As filed with the Securities and Exchange Commission on August 23, 2006
Registration No. 333-
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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VYTA CORP
(FORMERLY KNOWN AS NANOPIERCE TECHNOLOGIES, INC.)
(Exact name of registrant as specified in its charter)
NEVADA 84-0992908
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
370 17TH STREET, SUITE 3640
DENVER, COLORADO 80202
(303) 592-1010
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
CONSULTING AGREEMENTS
(Full title of the Plan)
PAUL H. METZINGER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
VYTA CORP
370 17TH STREET, SUITE 3640
DENVER, COLORADO 80202
(303) 592-1010
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies sent to:
ROBERT J. AHRENHOLZ, ESQUIRE
JOSHUA M. KERSTEIN, ESQUIRE
KUTAK ROCK LLP
1801 CALIFORNIA STREET, SUITE 3100
DENVER, COLORADO 80202
(303) 297-2400
CALCULATION OF REGISTRATION FEE
========================================================================================================
Title Of Amount Proposed Maximum Proposed Maximum Amount of
Securities To Be Offering Price Aggregate Offering Registration
To Be Registered Registered (1) Per Share (2) Price Fee (3)
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Common Stock, $.0001
par value per share 200,000 $ 0.60 $ 120,000 $ 12.84
Common Stock, $.0001
par value per share issuable
upon exercise of warrants 500,000 $ 0.60 $ 300,000 $ 32.10
TOTAL: 700,000 $ 0.60 $ 420,000 $ 44.94
========================================================================================================
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement shall be deemed to cover or to proportionally reduce, as
applicable, an indeterminate number of shares of common stock of the
Registrant issuable in the event the number of shares of the Registrant is
increased, or reduced, as applicable, by reason of any stock split, reverse
stock split, stock dividend or other similar transaction.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) promulgated under the Securities Act of
1933 based on the average of the closing bid and asked prices of the common
stock on August 21, 2006, as reported on the OTC Bulletin Board.
(3) Registration fee calculations are based on the filing fee of $107.00 per
$1,000,000 of securities registered.
EXPLANATORY NOTE
This Registration Statement on Form S-8 registers for resale 700,000 shares
of common stock, $.0001 par value per share ("Common Stock"), of Vyta Corp
(formerly known as Nanopierce Technologies, Inc.) (the "Company") that the
Company has agreed to issue under (i) the Consulting Agreement, effective as of
June 1, 2006, between the Company and Edwin Buckham ("Buckham Consulting
Agreement") and (ii) the Consulting Agreement, effective as of June 1, 2006,
between the Company and Terry Allen (the "Allen Consulting Agreement" and,
jointly, the "Consulting Agreements"). The Company's Board of Directors
approved the Consulting Agreements on June 28, 2006.
This Registration Statement includes a prospectus (the "Reoffer
Prospectus") prepared pursuant to General Instruction C of Form S-8 and in
accordance with Part I of Form S-3. The Reoffer Prospectus may be used for
reofferings and resales on a continuous or delayed basis of an aggregate of
700,000 shares of Common Stock that have been issued to two consultants, Edwin
Buckham and Terry Allen.
PART I
INFORMATION REQUIRED IN THE SECTION
10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Pursuant to the Buckham Consulting Agreement, the Company has retained Edwin
Buckham to consult with the Company with respect to legislative and governmental
issues. In consideration for his services, the Company has agreed to issue
140,000 shares of Common Stock and a warrant to purchase 500,000 shares of
Common Stock to Mr. Buckham. The Buckham Consulting Agreement is for a term of
one year and ends on June 1, 2007. For so long as the Company is not eligible
to file a registration statement on Form S-3, the shares issued under the
Buckham Consulting Agreement and resold under this Form S-8 will be subject to
the volume restrictions contained in Rule 144(e) promulgated under the
Securities Act of 1933, as amended. The Buckham Consulting Agreement is
attached as Exhibit 4.1 to this Form S-8.
Pursuant to the Allen Consulting Agreement, the Company has retained Terry Allen
to consult with the Company with respect to legislative and governmental issues.
In consideration for his services, the Company has agreed to issue 60,000 shares
of Common Stock to Mr. Allen. The Allen Consulting Agreement is for a term of
one year and ends on June 1, 2007. For so long as the Company is not eligible
to file a registration statement on Form S-3, the shares issued under the Allen
Consulting Agreement and resold under this Form S-8 will be subject to the
volume restrictions contained in Rule 144(e) promulgated under the Securities
Act of 1933, as amended. The Allen Consulting Agreement is attached as Exhibit
4.2 to this Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The Company will provide, without charge, to each person to whom a copy of the
Section 10(a) prospectus is delivered, upon oral or written request, a copy of
any or all documents incorporated by reference in Item 3 of Part II of this
Registration Statement (which documents are incorporated by reference in the
Section 10(a) prospectus). Requests should be directed to Paul H. Metzinger,
President and Chief Executive Officer, Vyta Corp, 370 17th Street, Suite 3640,
Denver, Colorado 80202. The Company's phone number is (303) 592-1010.
PROSPECTUS
VYTA CORP
---------
370 17th Street, Suite 3640
Denver, Colorado 80202
700,000 SHARES OF COMMON STOCK, INCLUDING:
- 200,000 SHARES CURRENTLY OUTSTANDING
- 500,000 SHARES ISSUABLE UPON EXERCISE OF
WARRANTS
THE SELLERS: All of our common stock offered by this prospectus is
offered from time to time by the selling stockholders
identified in this prospectus. These shares of common stock
may be sold at fixed prices, prevailing market prices
determined at the time of sale, varying prices determined at
the time of sale or at negotiated prices. We will not
receive any proceeds from the sale of our common stock
offered by the selling stockholders.
MARKET FOR
SECURITIES: Our common stock is presently quoted on the over-the-counter
bulletin board under the symbol "VYTC." Our common stock
also is traded on the Berlin Stock Exchange, the Frankfurt
Stock Exchange, the Munich Stock Exchange and the Xetra
Stock Exchange. On August 21, 2006, the last reported sale
price of our common stock on the over-the-counter bulletin
board was $0.60 per share (rounded to the nearest penny).
See "DESCRIPTION OF COMMON STOCK-Common Stock."
RISK FACTORS: INVESTING IN OUR COMMON STOCK INVOLVES A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC") NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED ANY OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is August 23, 2006.
TABLE OF CONTENTS
Page
FORWARD-LOOKING STATEMENTS. . . . . . . . . . . . . . . . i
PROSPECTUS SUMMARY. . . . . . . . . . . . . . . . . . . . 1
RISK FACTORS. . . . . . . . . . . . . . . . . . . . . . . 3
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . 9
DETERMINATION OF OFFERING PRICE . . . . . . . . . . . . . 10
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . 10
SELLING STOCKHOLDERS . . . . . . . . . . . . . . . . . . 20
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . 21
DESCRIPTION OF COMMON STOCK . . . . . . . . . . . . . . . 23
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . 24
MATERIAL CHANGES. . . . . . . . . . . . . . . . . . . . . 24
INCORPORATION OF DOCUMENTS BY REFERENCE . . . . . . . . . 25
DISCLOSURE OF SEC POSITION ON INDEMNIFICATION . . . . . . 25
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . 25
ADDITIONAL INFORMATION. . . . . . . . . . . . . . . . . . 26
FORWARD-LOOKING STATEMENTS
This prospectus includes "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. We base these forward-looking statements on our current
expectations and projections about future events. These forward-looking
statements are subject to risks, uncertainties, and assumptions about our
company, including:
- the rate of market development and acceptance of AgraStim(TM)
(trademark pending) (formerly marketed as YBG-2000), a beta glucan
feed additive, in the animal feed industry within which BioAgra, LLC
is now concentrating its business activities;
- the operations and potential profitability of BioAgra, LLC, a
company in which we have only a 50% interest which holds the license
for AgraStim;
- the operations and potential profitability of ExypnoTech, Gmbh, a
company in which we have only a 49% interest that is manufacturing and
developing inlay components used in the manufacturing of, among other
things, smart labels (often referred to as radio frequency
identification tags);
- the limited revenues and significant operating losses generated
by us to date;
- the possibility of significant ongoing capital requirements and
our ability to secure financing as and when necessary;
- BioAgra's ability to compete successfully with artificial
antibiotic providers and other providers of feed additives;
- our ability to retain the services of our key management, and to
attract new members to the management team;
- BioAgra's ability to maintain and protect the license for
AgraStim held by BioAgra, LLC; and
- our ability to obtain and retain appropriate patent, copyright
and trademark protection of our intellectual properties and any of our
products.
You should only rely on the information contained in this prospectus. We have
not authorized any person to provide you with different information. If anyone
provides you with different or inconsistent information, you should not rely on
it. The selling stockholders are not making an offer to sell these securities in
any jurisdiction where the offer or sale is not permitted. You should assume
that the information appearing in this prospectus is accurate as of the date on
the front cover of this prospectus only. Our business, financial condition,
results of operations and prospects may have changed since that date.
PROSPECTUS SUMMARY
The following summary highlights certain information contained throughout
this prospectus. It is not complete and may not contain all of the information
that you should consider before investing in the securities offered by this
prospectus. To understand this offering fully, you should read this entire
prospectus carefully, including the risk factors.
THE COMPANY
GENERAL
We were incorporated on June 22, 1996 as a Nevada corporation. Our
corporate offices are located at 370 17th Street, Suite 3640, Denver, Colorado
80202, and our telephone number is (303) 592-1010. We maintain a website at
www.vytacorp.com. Information on our website is not part of this prospectus and
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you should not rely on it in deciding whether to invest in our common stock.
When used in this prospectus, the terms "we," "our," "us," "our company," "the
company" and similar expressions refer to Vyta Corp, and our subsidiaries,
unless the context indicates otherwise.
DESCRIPTION OF BUSINESS
In 2004, we instituted steps to change our principal business from
semiconductor technology to biotechnology. In August 2005, we purchased a 50%
equity interest in BioAgra, LLC, a Georgia limited liability company
("BioAgra"). The remaining 50% was purchased by Xact Resources International
and later assigned to Justin Holdings, Inc. BioAgra holds a license for the
production of AgraStim(TM) (trademark pending) (formerly marketed as YBG-2000),
a natural, all organic, non-toxic beta glucan feed additive used to replace
artificial antibiotics which are currently in use in the animal feed industry.
In early 2006, management of BioAgra decided to market YBG-2000 as AgraStim. The
license, dated April 18, 2005, has a term expiring October 18, 2024. Under the
license, BioAgra was granted the right and license to produce, process, make or
otherwise manufacture and sell the licensed products in the United States.
BioAgra plans to manufacture and market AgraStim, initially in the poultry
industry. See "THE COMPANY."
Prior to our acquisition of an interest in BioAgra, we were primarily
involved in semiconductor technology. On February 26, 1998, we acquired the
intellectual property rights related to our patented Particle Interconnect
Technology (the "particle technology") from Particle Interconnect Corporation, a
Colorado corporation, a wholly owned subsidiary of Intercell Corporation (now
known as Intercell International Corporation), a Nevada corporation that was our
affiliate at the time of the acquisition. We acquired the particle technology
to pursue a more focused, strategic application and development of the particle
technology. We were commercializing our particle technology as the NanoPierce
Connection System ("NCS(TM)") and focused on providing the electronics industry
with possible solutions to their "connection" problems. The company does not
plan, at this time, to continue efforts to manufacture or develop products that
utilize the company's particle technology. To date, the company has not
successfully manufactured, marketed, sold products or licensed companies to
manufacture, develop and market products using the company's particle
technology. As described later in this prospectus, we continue to own a
minority interest in ExypnoTech, Gmbh ("ExypnoTech"), a company that is
manufacturing and developing inlay components used in the manufacturing of,
among other things, smart labels (often referred to as radio frequency
identification tags or "RFID").
RECENT DEVELOPMENTS
In connection with our change in business, we recently completed a
corporate restructuring consisting of a private placement of a new series of
convertible preferred stock, which also resulted in a change of who controls us,
a reverse stock split of our common stock, a subsequent increase in our
authorized capital, and we changed our name from NanoPierce Technologies, Inc.
to Vyta Corp.
