UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KIWA BIO-TECH PRODUCTS GROUP CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 84-0448400
(State or Other Jurisdiction of Incorporation or (I.R.S. Employer
Organization) Identification No.)
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17700 CASTLETON STREET, SUITE 589
CITY OF INDUSTRY, CALIFORNIA 91748
(Address of Principal Executive Offices) (Zip Code)
2004 STOCK INCENTIVE PLAN
ENGAGEMENT LETTER FOR SPECIAL FEE ARRANGEMENT DATED JULY 22, 2004
(Full Title of the Plans)
JAMES NIAN ZHAN
SECRETARY
KIWA BIO-TECH PRODUCTS GROUP CORPORATION
17700 CASTLETON STREET, SUITE 589
CITY OF INDUSTRY, CALIFORNIA, 91748
(Name and Address of Agent for Service)
(626) 964-3232
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
V. JOSEPH STUBBS, ESQ.
STUBBS ALDERTON & MARKILES, LLP
15821 VENTURA BOULEVARD, SUITE 525
ENCINO, CALIFORNIA 91436
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Proposed Maximum
Title of Each Class Maximum Aggregate Amount of
of Securities Amount to be Offering Price Offering Registration
to be Registered Registered(1) Per Share(2) Price(2) Fee
---------------- ------------- -------------- --------- ------------
Common Stock, par
value $.001 per
share........... 1,940,764 $0.14 $271,707 $35
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers such additional
shares as may hereinafter be offered or issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions
effected without the receipt of consideration.
(2) Determined in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the Registration Fee, on the basis of the
average of the bid and ask prices per share of Common Stock of the
Registrant on September 8, 2004.
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EXPLANATORY NOTE
This Registration Statement registers 1,940,764 shares of the Common Stock (the
"Common Stock"), par value $0.001 per share, of Kiwa Bio-Tech Products Group
Corporation, a Delaware corporation (the "Registrant"), to be issued as follows:
(i) 1,047,907 shares of Common Stock to be issued pursuant to the
2004 Stock Incentive Plan; and
(ii) 892,857 shares to be issued in the aggregate to individual
partners of Stubbs Alderton & Markiles, LLP pursuant to that
certain Engagement Letter for Special Fee Arrangement, dated
July 22, 2004, as amended, between the Registrant and Stubbs
Alderton & Markiles, LLP
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I will be
sent or given to participants as specified by Rule 428(b)(1). Such documents are
not being filed with the Securities and Exchange Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. Such documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II of this Form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by the Registrant with the
Securities and Exchange Commission are incorporated in this Registration
Statement by reference:
(a) The Registrant's Current Reports on Form 8-K filed on March
29, 2004, as amended, April 1, 2004, May 10, 2004, as amended,
July 19, 2004, July 23, 2004 and August 26, 2004;
(b) The Registrant's Quarterly Reports on Form 10-QSB for the
quarterly periods ended March 31, 2004 and June 30, 2004;
(c) The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 2003; and
(d) The description of the Registrant's common stock as set forth
in its Form 10-SB/A registration statement on file with the
Commission, including any amendments or reports filed for the
purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment which indicates that all securities
offered 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 filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
The total number of securities registered hereunder is 1,940,764
shares, all of which are common stock of the Registrant. The Registrant is
presently authorized to issue 100,000,000 shares of its Common Stock. As of
September 9, 2004, there were 38,460,853 outstanding and subscribed for shares.
The holders of common stock are entitled to one vote per share on each matter
submitted to a vote at any meeting of shareholders. Shareholders of the
Registrant have no preemptive rights to acquire additional shares of common
stock or other securities. The common stock is not subject to redemption and
carries no subscription or conversion rights. In the event of liquidation of the
Registrant, the shares of common stock are entitled to share equally in
corporate assets after satisfaction of all liabilities. The shares, when issued,
will be fully paid and non-assessable. A majority of all issued and outstanding
shares shall constitute a quorum for conducting business. The majority of shares
present, in any regular or special meeting where a quorum is present, may vote
in favor of or against any item of business or election, and shall constitute a
majority approval or disapproval of matters voted upon at any such meeting.
Shares of common stock do not carry cumulative voting rights. The Registrant
presently does not pay any dividends and has no foreseeable plan to pay
dividends. There are no special preemptive rights or rights upon liquidation,
other than the normal rights and priorities which would attach to shares in
liquidation pursuant to Delaware Law. The shares are not subject to call,
liability or assessment.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Stubbs Alderton & Markiles, LLP ("SAM LLP"), has provided legal
services to the Registrant in connection with its preparation of this
Registration Statement. In addition, SAM LLP has rendered a legal opinion,
attached hereto as Exhibit 5.1, as to the validity and due issuance of the
shares of the Registrant's Common Stock to be issued and registered hereby.
