As filed with the Securities and Exchange Commission on October 22, 1997
Registration No. 33-97770
SECURITIES AND EXCHANGE COMMISSION
Washington D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
LEVEL BEST GOLF, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 59-3205644
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
14561 58th Street North, Clearwater, Florida 34620 (813) 535-7770
(Address, including zip code, and telephone number, including area code,
or registrant's principal executive offices)
NON-STATUTORY INCENTIVE STOCK OPTIONS ISSUED TO CONSULTANTS AND ISSUABLE
TO EMPLOYEES
(Full title of plan)
Fred L. Solomon, Chief Executive Officer, Level Best Golf, Inc.
14561 58th Street North, Clearwater, Florida 34620 (813) 535-7770
Facsimile (813) 535-0077
(Name and address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
Jackson L. Morris, Esq., 3116 West North A Street, Tampa, Florida 33609
(813) 874-8854 Facsimile (813) 873-9628
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered (1) Amount to be
registered, Proposed maximum offering price per unit (2)Proposed maximum
aggregate offering price, Amount of the registration fee (3) Common Stock
par value $0.001 per share, 600,000 shares, $.24, $144,000, $48.00.
(1) The shares registered pursuant to this Registration Statement are
available for issuance pursuant to certain outstanding stock option
agreements issued to consultants and stock option agreements which may be
issued to employees in the future, the form of each of which are attached
as exhibits to this Registration Statement.
(2) Estimated solely for the purpose of calculating the registration fee,
based upon the bid price for the common stock on the day of grant of
options to consultants, _______________.
(3) Pursuant to General Instruction E, the registration fee paid in
connection herewith is based on the maximum aggregate per share exercise
price of the shares of Common Stock covered by this registration
statement.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1: Plan Information.
The information required by Part I is included in documents to be sent or
given to the participants.
ITEM 2: Registration Information and Employee Plan Annual Information.
Upon written or oral request, Level Best Golf, Inc., a Florida
corporation, (the "Registrant") will provide, without charge, a copy of
all documents incorporated by reference in Item 3 of Part II of this
Registration Statement, which are incorporated by reference in the
Section 10(a) Prospectus, and all other documents required to be
delivered to employees pursuant to Rule 428(b) promulgated under the
Securities Act of 1933, as amended, (the "Securities Act"). All requests
should be made to Level Best Golf, Inc., Attn: Fred L. Solomon,
President, 14561 58th Street North, Clearwater, Florida 34620, telephone
number: (813) 535-7770.
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: Incorporation of Documents by Reference.
The following documents, which are on file with the Securities and
Exchange Commission (the "Commission"), are incorporated in this
Registration Statement by reference: (a) Annual Report on Form 10-KSB
for the year ended September 30, 1996, including any amendment or report
filed for the purpose of updating such description. All documents filed
by the Registrant pursuant to Section 13(a), 14 and 15(d) of the Exchange
Act prior to the filing of a post-effective amendment which indicates
that all shares offered hereby have been sold or which deregisters all
shares then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and to be a part hereof from the date
of filing of such documents.
ITEM 4. Description of Securities.
The Registrant's Articles of Incorporation authorize the Registrant to
issue up to fifty million shares of Common Stock. The holders of Common
Stock of the Registrant are entitled to cast one vote for each share held
at all shareholders meetings for all purposes. Upon liquidation or
dissolution, each outstanding share of Common Stock will be entitled to
share equally in the assets of the Registrant legally available for
distribution to shareholders after the payment of all debts and other
liabilities. Common Stock does not have any cumulative or preemptive or
other right to subscribe to or purchase additional Common Stock in the
event of a subsequent offering. All outstanding Common Stock is, and the
shares offered hereby will be, legally issued, fully paid and non-
assessable. The Board of Directors of the Registrant may not declare
dividends when payment would render the Registrant insolvent or when the
Registrant is already insolvent. The Registrant has not paid dividends to
date and it is not anticipated that any dividends will be paid in the
foreseeable future. The Board of Directors initially may follow a policy
of retaining earnings, if any, to finance the future growth of the
Registrant. Accordingly, future dividends, if any, will depend upon,
among other considerations, the Registrant's need for working capital at
the time.