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THE OFFERING
This prospectus may be used for the resale by the selling stockholders of
up to 700,000 shares of our common stock, including:
- 200,000 shares outstanding as of the date of this prospectus; and
- 500,000 shares issuable upon the exercise of warrants owned by
the stockholders identified later in this prospectus.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares of our common
stock offered by this prospectus. Some of the shares of common stock that are
being offered by this prospectus are issuable upon exercise of warrants owned by
the stockholders identified later in this prospectus. We will receive proceeds
from the exercise of these warrants. See "USE OF PROCEEDS" for more
information.
RISK FACTORS
Your investment in our common stock offered by this prospectus involves a
high degree of risk. See "RISK FACTORS" beginning on page 3.
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RISK FACTORS
An investment in our common stock involves a number of risks. Before
making an investment decision, you should carefully consider all of the risks
described in this prospectus and the documents that are incorporated by
reference into this prospectus. The risks discussed in this prospectus could
materially adversely affect our business, financial condition and results of
operations and cause the trading price of our common stock to decline
significantly. If this occurs, you may lose all or part of your investment.
RISKS RELATING TO OUR BUSINESS
WE HAVE A HISTORY OF LOSSES
We expect that developing and marketing beta glucan for feed in the poultry
industry will be expensive. We recently have incurred increased operating
expenses without any increase in revenues. We reported a net loss of $997,616,
$1,558,083 and $4,017,785 for our fiscal years ended June 30, 2005, 2004 and
2003, respectively, and a net loss of $1,362,257 for the nine-month period ended
March 31, 2006.
WE MAY NOT BE ABLE TO CONTINUE AS A GOING CONCERN
Our independent auditors' report on our consolidated financial statements
as of June 30, 2005 includes an explanatory paragraph expressing substantial
doubt about our ability to continue as a going concern. As a result of this
going concern modification in our auditor's report on our financial statements,
we may have a difficult time obtaining significant additional financing. If we
are unable to secure significant additional financing, we may be obligated to
seek protection under the bankruptcy laws and our shareholders may lose their
investment.
OUR JOINT VENTURE INVESTMENTS COULD BE ADVERSELY AFFECTED BY OUR LACK OF
SOLE-DECISION-MAKING AUTHORITY, OUR RELIANCE ON CO-VENTURERS' FINANCIAL
CONDITION AND DISPUTES BETWEEN OUR CO-VENTURERS AND US
Our primary business is our 50% interest in BioAgra and our 49% interest in
ExypnoTech. Investments in joint ventures may involve risks not present were a
third party not involved, including the possibility that our co-venturer Justin
Holdings, Inc. (as assignee of Xact Resources International which assigned its
interest in BioAgra in February 2006) with respect to BioAgra and TagStar
Systems, GmbH with respect to ExypnoTech (each of which an entity over which we
have no control) might become bankrupt, fail to fund their share of required
capital contributions or fail to perform their responsibilities under our
agreements with them. Our co-venturers also may have economic or other business
interests or goals that are inconsistent with our business interests or goals,
and may be in a position to make decisions or to take actions that are contrary
to our preferences, policies or objectives. We do not have sole-decision making
control regarding either the BioAgra or the ExypnoTech joint ventures. With
respect to BioAgra, in which we have a 50% interest, we have the potential risk
of impasses on decisions, such as the use and enforcement of the license to
produce AgraStim held by BioAgra or a sale of the joint venture, because neither
we nor Justin Holdings, Inc. would have full control over the joint venture. In
the ExypnoTech joint venture, in which we have a minority interest, decisions
may be made or actions taken contrary to our objections. Disputes between us
and our co-venturers may result in litigation or arbitration that would increase
our expenses and prevent our officers and/or directors from focusing their time
and effort exclusively on our business. Consequently, actions by or disputes
with our co-venturers might result in subjecting properties owned by the joint
ventures to additional risk. In addition, we may in certain circumstances be
liable for the actions of our co-venturers.
LICENSE TO AGRASTIM IS LIMITED
BioAgra has a license agreement with Progressive Bioactives, Inc. for
AgraStim. The license is limited in geographic area and function. Under the
license, BioAgra was granted the right and license to produce, process, make or
otherwise manufacture and sell the licensed products in the United States and
holds a right of first refusal to build and operate any new plant intended to
manufacture the licensed product in the United States. The license is also
limited in function to the consumption of animal products, which limits
BioAgra's ability to expand into new areas, such as the production of beta
glucan for human consumption.
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BIOAGRA MAY LOSE THE LICENSE TO AGRASTIM OR HAVE ITS RIGHTS UNDER THE LICENSE
LIMITED IF IT FAILS TO SATISFY THE MINIMUM PRODUCTION STANDARDS REQUIRED BY THE
LICENSE
The license requires BioAgra to meet certain minimum production standards,
which will begin on the first year anniversary after BioAgra produces its first
successful batch of the licensed product, which yields a sufficient quantity of
product made available for sale. If BioAgra fails to satisfy the minimum
production standards provided in the license, BioAgra may lose its right of
first refusal to build and operate any new manufacturing plants in the United
States, and may be deemed in material breach of the license causing the licensor
to terminate the license.
IF AGRASTIM DOES NOT SATISFY CERTAIN GOVERNMENTAL REGULATIONS, BIOAGRA MAY BE
UNABLE TO OBTAIN REGULATORY APPROVAL OR MAY BE REQUIRED TO OBTAIN MULTIPLE
LICENSES TO SELL AGRASTIM
BioAgra is in the process of applying for a "generally recognized as safe"
("GRAS") designation from the U.S. Food and Drug Administration for the AgraStim
beta glucan product to be produced by BioAgra. A GRAS designation would exempt
AgraStim from the regulations of the U.S. Department of Agriculture and the U.S.
Department of Agriculture and would permit the sale of AgriStim anywhere in the
United States without obtaining a license. BioAgra believes that it will
receive GRAS designation for AgraStim based, in part, upon the fact that the
GRAS designation has been given to other products whose main ingredients are
also based upon all organic, natural, non-toxic substances such as the yeast
from which beta glucan is derived. If a GRAS designation is not obtained,
AgraStim would be required to be sold as a food additive by obtaining a license
to sell from each individual state in which sales would occur. At this time,
BioAgra has applied and obtained licenses from the States of Georgia and North
Carolina and is preparing licenses in other states. There is no assurance that
BioAgra will be able to successfully obtain or maintain licenses in all states
in which sales are expected to be made or that the costs of obtaining and
maintaining these licenses will not limit BioAgra's ability to sell AgraStim.
OPERATIONS OF BIOAGRA MAY BE DELAYED OR COST MORE THAN WE ANTICIPATE
It was previously anticipated that the plant would commence operations in
January 2006, however operations did not commence until March 2006. There can
be no assurances that there will not be further delays in operations, including
the time before we are able to start operating on a full-scale capacity or that
the average cost to operate the plant will not be higher than anticipated.
WE CANNOT GUARANTEE THE QUALITY, PERFORMANCE OR RELIABILITY OF BIOAGRA'S
PRODUCTS
We have no prior experience in taking AgraStim or any other product to the
manufacturing or production stage. We are relying upon the skill and experience
of BioAgra's managers and our co-joint venturer to timely and cost effectively
manufacture AgraStim. We expect that the customers of BioAgra will demand
quality, performance and reliability. We cannot assure you that we or our
co-joint venturer will be able to meet the quality control standards that may be
established by the poultry industry within which we are currently concentrating
our business activities. BioAgra intends to assure their customers that
AgraStim will contain at least 80% pure beta glucan.
THERE MAY BE INSUFFICIENT DEMAND FOR AGRASTIM
The market acceptance of fairly new products and technologies, including
AgraStim, is subject to a number of factors, including the ability of the
product to meet potential customers' needs more effectively or more efficiently
than current products. Antibiotics and growth hormone supplements are widely
used in animal, poultry and other feeds. BioAgra must convince their potential
customers that their beta glucan product is safe and effective as a feed
additive and can be manufactured efficiently and cost-effectively before the
poultry industry or other animal producers will be willing to use their product
rather than existing products such as antibiotics and growth hormone
supplements. To create this consumer demand, BioAgra will have to successfully
market and sell their product. Even after these efforts, their beta glucan
product may not be viewed by consumers as an improvement over existing products
and may not achieve commercial acceptance.
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WE MAY BE UNABLE TO MEET OUR ONGOING NEEDS FOR ADDITIONAL CAPITAL
We cannot accurately predict how much funding we will need to implement our
strategic business plan or to continue operations. Our future capital
requirements, the likelihood that we can obtain money, and the terms of any
financing will be influenced by many different factors, including:
- our revenues and the revenues of our joint venture;
- the status of competing products in the marketplace;
- our performance in the marketplace;
- our overall financial condition;
- our business prospects;
- the perception of our growth potential by the public, including
potential lenders;
- our ability to enter into joint venture or licensing
relationships to achieve a market presence; and
- the progress of BioAgra in developing, marketing and selling AgraStim.
If we cannot obtain adequate financing or if the terms on which we are able
to acquire financing are unfavorable, our business and financial condition could
be negatively affected. We may have to delay, scale back or eliminate some or
all of our development and marketing programs, if any. We may also have to go
to third parties to seek financing, and in exchange, we may have to give up
rights to some of our technologies, patents, patent applications, potential
products or other assets.
DEEMED DIVIDENDS RELATED TO THE BENEFICIAL CONVERSION FEATURE OF OUR OUTSTANDING
CONVERTIBLE PREFERRED STOCK ADVERSELY AFFECTED EARNINGS FOR THE MARCH 2006
QUARTER AND MAY ADVERSELY AFFECT EARNINGS IN FUTURE PERIODS
As part of the private placement transaction on January 17, 2006 described
later in this prospectus, we issued convertible preferred stock. We calculated
the effective conversion price of the convertible preferred stock, which was
less than the closing price of our common stock on January 17, 2006. The
difference between the effective conversion price of the convertible preferred
stock and the closing price of our common stock on this date resulted in a
beneficial conversion feature. We calculated this beneficial conversion feature
at $1.5 million and it is included in the net loss available to common
stockholders and the basic and diluted net loss per share calculation in the
quarter ended March 31, 2006. The beneficial conversion feature may adversely
affect earnings in the future.
WE MAY BE UNABLE TO HIRE AND RETAIN KEY PERSONNEL
Our future success depends on our ability to attract qualified personnel.
We may be unable to attract or retain these necessary personnel. If we fail to
attract or retain skilled employees, or if a key employee fails to perform in
his or her current position, we may be unable to bring AgraStim to the
marketplace and to generate sufficient revenues to offset our operating costs.
WE MAY BE UNABLE TO OBTAIN AND RETAIN APPROPRIATE PATENT, COPYRIGHT AND
TRADEMARK PROTECTION FOR OUR PRODUCTS OR MANUFACTURING PROCESS
We protect our intellectual property rights through patents, trademarks,
trade names, trade secrets and a variety of other measures. However, these
measures may be inadequate to protect our intellectual property or other
proprietary information.
- TRADE SECRETS MAY BECOME KNOWN BY THIRD PARTIES. Our trade
secrets or proprietary information may become known or be
independently developed by competitors.
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- RIGHTS TO PATENTS AND TRADE SECRETS MAY BE INVALIDATED. Disputes
may arise with third parties over the ownership of our intellectual
property rights. Our patents may be invalidated, circumvented or
challenged, and the rights granted under those patents that provide us
with a competitive advantage may be nullified.
- PROBLEMS WITH FUTURE PATENT APPLICATIONS. Our pending or future
patent applications may not be approved, or the scope of the granted
patent may be less than the coverage sought.
- INFRINGEMENT CLAIMS BY THIRD PARTIES. Infringement, invalidity,
right to use or ownership claims by third parties or claims for
indemnification may be asserted by third parties in the future. If any
claims or actions are asserted against us, we can attempt to obtain a
license for that third party's intellectual property rights. However,
the third party may not provide a license under reasonable terms, or
may not provide us with a license at all.
- THIRD PARTIES MAY DEVELOP SIMILAR PRODUCTS OR MANUFACTURING
PROCESS. Competitors may develop similar products, duplicate our
products or may design around the patents that are owned by us.
Competitors may develop a similar manufacturing process, duplicate our
manufacturing process or may design around any patents that are owned
by us in relation to the manufacturing process.
