material information about the Registrant
or its securities provided by or on its behalf; and d) any other communication
that is an offer in the offering made by the Registrant to the purchaser.
(5) 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 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 this 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.
(6)
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 that 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 Registration
Statement
to be signed on its behalf by the undersigned, thereunto duly authorized,
in San Diego, California, on this 16th day of February, 2010.
|
AETHLON
MEDICAL, INC.
A Nevada Corporation
|
|
|
|
|
|
|
s/ James
A. Joyce |
|
|
By: |
James
A. Joyce |
|
|
Its: |
Chief
Executive Officer |
|
|
|
|
|
Pursuant
to the requirements of the Securities Act of 1933, this Form S-8
Registration Statement has been signed by the following persons in the
capacities
and on the dates indicated:
Dated: February
16, 2010 |
/s/ James A.
Joyce |
|
|
James A. Joyce,
Chairman |
|
|
|
|
Dated: February
16, 2010 |
/s/ Franklyn S.
Barry, Jr. |
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|
Franklyn S. Barry,
Jr., Director |
|
|
|
|
Dated: February
16, 2010 |
/s/ Richard H.
Tullis |
|
|
Richard H. Tullis,
Director |
|
INDEX TO
EXHIBITS
Exhibit
Number
|
Description
|
5.
|
Opinion
regarding legality
|
23.1
|
Consent
of Squar, Milner, Peterson, Miranda & Williamson,
LLP
|
23.2
|
Consent
of Law Office of Jennifer A. Post (included in Exhibit
5)
|
99.1
|
Amended
and Restated 2003 Consultant Stock
Plan
|