AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 25, 1996
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ELECTROSTAR, INC.
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(Exact name of registrant as specified in its charter)
FLORIDA 65-0539991
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
710 NORTH 600 WEST
LOGAN, UTAH 84321
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(Address of Principal Executive Offices)
ELECTROSTAR, INC. SECOND AMENDED AND RESTATED STOCK OPTION PLAN
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(Full title of the Plans)
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KENTON K. ALDER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ELECTROSTAR, INC.
710 NORTH 600 WEST
LOGAN, UTAH 84321
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(Name and address of agent for service)
(801) 753-4700
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(Telephone number, including area code, of agent for service)
Copy to:
Rebecca R. Orand, Esq.
Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0557
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
PROPOSED MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE(1) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, 850,000
$.01 PAR VALUE................ SHARES $1.14 - $12.82 $5,986,943.24 $2065
===============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) on the basis of (i) the actual
price of $1.14, $1.98, $8.875 and $9.00 for an aggregate of 248,410,
153,819, 10,000 and 79,000 options, respectively, to purchase Common Stock
being registered, which have already been granted under the Company's
Second Amended and Restated Stock Option Plan, and (ii) the average of the
high and low sale price of the Common Stock on June 21, 1996 with respect
to the 358,771 shares of Common Stock subject to future grants under the
Second Amended and Restated Stock Option Plan.
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this
Registration Statement the following documents or portions thereof as indicated:
(a) the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995;
(b) the Registrant's quarterly reports on Form 10-Q for the
fiscal quarter ended March 30, 1996 and all other reports
filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") since January 1, 1996; and
(c) the description of the Registrant's Common Stock contained
in the Registrant's Registration Statement, as amended, on
Form S-1 under the Securities Act of 1933 (Registration
No. 33-98704).
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has authority under Section 607.0850 of the
Florida Business Corporation Act to indemnify its directors and officers to the
extent provided in such statute. The Registrant's Amended and Restated Articles
of Incorporation provide that the Registrant may indemnify its executive
officers and directors to the fullest extent permitted by law either now or
hereafter. The Registrant has also entered into an agreement with each of its
directors and certain of its officers wherein it has agreed to indemnify each of
them to the fullest extent permitted by law.
The provisions of the Florida Business Corporation Act that
authorize indemnification do not eliminate the duty of care of a director, and
in appropriate circumstances equitable remedies such as injunctive or other
forms of nonmonetary relief will remain available under Florida law. In
addition, each director will continue to be subject to liability for (a)
violations of the criminal law, unless the director had reasonable cause to
believe his conduct was lawful or had no reasonable cause to believe his conduct
was unlawful; (b) deriving an improper personal benefit from a transaction; (c)
voting for or assenting to an unlawful distribution; and (d) willful misconduct
or a conscious disregard for the best interests of the Registrant in a
proceeding by or in the right of the Registrant to procure a judgment in its
favor or in a proceeding by or in the right of a shareholder. The statute does
not affect a director's responsibilities under any other law, such as the
federal securities laws or state or federal environmental laws.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "1933 Act") may be permitted to
directors, officers or controlling persons of Registrant, pursuant to the
foregoing provisions or otherwise, Registrant has been advised that, in the
opinion of the Securities and Exchange Commission (the "Commission"), such
indemnification is against public policy as expressed in the 1933 Act, and is
therefore unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the
II - 1
<PAGE>
Registrant of expenses incurred or paid by a director, officer or controlling
person of Registrant in the successful defense of any suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered hereunder, 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 1993 Act and will be governed by
the final adjudication of such issue.
At present, there is no pending litigation or proceeding
involving a director or officer of the Registrant as to which indemnification is
being sought, nor is the Registrant aware of any threatened litigation that may
result in claims for indemnification by any officer or director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
See "Exhibit Index" on page II-6.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and 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
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities
II - 2
<PAGE>
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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II - 3
<PAGE>
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 Logan, State of Utah on June 21, 1996.
ELECTROSTAR, INC.