- LAWS IN OTHER COUNTRIES MAY INSUFFICIENTLY PROTECT INTELLECTUAL
PROPERTY RIGHTS ABROAD. Foreign intellectual property laws may not
adequately protect our intellectual property rights abroad. Our
failure to protect these rights could adversely affect our business
and financial condition.
- LITIGATION MAY BE REQUIRED TO PROTECT INTELLECTUAL PROPERTY
RIGHTS. Litigation may be necessary to protect our intellectual
property rights and trade secrets, to determine the validity of and
scope of the rights of third parties or to defend against claims of
infringement or invalidity by third parties. This litigation could be
expensive, would divert resources and management's time from our sales
and marketing efforts, and could have a materially adverse effect on
our business, financial condition and results of operations and on our
ability to enter into joint ventures or partnerships with others.
ECONOMIC FACTORS OUTSIDE OUR CONTROL MAY HAVE AN ADVERSE EFFECT ON BIOAGRA'S
REVENUES AND OUR INCOME
Our income may be impacted by economic factors that are beyond our control
such as fluctuations in price of poultry feed, outbreaks of poultry diseases,
and demand for poultry products. Because BioAgra's initial focus for AgraStim
is the poultry industry, the poultry industry will be a significant component of
their revenues. Rising poultry feed prices increase the production costs of
commercial poultry producers, which may cause them to reduce production, and, in
turn, could adversely impact BioAgra's revenues. An outbreak of disease, such
as avian influenza, could result in increased government regulation of the
poultry industry, a serious drop in demand for poultry products, and adverse
publicity materially affecting the poultry industry for a significant period of
time, which could adversely impact BioAgra's business, revenues, prospects,
financial condition, and results of operation. In general, reduced demand for
poultry products could adversely impact BioAgra's revenues and therefore our
income.
THE MARKET FOR FEED ADDITIVES IS COMPETITIVE
The feed additive market is competitive. BioAgra will compete with
producers of artificial antibiotic and growth hormone products, many of which
are large companies with vast resources allocated to the protection of brand
recognition and market share of their products. BioAgra may also compete with
companies producing beta glucan for other purposes, and companies that produce
existing alternatives to antibiotic and growth hormone products, such as organic
acids, plant extracts, and mannoproteins. BioAgra is disadvantaged competing
against some of these competitors in several different areas, including:
- financial resources;
- manufacturing capabilities;
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- diversity of revenue sources and business opportunities;
- personnel and human resources; and
- research and development capabilities.
Larger companies have long term advantages over BioAgra in research and new
product development and have a greater ability to withstand periodic downturns
in the feed additive market because they have diverse product lines that can
provide revenue even when there is a downturn in the feed additive market.
IF BIOAGRA WAS UNABLE TO USE THEIR MANUFACTURING FACILITY, THEY MAY NOT BE ABLE
TO MANUFACTURE AGRASTIM FOR AN EXTENDED PERIOD OF TIME
BioAgra manufactures at a single location in Georgia with a single
production line. Manufacturing products at a single site presents risks because
a disaster, such as a fire or hurricane, may interrupt our manufacturing
capability. In such an event, they will have to resort to alternative sources
of manufacturing that could increase their costs as well as result in
significant delays. Any increase in costs, slowdowns, or shutdowns could have a
material adverse effect on our future business, financial condition and results
of operations.
BIOAGRA'S USE OF A SINGLE MANUFACTURING FACILITY MAY RESTRICT THEIR ABILITY TO
ATTRACT CUSTOMERS
Poultry farms require a steady source of feed additives. BioAgra's use of
a single manufacturing plant and a single production line may restrict their
ability to attract large customers who require certainty in the production
process. If BioAgra is successful, they expect to expand manufacturing
operations, but there is no assurance that BioAgra will have the financial
resources required to expand their production facilities.
MANUFACTURING CAPACITY RESTRAINTS AND LIMITED EXPERIENCE MAY HAVE AN ADVERSE
EFFECT ON BIOAGRA
BioAgra has limited manufacturing capacity and experience. We may
encounter some difficulties, such as significant unexpected costs and delays, in
scaling up the manufacturing operations of BioAgra to produce quantities
required for us to achieve profitability. The failure to scale-up manufacturing
operations in a timely and cost-effective way may adversely affect our income.
We believe that BioAgra has adequate capacity to meet anticipated demand for
2006. However, in the event the demand for AgraStim rapidly increases or spikes
in a certain period, BioAgra may not have the manufacturing ability to fulfill
demand, either in their own facilities or through agreements with third parties.
This lack of manufacturing capacity may materially affect BioAgra's and our
reputation, prospects, revenue, income and results of operation.
REPLACING BIOAGRA'S SOLE SOURCE OF SUPPLIERS FOR KEY MATERIALS COULD RESULT IN
UNEXPECTED DELAYS AND EXPENSES
BioAgra obtains some key materials and services for AgraStim from sole
source suppliers, primarily with respect to spent brewer's or baker's yeast.
All of these materials are commercially available elsewhere. If these materials
or services were no longer available at a reasonable cost from existing
suppliers, BioAgra would need to purchase substitute materials from new
suppliers. If BioAgra needed to locate a new supplier, the substitute or
replacement materials may need to be tested for equivalency. The process of
locating a new supplier and any testing of materials, if necessary, may cause a
delay in production of the product and may cause BioAgra to incur additional
expense.
RISKS RELATING TO THIS OFFERING AND OWNERSHIP OF OUR COMMON STOCK
THE OFFER AND SALE OF OUR SECURITIES BY CURRENT STOCKHOLDERS COULD CAUSE
DILUTION OF EXISTING HOLDERS OF OUR COMMON STOCK AND COULD DECREASE THE PRICE OF
OUR COMMON STOCK
As described under "THE COMPANY-Corporate Restructuring," as a result of
the private placement transaction with Arizcan Properties in January of 2006, we
were required to file a selling shareholder registration statement, registering
for resale a total of 17,092,184 additional shares of our common stock for
additional selling
7
stockholders in addition to those persons offering shares by this prospectus.
In addition, as a result of a private placement transaction we completed in
January of 2004, we also have filed a selling shareholder registration
statement, registering for resale a total of 1,230,000 shares of our common
stock for additional selling stockholders in addition to those persons offering
shares by this prospectus (together with the offering described in the previous
sentence, the "concurrent offerings"). The market price of our common stock
could be adversely affected by sales of substantial amounts of common stock in
the public market as a result of this offering, the concurrent offerings, by the
perception that those types of sales could occur, or by the fact or perception
of events which would have a dilutive effect on the market for our common stock.
As of August 21, 2006, we had 22,643,512 shares of our common stock outstanding,
including shares of our common stock issued as described under "THE COMPANY."
If all of our outstanding options and warrants were exercised and all of our
reserved shares of common stock were issued, we could have up to 29,995,271
shares of common stock outstanding. Future transactions with other investors
could further depress the price of our common stock because of additional
dilution. See "DESCRIPTION OF COMMON STOCK."
COMMON STOCK PRICE COULD BE AFFECTED BY THE ABILITY OF HOLDERS OF OUR COMMON
STOCK TO SELL THEIR STOCK
The market price of our common stock will be influenced by the ability of
common stock holders to sell their stock. As of August 21, 2006, approximately
22,064,326 shares of our common stock were freely transferable and constitute
the "float" in the public market for our common stock (including the shares of
our common stock included in the concurrent offerings). If all of our
outstanding options and warrants were exercised and all of our reserved shares
were issued, the "float" for our common stock could increase to a total of
25,771,460 shares (including the shares of our common stock registered under the
registration statement to which this prospectus relates and including the shares
of our common stock included in the concurrent offerings). As of August 21,
2006, approximately 579,186 shares of our common stock were "restricted" or
"control" securities within the meaning of Rule 144 under the Securities Act of
1933. These restricted securities cannot be sold unless they are registered
under the Securities Act of 1933, or unless an exemption from registration is
otherwise available, including the exemption that is contained in Rule 144. If
all of our outstanding options and warrants were exercised and all of our
reserved shares were issued, the number of "restricted" or "control" shares of
our common stock could increase to a total of 4,223,811 shares (excluding the
shares of our common stock registered under the registration statement to which
this prospectus relates that would otherwise be restricted or control shares).
WE COULD ISSUE PREFERRED STOCK THAT COULD ADVERSELY AFFECT THE RIGHTS OF OUR
COMMON STOCKHOLDERS
We are authorized to issue up to 5,000,000 shares of our preferred stock,
$.0001 par value per share. Our articles of incorporation gives our board of
directors the authority to issue preferred stock without approval of our common
stockholders. We may issue preferred stock to finance our operations. We may
authorize the issuance of our preferred stock in one or more series. In
addition, we may set several of the terms of the preferred stock, including:
- dividend and liquidation preferences;
- voting rights;
- conversion privileges;
- redemption terms; and
- other privileges and rights of the shares of each authorized series.
The issuance of large blocks of preferred stock could have a dilutive
effect on our existing shareholders and it can negatively impact our existing
stockholders' liquidation preferences. In addition, while we include preferred
stock in our capitalization to improve our financial flexibility, we could
possibly issue our preferred stock to third parties as a method of discouraging,
delaying or preventing a change in control in our present management.
8
DEEMED DIVIDENDS RELATED TO THE BENEFICIAL CONVERSION FEATURE OF OUR OUTSTANDING
CONVERTIBLE PREFERRED STOCK MAY ADVERSELY AFFECT THE PRICE OF OUR COMMON STOCK
The effective conversion price of the convertible preferred stock issued on
January 17, 2006 was less than the closing price of our common stock on such
date, which could negatively affect the price of our common stock. The market
price of our common stock may be adversely affected by the fact that the
effective conversion price is less than the market price of our common stock.
THE RESALE OF OUR COMMON STOCK BY YOU MAY BE LIMITED BECAUSE OF ITS LOW PRICE
WHICH COULD MAKE IT MORE DIFFICULT FOR BROKER/DEALERS TO SELL OUR COMMON STOCK
The Securities Enforcement and Penny Stock Reform Act of 1990, as amended,
requires additional disclosure relating to the market for penny stocks in
connection with trades in any stock defined as a penny stock. Regulations
enacted by the SEC generally define a penny stock as an equity security that has
a market price of less than $5.00 per share, subject to some exceptions. Unless
an exception applies, a disclosure schedule explaining the penny stock market
and the risks associated with investing in penny stocks must be delivered before
any transaction in penny stock can occur.
Our common stock is not a reported security and is currently subject to the
SEC's "penny stock" rules and it is anticipated that trading in our common stock
will continue to be subject to the penny stock rules for the foreseeable future.
Until such time as our common stock meets an exception to the penny stock
regulations cited above, trading in our securities is covered by Rule 15g-2 and
Rule 15g-9 promulgated under the Securities Exchange Act of 1934. Under Rule
15g-2, before a broker/dealer can consummate a trade in penny stock, the
broker/dealer must send an additional disclosure, receive a written
acknowledgement of such disclosure from the purchaser of the penny stock, and
wait two business days after the date the additional disclosure was sent. Under
Rule 15g-9, broker/dealers who recommend penny stocks to persons who are not
established customers or accredited investors must make a special determination
in writing for the purchaser that the investment is suitable, and must also
obtain the purchaser's written agreement to a transaction before the sale.
The regulations could limit the ability of broker/dealers to sell our
securities and thus the ability of purchasers of our securities to sell their
securities in the secondary market for so long as our common stock has a market
price of less than $5.00 per share.
WE DO NOT EXPECT TO PAY DIVIDENDS IN THE FORESEEABLE FUTURE
We have never paid cash dividends on our common stock. We do not expect to
pay cash dividends on our common stock at any time in the foreseeable future.
The future payment of dividends directly depends upon our future earnings,
capital requirements, financial requirements and other factors that our board of
directors will consider. Since we do not anticipate paying cash dividends on
our common stock, return on your investment, if any, will depend solely on an
increase, if any, in the market value of our common stock.
USE OF PROCEEDS
We will incur all of the costs associated with the registration of the
shares of our common stock offered by this prospectus other than underwriting
discounts and selling commissions, if any. See "PLAN OF DISTRIBUTION."
The shares of our common stock offered by this prospectus are being
registered for the account of the selling stockholders named in this prospectus.
