As filed with the Securities and Exchange Commission on September 15, 2020

 

Registration No. 333-             

 

 

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 Number)

 

9635 Granite Ridge Drive, Suite 100
San Diego, California 92123

(Address, including zip code, of Registrant’s principal executive office)

 

 

 

Aethlon Medical, Inc. 2020 Equity Incentive Plan

(Full title of the plan)

 

 

 

James B. Frakes
9635 Granite Ridge Drive, Suite 100
San Diego, California 92123
(858) 459-7800

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

 

Copies to:

Julie Robinson

Cooley LLP

4401 Eastgate Mall
San Diego, CA 92121-1909
(858) 550-6092

 

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer     Accelerated filer  
Non-accelerated filer     Smaller reporting company  
        Emerging growth company  

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

 

 

   

 

 

CALCULATION OF REGISTRATION FEE

 

                 
 

Title of Each Class of Securities

to be Registered

 

Amount

to be

Registered(1)

 

Proposed

Maximum

Offering Price

per Share

 

Proposed

Maximum

Aggregate

Offering Price

 

Amount of

Registration Fee

2020 Equity Incentive Plan

Common Stock, $0.001 par value per share

  1,337,159 shares(2)   $1.34(7)   $1,791,793.06(7)   $232.57

2020 Equity Incentive Plan

Common Stock, $0.001 par value per share

  342,752 shares(3)   $1.28   $438,722.56   $56.95

2020 Equity Incentive Plan

Common Stock, $0.001 par value per share

  88,000 shares(4)   $2.45   $215,600.00   $27.98

2020 Equity Incentive Plan

Common Stock, $0.001 par value per share

  70,000 shares(5)   $1.32   $92,400.00   $11.99

2020 Equity Incentive Plan

Common Stock, $0.001 par value per share

  4,645 shares(6)   $1.41   $6,549.45   $0.85
Total:   1,842,556 shares   N/A   $2,545,065.07   $330.35
 
 

 

(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of the Registrant’s common stock that may become issuable under the Aethlon Medical, Inc. 2020 Equity Incentive Plan (the “2020 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction.

(2) Such maximum number of shares reserved for issuance under the 2020 Plan consists of (1) 1,164,603 newly reserved shares and (2) the shares subject to outstanding stock awards granted under the Aethlon Medical, Inc. 2010 Equity Incentive Plan (the “2010 Plan”) that on or after the effective date of the 2020 Plan (a) are not issued because such stock award or any portion thereof expires or otherwise terminates without all of the shares covered by such stock award having been issued; (b) are not issued because such stock award or any portion thereof is settled in cash; (c) are forfeited back to or repurchased by the Company because of the failure to meet a contingency or condition required for the vesting of such shares; (d) are withheld or reacquired to satisfy the exercise, strike or purchase price; or (e) are withheld or reacquired to satisfy a tax withholding obligation. No further grants will be made under the 2010 Plan.  

(3) Represents shares of Common Stock reserved for issuance upon the exercise of outstanding options granted under the 2020 Plan at an exercise price of $1.28 per share.
(4) Represents shares of Common Stock reserved for issuance upon the exercise of outstanding options granted under the 2020 Plan at an exercise price of $2.45 per share.
(5) Represents shares of Common Stock reserved for issuance upon the exercise of outstanding options granted under the 2020 Plan at an exercise price of $1.32 per share.
(6) Represents shares of Common Stock reserved for issuance upon the exercise of outstanding restricted stock units granted under the 2020 Plan.
(7) This estimate is made pursuant to Rule 457(c) and Rule 457(h)(1) of the Securities Act solely for purposes of calculating the registration fee. The price per share and aggregate offering price are based on the average of the high and low prices of the Registrant’s common stock on September 11, 2020, as reported on the Nasdaq Capital Market.

 

 

 

 

   

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

 

 

ITEM 1.PLAN INFORMATION.

 

Not required to be filed with this Registration Statement.

 

ITEM 2.REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.

 

Not required to be filed with this Registration Statement. 

 

 

 

 

 

 

 

 

 

 

 

 

 

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PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

ITEM 3.INCORPORATION OF DOCUMENTS BY REFERENCE.

 

The following documents have been filed by us with the Securities and Exchange Commission, or the Commission, and are incorporated herein by reference:

 

·our Annual Report on Form 10-K for the fiscal year ended March 31, 2020, which was filed with the SEC on June 25, 2020 and the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended March 31, 2020, from our Definitive Proxy Statement on Schedule 14A, filed with the Commission on July 28, 2020;

 

·our Quarterly Report on Form 10-Q for the quarter ended June 30, 2020, which was filed with the SEC on August 11, 2020;

 

·our Current Reports on Form 8-K (excluding any information and exhibits furnished under either Item 2.02 or Item 7.01 thereof), filed with the SEC on January 17, 2020, January 22, 2020, February 21, 2020, March 23, 2020 and September 15, 2020; and

 

·the description of our common stock set forth in the registration statement on Form 8-A, filed with the Securities and Exchange Commission on July 8, 2015, including any amendments or reports filed for the purposes of updating this description.

 

All reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, or 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 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 the filing of such reports and documents; provided, however, that documents, reports and definitive proxy or information statements, or portions thereof, which are furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this registration statement. Any statement contained in a document 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 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.