By:/s/ KENTON K. ALDER
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Kenton K. Alder
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Kenton K. Alder and F.G. Lindsay
Burton, Jr. his true and lawful attorneys-in-fact, each acting alone, with full
powers of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments, including any
post-effective amendments, to this Registration Statement, and to file the same,
with exhibits thereto, and other documents to be filed in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact or their substitutes, each acting alone, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ KENTON K. ALDER President, Chief Executive Officer June 21, 1996
- -------------------------------- and Director (principal exective officer)
Kenton K. Alder
/s/ JOHN MAYER Executive Vice President, Chief June 21, 1996
- -------------------------------- Operating Officer and Director
John Mayer
/s/ F.G. LINDSAY BURTON, JR. Vice President, Chief Financial Officer June 21, 1996
- -------------------------------- and Director (principal financial
F.G. Lindsay Burton, Jr. and accounting officer)
/s/ EARL W. POWELL Chairman of the Board June 21, 1996
- --------------------------------
Earl W. Powell
/s/ PHILLIP T. GEORGE, M.D. Director June 21, 1996
- --------------------------------
Phillip T. George, M.D.
II - 4
<PAGE>
/s/ PETER C. BROCKWAY Director June 21, 1996
- --------------------------------
Peter C. Brockway
/s/ MICHAEL E. MORAN Director June 21, 1996
- --------------------------------
Michael E. Moran
/s/ BREVATOR J. CREECH, M.D. Director June 21, 1996
- --------------------------------
Brevator J. Creech, M.D.
/s/ JAMES J. PINTO Director June 21, 1996
- --------------------------------
James J. Pinto
</TABLE>
II - 5
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1 Registrant's Amended and Restated Articles of
Incorporation(1).
4.2 Registrant's Bylaws(2).
4.3 ElectroStar, Inc. Second Amended and Restated Stock
Option Plan(3)
5.1 Opinion of Greenberg, Traurig, Hoffman, Lipoff, Rosen &
Quentel, P.A.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Greenberg, Traurig, Hoffman, Lipoff, Rosen &
Quentel, P.A. (contained in its opinion filed as Exhibit 5.1
hereto)
24 Power of Attorney is included in the Signatures section of
this Registration Statement
- -----------------------------
(1) Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Registration Statement on Form S-1 (Registration No. 33-98704).
(2) Incorporated by reference to Exhibit 3.2 filed with the Registrant's
Registration Statement on Form S-1 (Registration No. 33-98704).
(3) Incorporated by reference to Exhibit 10.1 filed with the Registrant's
Registration Statement on Form S-1 (Registration No. 33-98704).
II - 6
Exhibit 5.1
June 25, 1996
ElectroStar, Inc.
710 North 600 West
Logan, Utah 84321
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
On the date hereof, ElectroStar, Inc., a Florida corporation (the
"Company"), sent for filing with the Securities and Exchange Commission a
Registration Statement on Form S-8 (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to the offering and sale by the Company of up to 850,000 shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), pursuant
to stock options ("Options") granted or to be granted under the Company's Second
Amended and Restated Stock Option Plan (the "Plan"). We have acted as special
counsel to the Company in connection with the preparation and filing of the
Registration Statement.
<PAGE>
ElectroStar, Inc.
June 25, 1996
Page 2
- ----------------
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Amended and Restated
Articles of Incorporation and Bylaws of the Company; (ii) records of corporate
proceedings of the Company authorizing the Plan, any amendments thereto, and the
preparation of the Registration Statement and related matters; (iii) the
Registration Statement and exhibits thereto; and (iv) such other documents and
instruments as we have deemed necessary for the expression of the opinions
herein contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to various questions of
fact material to this opinion, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independently checking or verifying the accuracy of such
documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Company presently has available at least 850,000 authorized and unissued shares
of Common Stock from which the 850,000 shares of Common Stock proposed to be
sold pursuant to the exercise of Options granted under the Plan may be issued,
and, assuming that the Company maintains an adequate number of authorized and
unissued shares of Common Stock available for issuance to those persons who
exercise Options granted under the Plan and the consideration for shares of
Common Stock issued pursuant to such Options is actually received by the Company
as provided in the Plan, the shares of Common Stock issued pursuant to the
exercise of Options granted under and in accordance with the terms of the Plan
will be duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, ROSEN & QUENTEL, P.A.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated February
9, 1996 included in ElectroStar, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1995 and to all references to our Firm included in this Form
S-8 Registration Statement.
/s/ Arthur Andersen LLP
- -----------------------
ARTHUR ANDERSEN LLP
Salt Lake City, Utah
June 24, 1996