Therefore, any proceeds from the sale of our common stock will be received by
the related selling stockholders for their own account, and we will not receive
any proceeds from the sale of our common stock offered by this prospectus.
Assuming that all of the warrants that we issued to the selling
stockholders described in "THE COMPANY" were exercised, we expect to receive an
additional $455,000, substantially all of which we expect to use for general
working capital purposes, including strategic acquisitions of technology or
other businesses.
9
However, no assurance can be given that any of these warrants will be exercised,
and we have identified no acquisitions or other business to be acquired as of
the date of this prospectus.
DETERMINATION OF OFFERING PRICE
The selling stockholders may sell all or a portion of their shares of our
stock in the over-the-counter market at prices prevailing at the time of sale,
or related to the market price at the time of sale, or at other negotiated
prices. See "PLAN OF DISTRIBUTION."
THE COMPANY
We were incorporated on June 22, 1996 as a Nevada corporation. Our
corporate offices are located at 370 17th Street, Suite 3640, Denver, Colorado
80202, and our telephone number is (303) 592-1010. We maintain a website at
www.vytacorp.com, which is not incorporated in and is not a part of this
----------------
prospectus.
BUSINESS
GENERAL
In 2004, we instituted steps to change our business from semiconductor
technology to biotechnology. In August 2005, we purchased a 50% equity interest
in BioAgra, LLC, a Georgia limited liability company ("BioAgra") for
approximately $905,000 in cash and a note payable of $595,000, which was paid in
full on September 15, 2005. BioAgra is located in Hinesville, Georgia. The
remaining 50% was purchased by Xact Resources International (now Justin
Holdings, Inc. as a result of a subsequent assignment by Xact Resources) for the
contribution of rights, a license, intellectual properties, purchase orders and
similar items. BioAgra holds a license for the production of AgraStim, a
natural, all organic, non-toxic beta glucan feed additive used to replace
artificial antibiotics which are currently in use. The license is described in
more detail later in this prospectus. BioAgra plans to initially manufacture,
market and sell AgraStim in the poultry industry.
We also continue to own a minority interest in ExypnoTech, Gmbh
("ExypnoTech"), a company that is manufacturing and developing inlay components
used in the manufacturing of, among other things, smart labels (often referred
to as radio frequency identification tags or "RFID"). ExypnoTech, in addition
to the inlay components, plans to manufacture and sell other types of RFID
components. In December 2003, ExypnoTech sold a controlling 51% interest in
ExypnoTech to TagStar Systems, GmbH for $98,000 in cash. As a result of this
sale, we have only a 49% interest in ExypnoTech and are entitled to 49% of any
net income generated by ExypnoTech or any dividends paid and share 49% of any
net losses.
As a result of our acquisition of an interest in BioAgra, we have largely
discontinued our involvement in semiconductor technology. On February 26, 1998,
we acquired the intellectual property rights related to our patented Particle
Interconnect Technology (the "particle technology") from Particle Interconnect
Corporation, a Colorado corporation, a wholly owned subsidiary of Intercell
Corporation (now known as Intercell International Corporation), a Nevada
corporation that was our affiliate at the time of the acquisition. We acquired
the particle technology to pursue a more focused, strategic application and
development of the particle technology, subsequently referred to as the
NanoPierce Connection System ("NCS(TM)"). NCS is an alternative method of
providing temporary or permanent electrical connections between different
flexible, rigid, metallic and non-metallic surfaces. Through the use of the
particle technology, we can also attach semi-conductors directly to various
surfaces. We have trademarked this process as WaferPierce(TM). We were
commercializing our particle technology as NCS(TM) and focused on providing the
electronics industry with possible solutions to their "connection" problems. At
this time we do not plan to continue efforts to manufacture or develop products
that utilize our particle technology. To date, we have not successfully
manufactured, marketed, sold products or licensed companies to manufacture,
develop and market products using our particle technology.
10
As a result of our change in business, we have several inactive or
discontinued subsidiaries and investments, including:
- EXYPNOTECH, LLC ("ExypnoTech, LLC"). On June 18, 2004, we
organized ExypnoTech, LLC for the purpose of marketing, primarily in
the United States of America, the RFID components manufactured by
ExypnoTech. ExypnoTech, LLC did not have active operations during the
calendar year ended December 31, 2005.
- NANOPIERCE CARD TECHNOLOGIES, GMBH ("NanoPierce Card").
Established in January 2000, NanoPierce Card was located in
Hohenbrunn, Germany. NanoPierce Card was responsible for the marketing
of the company's technology, services and products on an international
basis. On April 1, 2003, NanoPierce Card filed for insolvency with the
Courts of Munich, Germany. The insolvency was necessary in order to
comply with specific German legal requirements. The company completed
a plan of self-liquidation and the German court legally dissolved
NanoPierce Card on June 8, 2004.
- NANOPIERCE CONNECTION SYSTEMS, INC. ("NanoPierce Connection").
NanoPierce Connection, a Nevada corporation, was located in Colorado
Springs, Colorado, USA. Beginning business in January 2002, NanoPierce
Connection was the center for research and development activities. In
September 2003, the company entered into a joint venture with Scimaxx,
LLC in order to further the marketing of the services previously
offered by NanoPierce Connection. During the fiscal year ended June
30, 2005, NanoPierce Connection had no operations.
- SCIMAXX SOLUTIONS, LLC ("Scimaxx Solutions"). On September 15,
2003, the company entered into a joint venture with Scimaxx, LLC. In
April 2005, Scimaxx Solutions ceased operations. The purpose of the
joint venture was to provide the electronics industry with technical
solutions to manufacturing problems based on the need for electrical
connectivity. The company received a 50% interest in the joint venture
in exchange for a contribution of the equipment owned by NanoPierce
Connection. The company also granted Scimaxx Solutions a ten-year,
non-exclusive, non-royalty bearing worldwide license to use the
company's intellectual property. The company and Scimaxx, LLC have
formally terminated Scimaxx Solutions, and the license has terminated.
BIOAGRA
Business Strategy
Governments are currently urging or directing, and consumers are demanding,
producers to remove artificial antibiotics from the human food chain supply to
reduce the development in humans of increasingly powerful and virulent strains
of antibiotic resistant bacteria, which makes treatment of illnesses and
diseases more difficult and expensive. In addition, food service providers are
demanding natural, organic, antibiotic-free foods.
Animals in the cattle, poultry, swine and seafood industries are currently
fed artificial antibiotics, in order to prevent the spread of bacterial and
viral infections and steroids to promote growth. BioAgra holds a license for
the production of AgraStim (formerly marketed as YBG-2000), a natural, all
organic, non-toxic beta glucan feed additive used to replace artificial
antibiotics that are currently in use. BioAgra is initially targeting customers
in the poultry processing industry as an alternative to artificial antibiotics.
BioAgra is initially targeting the poultry industry because of the size of the
poultry industry inside and outside of the United States as described later in
this section of the prospectus. AgraStim, in the poultry industry, is designed
to enhance the avian immune system to fight bacterial and viral infections more
effectively and efficiently, and to promote accelerated growth.
Assuming BioAgra can successfully sell to the poultry producing industry,
BioAgra intends to market and sell to other industries such as the swine and
seafood processing industries. While BioAgra may switch markets or enter into
new markets for AgraStim, BioAgra cannot guarantee that it will be successful or
earn a profit in any market in which it enters.
Background on AgraStim and Need for Alternatives to Antibiotics and
Steroids
11
AgraStim is a beta glucan feed additive produced from spent brewer's or
baker's yeast. The additive is a combination of bioactive nutrients and
B-glucans that are extracted from the cell walls of the yeast using steam
injection and a centrifuging extraction process. The beta glucan additive is a
natural, all organic, non-toxic product that has been shown by an independent
test, the results of which were published in an article titled "The Influence of
B-Glucan on Immune Responses in Broiler Chicks" (Immunopharmacology and
Immunotoxicology, Volume 25, 2003 (Marcel Dekker)), to stimulate immune systems,
thereby eliminating the usage of antibiotics and growth hormone supplements in
animal, poultry and other feeds. AgraStim is designed to enhance the immune
system and to promote accelerated growth.
Antibiotics have been added to animal feed in an effort to produce
healthier animals. Scientists, however, now believe that this practice may lead
to unforeseen and unwanted effects. Some studies and articles indicate that the
antibiotics that are contained in feeds may accumulate in the animal body and
can cause harm to humans, including causing allergic and abnormal reactions.
The excessive use of antibiotics in animal feed may convert some bacteria
into antibiotic resistant strains of bacteria that can infect humans through the
consumption of meat products. When a human becomes infected with a resistant
strain of bacteria, it becomes difficult and expensive to treat due to the
bacteria's resistance to antibiotics. The use of antibiotics in animal feed has
already affected many countries in Europe, which have banned the use of certain
antibiotics in animal feed. It is expected that the United States may also
begin to ban or discourage the use of certain antibiotics in animal feed.
Alternatives to antibiotics, including AgraStim are increasing in demand by
animal farmers and other producers because they lack the drawbacks of
antibiotics and other chemical compounds. AgraStim is a natural, all organic,
non-toxic product that has been proven to stimulate immune systems, thereby
eliminating the usage of antibiotics and growth hormone supplements in animal,
poultry and other feeds. AgraStim is designed to enhance the immune system and
to promote accelerated growth. AgraStim, we believe, can resolve the harmful
effects of antibiotics that could be toxic to humans, and can produce safe and
healthy animal foods that may be claimed as "drug-free."
Poultry Industry
The poultry industry has been initially targeted because of the size of the
market inside and outside of the United States. Poultry is the largest
worldwide source of protein food for human consumption. Poultry is depended
upon by humans for eggs, meat and other products. In addition, poultry can be
raised in small geographical areas. In the United States, approximately 8
billion chickens and 275 million turkeys are farmed for "broiler" production and
processing each year. Each broiler chicken consumes approximately an average of
10 pounds of feed during its life of approximately 42 days for a total of
approximately 40 million tons for all the broiler chickens in the United States.
Each turkey consumes approximately 50 kilograms of feed for a total of 13.75
million tons of feed. In addition, there are approximately 450 million egg
producing chickens grown in the United States each year, which consume
approximately 60 kilograms of feed over a period of 1.5 years for a total of 27
million tons of feed.
Manufacturing of AgraStim
Raw Materials. Production of AgraStim requires spent brewer's or baker's
yeast. Brewer's yeast is used in the production of alcoholic beverages.
Currently, yeast and other raw materials utilized in the production of AgraStim
are purchased from Biorigin in Brazil, South America pursuant to invoices
documenting each separate purchase that will be consistent with BioAgra's
production needs and such arrangements are not subject to any volume limitations
or import restrictions. Arrangements are being made with additional commercial
firms that purchase and distribute these types of yeast. We believe that there
is an adequate supply of these raw materials for the foreseeable future for
BioAgra's proposed activities. We intend to purchase these raw materials from
any other available worldwide suppliers that provide us with a cost efficient
source of high quality raw materials that permit us to produce AgraStim that is
at least 80% pure beta glucan.
Production Plant. BioAgra's production plant is located at 103 Technology
Drive, Hinesville, Georgia 31313. BioAgra has leased the facility from the
Liberty County Industrial Authority pursuant to an Industrial Lease Agreement,
dated March 1, 2005 for a period of 120 calendar months at a price of $12,000
per month. At the
12
expiration of the lease term BioAgra has the option to purchase the leased
premises (real estate and improvement) for $500,000. The facility is
approximately 30,000 square feet which consists of both office space and a
production area and is also expected to include a research and development
laboratory. The production area has enough space to hold three separate
production lines in its current configuration, although as of this date, we only
have the equipment for a single production line. The facility is located on
approximately 7.29 acres.
The plant commenced operations in March of 2006. It is anticipated that the
plant will go through a shakedown period in which we will begin to evaluate and
understand the controls and efficiencies of the plant. During the quarter ended
June 30, 2006, we began operating at full-scale capacity. The average cost for
production and operations of the plant on a month-to-month basis is expected to
be approximately $200,000.
Production Process. In manufacturing AgraStim, the cell walls of the
bakers or brewers yeast is exposed to high temperatures using steam injection.
