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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
SportsNuts.com International, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 87-0561426
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
10421 South 400 West, Suite 550, Salt Lake City Utah 84095
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(Address of Principal Executive Offices) (Zip Code)
Consulting Agreement with Sharon Clayton
Consulting Agreement with Todd Shell
Consulting Agreement with Eslie Barlow
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(Full Title of the Plan)
Kenneth I. Denos, 10421 South 400 West, Suite 550, Salt Lake City, Utah 84095
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(Name and Address of Agent For Service)
(801) 816-2500
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock 270,000 shares $0.781 $210,870 $55.67
==========================================================================================================
</TABLE>
(1) The maximum offering price per share of the securities is calculated based
on Rule 457(c). The maximum offering price is $0.781 based upon the average of
the bid and asked price on September 6, 2000.
(2) The maximum aggregate offering price equals 270,000 shares multiplied by the
offering price of $0.781, equaling $210,870.
(3) The amount of the Registration Fee equals $55.67. This amount is arrived at
pursuant to the fee schedules set forth in Section 6 of the Securities Act of
1933.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information specified in
this Part I will be sent or given to employees as specified by Rule 428(b)(1).
Such documents need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in the
registration statement in Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
ITEM 1. PLAN INFORMATION.
(a) GENERAL PLAN INFORMATION
The Registrant (sometimes referred to hereinafter as the
"Company") and Sharon Clayton entered into a consulting agreement (the "Clayton
Consulting Agreement"), effective April 15, 1999, the nature and purpose of
which were to compensate Ms. Clayton for corporate consulting services,
including production of the Company's Business Plan, strategic marketing
consulting, and business development services. The Registrant filed a copy of
the Clayton Consulting Agreement on March 30, 2000 with the Commission as an
Exhibit to the Registrant's annual report on Form 10-KSB. On September 1, 2000,
the Registrant and Ms. Clayton entered into an agreement terminating the Clayton
Consulting Agreement and providing for the issuance of 20,000 shares of Common
Stock in complete settlement for all unpaid consulting services rendered by Ms.
Clayton on behalf of the Registrant.
The Registrant and Todd Shell entered into a consulting agreement
(the "Shell Consulting Agreement"), effective July 5, 2000, the nature and
purpose of which were to compensate Mr. Shell for business development services,
particularly introduction to key strategic partners in the sports industry and
current and former professional athletes and sports personalities. The Shell
Consulting Agreement provides for issuance of 50,000 shares of Common Stock.
The Registrant and Eslie Barlow entered into a consulting
agreement (the "Barlow Consulting Agreement"), effective July 15, 2000, the
nature and purpose of which were to compensate Mr. Barlow for corporate
consulting services including and actively pursuing potential joint venture
partners and opportunities to market and sell the services offered by the
Company. The Barlow Consulting Agreement provides for issuance of 200,000 shares
of Common Stock.
The Clayton Consulting Agreement, Shell Consulting Agreement, and
the Barlow Consulting Agreement are sometimes collectively referred to
hereinafter as the "Plans," and the participants in the Plans are sometimes
referred to hereinafter as the "Participants."
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The Plans are not subject to any of the provisions of the
Employee Retirement Income Security Act of 1974.
The name, address, and telephone number of the Registrant are as
set forth on the facing page of this Registration Statement. Additional
information about the Plans may be obtained from the Registrant by any
Participant.
(b) SECURITIES TO BE OFFERED
(1) The Registrant intends to issue shares of its
Common Stock, par value $0.002 per share, the
amounts of which are set forth above in
subsection (a) of this Item 1.
(2) Description of Securities.
(i) Description of Common Stock. Each share
of Common Stock is entitled to one vote. The
holders of Common Stock are entitled to
receive dividends on a pro rata basis if and
when declared by the Company's Board of
Directors. The Company has never paid a
dividend and does not anticipate doing so in
the near future. Each share of Common Stock
is entitled to share ratably in any assets
available for distribution to holders of
equity securities upon the liquidation of the
Company.
(ii) Certain Charter and Bylaw Provisions.
Certain provisions of the Company's
Certificate of Incorporation ("Certificate")
and the Bylaws adopted therefrom may have the
effect of preventing, discouraging, or
delaying a change in the control of the
Company and may maintain the incumbency of
the Board of Directors and management. The
Certificate and Bylaws provide that the Board
of Directors shall have authority to fix the
number of directors and to fill vacancies of
the Board of Directors as such vacancies
occur. The Certificate and Bylaws also
provide for the Board of Directors to be
classified into three classes of directors
serving staggered three-year terms. As a
result, one-third of the Board of Directors
may be elected each year. Moreover, the
Certificate provides that these provisions of
the Certificate relating to number,
vacancies, and classification of the Board of
Directors may only be amended by a vote of at
least 66 2/3% of the shareholders. Finally,
the Bylaws provide that special meetings of
the stockholders may only be called by the
President of the Company or pursuant to a
resolution adopted by a majority of the Board
of Directors.
