<PAGE>
As Filed with the Securities and Exchange Commission on August 11, 1999
Registration No. 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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JENKON INTERNATIONAL, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 91-1890338
-------------------------------- ----------------------
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
7600 N.E. 41st Street, Suite 350
Vancouver, Washington 98662
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES; ZIP CODE)
JENKON INTERNATIONAL, INC.
STOCK OPTION PLAN
--------------------------
(FULL TITLE OF THE PLAN)
David Edwards, President
Jenkon International, Inc.
7600 N.E. 41st Street, Suite 350
Vancouver, Washington 98662
(310) 256-4400
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(NAME AND ADDRESS OF AGENT FOR SERVICE)
(TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of securities Amount Proposed Proposed Amount of
to be to be Maximum Offering Maximum Registration
Registered Registered Price per share Aggregate Offering Price Fee (1)
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<S> <C> <C> <C> <C>
Common Stock, $0.001 1,000,000 $2.00(1) $2,000,000 $556.00
par value shares
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- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933 on the basis of
the last sale price of the Registrant's Common Stock ($2.00) on August 9,
1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I will
be sent or given to participants in the Jenkon International, Inc. Stock
Option Plan (the "Option Plan") as specified by Rule 428(b)(1). Pursuant to
the instructions for Form S-8, such documents need not be filed with the
Commission either as part of the registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424. These documents and the
documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended. See Rule 428(a)(1).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant hereby incorporates by reference in this registration
statement (the "Registration Statement") the following documents filed with
the Securities and Exchange Commission (the "Commission") by the Registrant:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1998;
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1998, December 31, 1998 and March 31, 1999; and
(c) The description of the Registrant's Common Stock Contained in
Registrant's Form 8-A filed with the Commission on July 17, 1998 (File
No. 000-24637).
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment to this Registration
Statement 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 herein by the Registrant and to be a part hereof
from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein by the
Registrant shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in
any other subsequently filed document which also is incorporated or deemed to
be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Registration
Statement.
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 Company's Certificate of Incorporation (the "Certificate") and
Bylaws include provisions that eliminate the directors' personal liability
for monetary damages to the fullest extent possible under Delaware Law or
other applicable law (the "Director Liability Provision"). The Director
Liability Provision eliminates the liability of directors to the Company and
its stockholders for monetary damages arising out of any violation by a
director of his fiduciary duty of due care. Under Delaware Law, however, the
Director Liability Provision does not eliminate the personal liability of a
director for (i) breach of the director's duty of loyalty, (ii) acts or
omissions not in good faith or involving intentional misconduct or knowing
violation of law, (iii) payment of dividends or repurchases or redemptions of
stock other than from lawfully available funds, or any transaction from which
the director derived an improper benefit. Furthermore, pursuant to Delaware
Law, the limitation on liability afforded by the Director Liability Provision
does not eliminate a director's personal liability for breach of the
director's duty of due care. Although the directors would not be liable for
monetary damages to the corporation or its stockholders for negligent acts or
omissions in exercising their duty of due care, the directors remain subject
to equitable remedies, such as actions for injunction or rescission, although
these remedies, whether as a result of timeliness or otherwise, may not be
effective in all situations. With regard to directors who also are officers
of the Company, these persons would be insulated from liability only with
respect
II-1
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to their conduct as directors and would not be insulated from liability for
acts or omissions in their capacity as officers.