The mixture is then separated into solid and liquid portions by a centrifuge,
and the liquid portion is discarded. The solid portion is thoroughly washed
with water and then exposed to elevated temperatures using stream injection,
thereby extracting a residue. The residue is separated again into solid and
liquid portions by a centrifuge and the liquid portion is discarded. Finally,
the solid portion is thoroughly washed with water and the residue is spray
dried, which results in the AgraStim product.
Pure AgraStim is a concentrate in which many animal farmers or producers
will not have the ability to mix with the feed in the required proportions.
Therefore, BioAgra expects to produce specialized pre-mixes and mixes containing
AgraStim and vitamins and/or mannoproteins. Mannoproteins are purified from the
yeast during the manufacturing process. This will enable BioAgra to sell to a
broader array of customers.
Employees. BioAgra hired five production employees for a two-shift
production cycle between May and June of 2006.
Marketing and Distribution
BioAgra intends to initially market AgraStim and other AgraStim products to
the poultry industry. BioAgra is initially targeting their efforts inside the
United States in the State of Georgia and the surrounding four-state area in
which the vast majority of poultry producers in the United States are located.
BioAgra is developing marketing plans and strategies for AgraStim. The initial
marketing strategy is to penetrate the poultry producing industry by utilizing
existing industry distributors or direct sales on a national and international
basis. BioAgra has begun to market its presence in the industry by attendance
at various poultry related conventions and expects to continue to be represented
at future conventions. BioAgra has begun to make contact with potential
customers, though no formal agreements have been signed.
Customers
BioAgra is in the initial stages of marketing and contacting potential
customers for the purchase of AgraStim. Initial customers are expected to be
poultry producers located in the United States and abroad. BioAgra is targeting
a broad range of customers consisting of both small and large poultry producers
both nationally and internationally to avoid dependency on one or a small number
of customers. BioAgra currently has no formal commitments from producers to
purchase AgraStim.
13
Management
Managers and Officers. BioAgra is a manager-managed Georgia limited
liability company. The managers and officers of BioAgra are as follows:
NAME POSITION
---- --------
Neal Bartoletta (59) Manager, President and Chief
Executive Officer
Paul H. Metzinger (66) Manager and Executive Vice
President
Kristi J. Kampmann (33) Chief Financial Officer, Secretary
Biographical Information. The following is the biographical information of
the managers and officers of BioAgra:
Neal Bartoletta. Mr. Bartoletta has served as the President and a Manager
of BioAgra since December 2004. From 1980 to 1991, Mr. Bartoletta served as the
President of Bart Warehousing Corp in South Kearny, New Jersey; and from 1978 to
1999, as the President of N.J. Bart Corp, Elizabeth, New Jersey. From 1998 to
present he has served as the President of Xact Resource International, Inc. of
Boca Raton, Florida. In 2006, Mr. Bartoletta was appointed the President of
Justin Holdings, Inc. of Boca Raton, Florida. Justin Holdings, Inc. is the
owner of the other 50% equity interest in BioAgra. Mr. Bartoletta is a graduate
of the Academy of Advanced Traffic.
Paul H. Metzinger. Mr. Metzinger was President and Chief Executive Officer
of the company from February 26, 1998 to May 6, 1998 and has served in that same
capacity from December 1, 1998 to present. He has been a director of the
company since February 26, 1998. He has served as a Manager and Vice President
of BioAgra since August 2005. He served as the General Manager of NanoPierce
Card from January 2000 to June 2003. In addition, he served as the President,
Chief Executive Officer and a Director of Intercell International Corporation
from June 1996 to October 2003 and from September 30, 2004 to March 16, 2005.
In March 2005, Intercell International Corporation filed for protection under
Chapter 11 of the United States Bankruptcy Code. Prior to becoming a director
and officer of the company and Intercell International Corporation, Mr.
Metzinger served as Intercell's General Counsel and practiced securities law in
Denver, Colorado for over 32 years. Mr. Metzinger received his J.D. in 1967
from Creighton University Law School and his L.L.M. from Georgetown University
in 1969.
Kristi J. Kampmann. Ms. Kampmann was appointed the Chief Financial Officer
of the company on October 15, 1999. Ms. Kampmann has been Secretary of the
company since February 1998. Ms. Kampmann has served as the Chief Financial
Officer of BioAgra since August 2005. Ms. Kampmann has served as a manager of
ExypnoTech, LLC since June 2004. She has served as the Chief Financial Officer
of Intercell International Corporation since October 1, 2003 and as Secretary of
Intercell International Corporation since July 28, 1999. In March 2005,
Intercell International Corporation filed for protection under Chapter 11 of the
United States Bankruptcy Code. Since June 1997, she has been the
administrative assistant to the Chief Executive Officer and Chief Financial
Officer; in addition, during the same period she served in the same capacity to
the Chief Executive Officer of Intercell. From April 1996 to June 1997, she
served as a paralegal and administrative assistant for Paul H. Metzinger, P.C.
Ms. Kampmann received an MBA from the University of Colorado, Denver in December
2001. Ms. Kampmann graduated from the Denver Paralegal Institute in 1996 and
received a B.A. from the University of Minnesota in Morris in 1995, majoring in
Political Science with a minor in Business Management.
Joint Venture Partner
As described elsewhere in this prospectus, we own a 50% interest in
BioAgra. The remaining 50% of BioAgra is owned by Justin Holdings, Inc., a
Florida corporation. Justin Holdings, Inc. is a holding company that currently
has no other investments and no other substantial business activities other its
ownership interest in BioAgra. All of the outstanding capital stock of Justin
Holdings, Inc. is owned by Neal Bartoletta, who also is the
14
sole officer and director of Justin Holdings, Inc. and holds the positions in
BioAgra set forth above under the heading "-Management." Justin Holdings, Inc.
acquired a 50% ownership interest in BioAgra as the result of the assignment by
Xact Resources of its membership interest in BioAgra in February of 2006.
EXYPNOTECH
ExypnoTech is involved in manufacturing and developing inlay components
used in the manufacturing of, among other things, smart labels (often referred
to as radio frequency identification tags or "RFID").
RFID Components. RFID components are used to identify objects, by
short-range radio over a few millimeters to distances as great as a meter. RFID
inlays consist of a small transponder chip bonded onto a metal foil antenna on
an exceptionally thin and small plastic or paper sheet. NCS or Ultrasonic
bonding can be used to provide the connection between the transponder chip and
the antenna. In addition, NCS can be used to connect the chip to the chip
module in contact smart cards or the chip module to the antenna in the case of
contactless smart cards. There are many different applications for RFID
components, but the application being focused on by ExypnoTech is smart labels.
ExypnoTech currently offers RFID components using a method of ultrasonic bonding
originally developed by us.
Raw Materials. Production of RFID components requires computer chips,
antennas and laminates. ExypnoTech current obtains its supply of chips from
Phillips, Infineon and other suppliers and its antennas and laminates from many
sources.
Production Process. The production process for a smart label is a form of
"welding" at the molecular level, bonding a chip to the antenna using ultrasonic
energy and applying the assembled circuitry into laminates printed with customer
designed information. A continuous feed high speed die bonder extracts a chip
from the wafer, flips the chip, applies a high speed non-conductive adhesive to
the antenna contact pads, which are fed into the die bonder on a tape, presses
the chip down onto the antenna pads. Customers can then print designated
information to the laminate enveloping the assembled circuitry.
Distribution Methods. Smart labels will be sold directly by ExypnoTech and
through selected industry distributors and partners.
Customers. There are a wide range of potential customers for RFID
components. ExypnoTech has two recent customer contracts in the gaming and
transportation industry.
Management. The managers of ExypnoTech are Bernhard Maier, Michael Kober
and Peter Hahn.
RESEARCH AND DEVELOPMENT
The company anticipates that a substantial level of research and
development activities will occur at BioAgra. The expected activities include
testing AgraStim for quality control and the development of new products.
BioAgra expects to build an extensive research and development laboratory at its
main facility and has adequate space at the facility to build such a laboratory.
The laboratory is currently in the design stages. The research and development
laboratory is expected to be funded by BioAgra.
The company's research and development activities were formerly conducted
through NanoPierce Connection, with additional activities occurring at
ExypnoTech. During the last year, minimal research and development activities
were conducted at Scimaxx Solutions. For the fiscal years ended June 30, 2005
and June 30, 2004, the company incurred $0 and $41,849, respectively, in
research and development expenses.
COMPETITION
BioAgra. Competition for beta glucan products in the market targeted by
BioAgra is currently limited. The United States and many other countries in the
world are in the process of eliminating or plan to eliminate the usage of
antibiotics in the feed of animals in the human food chain supply. There are a
limited number of alternatives to
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antibiotics. Such alternatives include organic acids, plant extracts (ex.
oregano oil), and mannoproteins. These alternatives have not experienced a
great success rate to date.
Other potential competitors include those already producing beta glucan for
human consumption. This type of "purified" beta glucan is considered too
expensive to use in markets other than for direct human consumption. Other
competitors are those producing beta glucan with a 60% or less purity level for
the markets addressed by BioAgra. Based upon data provided to the company, beta
glucan having less than 80% purity is not effective in the markets chosen by
BioAgra. BioAgra intends to produce beta glucan with at least 80% purity and
expects to make representations as to this percentage to its customers.
Competition will also consist of established producers of artificial
antibiotic growth promotion products. These are large companies with vast
resources allocated to the protection of the brand recognition and market share
of their products. Success will require people switching from the artificial
antibiotic growth products to AgraStim.
We are also aware of one company, Fibona Health Products GmbH, that is
promoting yeast beta glucan products in Europe and the United Kingdom. We do
not believe their products will compete with AgraStim.
ExypnoTech. Competition in the electronic connector market is fierce. The
principal competitive factors are product quality, performance, price and
service. The company and its licensees face competition from well-established
firms with other interconnect technologies. We will face competition from the
development of existing and future competing technologies. There currently
exists approximately 28 different technologies that can be used to create
interconnect solutions, including dendrite crystals, gold dot technology,
anisotropic technology (technologies using materials whose behavior differs in
the up/down and left/right directions), elastomerics (rubber-like synthetic
materials) and Z-axis conductive adhesives. These technologies currently are
produced by materials and chemical suppliers, flexible and rigid printed circuit
board manufacturers, as well as electronics manufacturers who produce their own
materials and interconnect systems.
INTELLECTUAL PROPERTY
AGRASTIM LICENSE
BioAgra holds a license for the production of AgraStim, which is a natural
beta glucan feed additive used to replace artificial antibiotics currently in
use. Under the license, BioAgra was granted the right and license to produce,
process, make or otherwise manufacture and sell the licensed beta glucan product
for consumption by animal livestock in the United States and has the right of
first refusal to build and operate any new plant in the United States intended
to manufacture the licensed product. The license also grants BioAgra the right
to use any other technologies or information held by the licensor necessary to
manufacture and sell the licensed product, and to use certain trademarks of the
licensor in marketing and promotional materials. The licensor will further
provide BioAgra with specific services, such as a basic engineering package and
support and training for the start-up of the initial and any new manufacturing
plants.
For each manufacturing plant, including the initial plant, BioAgra pays a
flat license fee of $100,000. BioAgra also pays a royalty fee of 7.5% of gross
sales on a quarterly basis, and pays the taxes, tariffs and fees, except income
taxes, imposed on the licensor as a result of the royalty fee received by the
licensor.
The license, dated April 18, 2005, has a term expiring October 18, 2024,
and may be terminated prior to expiration by mutual consent, for an uncured
material breach of the license, or for a change in control of BioAgra. Under the
license, BioAgra must build a production plant that, within 10 months of April
18, 2005, is capable of producing a specified amount of the licensed product.
The production plant commenced operations and the current status of the plant is
described under the section "THE COMPANY-Business-BioAgra-Manufacturing of
AgraStim-Production Plant." BioAgra must also meet certain minimum production
standards, which will begin on the first year anniversary after BioAgra produces
its first successful batch of the licensed product, which yields a sufficient
quantity of product made available for sale. If BioAgra fails to satisfy the
minimum production standards for a certain period of time, BioAgra will lose the
right of first refusal for new manufacturing plants in the United States, and
may be deemed to be in material breach of the license.
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THE NCS(TM) TECHNOLOGY
NCS(TM) is a method where metallized, hard, microscopic particles are
deposited onto one of two contact surfaces, through electrolytic or electro-less
plating methods or other methods. When the two surfaces are pressed together,
the conductive particles penetrate the second contact surface and create an
electrical connection. Bonding of the contact surfaces can be achieved using
non-conductive adhesives or ultrasonic welding.
