Filed With the Securities and Exchange Commission on March 7, 2000
Securities Act Registration No. 333-30194
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3/A
AMENDMENT NO. 1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GUM TECH INTERNATIONAL, INC.
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(Exact Name of Registrant as Specified in its Charter)
UTAH 2067 87-0482806
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State of Other Jurisdiction of Primary Standard Industrial (IRS Employer
Incorporation or Organization Classification Code No. I.D. Number)
246 E. Watkins Street
Phoenix, Arizona 85004
(602) 252-1617
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(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
Gary Kehoe, President
Gum Tech International, Inc.
246 E. Watkins Street
Phoenix, Arizona 85004
(602) 252-1617
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(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent for Service)
Copies of all Communications to:
Richard B. Stagg
Snell & Wilmer L.L.P.
One Arizona Center
Phoenix, Arizona 85004-0001
(602) 382-6363
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of the Offering.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until this registration statement shall become
effective on such date as the commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
PART I
Gumtech International, Inc. filed a Registration Statement on Form S-3 with
the Securities and Exchange Commission on February 11, 2000 (the "Registration
Statement"). The contents of the Registration Statement are hereby incorporated
by reference.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.(1)
SEC Registration Fee..................................... $1,450
Printing Expenses........................................ $1,000
Legal Fees and Expenses.................................. $2,500
Accounting Fees.......................................... $2,000
Miscellaneous Expenses................................... $ 550
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TOTAL.................................................. $7,500(2)
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(1) All expenses are estimated except the SEC Registration fee.
(2) Previously paid.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 5 of the Registrant's Bylaws provides as follows:
"ARTICLE 5. INDEMNIFICATION OF DIRECTORS,
OFFICERS, AGENTS AND EMPLOYEES
5.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS. The corporation shall
indemnify any individual made a party to a proceeding because the individual is
or was a director or officer of the corporation, against liability incurred in
the proceeding, but only if such indemnification is both (i) determined
permissible and (ii) authorized, as such are defined in subsection (a) of this
section 5.1 (Such indemnification is further subject to the limitation specified
in subsection 5.1(c).)
5.1(a) DETERMINATION AND AUTHORIZATION. The corporation shall not
indemnify a director or officer under this section unless:
(1) a determination has been made in accordance with the procedures
set forth in section 16-10a-906(2) of the Act that the director
or officer met the standard of conduct set forth in subsection
(b) below; and
(2) payment has been authorized in accordance with the procedures set
forth in section 16-10a-906(4) of the Act based on a conclusion
that the expenses are reasonable, the corporation has the
financial ability to make the payment, and the financial
resources of the corporation should be devoted to this use rather
than some other use by the corporation.
5.1(b) STANDARD OF CONDUCT. The individual shall demonstrate that:
(1) his or her conduct was in good faith; and
(2) he or she reasonably believed that his or her conduct was in, or
not opposed to, the corporation's best interests; and
(3) in the case of any criminal proceeding, he or she had no
reasonable cause to believe his or her conduct was unlawful.
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5.1(c) NO INDEMNIFICATION IN CERTAIN CIRCUMSTANCES. The corporation
shall not indemnify a director or officer under this Section 5.1 of Article 5:
(1) in connection with a proceeding by or in the right of the
corporation in which the director or officer was adjudged liable
to the corporation; or
(2) in connection with any other proceeding charging that the
director or officer derived an improper personal benefit, whether
or not involving action in his or her official capacity, in which
proceeding he or she was adjudged liable on the basis that he or
she derived an improper personal benefit.
5.1(d) INDEMNIFICATION IN DERIVATIVE ACTIONS LIMITED. Indemnification
permitted under this section 5.1 in connection with a proceeding by or in the
right of the corporation is limited to reasonable expenses incurred in
connection with the proceeding.