Delaware Law provides a detailed statutory framework covering
indemnification of directors, officers, employees or agents of the Company
against liabilities and expenses arising out of legal proceedings brought
against them by reason of their status or service as directors, officers,
employees or agents. Section 145 of the Delaware General Corporation Law
("Section 145") provides that a director, officer, employee or agent of a
corporation (i) shall be indemnified by the corporation for expenses actually
and reasonably incurred in defense of any action or proceeding if such person
is sued by reason of his service to the corporation, to the extent that such
person has been successful in defense of such action or proceeding, or in
defense of any claim, issue or matter raised in such litigation, (ii) may, in
actions other than actions by or in the right of the corporation (such as
derivative actions), be indemnified for expenses actually and reasonably
incurred, judgments, fines and amounts paid in settlement of such litigation,
even if he is not successful on the merits, if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests
of the corporation (and in a criminal proceeding, if he did not have
reasonable cause to believe his conduct was unlawful), and (iii) may be
indemnified by the corporation for expenses actually and reasonably incurred
(but not judgments or settlements) of any action by the corporation or of a
derivative action (such as a suit by a stockholder alleging a breach by the
director or officer of a duty owed to the corporation), even if he is not
successful, provided that he acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation,
provided that no indemnification is permitted without court approval if the
director has been adjudged liable to the corporation.
Delaware Law also permits a corporation to elect to indemnify its
officers, directors, employees and agents under a broader range of
circumstances than that provided under Section 145. The Certificate contains
a provision that takes full advantage of the permissive Delaware
indemnification laws (the "Indemnification Provision") and provides that the
Company is required to indemnify its officers, directors, employees and
agents to the fullest extent permitted by law, including those circumstances
in which indemnification would otherwise be discretionary, provided, however,
that prior to making such discretionary indemnification, the Company must
determine that the person acted in good faith and in a manner he or she
believed to be in the best interests of the Company and, in the case of any
criminal action or proceeding, the person had no reason to believe his or her
conduct was unlawful.
In furtherance of the objectives of the Indemnification Provision,
the Company has also entered into agreements to indemnify its directors and
executive officers, in addition to the indemnification provided for in the
Company's Certificate and Bylaws (the "Indemnification Agreements"). The
Company believes that the Indemnification Agreements are necessary to attract
and retain qualified directors and executive officers. Pursuant to the
Indemnification Agreements, an indemnitee will be entitled to indemnification
to the extent permitted by Section 145 or other applicable law. In addition,
to the maximum extent permitted by applicable law, an indemnitee will be
entitled to indemnification for any amount or expense which the indemnitee
actually and reasonably incurs as a result of or in connection with
prosecuting, defending, preparing to prosecute or defend, investigating,
preparing to be a witness, or otherwise participating in any threatened,
pending or completed claim, suit, arbitration, inquiry or other proceeding (a
"Proceeding") in which the indemnitee is threatened to be made or is made a
party or participant as a result of his or her position with the Company,
provided that the indemnitee 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
Company and had no reasonable cause to believe his or her conduct was
unlawful. If the Proceeding is brought by or in the right of the Company and
applicable law so provides, the Indemnification Agreements provide that no
indemnification against expenses shall be made in respect of any claim, issue
or matter in the Proceeding as to which the indemnitee shall have been
adjudged liable to the Company.
The inclusion of provisions limiting liability of the Company's
officers and directors may have the effect of reducing the likelihood of
derivative litigation against the officers and directors and may discourage
or deter stockholders or management from bringing a lawsuit against the
officers and directors for breach of their duty of care, even though such an
action, if successful, might otherwise have benefitted the Company and its
stockholders.
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Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Company has been
informed that, in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
The Company maintains a directors' and officers' liability policy
insuring directors and officers of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. CONSULTANTS AND ADVISORS
Not applicable
ITEM 9. EXHIBITS
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 10. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a)(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; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do 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
Securities and Exchange Commission by the Registrant pursuant to Section 13
or Section 13(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 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 15(d) of the
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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 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-4
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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 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 Vancouver, State of Washington, on
the 9th day of August, 1999.
Jenkon International, Inc.