NCS can be used with many different substrates (flexible, rigid, metallic
and non-metallic), allowing NCS to replace more conventional methods of making
electrical contacts, such as soldering, spring-loading, pin-in-hole connections
and conventional "flip chip" attachment. In addition, NCS can be used to form
either temporary or permanent connections.
NCS provides advantages to potential users among which are; lower costs
through the usage of less expensive materials; the elimination of manufacturing
steps; improved thermal and electrical properties; elimination of special
environments for application; decreased production time; easy integration into
existing production lines; increased design miniaturization; adaptability for
specific applications and RF (radio frequency) performance.
The company has extended NCS to permit the direct attachment of
semiconductor chips to a substrate, a process called WaferPierce(TM).
WaferPierce is comprised of two parts: (1) the electroless application of NCS
to the contact pads of chips while still in wafer form; and (2) a proprietary
chip attachment process in which chips are bonded to a substrate face down using
the core NCS method.
OTHER INTELLECTUAL PROPERTY
The company currently holds 13 patents with the U.S. Patent and Trademark
Office. Further, the company has filed several patent applications both in the
United States and internationally in order to continue to protect its
intellectual property. To reduce expenses, during the fiscal years ended June
30, 2005 and 2004, the company abandoned several of its patent applications.
The company also holds several trademarks with the U.S. Patent and Trademark
Office, in connection with the company's former name, logo and services.
GOVERNMENT REGULATION
The company believes that it is in compliance with all federal and state
laws and regulations governing its limited operations. Further, the company
believes that it is in compliance with all German laws and regulations governing
its limited operations in Germany. Compliance with federal and state
environmental laws and regulations did not have a material effect on the
company's capital expenditures, earnings or competitive position during the
fiscal year ended June 30, 2005 or the nine months ended March 31, 2006.
BioAgra has applied for a "generally recognized as safe" ("GRAS")
designation from the U.S. Food and Drug Administration for the AgraStim beta
glucan product to be produced by BioAgra. A GRAS designation would exempt
AgraStim from the regulations of the U.S. Department of Agriculture and the U.S.
Department of Agriculture and would permit the sale of AgriStim anywhere in the
United States without obtaining a license. BioAgra believes that it will
receive GRAS designation for AgraStim based, in part, upon the fact that the
GRAS designation has been given to other products whose main ingredients are
also based upon all organic, natural, non-toxic substances such as the yeast
from which beta glucan is derived. If a GRAS designation is not obtained,
AgraStim would be required to be sold as a food additive by obtaining a license
to sell from each individual state in which sales would occur. At this time,
Bioagra has applied and obtained licenses from the States of Georgia and North
Carolina and is preparing licenses in other states. There is no assurance that
BioAgra will be able to successfully obtain or maintain licenses in all states
in which sales are expected to be made or that the costs of obtaining and
maintaining these licenses will not limit BioAgra's ability to sell AgraStim.
EMPLOYEES
On March 31, 2006, the company and its subsidiaries had three employees.
Mr. Metzinger and Ms. Kampmann, key officers of the company and the only two key
employees of the company, have signed employment
17
agreements with the company. None of the company's employees are represented by
a labor union or are subject to a collective bargaining agreement. The company
believes that its relations with its employees are excellent.
PROPERTIES
The company's corporate headquarters are located at 370 17th Street, Suite
3640, Denver, Colorado 80202. The company moved into its current office space
on June 27, 2001 and has a 5-year lease on the property, expiring in September
2006. The base rent is $4,850 per month for the remaining term of the lease,
plus certain occupancy costs.
NanoPierce Connection was located at 4180 Center Park Drive, Colorado
Springs, Colorado 80916. NanoPierce Connection had a 3-year lease on the
property, which expired in March 2006. As of March 2006, we had no further
obligation under this lease.
LEGAL PROCEEDINGS
HARVEST COURT LITIGATION
In connection with a financing obtained in October 2000, the company filed
various actions in the United States District Court for the District of Colorado
against, among others, Harvest Court, LLC, Southridge Capital Investments, LLC,
Daniel Pickett, Patricia Singer and Thomson Kernaghan, Ltd. for violations of
federal and state securities laws, conspiracy, aiding and abetting and common
law fraud among other claims. As a result of various procedural rulings, in
January 2002, the United States District Court for the District of Colorado
transferred the case to the United States District Court for the Southern
District of New York, New York City, New York.
In this litigation, Harvest Court, LLC filed counterclaims against the
company, Mr. Metzinger, Ms. Kampmann, Dr. Neuhaus, Dr. Shaw and a number of
unrelated third parties. The counterclaims allege violations of federal
securities laws and other laws. Harvest Court, LLC is seeking various forms of
relief including compensatory and punitive damages. Responsive pleadings have
been filed and the litigation is currently in the discovery stage.
In May 2001, Harvest Court, LLC filed suit against the company in the
Supreme Court of the State of New York, County of New York. The suit alleges
that the company breached an October 20, 2000 Stock Purchase Agreement, by not
issuing 370,945 free trading shares of the company's common stock in connection
with the reset provisions of the Purchase Agreement due on the second reset date
and approximately 227,265 shares due in connection with the third reset date.
Harvest Court, LLC is seeking the delivery of such shares or damages in the
alternative. In August 2001, the Supreme Court of the State of New York, County
of New York issued a preliminary injunction ordering the company to reserve and
not transfer the shares allegedly due to Harvest Court, LLC. In February 2006,
in connection with the reverse stock split of our common stock of the company
described elsewhere in this prospectus, the Supreme Court of the State of New
York, County of New York issued an injunction ordering the company to reserve
3.7% of the company's issued and outstanding common stock (832,290 shares at
February 13, 2006). The company has set aside these shares. The company has
filed counterclaims seeking various forms of relief against Harvest Court, LLC.
DEPOSITORY TRUST LAWSUIT
In May 2004, the company filed suit against the Depository Trust and
Clearing Corporation ("DTCC"), the Depository Trust Company ("DTC"), and the
National Securities Clearing Corporation ("NSCC") in the Second Judicial
District Court of the County of Washoe, State of Nevada. The suit alleges
multiple claims under the Nevada Revised Statutes 90.570, 90.580, 90.660 and
598A.060 and on other legal bases. The complaint alleges, among other things,
that the DTCC, DTC and NSCC acted in concert to operate the "Stock Borrow
Program," originally created to address short term delivery failures by sellers
of securities in the stock market. According to the complaint, the DTCC, NSCC
and DTC conspired to maintain significant open fail deliver positions of
millions of shares of the company's common stock for extended periods of time by
using the Stock Borrow Program to cover these open and unsettled positions. The
company was seeking damages in the amount of $25,000,000 and treble
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damages. On April 27, 2005, the court granted a motion to dismiss the lawsuit.
The company has filed an appeal to overturn the motion to dismiss the lawsuit.
The company intends to vigorously prosecute all litigation and does not
believe the outcome of the litigation will have a material adverse effect on the
financial condition, results of operations or liquidity of the company.
However, it is too early at this time to determine the ultimate outcome of these
matters.
OTHER LITIGATION
Other than the above mentioned lawsuits, to the knowledge of the management
of the company, there are no material legal proceedings pending or threatened
(other than routine litigation incidental to business) to which the company (or
any officer, director, affiliate of beneficial owner of more than 5% of the
company's voting securities) is party, or to which property of the company is
subject.
2004 PRIVATE PLACEMENT
In January of 2004, we sold 1,000,000 units for a total of $2,000,000 to
accredited investors in a private placement transaction exempt from registration
under Section 4(2) of the Securities Act of 1933 and Regulation D promulgated
under the Securities Act of 1933. Each unit consists of:
- one share of our common stock;
- a warrant to purchase one share of our common stock at an
exercise price of $2.00 per share (the "$2.00 investor warrants"); and
- a warrant to purchase two shares of our common stock at an
exercise price of $2.50 per share (the "$5.00 investor warrants").
On November 16, 2004, we voluntarily reduced the exercise price of the
$5.00 investor warrants to $3.00 per share (the "$3.00 investor warrants"). On
August 12, 2005, we voluntarily reduced the exercise price of certain of the
$3.00 investor warrants to $1.00 per share (the "$1.00 re-priced investor
warrants"). On August 12, 2005, we also voluntarily reduced the exercise price
of certain of the $2.00 warrants to $1.00 per share (also the "$1.00 re-priced
investor warrants"). All of the these warrants will expire on January 20, 2009
unless exercised earlier.
CORPORATE RESTRUCTURING
In connection with our change in business described above, we recently
completed a corporate restructuring consisting of a private placement of a new
series of convertible preferred stock, which also resulted in a change of who
controls us, a reverse stock split of our common stock, a subsequent increase in
our authorized capital, and a we changed our name from NanoPierce Technologies,
Inc. to Vyta Corp.
PRIVATE PLACEMENT
On January 17, 2006, in a private placement transaction exempt from
registration under the Securities Act of 1933, as amended (the "Securities Act
of 1933"), pursuant to Section 4(2) of the Securities Act of 1933 and Regulation
D promulgated thereunder, we issued to Arizcan Properties, Ltd. a total of
200,000 shares of our newly designated series A convertible preferred stock, par
value $0.0001 per share (the "series A preferred stock") for a purchase price of
$1,500,000. For purposes of acquiring the shares of our series A preferred
stock, Arizcan Properties paid us $400,000 in cash and executed and delivered an
unsecured promissory note bearing interest at 7% for the remaining $1,100,000
payable on or before one year from the date the series A preferred stock was
issued. As of May 2006, the note receivable was paid in full. Arizcan
Properties is wholly owned by Triumphant Partners, LLC, a Colorado limited
liability company, that is owned by Stan Richards.
Each share of series A preferred stock is convertible into 1,500 shares of
our common stock, votes as a single class with our common stock, and each share
is entitled to 1,200 votes. As a result of this private placement,
19
Arizcan Properties acquired approximately 55% of our voting power. Arizcan
Properties converted all of the shares of series A preferred stock into
15,000,000 shares of our common stock on February 2, 2006 (the number of shares
of our common stock issued upon conversion of each share of series A preferred
stock was adjusted downward from 1,500 to 75 as a result of the reverse split
described below) and, as a result, holds approximately 51% of our voting power
on a fully diluted basis.
REVERSE SPLIT
On January 31, 2006, we effected a reverse stock split of our common stock,
whereby each twenty (20) shares of our common stock, either issued and
outstanding or held as treasury stock was reclassified and changed into one (1)
fully-paid and non-assessable share of our common stock. Our authorized capital
with respect to our common stock was reduced in like manner from 200,000,000
shares to 10,000,000 shares. Our authorized capital with respect to our
preferred stock remained unchanged at 5,000,000 shares. No fractional shares
were issued as a result of the reverse split, and any fractional share interests
were rounded up to the nearest whole share. The reverse split was approved by
our board of directors without shareholder approval in accordance with the
requirements of Nevada law.
INCREASE OF AUTHORIZED CAPITAL
On January 31, 2006 following the reverse split, our authorized capital
with respect to our common stock was increased from 10,000,000 shares to
200,000,000 shares. Our authorized capital with respect to our preferred stock
remained unchanged. The increase to our authorized capital was recommended by
our board of directors to our shareholders for approval and the shareholders
representing at least a majority of the voting power of the company approved the
increase to our authorized capital by written consent in lieu of a special
meeting in accordance with the requirements of Nevada law.
NAME CHANGE
Concurrently with the increase to our authorized capital, we changed our
name from NanoPierce Technologies, Inc. to Vyta Corp. The name change was
approved by the shareholders in the same manner as the increase to our
authorized capital. As a result of the name change, our trading symbol changed
to "VYTC."
SELLING STOCKHOLDERS
We are registering the shares of our common stock offered for resale by
this prospectus in order to satisfy our obligations to the selling stockholders
named below in connection with consulting agreements that we entered into with
each selling stockholder in June of 2006.
The shares of our common stock offered by this prospectus are being sold
for the account of the selling stockholders identified in the following table.