ITEM 5. Interests of Named Experts and Counsel.
The Company will rely on an opinion given by Jackson L. Morris, Esq.,
Tampa, Florida, as to the legality of the Shares. Mr. Morris is the
holder of 5,000 shares of the Registrant's common stock.
ITEM 6.
Indemnification of Directors and Officers. The Registrant's Articles of
Incorporation generally provide for the maximum indemnification of a
corporation's directors and officers as permitted by law in the State of
Florida. Florida law empowers a corporation to indemnify any person who
was or is a party or who is threatened to be made a party to any
threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, except in the case of
an action by or in the right of the corporation, by reason of the fact
that he or she is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other
enterprise. Depending on the character of the proceeding, a corporation
may indemnify against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding if the person indemnified
acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation, and with
respect to any criminal action or proceedings, had no reasonable cause to
believe his or her conduct was unlawful. A corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that
he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other
enterprise, against expenses, including amounts paid in settlement and
attorney's fees actually and reasonably incurred by him or her in
connection with the defense or settlement of the action or suit if he or
she acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
corporation. Indemnification may not be made for any claim, issue or
matter as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the corporation or for amounts paid in settlement to the
corporation unless and only to the extent that the court in which the
action or suit was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances of the
case, the person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper. To the extent that a director,
officer, employee or agent of a corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred
to above, or in defense of any claim, issue or matter therein, he or she
must be indemnified by the corporation against expenses, including
attorney's fees, actually and reasonably incurred by him in connection
with the defense. Any indemnification under this section, unless ordered
by a court or advanced pursuant to this section, must be made by the
corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is
proper in the circumstances. The determination must be made: (a) by the
stockholders; (b) by the board of directors by majority vote of a quorum
consisting of directors who were not parties to the action, suit or
proceeding; (c) if a majority vote of a quorum consisting of directors
who were not parties to the action, suit or proceeding so orders, by
independent legal counsel in a written opinion; or (d) if a quorum
consisting of directors who were not parties to the action, suit or
proceeding cannot be obtained, by independent legal counsel in a written
opinion. The articles of incorporation, the bylaws or an agreement made
by the corporation may provide that the expenses of officers and
directors incurred in defending a civil or criminal action, suit or
proceeding must be paid by the corporation as they are incurred and in
advance of the final disposition of the action, suit or proceeding upon
receipt of an undertaking by or on behalf of the director or officer to
repay the amount if it is ultimately determined by a court of competent
jurisdiction that he or she is not entitled to be indemnified by the
corporation. The provisions of this section do not affect any rights to
advancement of expenses to which corporate personnel other than directors
or officers may be entitled under any contract or otherwise by law. The
indemnification and advancement of expenses authorized in or ordered by a
court pursuant to this section: (a) does not exclude any other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under the articles of incorporation or any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, for either
an action in his or her official capacity or an action in another
capacity while holding his or her office, except that indemnification,
unless ordered by a court pursuant to this section or for the advancement
of any director or officer if a final adjudication establishes that his
or her acts or omissions involved intentional misconduct, fraud or a
knowing violation of the law and was material to the cause of action; and
(b) continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person. No indemnification is permitted for
criminal violations (unless the director, officer or agent had reasonable
cause to believe his conduct was unlawful), transactions in which the
director or officer derived an improper personal benefit, declarations of
unlawful dividends or, in derivative actions, willful misconduct or
conscious disregard for the best interests of the corporation.
ITEM 8: Exhibits
4.1 Form of Non-Statutory Incentive Stock Option Agreement
5.1 Opinion of Jackson L. Morris, Esq.
24.1 Consent of Jackson L. Morris, Esq. (included in Exhibit 5.1)
24.2 Consent of Winter, Scheifley & Associates, P.C.
ITEM 9: Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) To include
any prospectus required by Section 10(a) (3) of the Securities Act; (ii)
To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. (iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement. provided, however, that paragraphs (1)(i) and
(1)(ii) above do not apply if the Registration Statement is on From S-3
or Form S-8, and the information required to be included in a post-
effective amendment by those paragraphs is incorporated by reference from
periodic reports filed by the Registrant under the Exchange Act.