(c) EMPLOYEES WHO MAY PARTICIPATE IN THE PLANS
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Sharon Clayton, Todd Shell, and Eslie Barlow, consultants to the
Registrant, are the only eligible Participants in the Plans.
(d) PURCHASE OF SECURITIES PURSUANT TO THE PLANS AND
PAYMENT FOR SECURITIES OFFERED
(1) The Participants in the Plans will be issued
shares of Common Stock for services rendered
as consultants of the Registrant. The number
of shares issued to each Participant is set
forth above in subsection (a) of this Item 1.
(2) The Participants in the Plans have provided
or will continue to provide consulting
services to the Registrant in payment for the
shares issued to such Participants.
(3) No contributions are required by any
Participant under the Plans.
(4) No contributions by the Registrant other than
the issuance of shares is applicable.
(5) Reports to the Participants as to the amount
and status of any Participant's account under
the Plans will not be made.
(6) The shares issuable pursuant to the Plans
will be newly issued shares of the
Registrant.
(e) RESALE RESTRICTIONS
There are no resale restrictions on the securities offered.
(f) TAX EFFECTS ON PLAN PARTICIPATION
The Plans are not qualified under Section 401(a) of the Internal
Revenue Code and each Participant will recognize ordinary income equal to the
aggregate fair market value of the shares issued to such Participant as of the
date of issuance.
(g) INVESTMENT OF FUNDS
Not applicable.
(h) WITHDRAWAL FROM PLANS; ASSIGNMENT OF CONTRACT
(1) Withdrawal from Plans- Not applicable.
(2) Assignment: Each of the Plans is not
assignable or delegable without the consent
of an authorized representative of the
Registrant.
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(i) FORFEITURES AND PENALTIES
Each of the Plans contains confidentiality and non-competition
provisions that, if contravened by a Plan Participant, would constitute a breach
of contract, the result of which could be money damages and other equitable
relief received from such Participant by the Registrant.
(j) CHARGES AND DEDUCTIONS, AND LIENS THEREFOR
There are no charges or deductions that may be made against any
Participant's interest in the Plans.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Registrant shall provide to the Participant, without charge, upon
oral or written request, the documents incorporated by reference in Item 3 of
Part II of this Registration Statement. The Registrant shall also provide to the
Participant, without charge, upon oral or written request, all of the documents
required to be delivered to the Participant pursuant to Rule 428(b). Any and all
such requests shall be directed to the Registrant at the address set forth on
the cover page hereof. Its telephone number is (801) 816-2500.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in
the Registration Statement:
(a) the Registrant's Annual Report on Form 10-KSB for the
year ended December 31, 1999, as filed with the SEC;
and
(b) all other reports filed with the SEC pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") since December 31, 1999;
and
In addition to the above, 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 have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by
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reference in the Registration Statement and to be a part thereof from the date
of filing of such documents.
Any statement contained herein or in a document incorporated or
deemed incorporated by reference herein 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 or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any 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
Kenneth I. Denos serves as President and General Counsel to the
Registrant and currently holds 9,185 shares of Common Stock of SportsNuts.com,
Inc., a controlled subsidiary of the Registrant, and the following Common Stock
purchase options:
<TABLE>
<CAPTION>
Number of Options (Vested/Unvested) Exercise Price
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<S> <C> <C>
200,000/450,000 $0.41
0/10,000 $42.60
</TABLE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
DELAWARE GENERAL CORPORATE LAW
Section 102(b)(7) of the Delaware General Corporation Law
("DGCL") allows a corporation to eliminate or limit the personal liability of a
director to the corporation or its shareholders for monetary damages for breach
of fiduciary duty except for:(i) any breach of the duty of loyalty to the
corporation or its stockholders; (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii)
declaration of unlawful dividends or unlawful stock repurchases or redemptions;
(iv) any transaction from which the director derived an improper benefit; or (v)
any act or omission occurring prior to the date any such provision eliminating
or limiting such liability became effective.
Section 145(a) of the DGCL provides that a corporation may
indemnify an officer or director who is or is threatened to be made a party to a
proceeding (other than an action by or in the right of the corporation) by
reason of the fact that such officer or director is or was (i) serving as an
officer, director, employee, or agent of the corporation, or (ii) served at the
request of such corporation as an officer, director, employee, or agent of
another corporation or other enterprise or entity. Such indemnification may only
be made if the officer's or director's conduct was in good faith and in a manner
such person reasonably believed to be in or not opposed to the corporation's
best interests, and, with respect to any criminal action or
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proceeding, had no reasonable cause to believe that his conduct was unlawful.
