As filed with the Securities and Exchange Commission on November 1, 2004
File No. 000-28638
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
KYTO BIOPHARMA INC.
(Exact name of registrant as specified in its charter)
Florida 65-1086538
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
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41A AVENUE ROAD
TORONTO ON, CANADA M5R 2G3
(416) 955-0349
(Address of Principal Executive Offices)
SERVICES AGREEMENT
WITH GERARD SERFATI
(Full title of the plan)
LEDYARD H. DEWEES, P.A.
270 N.W. THIRD COURT
BOCA RATON, FLORIDA 33432-3720
(Name and address of agent for service)
(561) 368-1427
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Amount to be offering price aggregate offering Amount of
Title of securities to be registered registered (1) per share (1) price (1) registration fee
------------------------------------ -------------- ---------------- ------------------ ----------------
Common Shares, par value $.0001 per
share ................................ 4,500,000 $0.05 $225,000 $90.00
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The Company has entered into an agreement with certain consultants and advisors which provide for the issuance of shares of our common stock for services to us in lieu of cash compensation. In consideration for past and continuing services rendered and to be rendered to us until the term of the agreement expires or until such time as we shall generate sufficient cash flow from operations, if ever, in order to pay cash compensation to certain officers/directors, we have prepared this Form S-8 registration statement to provide for the issuance and registration of an aggregate of 4,500,000 shares to Gerard Serfati pursuant to a services agreement attached hereto as Exhibit 1.1.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, any of the documents incorporated by reference
in Item 3 of Part II of this Registration Statement (which documents are
incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees, non-employees, directors and
consultants, pursuant to Rule 428(b) are available without charge by contacting:
Jean-Luc Berger, President & C.E.O., Kyto Biopharma Inc., 41A Avenue Road
Toronto ON M5R 2G3 (416) 955-0349.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Kyto Biopharma Inc. (the "Company") with the Securities and Exchange Commission (the "Commission") and are hereby incorporated by reference in this Registration Statement:
a) The Company's Quarterly Report on Form 10-QSB for the period ended Septemeber 30, 2004, as filed with the Securities and Exchange Commission (the "Commission");
b) The Company's Annual Report on Form 10-KSB for the fiscal year ended March 31, 2004, as filed with the Securities and Exchange Commission (the "Commission");
c) The description of the Company's Common Shares contained in the Company's 10-KSB for the fiscal year ended March 31, 2004;
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
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 the filing of such documents with the
Commission.
Any statement contained 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 statement. Any such 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subject to certain provisions of our by-laws, every director, officer and committee member shall be indemnified out of the Company's funds against all liabilities, loss, damage or expense, including but not limited to liabilities under contract, tort and statute or any applicable foreign law or regulation and all reasonable legal and other costs and expenses properly payable, incurred or suffered by him as director, officer or committee member; provided that the indemnity contained in the by-laws will not extend to any matter which would render it void under the laws of the State of Florida.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this registration statement are listed in the Exhibit Index on page II-5 of this registration statement, which index is incorporated herein by reference.
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;
(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) do not apply if the information required to be included in a post-effective amendment 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 this 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.
(i) That, for the 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 this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(ii) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filings on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Toronto, Ontario, Canada, on the 15th day of November, 2004.
KYTO BIOPHARMA INC.
By: /s/ Jean-Luc Berger
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Name: Jean-Luc Berger
Title: President
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Jean-Luc Berger and Georges Benarroch, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorney to any and all amendments to said Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE NAME TITLE DATE
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/s/ Jean-Luc Berger Jean-Luc Berger President & November 1, 2004
Director
/s/ Georges Benarroch Georges Benarroch Director November 1, 2004
/s/ Don MacAdam Don MacAdam Director November 1, 2004
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EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
1.1 - Services Agreement between the Company and Gerard Serfati dated
November 1, 2004.
5.1 - Opinion of Ledyard H. DeWees, P.A. as to the legality of the
securities being registered dated November 1, 2004
23.1 - Consent of Independent Registered Public Accounting Firm.
24.1 - Power of Attorney (set forth on the signature page of this
Registration Statement) dated November 1, 2004
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* Incorporated by reference to the Form 10-KSB of Kyto Biopharma Inc. filed with the Securities and Exchange Commission on June 28, 2004
** Incorporated by reference to the Form 10-QSB of Kyto Biopharma Inc. filed with the Securities and Exchange Commission on November 15, 2004.
*** Incorporated by reference to Form S-8 Registration Statement of Kyto Biopharma Inc. filed with the Securities and Exchange Commission on November 15, 2004.
Exhibit 1.1
SERVICES AGREEMENT
BETWEEN:
KYTO BIOPHARMA, INC.
and
GERARD SERFATI
This Services Agreement (the "Agreement") is entered into as of November 1, 2004 ("Effective Date"), by and between Kyto Biopharma, Inc. (the "Company"), having a principal place of business at 41A Avenue Road, Toronto, Ontario, M5R 2G3, Canada and Gerard Serfati, an individual ("Serfati").
WHEREAS the Company is a corporation existing under the laws of the State of Florida; and
WHEREAS, the Company desires to generate and increase customer interest in the Company's products and technologies and explore merger/acquisition possibilities; and
WHEREAS, it is the intention of the parties to enter into a binding agreement based upon the terms set forth below.
1.0 FINANCIAL MARKETS ACCESS AND MERGER/ACQUISITION
1.1 Serfati will implement a program designed to generate interest in the Company's products and technologies and to explore acquisition opportunities. Serfati and any third parties retained in connection with this contract will limit disclosure to approved "Marketing Material" and/or "Confidential Information".
a. Serfati will use its generation and acquisition program to contact potential customers and a number of acquisition targets in Europe and in North America using "Marketing Material". This lead program shall be exclusive as to the potential customers/acquisition targets who will have been contacted by Serfati as a result of this program.
b. Serfati will approach on behalf of the Company a number of candidates for merger and/or acquisitions.
