SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3030 Bunker Hill Street, Suite 4000
San Diego, California 92109
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(Address of principal executive offices) (Zip Code)
AMENDED AND RESTATED 2003 CONSULTANT STOCK PLAN
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(Full title of the plan)
James A. Joyce
3030 Bunker Hill Street, Suite 4000
San Diego, California 92109
(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 [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company [ X ]
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
REGISTERED REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE(2)
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Common Stock 1,000,000 $0.29 $290,000 $16.19
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(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 amount
of registration fee, based upon the average of the high and low prices reported
on July 9, 2009, as reported on the OTC Electronic Bulletin Board.
GENERAL INSTRUCTION E INFORMATION
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. The contents of these Registration Statements are hereby incorporated
by reference into this Registration Statement. A prior Registration Statement
filed on August 9, 2007 (333-145290) was filed to register an additional
2,000,000 shares of common stock under the Amended and Restated 2003 Consultant
Stock Plan.
This Registration Statement will register an additional 1,000,000 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 Securities and Exchange Commission (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. 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 Securities and Exchange Commission (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 description of the Registrant's common stock, which is
included in the Registration Statement on Form SB-2, filed with the Commission
on December 18, 2000.
(c) 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, 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.
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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. DESCRIPTION OF SECURITIES
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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 to 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. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS.
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
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ITEM 9. UNDERTAKINGS
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 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) 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.
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(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.
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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 San Diego, California, on this 10th day of July, 2009.
AETHLON MEDICAL, INC.
A Nevada Corporation
/s/ James A. Joyce
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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: July 10, 2009 /s/ James A. Joyce
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James A. Joyce, Chairman
Dated: July 10, 2009 /s/ Franklyn S. Barry, Jr.
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Franklyn S. Barry, Jr., Director
Dated: July 10, 2009 /s/ Edward G. Broenniman
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Edward G. Broenniman, Director
Dated: July 10, 2009 /s/ Richard H. Tullis
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Richard H. Tullis, Director
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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
7