Individual partners of SAM LLP will be issued Common Stock registered by this
Registration Statement in payment of fees due SAM LLP for legal services
rendered pursuant to the terms of that certain Engagement Letter for Special Fee
Arrangement dated July 22, 2004, as amended, between the Registrant and SAM LLP.
Neither SAM LLP, nor any individual partner thereof, has been employed on a
contingent basis. Neither SAM LLP, nor any individual partner thereof, is
connected with Registrant other than in their role as outside legal counsel for
the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides in
relevant part that a corporation may indemnify any person who was or is a party
to 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 such person is or was a director, officer, employee or
agent of the 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 such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person 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 such person's conduct was
unlawful.
In addition, Section 145 provides that a corporation may indemnify 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 attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to
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which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper. Delaware law further provides that nothing in the above-described
provisions shall be deemed exclusive of any other rights to indemnification or
advancement of expenses to which any person may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
Article IV of the Registrant's Bylaws provides for the indemnification
of officers, directors and third parties acting on behalf of the Registrant to
the fullest extent permissible under Delaware law.
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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
THE FOLLOWING EXHIBITS ARE FILED AS PART OF THIS REGISTRATION
STATEMENT:
4.1 Certificate of Incorporation of the Registrant. (1)
4.2 Bylaws of the Registrant. (1)
5.1 Opinion of Stubbs Alderton & Markiles, LLP.
23.1 Consent of Pritchett, Siler & Hardy, P.C.
23.2 Consent of Hansen, Barnett & Maxwell.
23.3 Consent of Grobstein, Horwath & Company LLP.
23.4 Consent of Stubbs Alderton & Markiles, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included as part of the Signature Page of
this Registration Statement).
99.1 Kiwa Bio-Tech Products Group Corporation 2004 Stock Incentive
Plan.
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(1) Filed previously as an exhibit to the Registrant's Current
Report on Form 8-K, filed with the Commission on July 23,
2004, and incorporated herein by this reference.
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
to include any material information with respect to the plan of
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distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement.
(2) 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 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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Industry, State of California, on this 13th day
of September, 2004.
KIWA BIO-TECH PRODUCTS GROUP CORPORATION
(Registrant)
By: /S/ WEI LI
-----------------------------------
Wei Li
President (Principal Executive Officer)
By: /S/ LIAN-JUN LOU
-----------------------------------
Lian-jun Lou
Chief Financial Officer (Principal Financial and
Accounting Officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints each
of Wei-Li and James Nian Zahn as his true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, for him and his name, place
and stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this Registration Statement and to file a new
registration statement under Rule 461 or Instruction E of Form S-8 of the
Securities Act of 1933, as amended, 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 and about the foregoing, 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 either of them, or
their substitutes, 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 below by the following persons in
the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/S/ WEI LI Chief Executive Officer and September 13, 2004
------------------------ Chairman of the Board
Wei Li
/S/ LIAN-JUNE LUO Chief Financial Officer and September 13, 2004
------------------------ Director
Lian-jun Luo
/S/ JAMES NIAN ZHAN Secretary and Director September 13, 2004
------------------------
James Nian Zhan
/S/ DA-CHUNG JU Director September 13, 2004
------------------------
Da-chang Ju
/S/ YUN-LONG ZHANG Director September 13, 2004
------------------------
Yun-long Zhang
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EXHIBIT INDEX
EXHIBIT NO. EXHIBIT DESCRIPTION
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4.1 Certificate of Incorporation of the Registrant. (1)
4.2 Bylaws of the Registrant. (1)
5.1 Opinion of Stubbs Alderton & Markiles, LLP.
23.1 Consent of Pritchett, Siler & Hardy, P.C.
23.2 Consent of Hansen, Barnett & Maxwell.
23.3 Consent of Grobstein, Horwath & Company LLP.
23.4 Consent of Stubbs Alderton & Markiles, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included as part of the Signature Page of
this Registration Statement).
99.1 Kiwa Bio-Tech Products Group Corporation 2004 Stock Incentive
Plan.
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(1) Filed previously as an exhibit to the Registrant's Current Report on
Form 8-K, filed with the Commission on July 23, 2004, and incorporated
herein by this reference.
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