(2) That, for determining liability under the Securities Act, to treat
each such post-effective amendment as a new registration statement of the
securities offered, and the offering of such securities at that time to
be the initial bona fide offering.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the end of
the offering. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, the Registrant has
been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person in
the successful defense of any action, suit or proceeding) is asserted by
such director, officers or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Clearwater,
Florida, on October 16, 1997.
LEVEL BEST GOLF, INC.
By: /s/ Fred L. Solomon
Fred L. Solomon, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity in Which Signed Date
/s/ Fred L. Solomon Chief Executive Officer and October 16, 1997.
Fred L. Solomon Director (Principal Executive Officer)
/s/ Fred L. Solomon Acting Chief Financial Officer October 16, 1997.
Fred L. Solomon (Principal Financial Officer)
and Principal Accounting Officer)
/s/ James G. Solomon Director October 16, 1997
James G. Solomon
/s/ Patricia A. Sanders Director October 16, 1997
Patricia A. Sanders
/s/ William E. Foley Director October 16, 1997
William E. Foley
/s/ Don F. Thompson Director October 16, 1997
Don F. Thompson
EXHIBIT INDEX
Document Description of Document-
4.1 Form of Non-Statutory Incentive Stock Option Agreement
5.1 Opinion of Jackson L. Morris, Esq.
24.1 Consent of Jackson L. Morris, Esq. (included in Exhibit 5.1)
24.2 Consent of Winter, Scheifley & Associates, P.C.
Exhibit 5.1
August 5, 1997
Board of Directors, Level Best Golf, Inc., 14561 58th Street North,
Clearwater, Florida
Re: Registration Statement on Form S-8
Gentlemen:
I am acting as counsel for Level Best Golf, Inc., a Florida corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Act"), of the offering and sale of up to 600,000
shares (the "Shares") of the Company's common stock, par value $0.001 per
share (the "Common Stock") which may be issued by the Company upon the
exercise of certain stock options granted to consultants of the Company as
an inducement and incentive for consulting services previously rendered to
the Company pursuant to Incentive Stock Option Agreements between the
Company and the respective consultants (the "Contract")and Incentive Stock
Options which may be issued to certain employees in the future. A
Registration Statement on Form S-8 covering the Shares (the "Registration
Statement") is being filed under the Act with the Securities and Exchange
Commission. In rendering the opinions expressed herein, I have reviewed
such matters of law as I have deemed necessary and have examined copies of
such agreements, instruments, documents and records as I have deemed
relevant. In rendering the opinions expressed herein, I have assumed the
genuineness and authenticity of all documents examined by us and of all
signatures thereon, the legal capacity of all natural persons executing such
documents, the conformity to original documents of all documents submitted
to us as certified or conformed copies or photocopies and the completeness
and accuracy of the certificates of public officials examined by us. I have
made no independent factual investigation with regard to any such matters.
Based upon the foregoing and subject to the qualifications stated herein, it
is my opinion that the Shares, issued or to be issued upon the exercise of
any stock options duly granted pursuant to the Contract, when issued, paid
for and delivered upon the exercise of such stock options, in accordance
with the terms of the Contract, will be validly issued, fully paid and non-
assessable. The opinions expressed herein are limited to matters involving
the federal laws of the United States and to the corporate laws of the State
of Florida, and I express no opinion as to the effect on the matters covered
by this opinion of the laws of any other jurisdiction. I hereby consent to
the use of this opinion as an exhibit to the Registration Statement and the
reference to me therein under the caption "Interests of Named Experts and
Counsel." The opinions expressed herein are rendered solely for your
benefit in connection with the transaction described herein. Except as
otherwise provided herein, this opinion may not be used or relied upon by
any person, nor may this letter or any copies thereof be furnished to a
third party, filed with a governmental agency, quoted, cited or otherwise
referred to without our prior written consent.
