<PAGE>
As filed with the Securities and Exchange Commission on December ___, 1999
Registration No. 33-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BrainTech, Inc.
------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
Nevada
--------------------------------------------------------------
(State or Other Jurisdiction of Incorporation or Organization)
92-0168932.
------------------------------------
(I.R.S. Employer Identification No.)
930 West First Street, Suite 102
North Vancouver, British Columbia, Canada V7P 3N4
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(Address of Principal Executive Offices)
Stock Option Plan December 17, 1997
-----------------------------------
(Full Title of the Plan)
National Registered Agents, Inc.
1090 Vermont Avenue, Suite 910
Washington, D.C. 20005
---------------------------------------
(Name and Address of Agent For Service)
(202) 371-8090
-------------------------------------------------------------
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
Title of Proposed Proposed Maximum
Securities Amount Maximum Offering Aggregate Offering Amount of
To Be Registered To Be Registered Price Per Share* Price* registration fee
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Share, without
par value, subject to
outstanding options 7,500,000 $0.20 $1,500,000 $417.00
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
</TABLE>
* The proposed maximum offering price per share and the registration fee were
calculated in accordance with Rule 457(h) based upon the option exercise
prices of options granted and outstanding as of the date of filing of the
registration statement.
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference into this
registration statement:
(a) Registration Statement on Form 10-K filed pursuant to Section
12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), dated September 15, 1998.
(b) Annual Report pursuant to Section 13 of the Exchange Act,
dated July 6, 1999.
(c) Quarterly Report pursuant to Section 13 of the Exchange Act
dated July 22, 1999.
(d) Quarterly Report pursuant to Section 13 of the Exchange Act
dated August 12, 1999
(e) Quarterly Report pursuant to Section 13 of the Exchange Act
dated November 12, 1999.
In addition, all documents subsequently filed 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 have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this registration statement and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Under Article VIII of the By-Laws of the Company, any past or
present director, officer, or employee of the Company (or person serving as
such for another corporation, as the request of the Company) or a testator or
intestate thereof, is entitled to be indemnified by the Company in respect of
any expenses (including without limitation attorneys' fees, judgments, fines,
and penalties) reasonably incurred by him in defending any civil, criminal or
administrative action, suit or proceeding to which he is made a party by
reason of his position with the Company (or other corporation at the
Company's request). Indemnification is not available to the extent that it is
adjudged in such action, suit or proceedings that the officer, director or
employee was liable to the Company (or such other corporation) for negligence
or misconduct in the performance of duty.
A judgment or conviction (including a conviction based on a plea of
guilty or nolo contendere or its equivalent) shall not itself be deemed an
adjudication that the director, officer
2
<PAGE>
or employee was liable for negligence or misconduct in the performance of his
duties. A person claiming indemnification may have his entitlement determined
by:
(a) order of the Court or administrative body having jurisdiction in the
action, suit, or proceeding;
(b) a resolution adopted by a majority of the quorum of the Board of
Directors of the Company (not counting any director who has incurred
expenses in connection with the action, suit or proceeding);
(c) a resolution of the majority of the stockholders of the Company (if
there is no quorum of directors available who have not incurred
expenses in connection with the action, suit or proceeding);
(d) a resolution of the majority of the directors of the Company entitled
to vote at any meeting; or
(e) any order of any Court having jurisdiction over the Company.
Any such determination that a payment by way of indemnification
should be made is binding on the Company.
The right of indemnification given under Article VIII of the By-Laws
of the Company is not exclusive of any such other right under any By-Law,
agreement, shareholders' resolution, provision of law, or otherwise. The
provisions of Article VIII apply to any member of any committee appointed by
the Board of the Company.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits.
The Exhibits to this registration statement are listed in the Index to
Exhibits on page 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
3
<PAGE>
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.
(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 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.
(c) Insofar as the 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.
4
<PAGE>
SIGNATURES
In accordance with 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 of 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 Vancouver, British Columbia, on December 6, 1999.
BRAINTECH, INC.
By: "Grant Sutherland"
----------------------------------
W. Grant Sutherland
Chairman of the Board of Directors
POWER OF ATTORNEY
Each person whose individual signature appears below hereby
authorizes W. Grant Sutherland, as attorney-in-fact, with full power of
substitution, to execute in the name and on behalf of such person,
individually and in each capacity stated below, and to file, any and all
amendments to this registration statement, including any and all
post-effective amendments.