 

 

 

 

 

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ITEM 6.INDEMNIFICATION OF DIRECTORS AND OFFICERS

 

Nevada Law

 

We are incorporated in Nevada. Section 78.7502(1) of the Nevada Revised Statutes, or NRS, provides that a corporation may indemnify, pursuant to that statutory provision, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she is not liable pursuant to NRS 78.138 or if he or she acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. NRS 78.138(7) provides that, subject to limited statutory exceptions and unless the articles of incorporation or an amendment thereto (in each case filed on or after October 1, 2003) provide for greater individual liability, a director or officer is not individually liable to the corporation or its stockholders or creditors for any damages as a result of any act or failure to act in his or her capacity as a director or officer unless the presumption established by NRS 78.138(3) has been rebutted and it is proven that (i) his or her act or failure to act constituted a breach of his or her fiduciary duties as a director or officer, and (ii) such breach involved intentional misconduct, fraud or a knowing violation of the law.

 

NRS 78.7502(2) permits a corporation to indemnify, pursuant to that statutory provision, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she is not liable pursuant to NRS 78.138 or if he or she acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification pursuant to NRS 78.7502 may be made in respect of any claim, issue or matter as to which such person shall have been adjudged by a court of competent jurisdiction, after any appeals taken therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which such action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. NRS 78.751(1) provides that a corporation shall indemnify any person who is a director, officer, employee or agent of the corporation, against expenses actually and reasonably incurred by the person in connection with defending an action (including, without limitation, attorney’s fees), to the extent that the person is successful on the merits or otherwise in defense of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or any claim, issue or matter in such action.

 

NRS 78.751(3) provides that the indemnification pursuant to NRS 78.7502 does not exclude any other rights to which a person seeking indemnification may be entitled, except that indemnification may not be made to or on behalf of any director or officer finally adjudged by a court of competent jurisdiction, after exhaustion of any appeals taken therefrom, to be liable for intentional misconduct, fraud or a knowing violation of the law and such intentional misconduct, fraud or a knowing violation of the law was material to the cause of action and that the indemnification shall continue as to directors, officers, employees or agents who have ceased to hold such positions, and to their heirs, executors and administrators. NRS 78.752 permits a corporation to purchase and maintain insurance on behalf of a director, officer, employee or agent of the corporation against any liability asserted against him or her or incurred by him or her in any such capacity or arising out of his or her status as such whether or not the corporation would have the power to indemnify him or her against such liabilities.

 

 

 

 

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Bylaws

 

Our bylaws include express provisions providing for the indemnification of our directors and officers to the fullest extent permitted under the NRS, and the mandatory payment by us of expenses incurred by such persons in defending a civil or criminal action, suit or proceeding in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined that such person is not entitled to be indemnified by us. Our bylaws also permit us to purchase and maintain insurance or make other financial arrangements on behalf of any such person for certain liability and expenses, whether or not we have the authority to indemnify such person against such liability and expenses.

 

Liability Insurance

 

We maintain directors’ and officers’ liability insurance covering our directors and officers against expenses and liabilities arising from certain actions to which they may become subject by reason of having served in such role, including insurance for claims against these persons brought under securities laws. Such insurance is subject to the coverage amounts, exceptions, deductibles and other conditions set forth in the policy as in effect at the time of a claim, if any. There is no assurance that we will maintain liability insurance for our directors and officers.

 

ITEM 7.EXEMPTION FROM REGISTRATION CLAIMED.

 

Not applicable.

 

ITEM 8.EXHIBITS

 

            Incorporated by Reference
Exhibit
Number
  Exhibit Description   Form   SEC File No.   Exhibit
Number
  Date   Filed
Herewith
             
4.1   Articles of Incorporation.   S-3   333-211151   3.1   May 5, 2016    
             
4.2   Bylaws.   8-K   001-37487   3.1   September 12, 2019    
                         
5.1   Opinion of Brownstein Hyatt Farber Schreck, LLP.                   X
             
23.1   Consent of Independent Registered Public Accounting Firm.                   X
             
23.2   Consent of Brownstein Hyatt Farber Schreck, LLP (included in Exhibit 5.1).                   X
                         
24.1   Power of Attorney (included on signature page hereto).                   X
                         
99.1   Aethlon Medical, Inc. 2020 Equity Incentive Plan, Form of Restricted Stock Grant, Form of Option Grant and Agreement.   8-K   001-37487   10.1   September 15, 2020    

 

 

 

 

 

 

 

 

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ITEM 9.UNDERTAKINGS

 

1.       The undersigned Registrant hereby undertakes:

 

(a) 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 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 the Registration Statement or any material change to such information in the Registration Statement;

 

Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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 herein.

 

(b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c) 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.

 

(d) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned 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, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;

 

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;

 

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and

 

(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.

 

 

 

 

 

 

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2.       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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

3.       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 of 1933 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 of 1933 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, as amended, 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 San Diego, State of California on September 15, 2020.

 

 

Aethlon Medical, Inc.

 

 

     
  By:   /s/ James B. Frakes
      James B. Frakes
     

Chief Financial Officer

Chief Accounting Officer


 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James B. Frakes and Timothy C. Rodell, MD, FCCP, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, 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, 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, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated.

 

         

Signature

 

Title

 

Date

     

/s/ Timothy C. Rodell, MD, FCCP

Timothy C. Rodell, MD, FCCP

 

Chief Executive Officer and Director

(Principal Executive Officer)

  September 15, 2020
     

/s/ James B. Frakes

James B. Frakes

 

Chief Financial Officer

(Principal Accounting and Financial Officer)

  September 15, 2020
     

/s/ Charles J. Fisher, Jr., MD

Charles J. Fisher, Jr., MD

  Chairman of the Board, Director   September 15, 2020
     

/s/ Edward G. Broenniman

Edward G. Broenniman

  Director   September 15, 2020
     

/s/ Chetan Shah, MD

Chetan Shah, MD

  Director   September 15, 2020
     

/s/ Sabrina Martucci Johnson

Sabrina Martucci Johnson

  Director   September 15, 2020
     

/s/ Guy F. Cipriani

Guy F. Cipriani

  Director   September 15, 2020

 

 

 

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