Very truly yours
/s/ Jackson L. Morris
Jackson L. Morris
Exhibit 4.1
NON-STATUTORY INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of _________, 1997 by and between Level Best
Golf, Inc., a Florida corporation (the "Company"), and ____________
("Optionee").
R E C I T A L
The Board of Directors of the Company (the "Board of Directors") has
authorized the granting to Optionee, for services previously rendered by
Optionee as a consultant to or an employee of the Company, of a non-
qualified stock option to purchase the number of shares of Common Stock of
the Company specified in Paragraph 1 hereof, at the price specified
therein, such option to be for the term and upon the terms and conditions
hereinafter stated.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the undertakings of
the parties hereto contained herein, it is hereby agreed:
1. Number of Shares; Option Price. Pursuant to said action of the Board
of Directors, the Company hereby grants to Optionee, in consideration of
consulting services performed for the benefit of the Company, the option
("Option") to purchase up to _______ shares ("Option Shares") of Common
Stock of the Company, at the exercise price of $____ per share.
2. Term. This Option shall expire four years from the date first written
above.
3. Shares Subject to Exercise. The ______ Options shall vest and be
immediately exercisable, and shall thereafter remain subject to exercise
for the term specified in Paragraph 2 hereof.
4. Method and Time of Exercise. The Option may be exercised by written
notice delivered to the Company stating the number of shares with respect
to which the Option is being exercised, together with a check made payable
to the Company in the amount of the purchase price of such shares plus the
amount of applicable federal, state and local withholding taxes, and the
written statement provided for in Paragraph 10 hereof, if required by such
Paragraph 10; provided, however, with respect to the _________ Options set
forth in paragraph 1 hereof, Optionee shall be entitled to pay the exercise
price against cancellation in full of certain indebtedness owing by the
Company to Optionee for services previously rendered by Optionee as a
consultant to the Company. Not less than 100 shares may be purchased at
any one time unless the number purchased is the total number purchasable
under such Option at the time. Only whole shares may be purchased.
5. Tax Withholding. As a condition to exercise of this Option, the
Company may require the Optionee to pay over to the Company all applicable
federal, state and local taxes which the Company is required to withhold
with respect to the exercise of this Option. At the discretion of the
Company and upon the request of the Optionee, the minimum statutory
withholding tax requirements may be satisfied by the withholding of shares
of Common Stock otherwise issuable to the Optionee upon the exercise of
this Option.
6. Exercise on Termination of Employment. This Option shall not terminate
as a result of the termination of Optionee's services as a consultant to
the Company.
7. Nontransferability. This Option may not be assigned or transferred
except, if applicable, by will or by the laws of descent and distribution,
and may be exercised only by Optionee during Optionee's lifetime and after
Optionee's death, by Optionee's representative or by the person entitled
thereto under Optionee's will or the laws of intestate succession.
8. Optionee Not a Shareholder. Optionee shall have no rights as a
shareholder with respect to the Common Stock of the Company covered by the
Option until the date of issuance of a stock certificate or stock
certificates to him upon exercise of the Option. No adjustment will be
made for dividends or other rights for which the record date is prior to
the date such stock certificate or certificates are issued.
9. No Right to Perform Services. Nothing in this Option shall confer upon
the Optionee any right to perform services for the Company, or shall
interfere with or restrict in any way the rights of the Company to
discharge or terminate Optionee as an independent contractor or consultant
at any time for any reason whatsoever, with or without good cause.
10. Restrictions on Sale of Shares. Optionee represents and agrees that,
upon Optionee's exercise of the Option in whole or part, unless there is in
effect at that time under the Securities Act of 1933 a registration
statement relating to the shares issued to him, he will acquire the shares
issuable upon exercise of this Option for the purpose of investment and not
with a view to their resale or further distribution, and that upon each
exercise thereof Optionee will furnish to the Company a written statement
to such effect, satisfactory to the Company in form and substance.