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
"Grant Sutherland" Chairman of December 6, 1999
- ------------------------ the Board of Directors,
W. Grant Sutherland Principal Financial Officer
Principal Accounting Officer
"Owen Jones" Chief Executive Officer December 6, 1999
- ------------------------ and Director (Principal
Owen L.J. Jones Executive Officer)
</TABLE>
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------
Exhibit Number Exhibit
- ----------------------------------------------------------------------------
<S> <C>
4.1 December 17, 1997 Stock Option Plan
- ----------------------------------------------------------------------------
5.1 Opinion letter of William M. Ziering, Attorney at Law
- ----------------------------------------------------------------------------
25.1 Consent of KPMG, LLP
- ----------------------------------------------------------------------------
</TABLE>
6
<PAGE>
STOCK OPTION PLAN
BRAINTECH, INC.
DECEMBER 17, 1997
ARTICLE I
PURPOSE OF PLAN
The purpose of this Plan is to strengthen BrainTech, Inc. (hereinafter
referred to as the "Company") by providing an additional means of attracting
and retaining competent directors, officers, employees and consultants and by
providing to such persons added incentive for high levels of performance and
for unusual efforts to increase the sales and earnings of the Company. The
Plan seeks to accomplish these purposes and results by providing a means
whereby such persons may purchase shares of the capital stock of the Company
pursuant to options.
ARTICLE II
ADMINISTRATION OF PLAN
SECTION 2.01. BOARD TO ADMINISTER. This Plan shall be administered by
the Board of Directors of BrainTech, Inc. (hereinafter referred to as the
"Board"). Any action of the Board with respect to administration of the Plan
shall be taken pursuant to a majority vote, or to the written consent of a
majority of its members.
SECTION 2.02. AUTHORITY. Subject to the express provisions of the
Plan, the Board shall have the authority to construe and interpret the Plan
and to define the terms used herein; to prescribe, amend and rescind the
rules and regulations relating to the administration of the Plan; and to make
all other determinations necessary or advisable for the administration of the
Plan. The determination of the Board on the foregoing matters shall be
conclusive. Subject to the express provisions of the Plan, the Board shall
determine from the eligible class the individuals who shall receive options,
and the terms and provisions of the options (which need not be identical).
<PAGE>
- 2 -
ARTICLE III
PARTICIPATION
SECTION 3.01. ELIGIBILITY. Directors, officers and employees of the
Company and consultants to the Company shall be eligible for selection to
participate in the Plan. An individual who has been granted an option may,
if otherwise eligible, be granted an additional option or options if the
Board shall so determine.
SECTION 3.02. TIME OF GRANTING OPTION. The granting of an option
pursuant to this Plan shall take place at the time the Board designates an
eligible director, officer, employee or consultant as a participant in the
Plan; provided, however, that if the appropriate resolutions of the Board
indicate that an option is to be granted as of and at some future date, the
date of grant shall be such future date.
ARTICLE IV
STOCK SUBJECT TO THE PLAN
Subject to the adjustments as provided in Article XII of this Plan, the
stock to be offered under this Plan shall be shares of the Company's
authorized but unissued common stock, including reaquired common stock or
common stock previously issued but cancelled. The aggregate amount of stock
to be delivered upon the exercise of all options granted under this Plan
shall not exceed 7.5 million (7,500,000) shares. If any option granted
hereunder shall expire or terminate for any reason without having been
exercised in full, the unpurchased shares subject thereto shall again be
available for the purposes of this Plan. Subject to the general limitations
contained in this Plan, the Board may make any adjustment in the exercise
price, the number of shares subject to, or the term of an option by amendment
of said option or by cancellation of an outstanding option and subsequent
regranting of an option. An option that is the result of amendment or
substitution may have an exercise price which is higher or lower than the
prior option, provide for a greater or lesser number of shares subject to the
option, or a longer or shorter term than the prior option, and may otherwise
be changed as the Board, in its discretion, sees fit.
<PAGE>
- 3 -
ARTICLE V
OPTION PRICE
The purchase price of stock covered by each option shall be determined
by the Board. The purchase price of any stock purchased shall be paid in
full by bank draft or by certified cheque at the time of each purchase, or
shall be paid in such other manner as the Board may determine in compliance
with applicable laws.
ARTICLE VI
OPTION PERIOD
Each option and all rights or obligations thereunder shall expire on
such date as the Board shall determine, but not later than the fifth (5th)
anniversary of the date on which the option is granted, and shall be subject
to earlier termination as hereinafter provided.
ARTICLE VII
PRIVILEGES OF STOCK OWNERSHIP
The holder of an option pursuant to the Plan shall not be entitled to
the privileges of stock ownership as to any shares of stock not actually
issued and delivered to him.