For the last three years, to our knowledge, none of the selling stockholders
have held any position, office or have other material relationship with us, our
predecessors or our affiliates. The information in the following table and
footnotes is based solely on information furnished to us by the selling
stockholders on or prior to the date of this prospectus. However, any or all of
the common stock listed below may be offered for sale with this prospectus by
the selling stockholders from time to time. Accordingly, no estimate can be
given as to the amount of our common stock that will be held by the selling
stockholders upon consummation of any sales. In addition, the selling
stockholders listed in the table below may have acquired, sold or transferred,
in transactions exempt from the registration requirements of the Securities Act,
some or all of their securities since the date this information was last
provided to us. The information in the following table for each selling
stockholder includes:
(a) the name and address of the selling stockholder;
(b) the number of shares of our common stock currently beneficially
owned by the selling stockholder and the percentage that those shares of
our common stock represent of all of our outstanding common stock as of
August 21, 2006 (on a fully-diluted basis);
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(c) the number of shares of our common stock offered by the selling
stockholder; and
(d) the amount and, if 1% or more, the percentage of shares of our
common stock that will be beneficially owned by the selling stockholder
after completion of the offering, assuming the sale of all of the shares of
our common stock as shown in (c) above.
The persons named in the table have sole voting and investment power with
respect to all shares of our common stock shown as beneficially owned by them.
Except as indicated below, each selling stockholder has indicated to us that it
is neither a broker-dealer nor is affiliated with a broker-dealer. The selling
stockholders and any brokers, dealers, agents or underwriters that participate
in the distribution of the common stock may be deemed to be "underwriters"
within the meaning of the Securities Act of 1933.
(a) (b) (c) (d)
AMOUNT OF COMMON AMOUNT OF
STOCK/PERCENTAGE OF COMMON STOCK
NAME AND ADDRESS OF OUR COMMON STOCK AMOUNT OF COMMON OWNED AFTER
SELLING STOCKHOLDER OWNED BEFORE OFFERING STOCK OFFERED OFFERING(1)
Edwin Buckham
5948 White Flint Drive
Frederick, MD 21702-2338 640,000(2) / 2.13% 640,000 0
Terry Allen
10414 Ashcroft Way
Fairfax, VA 22032 60,000 / * 60,000 0
------------------------
* Less than 1%.
(1) Assumes that all of the shares of our common stock issued pursuant to the
consulting agreements with Edwin Buckham and Terry Allen, including those issued
upon the exercise of warrants, are sold by the selling stockholders. There is
no assurance that the selling stockholders will exercise all or any of their
warrants or that they will sell any or all of their shares offered by this
prospectus.
(2) Assumes the exercise of all of the warrants currently held by the named
selling stockholder that were received by such selling stockholder pursuant to
the consulting agreement between him and us.
Any selling stockholder may from time to time sell under this prospectus
any or all of the shares of common stock owned by him; provided, however, that
the amount of securities to be reoffered or resold by means of this prospectus
by each selling stockholder, and any other person with whom such selling
stockholder is acting in concert for the purpose of selling securities of our
company, may not exceed, during any three-month period, the amount specified in
Rule 144(e) promulgated under the Securities Act of 1933.
PLAN OF DISTRIBUTION
We are registering the shares of our common stock offered for resale by
this prospectus in order to satisfy our obligations to the selling stockholders
named in "SELLING STOCKHOLDERS" in connection with consulting agreements that we
entered into with each selling stockholder in June of 2006.
Until such time as our company is eligible to file a registration statement
on Form S-3, no selling stockholder may sell under this prospectus more than the
number of shares which he could sell in any three-month period pursuant to Rule
144(e) promulgated under the Securities Act of 1933. Rule 144(e) stipulates
that the maximum number of securities that a selling stockholder may sell within
any three-month period cannot exceed the greater of (i) 1% of the then
outstanding shares of common stock of our company, or (ii) the average weekly
reported trading volume of our shares of common stock on the public market
during the four calendar weeks immediately preceding the date on which notice of
the sale under Rule 144 is filed with the SEC.
Subject to the foregoing limitation, the selling stockholders may, from
time to time, use this prospectus to sell all or a portion of the shares of our
common stock offered by this prospectus. These sales and transfers of our
21
common stock may be effected from time to time in one or more transactions on
the over-the-counter bulletin board, in the over-the-counter market, in
negotiated transactions or otherwise, at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at negotiated prices,
or without consideration, or by any other legally available means.
These transfers or sales may occur directly or by or through brokers,
dealers, agents or underwriters, who may receive compensation in the form of
underwriting discounts, concessions or commissions from the selling holders
and/or from purchasers of the common stock for whom they may act as agent. Any
or all of the shares of common stock may be sold or transferred from time to
time by means of:
- a block trade in which the broker or dealer so engaged will
attempt to sell the common stock as agent but may position and resell
a portion of the block as principal to facilitate the transaction;
- purchases by a broker or dealer as principal and resale by that
broker or dealer for its account based on this prospectus;
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
- the writing of options on the common stock;
- pledges as collateral to secure loans, credit or other financing
arrangements and any subsequent foreclosure, if any, under those
arrangements;
- gifts, donations and contributions; and
- any other legally available means.
To the extent required by the Securities Act of 1933, the number of shares
of common stock to be sold or transferred, the purchase price, the name of any
agent, broker, dealer or underwriter and any applicable discounts or commissions
and any other required information with respect to a particular offer will be
shown in an accompanying prospectus supplement or post-effective amendment.
In the event of the transfer by any selling stockholder of shares of our
common stock offered by this prospectus to any pledge, donee or other
transferee, we will supplement or amend this prospectus (as required by the
Securities Act of 1933) and the registration statement of which this prospectus
forms a part in order to have the pledge, donee or other transferee included as
a selling stockholder.
We have agreed to keep the registration statement to which this prospectus
forms a part effective until the earlier of the date on which all registered
shares have been sold and the date all shares may be sold without volume
limitations under Rule 144(k).
If necessary to comply with state securities laws, the common stock will be
sold only through registered or licensed brokers or dealers. In addition, the
common stock may not be sold unless it has been registered or qualified for sale
in the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The selling stockholders and any brokers, dealers, agents or underwriters
that participate in the distribution of the common stock may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, in which event
any discounts, concessions and commissions received by those brokers, dealers,
agents or underwriters and any profit on the resale of the common stock
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act of 1933.
No underwriter, broker, dealer or agent has been engaged by us or, to our
knowledge, any of the selling stockholders, in connection with the distribution
of the common stock.
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We and the selling stockholders will be subject to the applicable
provisions of the Securities Exchange Act of 1934 and the rules and regulations
under it, including, without limitation, Rule 10b-5 and, insofar as the selling
stockholders are distributors and we, under certain circumstances, may be a
distribution participant, under Regulation M.
The anti-manipulation provisions of Regulation M under the Securities
Exchange Act of 1934 will apply to purchases and sales of shares of our common
stock by the selling stockholders, and there are restrictions on market-making
activities by persons engaged in the distribution of the shares of our common
stock. Under Regulation M, a selling stockholder or its agents may not bid for,
purchase, or attempt to induce any person to bid for or purchase, shares of our
common stock while they are distributing shares of our common stock covered by
this prospectus. Accordingly, the selling stockholders are not permitted to
cover short sales by purchasing shares of our common stock while the
distribution is taking place.
Any common stock covered by this prospectus which also qualify for sale
based on Rule 144 under the Securities Act of 1933 may be sold under Rule 144
rather than based on this prospectus. There is no assurance that the selling
stockholders identified in this prospectus will sell any or all of the common
stock. The selling stockholders may transfer, devise or gift common stock by
other means not described in this prospectus. We will pay all of the expenses
incident to the registration of the common stock, other than underwriting
discounts and selling commissions, if any. The aggregate proceeds to the
selling stockholders from the sale of the common stock will be the purchase
price of that common stock less any of these discounts or commissions.
DESCRIPTION OF COMMON STOCK
GENERAL
Our authorized capital stock consists of 200,000,000 shares of common
stock, $.0001 par value per share, and 5,000,000 shares of preferred stock,
$.0001 par value per share. As of August 21, 2006 we had 22,643,512 shares of
common stock and no shares of preferred stock issued and outstanding (as a
result of the conversion of the outstanding shares of our series A preferred
stock to common stock in February 2006 described in "THE COMPANY-Corporate
Restructuring"). We have outstanding warrants, options, and convertible
privileges which, if exercised, would total 7,219,469 shares of common stock.
We have also reserved 832,290 shares of our common stock in connection with our
ongoing litigation with Harvest Court, LLC, which litigation is described under
the section of "THE COMPANY-Legal Proceedings-Harvest Court Litigation."
Overall, we would have a total of 29,995,271 shares of common stock issued and
outstanding if all of our outstanding warrants and options were exercised and
all of our reserved shares of common stock were issued.
COMMON STOCK
Each share of our common stock is entitled to one vote on each matter
submitted to a vote of the stockholders and is equal to each other share of our
common stock with respect to voting, liquidation and dividend rights. Holders
of our common stock are entitled to receive the dividends, if any, as may be
declared by our board of directors out of assets legally available therefor and
to receive net assets in liquidation after payment of all amounts due to
creditors and any liquidation preference due to preferred stockholders. Holders
of our common stock have no conversion rights and are not entitled to any
preemptive or subscription rights. Our common stock is not subject to
redemption or any further calls or assessments. Our common stock does not have
cumulative voting rights in the election of directors.
DIVIDEND POLICY
While there currently are no restrictions prohibiting us from paying
dividends to our stockholders, we have not paid any cash dividends on our common
stock in the past and we do not anticipate paying any dividends in the
foreseeable future. Earnings, if any, are expected to be retained to fund our
future operations. There can be no assurance that we will pay dividends at any
time in the future.
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TRADING OF OUR COMMON STOCK
Our common stock presently is quoted on the over-the-counter bulletin board
maintained by the National Association of Securities Dealers, Inc. under the
symbol "VYTC." Our common stock also is traded on the Berlin Stock Exchange,
the Frankfurt Stock Exchange, the Munich Stock Exchange and the Xetra Stock
Exchange under the symbols indicated in the table below:
FOREIGN EXCHANGE TRADING SYMBOL
------------------------ --------------
Berlin Stock Exchange NPI1.BE
Frankfurt Stock Exchange NPI1.F
Munich Stock Exchange NPI1.MU
Xetra Stock Exchange NPI1.DE
TRANSFER AGENT
The transfer agent for our common stock is Corporate Stock Transfer, Inc.,
3200 South Cherry Creek Drive, Suite 430, Denver, Colorado 80209.
ANTI-TAKEOVER PROVISIONS OF CHARTER PROVISIONS
One of the effects of the existence of authorized but unissued shares of
our common stock or preferred stock may be to enable our board of directors to
render it more difficult or to discourage an attempt to obtain control of the
company and thereby protect the continuity of or entrench our management, which
may adversely affect the market price of our common stock. If in the due
exercise of its fiduciary obligations, for example, our board of directors were
to determine that a takeover proposal was not in the best interests of the
company, such shares could be issued by the board of directors without
stockholder approval in one or more private placements or other transactions
that might prevent or render more difficult or make more costly the completion
of any attempted takeover transaction by diluting voting or other rights of the
proposed acquirer or insurgent stockholder group, by creating a substantial
voting block in institutional or other hands that might support the position of
the incumbent board of directors, by effecting an acquisition that might
complicate or preclude the takeover, or otherwise. See "RISK FACTORS-We could
issue preferred stock that could adversely affect the rights of our common
stockholders."
EXPERTS
Our consolidated financial statements incorporated herein by reference into
this prospectus have been so incorporated in reliance on the report of GHP
Horwath, P.C., an independent registered public accounting firm ("GHP"), which
describes an uncertainty related to our ability to continue as a going concern,
given upon their authority as an expert in auditing and accounting.
With respect to the unaudited financial information incorporated herein by
reference into this prospectus, GHP has applied limited procedures in accordance
with the standards of the Public Company Accounting Oversight Board (United
States). However, as stated in their separate reports included in our quarterly
reports that are incorporated by reference herein, they did not audit and they
do not express an opinion on that interim financial information. Because of the
limited nature of the review procedures applied, the degree of reliance on their
reports on such information should be restricted. GHP is not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
reports on the unaudited interim financial information because those reports are
not a "report" or a "part" of the Registration Statement to which this
prospectus forms a part prepared or certified by GHP within the meaning of
Section 7 and 11 of the 1933 Act.