By /s/ David Edwards
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David Edwards, President, interim Chief
Financial Officer and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
David Edwards his or her true and lawful attorney-in-fact and agent, 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 and all
amendments (including post-effective amendments) to this Registration
Statement, any Amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, each
acting alone, full powers and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all said attorney-in-fact and agent, acting alone,
or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ David Edwards Director, President, August 9, 1999
- -------------------------------------------- Chief Executive Officer
David Edwards and interim Chief
Financial Officer
(Principal Financial
Officer)
/s/ Dan Jensen Director August 9, 1999
- --------------------------------------------
Dan Jensen
/s/ Robert Cavitt Executive Vice August 9, 1999
- --------------------------------------------- President and Director
Robert Cavitt
/s/ Cliff DeGroot Controller August 9, 1999
- ---------------------------------------------
Cliff DeGroot
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
5 Opinion of counsel as to legality of securities being registered
23 (a) Consent of BDO Seidman, LLP
(b) Consent of Jeffer, Mangels, Butler & Marmaro LLP (included in Exhibit 5)
</TABLE>
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<PAGE>
[JEFFER, MANGELS, BUTLER & MARMAO LLP LETTERHEAD]
August 10, 1999
Jenkon International, Inc.
7600 N.E. 41s Street, Suite 350
Vancouver, Washington 98662
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
At your request, we have examined the Registration Statement
on Form S-8 (the "Registration Statement") which Jenkon International, Inc.,
a Delaware corporation (the "Company"), proposes to file with the Securities
and Exchange Commission.
The Registration Statement covers 1,000,000 shares of Common
Stock (the "Shares") which may be issued under the Company's Stock Option
Plan (the "Plan").
In connection with rendering this opinion, we have examined
originals, or copies identified to our satisfaction as being true copies of
originals, of such corporate records of the Company and other documents which
we considered necessary for the purposes of this opinion. We have obtained
from public officials certificates as to legal matters and from officers of
the Company a representation letter as to factual matters (the
"Representation Letter").
In our review and examination of documents we have assumed
(i) the genuineness of all signatures; (ii) the authenticity of all documents
submitted to us as originals and the conformity to authentic original
documents of all documents submitted to us as certified, conformed or
photostatic copies thereof; (iii) all signatories have adequate power and
authority and have taken all necessary actions to execute and deliver such
documents and hold all necessary licenses and permits to entitle them to
enforce such agreements; and (iv) each person signing a document is a
competent adult person not operating under any legal disability, duress or
having been defrauded in the execution of documents.
Based upon and subject to the foregoing, it is our opinion
that the Shares to be issued under the Plan have been duly authorized, and,
when so issued upon (i) payment
<PAGE>
Jenkon International, Inc.
August 10, 1999
Page 2
therefor provided pursuant to the Plan; (ii) the effectiveness of the
Registration Statement; and (iii) compliance with applicable blue sky laws,
will constitute legally issued, fully paid and nonassessable shares of the
Common Stock of the Company.
We express no opinion as to compliance with the securities
or "blue sky" laws of any state in which the Shares are proposed to be
offered and sold or as to the effect, if any, which non-compliance with such
laws might have on the validity of issuance of the Shares.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement; to the filing of this opinion in
connection with such filings of applications by the Company as may be
necessary to register, qualify or establish eligibility for an exemption from
registration or qualification of the Securities under the blue sky laws of
any state or other jurisdiction. In giving this consent, we do not admit
that we are in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended or the rules and
regulations of the Commission promulgated thereunder.
Nothing herein shall be deemed to relate to or constitute an
opinion concerning any matters not specifically set forth above.
The opinions set forth herein are based upon the federal
laws of the United States of America, the laws of the State of California,
and the General Corporation Law of the State of Delaware, all as now in
effect. We express no opinion as to whether the laws of any particular
jurisdiction apply, and no opinion to the extent that the laws of any
jurisdiction other than those identified above are applicable to the subject
matter hereof. The opinions set forth herein are as of the date of this
letter. We disclaim any undertaking to advise you of changes which may be
brought to our attention after the effective date of the Registration
Statement.
Very truly yours,
/s/ JEFFER, MANGELS, BUTLER & MARMARO LLP
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Jenkon International, Inc. and Subsidiaries
Vancouver, Washington
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-8 of our report
dated September 18, 1998, relating to the financial statements of Jenkon
International, Inc. and Subsidiaries appearing in the Company's Annual Report
on Form 10-KSB for the year ended June 30, 1998.
/s/ BDO SEIDMAN, LLP
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BDO SEIDMAN, LLP
Los Angeles, California
August 10, 1999