ARTICLE VIII
EXERCISE OF OPTION
Each option may be exercised in accordance with its terms and the total
number of shares subject thereto may be purchased, in instalments, which need
not be equal. No option or instalment thereof shall be exercisable except in
respect to whole shares, and fractional share interests shall be disregarded.
<PAGE>
- 4 -
ARTICLE IX
COMPLIANCE WITH SECURITIES LAWS
Shares shall not be issued pursuant to the exercise of an option unless
the exercise of such option and the issuance and delivery of such shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, the SECURITIES ACT of 1933, as amended, the EXCHANGE ACT,
the rules and regulations promulgated thereunder, and the requirements of any
Stock Exchange.
As a condition to the exercise of an option, the optionor may require
the optionee to represent and warrant at the time of any such exercise that
the shares purchased are being purchased only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the optionor, such a representation is required by law.
Further, the optionor shall have no liability whatsoever (including, but
not restricted to, alternate compensation) to the optionee if a change in the
exercise price or a change in the terms and provisions of an option and/or
this Stock Option Plan hereof is required pursuant to any applicable laws.
The optionor and optionee shall comply with all relevant provisions of
law relating to this Stock Option Plan and any option granted hereunder.
ARTICLE X
DEATH AND TERMINATION
SECTION 10.01. AGREEMENT TO REMAIN IN EMPLOY OF COMPANY. Each person
to whom an option is granted is not required to remain in the employ of the
Company following the date of the grant of the option. Nothing contained in
this Plan, or in any option granted pursuant to this Plan, shall confer upon
any employee any right to continue in the employ of the Company or constitute
any contract or agreement of employment or interfere in any way with the
right of the Company to reduce such person's compensation from the rate in
existence at the time of the granting of an
<PAGE>
- 5 -
option or to terminate such person's employment, but nothing contained herein
or in any option agreement shall affect any contractual rights of an employee.
SECTION 10.02. DEATH OF AN EMPLOYEE. If any option holder dies while
employed by the Company, such holder's option shall, subject to earlier
termination pursuant to Article VI, expire two years (2) years after the date
of such death, and during such period after such death such option may, to
the extent that the optionee may have exercised the option if alive during
such period, be exercised by the person or persons to whom the options
holder's rights under the option shall pass by will or by the applicable laws
of descent and distribution.
SECTION 10.03. TERMINATION OF EMPLOYMENT. If an optionee ceases to be
employed by the Company because of discharge for cause, such optionee's
option shall expire concurrently with such cessation of employment. THIS
SECTION 10.03 SHALL NOT APPLY IN RESPECT OF AN OPTION, OR THAT PORTION OF AN
OPTION, THAT HAS FULLY VESTED IN AN OPTIONEE.
SECTION 10.04. RESIGNATION. If an optionee resigns or ceases to be
employed by the Company for any reason other than death or discharge for
cause, such holder's option shall, subject to earlier termination pursuant to
Article VI, expire thirty (30) days thereafter (or such period of time
greater than 30 days as the Board may determine), and during such period
after such holder ceases to be an employee, such option shall be exercisable
only to the extent the optionee could have exercised the option at the date
the optionee ceased to be employed by the Company.
ARTICLE XI
NONTRANSFERABILITY OF OPTIONS
An option granted under this Plan shall, by its terms, be
nontransferable by the option holder other than by will or by the laws of
descent and distribution and shall be exercisable during his lifetime only by
the option holder.
<PAGE>
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ARTICLE XII
ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
SECTION 12.01. CORPORATE REORGANIZATIONS. If the outstanding shares of
the stock of the Company are increased, decreased or changed into, or
exchanged for, a different number or kind of shares or securities of the
Company through reorganization, recapitalization, reclassification, stock
split, stock dividend, stock consolidation, or merger as a result of which
the Company is the surviving corporation, or otherwise, an appropriate and
proportionate adjustment shall be made in the number and kind of shares as to
which options may be granted. A corresponding adjustment changing the number
of shares and the exercise price per share allocated to unexercised options
or portions thereof, which shall have been granted prior to any such change,
shall likewise be made. Any such adjustment, however, in an outstanding
option shall be made without change in the total price applicable to the
unexercised portion of the option but with a corresponding adjustment in the
price for each share covered by the option.
SECTION 12.02. DISSOLUTION, LIQUIDATION. Upon the dissolution or
liquidation of the Company, or upon 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 upon the sale of substantially all of
the property of the Company to another corporation, this Plan shall
terminate, and any option theretofore granted hereunder shall terminate,
unless provision be made in connection with such transaction for the
assumption of options theretofore granted, or the substitution for such
options of new options covering the stock of a successor employer
corporation, or a parent or subsidiary thereof, with appropriate adjustments
as to the number and kind of shares and prices.