MATERIAL CHANGES
There have been no material changes to the affairs of our Company since
June 30, 2005 which have not previously been described in a Quarterly Report on
Form 10-QSB or a Current Report on Form 8-K.
24
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this prospectus,
which means that the information is disclosed to investors by referring
investors to those documents. The information incorporated by reference is
considered to be part of this prospectus and the information that we file later
with the SEC will automatically update and supersede information contained in
documents filed earlier with the SEC or contained in this prospectus. We
incorporate by reference into this prospectus the documents listed below:
- Our prospectus dated July 18, 2006 filed with the SEC pursuant to Rule
424(b)(3) promulgated under the Securities Act of 1933, as amended,
relating to Post-Effective Amendment No. 2 to our Registration
Statement on Form SB-2, filed with the SEC on June 30, 2006
(Registration No. 333-113071);
- our Quarterly Reports on Form 10-QSB for the quarters ended
September 30, 2005, December 31, 2005 and March 31, 2006, filed with
the SEC on November 21, 2005, February 21, 2006, and May 22, 2006,
respectively (File No. 33-19598-D); and
- our Current Reports on Form 8-K, filed with the SEC on October 7,
2005, January 19, 2006, and January 31, 2006 (File No. 33-19598-D).
In addition, all documents filed with the SEC by us pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act after the date hereof and prior to
the filing of a post-effective amendment that indicates that all securities
offered have been sold or that deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this prospectus and to be a
part hereof from the date of filing of such documents.
Notwithstanding the foregoing, we are not incorporating any document or
information deemed to have been furnished and not filed in accordance with the
SEC rules. Copies of any or all of the documents referred to above which may
have been or may be incorporated by reference into this prospectus may be
obtained by contacting the SEC as described under the section "ADDITIONAL
INFORMATION" or by contacting Vyta Corp at the following address and telephone
number: Paul H. Metzinger, President and Chief Executive Officer, Vyta Corp,
370 17th Street, Suite 3640, Denver, Colorado 80202, (303) 592-1010.
DISCLOSURE OF SEC POSITION ON INDEMNIFICATION
The General Corporation Law of the State of Nevada and our articles of
incorporation provide for indemnification of our directors for liabilities and
expenses that they may incur in such capacities. In general, our directors and
officers are indemnified with respect to actions taken in good faith and in a
manner such person believed to be in our best interests, and with respect to any
criminal action or proceedings, actions that such person has no reasonable cause
to believe were unlawful. Furthermore, the personal liability of our directors
is limited as provided in our articles of incorporation.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers or persons
controlling us pursuant to the foregoing provisions, or otherwise, we have been
advised that in the opinion of the SEC, such indemnification is against public
policy as expressed in the Securities Act of 1933 and is therefore
unenforceable.
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934 and, in compliance with this act, file periodic reports and other
information with the SEC. These reports and the other information we file with
the SEC can be inspected and copied at the public reference room facilities
maintained by the SEC in Washington, D.C. at 100 F Street, N.E., Washington,
D.C. 20549. The SEC's telephone number to obtain information on the operation
of the public reference room is (800) SEC-0330. In addition, the SEC maintains
a World Wide Web site that contains reports, proxy statements and other
information regarding registrants like the company that file electronically with
the SEC at the following Internet address: (http://www.sec.gov). The SEC's
------------------
telephone number is (800) SEC-0330.
25
ADDITIONAL INFORMATION
We file annual, quarterly and other reports, and other information with the
SEC. You may read and copy the materials we file at the SEC's Public Reference
Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the Commission
at (800) SEC-0330 for further information on the operation of the Public
Reference Rooms. Our SEC filings are also available to the public from the
SEC's World Wide Web site on the Internet at http://www.sec.gov. This site
------------------
contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC.
Our commission file number is 033-19598-D.
We maintain a site at www.vytacorp.com. The information contained in our
----------------
website is not part of this prospectus and you should not rely on it in deciding
whether to invest in our common stock.
26
========================================================= ==============================
THE ONLY SOURCES OF INFORMATION GIVEN TO YOU BY 700,000 SHARES OF COMMON STOCK
US ABOUT YOUR INVESTMENT DECISION ARE THIS PROSPECTUS
AND ANY DOCUMENTS REFERRED TO IN THIS PROSPECTUS. WE
DID NOT AUTHORIZE ANYONE TO GIVE YOU ANY OTHER
INFORMATION ABOUT YOUR INVESTMENT DECISION.
THIS PROSPECTUS IS NOT AN OFFER TO SELL SECURITIES
AND IS NOT MEANT TO INDUCE THE SALE OF SECURITIES IF IT VYTA CORP
WOULD VIOLATE STATE LAW. IF THE PERSONS WHO ARE TRYING
TO OFFER THE SECURITIES FOR SALE, OR THE PERSONS WHO COMMON STOCK
RECEIVE THOSE OFFERS FOR SALE ARE PROHIBITED FROM DOING
SO UNDER STATE LAW, THIS PROSPECTUS IS NOT MEANT TO
INDUCE SALE OF THE SECURITIES DESCRIBED IN THIS --------------------
PROSPECTUS.
PROSPECTUS
--------------------
AUGUST 23, 2006
========================================================= ==============================
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act") and, accordingly, files
periodic reports and other information with the SEC. Reports, proxy statements
and other information concerning the Company filed with the SEC may be inspected
and copies may be obtained (at prescribed rates) at the SEC's Public Reference
Section, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549. The SEC
also maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the SEC, including the Company. The address for the SEC's Web site is
"http://www.sec.gov".
------------------
The following documents filed with the SEC by the Company are incorporated
in this Registration Statement by reference:
(a) the Company's prospectus dated July 18, 2006 filed with the SEC
pursuant to Rule 424(b)(3) promulgated under the Securities Act of 1933, as
amended, relating to Post-Effective Amendment No. 2 to our Company's
Registration Statement on Form SB-2, filed with the SEC on June 30, 2006
(Registration No. 333-113071);
(b) the Company's Quarterly Reports on Form 10-QSB for the quarters
ended September 30, 2005, December 31, 2005 and March 31, 2006, filed with
the SEC on November 21, 2005, February 21, 2006, and May 22, 2006,
respectively (File No. 33-19598-D); and
(c) the Company's Current Reports on Form 8-K, filed with the SEC on
October 7, 2005, January 19, 2006, and January 31, 2006 (File No.
33-19598-D).
All documents filed with the SEC by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act after the date hereof and prior to the
filing of a post-effective amendment that indicates that all securities offered
have been sold or that 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 filing of such documents.
Notwithstanding the foregoing, the Company is not incorporating any
document or information deemed to have been furnished and not filed in
accordance with the SEC rules.
ITEM 4. DESCRIPTIONS OF SECURITIES
We are registering up to 700,000 shares of our Common Stock that have been
or may be issued to two consultants pursuant to the Consulting Agreements. A
description of the Company's Common Stock is contained in the Company's Reoffer
Prospectus that is included in this Form S-8.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VII of the Company's Amended and Restated Articles of Incorporation
provides that the Company shall indemnify its directors, officers, employees and
agents to the maximum extent and in accordance with the provisions of the Nevada
General Corporation Law ("NGCL"), as in effect from time to time. Sections
78.7502 and 78.751 of the NGCL provide generally and in pertinent part that a
Nevada corporation may indemnify its directors and officers against expenses,
judgments, fines and settlements actually and reasonably incurred by them in
connection with any civil suit or action or any administrative or investigative
proceeding, except actions by or in the right of the corporation, if, in
connection with the matters in issue, they acted in good faith and in a manner
they
II-1
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and in connection with any criminal suit or proceeding, if in
connection with the matters in issue, they had no reasonable cause to believe
their conduct was unlawful. Section 78.7502 further provides that in connection
with the defense or settlement of any action by or in the right of the
corporation, a Nevada corporation may indemnify its directors and officers
against expenses actually and reasonably incurred by them in connection
therewith, provided that they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
corporation. Section 78.751 permits a Nevada corporation to grant its directors
and officers additional rights of indemnification through bylaw provisions and
otherwise and Section 78.752 permits a Nevada corporation to purchase indemnity
insurance or make other financial arrangements on behalf of its directors and
officers.
Article VIII of the Company's Amended and Restated Articles of
Incorporation provides that directors shall not be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability arising from (a) any breach of the director's loyalty to
the Company or its stockholders, (b) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) any
transaction from which the director receives an improper personal benefit, or
(d) any other act expressly proscribed or for which directors are otherwise
liable under the NGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
The restricted securities issued to consultants that are to be reoffered
and resold pursuant to this registration statement were initially issued in
transactions exempt from the registration requirements of the Securities Act of
1933 pursuant to Section 4(2) of the Securities Act of 1933, as amended, and/or
Regulation D promulgated thereunder. They were provided access to all material
information which they requested, and all information necessary to verify such
information and was afforded access to management of the Company in connection
with negotiating their compensation under the Consulting Agreements. All
holders of the unregistered securities acquired such securities for investment
and not with a view toward distribution, acknowledging such intent to the
Company. All certificates or agreements representing such securities that were
issued or are to be issued contain restrictive legends, prohibiting further
transfer of the certificates or agreements representing such securities, without
such securities either being first registered or otherwise exempt from
registration under the Securities Act of 1933 in any further resale or
disposition.
ITEM 8. EXHIBITS
The exhibits scheduled to be filed as part of this Registration Statement are as follows:
4.1 Consulting Agreement, effective as of June 1, 2006, between the Company and Edwin Buckham*
4.2 Consulting Agreement, effective as of June 1, 2006, between the Company and Terry Allen*
5.1 Opinion of Kutak Rock LLP as to the legality of the Common Stock being registered*
15.1 Acknowledgement of Independent Registered Public Accounting Firm, GHP Horwath, P.C.*
23.1 Consent of Kutak Rock LLP (appears in their opinion filed as Exhibit 5.1)*
23.2 Consent of GHP Horwath, P.C.*
24.1 Power of Attorney (included on the signature page to this Registration Statement)*
________________________________
* Filed herewith.
ITEM 9. UNDERTAKINGS
1. The Company hereby undertakes:
II-2
(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, as amended;
(ii) to reflect in the prospectus any facts of 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 SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20% 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 periodic reports filed
with or furnished to the SEC by the Company pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement or is
contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the Registration Statement;
(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
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(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.
2. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company'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 the 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.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 Act and will be governed by the final adjudication of
such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Denver, State of Colorado, on this 23rd day of
August, 2006.
VYTA CORP
By /s/ Paul H. Metzinger
------------------------------------
Paul H. Metzinger
President, Chief Executive Officer
and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, whose signatures
appear below, hereby constitute and appoint Paul H. Metzinger and Kristi J.
Kampmann, or either of them, as their true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for them and in their
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 exhibits thereto, and other documents in connection
therewith, with the SEC, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing requisite and
necessary to be done, as full and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or 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 on Form S-8 is signed by the following persons in
the capacities and on the dates indicated.
SIGNATURES TITLE DATE
/s/ Paul H. Metzinger President, Chief Executive Officer August 23, 2006
---------------------- (Principal Executive Officer) and
Paul H. Metzinger Director
/s/ Kristi J. Kampmann Chief Financial Officer (Principal August 23, 2006
---------------------- Accounting Officer) and Secretary
Kristi J. Kampmann
/s/ Herbert J. Neuhaus Director August 23, 2006
----------------------
Herbert J. Neuhaus
/s/ Robert Shaw Director August 23, 2006
----------------------
Robert Shaw
/s/ John Hoback Director August 23, 2006
----------------------
John Hoback
II-1
Exhibit Description
------- -----------
4.1 Consulting Agreement, effective as of June 1, 2006, between the Company and Edwin Buckham*
4.2 Consulting Agreement, effective as of June 1, 2006, between the Company and Terry Allen*
5.1 Opinion of Kutak Rock LLP as to the legality of the Common Stock being registered*
15.1 Acknowledgement of Independent Registered Public Accounting Firm, GHP Horwath, P.C.*
23.1 Consent of Kutak Rock LLP (included in Exhibit 5.1)*
23.2 Consent of GHP Horwath, P.C.*
24.1 Power of Attorney (included on the signature page to this Registration Statement)*
--------------------------------
* Filed herewith.