2.0 RETENTION OF SERFATI
2.1 The Company hereby retains Serfati on a non-exclusive basis for a term of two (2) years to perform the services outlined in Sections 1 and 2 herein. The term of this Agreement may be extended for additional 120 day periods upon mutual written agreement of the parties.
2.2 The Company shall pay Serfati an initial retainer of $0, payment of which shall be made upon execution of this Agreement.
2.3 In addition to the retainer fee set forth in Section 2.2 above, the Company shall, upon execution of this Agreement, issue to Serfati 4,500,000 shares of the Company's common stock and the shares will be fully tradable and delivered before the program is started.
3.0 NO AGENCY
3.1 Serfati understands and acknowledges that this letter shall not create or imply any agency agreement between the parties and Serfati shall not, nor shall Serfati have the right to, commit the Company, its officers, directors or shareholders in any manner except as shall have been specifically authorized in writing by the Company.
4.0 INDEMNIFICATION
4.1 In connection with the services which Serfati has agreed to render to the Company hereunder, the Company shall indemnify Serfati and any third parties retained in connection with this Agreement and hold them harmless against any losses, claims, damages or liabilities to which Serfati may become subject in connection with the rendering of such services except for losses, claims, damages or liabilities resulting from or arising out of gross negligence, misrepresentation or willful conduct of Serfati. Serfati will promptly notify the Company upon receipt of any notices of claim or threat to institute an action or proceeding for which it or any other person claims entitlement to indemnification pursuant to this provision and will promptly notify the Company after any such proceeding is commenced. In the event Serfati becomes involved in any action or proceeding for which it is indemnified hereunder and the Company neglects to defend in good faith any such action on behalf of Serfati, then Serfati shall be entitled to retain separate counsel of its choice and the Company shall reimburse Serfati for any legal or other expenses reasonably incurred by it in connection with investigating, preparing to defend or defending any lawsuits or other proceedings arising in any manner out of or in connection with the rendering of such services the Company agrees that the indemnification and reimbursement commitment set forth in this Agreement shall apply whether or not Serfati is a formal party to any such lawsuits or other proceedings.
4.2 Serfati agrees to indemnify and hold the Company, its officers, directors, agents and employees harmless from and against any losses, claims, damages, expenses (including reasonable counsel fees) or liabilities resulting from any actual or threatened actions, suits, proceedings or claim by third parties which arise out of violations of any federal or state securities laws due to Serfati's gross negligence, misrepresentation or willful misconduct.
4.3 The indemnity agreement contained in this Section 4 and the representations and warranties of the parties hereto contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement or (ii) any investigation made by Serfati or on behalf of Serfati or on behalf of the Company, its officers or directors or any other person controlling the Company.
5.0 MODIFICATION/SEVERABILITY
5.1 The Agreement is the entire agreement between the parties which may not be amended or modified except in writing, and shall be binding upon any inure to the benefit of the parties and their successors and assigns. If any provision of this Agreement, or part thereof, shall be held to be invalid or unenforceable, it shall not affect the validity or enforceability of the remaining part or any other provision.
6.0 HEADINGS
6.1 Headings are for convenience only and shall not affect the interpretation or meaning of the context thereunder.
7.0 REPRESENTATIONS OF THE COMPANY
7.1 By execution of this Agreement, the Company represents and warrants to Serfati, and Serfati shall be entitled to rely fully upon such representation, that (i) it has full and complete corporate authority to enter into this Agreement, (ii) that the officer executing this Agreement on behalf of the Company is duly empowered to so execute and, as of the date of signing, holds in good standing the office indicated and (iii) that the Company intends to be legally bound by the terms set forth herein which shall be governed and interpreted under the laws of the State of Florida without reference to any conflicts of laws, principles or rules.
IN WITNESS WHEREOF the parties hereto have executed this Agreement effective as of the day and year set forth above.
KYTO BIOPHARMA, INC. GERARD SERFATI
By: /s/ Jean-Luc Berger By: /s/ Gerard Serfati
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Jean-Luc Berger
President and C.E.O.
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Exhibit 5.1
Direct Telephone: 561-368-1427
Ledyard H. DeWees, P.A.
270 N.W. 3rd Court
Boca Raton FL 33432-3720
November 1, 2004
Securities & Exchange Commission
450 Fifth Street N.W.
Washington D.C. 20549
Re: Kyto Biopharma Inc.
Form S-8 Registration Statement
Ladies & Gentlemen:
We refer to the above-captioned registration statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Act") filed by Kyto Biopharma Inc., a Florida corporation, (the "Registrant"), registering 4,500,000 shares of common stock with the Securities & Exchange Commission.
We have examined the originals, photocopies, certified copies, or other evidence of such records of the Registrant, certificates of officers of the Registrant and other documents as we have deemed relevant and necessary as a basis for our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as certified copies or photocopies and the authenticity of the originals of such latter documents.
Based on our examination mentioned above, we are of the opinion that the securities being registered to be sold, pursuant to the Registration Statement are duly authorized and will be, when sold in the manner described in the Registration Statement, legally and validly issued, and fully-paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement.
Very truly yours,
Ledyard H. DeWees, P.A.
By: /s/ Ledyard H. DeWees
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EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of Kyto Biopharma, Inc. of our report dated June 8, 2004 on the consolidated financial statements of Kyto Biopharma, Inc. (a development stage company) as of March 31, 2004 and for the years ended March 31, 2004 and 2003 and from March 5, 1999 (inception of development stage) to March 31, 2004.
SALBERG & COMPANY, P.A.
Boca Raton, Florida
November 5, 2004