SECTION 12.03. ADJUSTMENTS MADE BY BOARD. Adjustments pursuant to this
Article XII shall be made by the Board, whose determination as to what
adjustments shall be made, and the extent thereof, shall be final, binding,
and conclusive. No fractional shares of stock shall be issued under the Plan
on account of any such adjustment.
<PAGE>
- 7 -
ARTICLE XIII
INCOME TAX LAWS
The Company and all optionees shall comply with all applicable income
tax laws and other tax laws (eg. any withholding tax or similar obligations).
ARTICLE XIV
AMENDMENT AND TERMINATION
The Board may at any time suspend, amend or terminate this Plan as the
Board, in its own discretion, sees fit. No option may be granted during any
suspension of the Plan or after such termination. The amendment, suspension
or termination of the Plan shall not, without the consent of the option
holder, alter or impair any rights or obligations under any option
theretofore granted under the Plan.
ARTICLE XV
TERMINATION
Unless sooner terminated by the Board of Directors, this Plan shall
terminate at the close of business on December 16, 2007.
This Stock Option Plan is hereby approved and confirmed by the Board of
BrainTech, Inc.:
"Owen Jones"
--------------------------
Owen Jones, Director
"John McDonald"
--------------------------
John McDonald, Director
"Grant Sutherland"
--------------------------
Grant Sutherland, Director
<PAGE>
Exhibit 5.1
William M. Ziering
Attorney At Law
Four Embarcadero Center
Suite 3400
San Francisco, CA 94111-4187
Tel: (415) 956-0161
Fax: (415) 398-3249
November 16, 1999
VIA FAX
BrainTech, Inc.
930 West 1st Street
Suite 102
North Vancouver, BC
V7P 3N4
ATTN: Grant Sutherland, Chairman
RE: REGISTRATION STATEMENT ON FORM S-8
Dear Sirs:
I have acted as special counsel to BrainTech, Inc., a Nevada corporation (the
"Company"), in connection with legal issues relating to the issue of shares
on the exercise of incentive stock options granted pursuant to the Stock
Option Plan of the Company dated December 17, 1997 (the "Plan"). I understand
that the Company intends to file a Registration Statement pursuant to the
Securities Act of 1933 in respect of stock to be issued pursuant to the Plan.
I have examined the Plan, a draft of the Registration Statement, and such
other documents and records of the Company as we have deemed necessary for
the purpose of this opinion. In doing so, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as
originals, and the conformity of all documents submitted to us as copies to
the originals.
I understand that pursuant to the Plan, the Company has entered into stock
option agreements with over 20 directors, officers, employees, and
consultants (the "Optionees").
Based on and subject to the foregoing, we are of the opinion that upon
issuance of shares ("Shares") pursuant to the Plan, and upon receipt by the
Company of the consideration required for the Shares under the stock option
agreements between the Company and the Optionees, the
<PAGE>
- 2 -
Shares will constitute duly authorized, validly issued, fully paid, and
non-assessable common shares in the capital of the Company.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, I do not thereby admit that I
am in the category of persons whose consent is required under section 7 of
the Securities Act of 1933.
This opinion is based upon currently existing statutes, rules, regulations
and judicial decisions and we disclaim any obligation to advise you of any
change in these sources of law or subsequent legal or factual development
which might affect any matters or opinions set forth in this letter.
I am opining only as to the matters expressly stated in this letter, and no
opinion should be inferred as to any other matters.
Very truly yours.
"William M. Ziering"
William M. Ziering
<PAGE>
Exhibit 25.1
KPMG LLP
Chartered Accountants
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
The Board of Directors
Braintech, Inc.
We consent to the use of our report dated April 15, 1999, except as to note 12
which is as of June 30, 1999, with respect to the consolidated balance sheets of
Braintech, Inc. as of December 31, 1998 and 1997 and the related consolidated
statements of operations, stockholders' deficit and cash flows for each of the
years in the three year period ended December 31, 1998 and for the period from
inception on January 3, 1994 to December 31, 1998 incorporated by reference in
the registration statement on Form S-8 of Braintech, Inc. Our report includes
additional comments for U.S. readers on Canada-U.S. reporting differences with
respect to conditions that cause substantial doubt as to Braintech, Inc.'s
ability to continue as a going concern. The consolidated financial statements do
not include any adjustments that might result from the outcome of that
uncertainty.
KPMG LLP
Chartered Accountants
Vancouver, Canada
December 3, 1999