Optionee agrees that any certificates issued upon exercise of this Option
may bear a legend indicating that their transferability is restricted in
accordance with applicable state or federal securities law. Any person or
persons entitled to exercise this Option under the provisions of Paragraphs
5 and 6 hereof shall, upon each exercise of the Option under circumstances
in which Optionee would be required to furnish such a written statement,
also furnish to the Company a written statement to the same effect,
satisfactory to the Company in form and substance.
11. Registration. On or before thirty days after the date of this
Agreement, the Company shall, at the Company's expense, use its best
efforts to file with the Securities and Exchange Commission ("SEC"), a
registration statement ("Registration Statement") on Form S-8 or other
comparable form, in such form as to comply with applicable federal and
state laws for the purpose of registering or qualifying the Option Shares
for resale by Optionee, and prepare and file with the appropriate state
securities regulatory authorities the documents reasonably necessary to
register or qualify such securities, subject to the ability of the Company
to register or qualify such securities under applicable state laws.
12. Notices. All notices to the Company shall be addressed to the Company
at the principal office of the Company at 14561 58th Street North,
Clearwater, Florida 34620, telephone number: (813) 535-7770 facsimile
(813) 535-0077, and all notices to Optionee shall be addressed to Optionee
at the address and telecopier number of Optionee on file with the Company,
or to such other address and telecopier number as either may designate to
the other in writing. A notice shall be deemed to be duly given if and
when enclosed in a properly addressed sealed envelope deposited, postage
prepaid, with the United States Postal Service and followed by telecopier
to the addressee. In lieu of giving notice by mail as aforesaid, written
notices under this Agreement may be given by personal delivery to Optionee
or to the Company (as the case may be).
13. Adjustments. If there is any change in the capitalization of the
Company affecting in any manner the number or kind of outstanding shares of
Common Stock of the Company, whether by stock dividend, stock split,
reclassification or recapitalization of such stock, or because the Company
has merged or consolidated with one or more other corporations (and
provided the Option does not thereby terminate pursuant to Section 2
hereof), then the number and kind of shares then subject to the Option and
the price to be paid therefor shall be appropriately adjusted by the Board
of Directors; provided, however, that in no event shall any such adjustment
result in the Company's being required to sell or issue any fractional
shares. Any such adjustment shall be made without change in the aggregate
purchase price applicable to the unexercised portion of the Option, but
with an appropriate adjustment to the price of each Share or other unit of
security covered by this Option.
14. Cessation of Corporate Existence. Notwithstanding any other provision
of this Option, upon the dissolution or liquidation of the Company, the
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving
corporation, or the sale of substantially all the assets of the Company or
of more than fifty percent of the then outstanding stock of the Company to
another corporation or other entity, the Option granted hereunder shall
terminate; provided, however, that: (i) each Option for which no option
has been tendered by the surviving corporation in accordance with all of
the terms of provision (ii) immediately below shall, within five days
before the effective date of such dissolution or liquidation, merger or
consolidation or sale of assets in which the Company is not the surviving
corporation or sale of stock, become fully exercisable; or (ii) in its sole
and absolute discretion, the surviving corporation may, but shall not be so
obligated to, tender to any Optionee, an option to purchase shares of the
surviving corporation, and such new option or options shall contain such
terms and provisions as shall be required substantially to preserve the
rights and benefits of this Option.
15. Invalid Provisions. In the event that any provision of this Agreement
is found to be invalid or otherwise unenforceable under any applicable law,
such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such
other provisions shall be given full force and effect to the same extent as
though the invalid or unenforceable provision were not contained herein.
16. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
17. Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the
parties hereto and delivered to the other.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Level Best Golf, Inc.
By: /s/ Fred L. Solomon
Fred L. Solomon, President
Optionee
/s/ ________________
_________________________
Social Security Number or Employer Identification Number:
____________________
Facsimile number: _______________
Exhibit 24.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Level Best Golf, Inc. dated October 16, 1997 of our
report dated December 4, 1996, relating to the financial statements of Level
Best Golf, Inc. as of September 30, 1996.
/s/ Winter, Scheifley & Associates, P.C.
Winter, Scheifley & Associates, P.C.
Certified Public Accountants
October 16, 1997
Englewood, Colorado