5.2 ADVANCE OF EXPENSES FOR DIRECTORS AND OFFICER. If a determination
is made, following the procedures of section 16-10a-906(2) of the Act, that the
director or officer has met the following requirements and if an authorization
of payment is made following the procedures and standards set forth in section
16-10a-906(4) of the Act, then the corporation shall pay for or reimburse the
reasonable expenses incurred by a director or officer who is a party to a
proceeding in advance of final disposition of the proceeding, if:
5.2(a) the director or officer furnishes the corporation a written
affirmation of his or her good faith belief that he or she has met the standard
of conduct described in section 5.1;
5.2(b) the director or officer furnishes the corporation a written
undertaking, executed personally or on his or her behalf, to repay the advance
if it is ultimately determined that he or she did not meet the standard of
conduct; and
5.2(c) a determination is made that the facts then known to those
making the determination would not preclude indemnification under section 5.1 of
these bylaws or Part 9 of the Act.
5.3 INDEMNIFICATION OF AGENTS AND EMPLOYEES WHO ARE NOT DIRECTORS OR
OFFICERS. The board of directors may indemnify and advance expenses to any
employee or agent of the corporation who is not a director or officer of the
corporation to any extent consistent with public policy, as determined by the
general or specific actions of the board of directors.
5.4 INSURANCE. By action of the board of directors, notwithstanding any
interest of the directors in such action, the corporation may purchase and
maintain liability insurance on behalf of a person who is or was a director,
officer, employee, fiduciary or agent of the corporation, against any liability
asserted against or incurred by such person in that capacity or arising from
such person's status as a director, officer, employee, fiduciary or agent,
whether or not the corporation would have the power to indemnify such person
under the applicable provisions of the Act."
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ITEM 16. EXHIBITS.
(a) Exhibits
Exhibit No. Title
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3.1 Certificate of Incorporation of the Registrant and
Amendments thereto (1)
3.2 Certificate of Designations, Preferences and Rights of
Series A Convertible Preferred Stock of Gum Tech
International, Inc. dated June 2, 1999 (2)
3.3 Bylaws of the Registrant (1)
4.1 Form of Option granted to Robert S. Davidson, Charles B.
Hensley, Lawrence S. Kaye, and Henry M. Landau on January
27, 1999.(3)
4.2 Form of Option granted to Dale G. Brown, Ira D. Hill,
Eugene P. Kamper, Peter P. Walters, and Robert White on
June 13, 1998.(3)
4.3 Form of Option granted to Dale G. Brown, Ira D. Hill,
Eugene P. Kamper, Peter P. Walters, and Robert White on
June 14, 1999.(3)
5.1 Opinion of Snell & Wilmer L.L.P.*
23.01 Consent of Angell & Deering(3)
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* Filed herewith
(1) Incorporated by reference to the Registrant"s Quarterly Report on Form
10-QSB File Number 000-27646, filed on May 17, 1999.
(2) Incorporated by reference to the Registrant"s Current Report on Form 8-K,
File Number 000-27646, filed June 2, 1999.
(3) Incorporated by reference to the Registration Statement on Form S-3
File Number 333-30194, filed February 11, 2000.
ITEM 17. UNDERTAKINGS.
The Registrant hereby undertakes:
(a) That insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant, 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 of 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.
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(b) That subject to the terms and conditions of Section 13(a) of the
Securities Exchange Act of 1934, it will file with the Securities and Exchange
Commission such supplementary and periodic information, documents and reports as
may be prescribed by any rule or regulation of the Commission heretofore or
hereafter duly adopted pursuant to authority conferred in that section.
(c) That any post-effective amendment filed will comply with the
applicable forms, rules and regulations of the Commission in effect at the time
such post-effective amendment is filed.
(d) 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;
(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;
(e) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements of filing on Form S-3 and has caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Phoenix, Arizona, on March 7, 2000.
GUM TECH INTERNATIONAL, INC.
By /s/ Gary S. Kehoe
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Gary S. Kehoe
President and Director
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
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/s/ W. Brown Russell, III Chairman of the Board of March 7, 2000
- --------------------------- Directors, Director of Legal
W. Brown Russell, III and Investor Relations
/s/ William D. Boone Director March 7, 2000
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William D. Boone
/s/ William J. Hemelt Secretary, Chief Financial March 7, 2000
- --------------------------- Officer (Principal Financial
William J. Hemelt Officer), Principal Accounting
Officer
/s/ William A. Yuan Director March 7, 2000
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EXHIBIT INDEX
Exhibit No. Title
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3.1 Certificate of Incorporation of the Registrant and
Amendments thereto (1)
3.2 Certificate of Designations, Preferences and Rights of
Series A Convertible Preferred Stock of Gum Tech
International, Inc. dated June 2, 1999 (2)