Section 145(c) of the DGCL provides that a corporation shall indemnify an
officer or director for his reasonable expenses in connection with the defense
of any proceeding if the officer or director has been successful, on the merits
or otherwise. Section 145(e) provides that a corporation may advance expenses to
an officer or director who is made a party to a criminal or civil proceeding
before a final disposition is made, if the corporation receives an undertaking
by or on behalf of such officer or director to repay any amounts advanced if it
is determined that such officer or director was not entitled to indemnification.
Section 145(j) provides that the indemnification provisions of Section 145
continue for a person who has ceased to be an officer or director, and inures to
the benefit of the heirs, executors, and administrators of such person. Section
145(g) provides that a corporation may purchase and maintain insurance on behalf
of officers or directors, among others, against liabilities imposed upon them by
reason of actions in their capacities as such, and whether or not the
corporation would have the power to indemnify them against such liability under
Section 145.
CERTIFICATE OF INCORPORATION
Article VII of the Certificate of Incorporation provides that the
liability of directors to the Company or its stockholders is eliminated to the
fullest extent permitted under the DGCL, as described in the preceding section.
BYLAWS
Article VI, Section 6.1(a) of the Bylaws provides that an officer
or director who was or is made party to, or is threatened to be made a party to,
or is involved in any proceeding by reason of the fact that he or she is or was
an officer or director, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation, or as its
representative in another enterprise shall be indemnified and held harmless to
the fullest extent permitted and subject to the standards of conduct,
procedures, and other requirements under Delaware law. Article, VI, Section
6.1(a) further provides that the Company may purchase and maintain insurance on
behalf of an officer or director against any liability arising out of their
status as such, whether or not the corporation would have the power to indemnify
such officer or director.
Article VI, Section 6.1(b) of the Bylaws provides that the right
of an officer or director to indemnification shall continue beyond termination
as such an inures to the benefit of the heirs and personal representatives of
such officer or director.
Article VI, Section 6.1(d) of the Bylaws provides that the
Company shall, from time to time, reimburse or advance to an officer or director
the funds necessary for payment of expenses incurred in connection with
defending any proceeding for which he or she is indemnified by the corporation,
in advance of the final disposition of such proceeding, provided that, if then
required by the DGCL, such advancements may only be paid upon the receipt by the
corporation of an undertaking by or on behalf of such officer or director to
repay any such amount so advanced if it is ultimately determined by a final and
unappealable
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judicial decision that the officer or director is not entitled to be indemnified
for such expenses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS.
The following documents are filed as exhibits to this Form S-8.
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
5.1 Opinion of Kenneth I. Denos regarding the
legality of the securities being registered
hereunder.
24.1 Consent of Kenneth I. Denos (contained in
Exhibit 5.1 above).
24.2 Consent of Independent Auditors, HJ &
Associates, L.L.C.
99.1 Amendment to Termination Agreement between
the Registrant, SportsNuts.com, Inc., Sharon
Clayton, and Moore, Clayton & Co.
99.2 Consulting Agreement between the Registrant
and Todd Shell.
99.3 Consulting Agreement between the Registrant
and Eslie Barlow.
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes to do the following:
(1) To file, during any period in which offers or
sales are being made, a post-effective
amendment to this Registration Statement 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; and
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(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 that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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, as amended, may be permitted to directors, officers, and
controlling persons of the registrant pursuant to any 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 a 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Salt Lake City, State of Utah, on September 7, 2000.
This Form S-8 has been signed below on behalf of the Company and by the
following persons, which include the principal executive officer, principal
financial officer, its controller or principal accounting officer, and at least
a majority of the board of directors, in the following capacities and on the
dates indicated:
SPORTSNUTS.COM INTERNATIONAL, INC.
By: /s/ KENNETH I. DENOS
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Kenneth I. Denos
Chief Executive Officer
(principal executive officer and
principal financial and accounting
officer)
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Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities indicated on the 7th of September, 2000.
Signature Title
/s/ Kenneth I. Denos Chief Executive Officer, Chairman,
-------------------------------- and sole Director
Kenneth I. Denos
Index and Description of Exhibits.
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
5.1 Opinion of Kenneth I. Denos regarding the
legality of the securities being registered
hereunder.
24.1 Consent of Kenneth I. Denos (contained in Exhibit
5.1 above).
24.2 Consent of Independent Auditors, HJ & Associates,
L.L.C.
99.1 Amendment to Termination Agreement between the
Registrant, SportsNuts.com, Inc., Sharon Clayton,
and Moore, Clayton & Co.
99.2 Consulting Agreement between the Registrant and
Todd Shell.
99.3 Consulting Agreement between the Registrant and
Eslie Barlow.
</TABLE>
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