3.3 Bylaws of the Registrant (1)
4.1 Form of Option granted to Robert S. Davidson, Charles B.
Hensley, Lawrence S. Kaye, and Henry M. Landau on January
27, 1999.(3)
4.2 Form of Option granted to Dale G. Brown, Ira D. Hill,
Eugene P. Kamper, Peter P. Walters, and Robert White on
June 13, 1998.(3)
4.3 Form of Option granted to Dale G. Brown, Ira D. Hill,
Eugene P. Kamper, Peter P. Walters, and Robert White on
June 14, 1999.(3)
5.1 Opinion of Snell & Wilmer L.L.P.*
23.01 Consent of Angell & Deering(3)
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* Filed herewith
(1) Incorporated by reference to the Registrant"s Quarterly Report on Form
10-QSB File Number 000-27646, filed on May 17, 1999.
(2) Incorporated by reference to the Registrant"s Current Report on Form 8-K,
File Number 000-27646, filed June 2, 1999.
(3) Incorporated by reference to the Registration Statement on Form S-3
File Number 333-30194, filed February 11, 2000.
[LETTERHEAD OF SNELL & WILMER L.L.P.]
March 7, 2000
GUM TECH INTERNATIONAL, INC.
246 East Watkins Street
Phoenix, Arizona 85004
Re: Issuance of Common Stock
Gentlemen:
We have acted as counsel to Gum Tech International, Inc., a Utah
corporation (the "Company"), in connection with its Registration Statement on
Form S-3 (the "Registration Statement") filed under the Securities Act of 1933,
as amended (the "1933 Act"), relating to the registration of up to 190,000
shares of the Company's common stock, without par value, for resale by Robert S.
Davidson, Charles B. Hensley, Lawrence S. Kaye, and Henry M. Landau which may be
acquired pursuant to the exercise of options dated January 27, 1999, as well as
up to 50,000 shares of the Company's common stock, without par value, for resale
by Dale G. Brown, Ira D. Hill, Eugene P. Kamper, Peter P. Walters, and Robert
White, which may be acquired pursuant to the exercise of options dated June 13,
1998 and June 14, 1999 (collectively, these 240,000 shares of the Company's
Common Stock are referred to hereinafter as the "Shares").
In rendering the opinions set forth herein, we have limited our factual
inquiry to (i) reliance on a certificate of the Secretary of the Company, (ii)
reliance on the facts and representations contained in the Registration
Statement, including without limitation those relating to the number of the
Company's common shares, without par value, which are authorized, issued, or
reserved for issuance upon conversion or exercise of preferred shares, warrants
and options, and (iii) such documents, corporate records and other instruments
as we have deemed necessary or appropriate as a basis for the opinions expressed
below, including without limitation a certificate issued by the Utah Division of
Corporations and Commercial Code dated May 10, 1999, attesting to the corporate
existence of the Company in the State of Utah, and telephonic verification with
such Division of Corporations and Commercial Code with respect to the Company's
continued valid existence as of the date hereof.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such copies. In rendering the
opinion expressed below, we have assumed that the Shares (i) will conform in all
material respects to the description thereof set forth in the Registration
Statement, (ii) were issued and delivered in accordance with the terms of the
Agreement, and (iii) were issued pursuant to an exemption from the registration
requirements of the 1933 Act pursuant to Section 4(2) of the 1933 Act.
<PAGE>
Gum Tech International, Inc.
March 7, 2000
Page 2
Based upon the foregoing, and subject to the qualifications set forth
herein, we are of the opinion that the Shares will be, when sold, legally
issued, fully paid and nonassessable.
The foregoing opinion is limited to the current laws of the State of Utah
(without giving effect to any conflict of law principles thereof), and we have
not considered, and express no opinion on, the laws of any other jurisdiction.
This opinion is based on the laws in effect and facts in existence on the date
of this letter, and we assume no obligation to revise or supplement this letter
should the law or facts, or both, change.
Very truly yours,
SNELL & WILMER L.L.P.
