<PAGE>
As filed with the Securities and Exchange Commission on May 11, 2000
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
Registration Statement
Under The Securities Act Of 1933
_______________
ENVIRO-CLEAN OF AMERICA, INC.
(Exact name of registrant as specified in its charter)
Nevada 88-0386415
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
211 Park Avenue
Hicksville, New York 11801
(Address, including zip code, of principal executive offices)
_______________
2000 Stock Incentive Plan
(Full title of the Plan)
_______________
Richard Kandel
211 Park Avenue
Hicksville, New York 11801
(516) 931-4455
(Name, address and telephone number, including area code, of agent for service)
_______________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 1,500,000 shares (1) $6.25 (2) $9,375,000 (2) $2,475.00
- --------------------------------------------------------------------------------------------------------------------------------
Total 1,500,000 shares $2,475.00
================================================================================================================================
</TABLE>
(1) Issuable upon exercise of stock incentives available to be granted under
the 2000 Stock Incentive Plan.
(2) Pursuant to Rule 457(c), the offering price and registration fee are
computed on the basis of the average of the high and low prices of the
Common Stock, as reported by The National Association of Securities Dealers
on May 5, 2000.
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this
Registration Statement:
1. The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999, as amended on Form 10-KSB/A;
2. The Company's Current Report on Form 8-K filed March 20, 2000; and
3. The description of the Company's Common Stock contained in the Form
for Registration of Securities on Form 10-SB of the Company, filed
June 16, 1999, including any amendment and report filed for the
purpose of updating such description.
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
that indicates that all Common Stock to which this Registration Statement
relates has been sold or that deregisters all Common Stock to which this
Registration Statement relates then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such reports and 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.
Subsection 1 of Section 78.037 of the Nevada Revised Statutes (the
"Nevada Law") empowers a corporation to eliminate or limit the personal
liability of a director or officer to the corporation or its stockholders for
damages for breach of fiduciary duty as a director or officer, but such a
provision must not eliminate or limit the liability of a director or officer for
(a) acts or omissions which involve intentional misconduct, fraud or a knowing
violation of law or (b) the payment of distributions in violation of Section
78.300 of the Nevada Law.
The Articles of Incorporation of Registrant limit the personal
liability of its directors and officers for damages for breach of fiduciary
duty in a manner identical in scope to that permitted under the Nevada Law.
Subsection 1 of Section 78.7502 of the Nevada Law empowers a
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint
1
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venture, trust or other enterprise (an "Indemnified Party"), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnified Party in connection with
such action, suit or proceeding if the Indemnified Party acted in good faith and
in a manner the Indemnified Party reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceedings, had no reasonable cause to believe the Indemnified Party's
conduct was unlawful.
Subsection 2 of Section 78.7502 of the Nevada Law empowers a corporation to
indemnify any Indemnified Party who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that such person acted in the capacity of an Indemnified Party against
expenses, including amounts paid in settlement and attorneys' fees actually and
reasonably incurred by the Indemnified Party in connection with the defense or
settlement of such action or suit if the Indemnified Party acted under standards
similar to those set forth above, except that no indemnification may be made in
respect of any claim, issue or matter as to which the Indemnified Party shall
have been adjudged to be liable to the corporation or for amounts paid in
settlement to the corporation unless and only to the extent that the court in
which such action or suit was brought determines upon application that in view
of all the circumstances the Indemnified Party is fairly and reasonably entitled
to indemnity for such expenses as the court deems proper.
Section 78.7502 of the Nevada Law further provides that to the extent an
Indemnified Party has been successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to in subsection (1) or (2) described
above or in the defense of any claim, issue or matter therein, the corporation
shall indemnify the Indemnified Party against expenses (including attorneys'
fees) actually and reasonably incurred by the Indemnified Party in connection
therewith.
Subsection 1 of Section 78.751 of the Nevada Law provides that any
discretionary indemnification under Section 78.7502 of the Nevada Law, unless
ordered by a court or advanced pursuant to Subsection 2 of Section 78.751, may
be made by a corporation only as authorized in the specific case upon a
determination that indemnification of the Indemnified Person is proper in the
circumstances. Such determination must be made (a) by the stockholders, (b) by
the board of directors of the corporation by majority vote of a quorum
consisting of directors who were not parties to the action, suit or proceeding,
(c) if a majority vote of a quorum of such disinterested directors so orders, by
independent legal counsel in a written opinion, or (d) by independent legal
counsel in a written opinion if a quorum of such disinterested directors cannot
be obtained.
Subsection 2 of Section 78.751 of the Nevada Law provides that a
corporation's articles of incorporation or bylaws or an agreement made by the
corporation may require the corporation to pay as incurred and in advance of the
final disposition of a criminal or civil action, suit or proceeding, the
expenses of officers and directors in defending such action, suit or proceeding
upon receipt by the corporation of an undertaking by or on behalf of the officer
or director to repay the amount if it is ultimately determined by a court that
he is not entitled to be indemnified by the corporation. Said Subsection 2
further provides that the provisions of that Subsection 2 do not affect any
rights to advancement of expenses to which corporate personnel other than
officers and directors may be entitled under contract or otherwise by law.
Subsection 3 of Section 78.751 of the Nevada Law provides that indemnification
and advancement of expenses authorized in or ordered by a court pursuant to said
Section 78.751 does not exclude any other rights to which the Indemnified Party
may be entitled under the articles of
2
<PAGE>
incorporation or any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or in
another capacity while holding his office. However, indemnification, unless
ordered by a court pursuant to Section 78.7502 or for the advancement of
expenses under Subsection 2 of Section 78.751 of the Nevada Law, may not be made
to or on behalf of any director or officer of the corporation if a final
adjudication establishes that his or her acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action. Additionally, the scope of such indemnification and advancement
of expenses shall continue as to an Indemnified Party who has ceased to hold one
of positions specified above, and shall inure to the benefit of his or her
heirs, executors and administrators.
Section 78.752 of the Nevada Law empowers a corporation to purchase and
maintain insurance or make other financial arrangements on behalf of an
Indemnified Party for any liability asserted against such person and liabilities
and expenses incurred by such person in his or her capacity as an Indemnified
Party or arising out of such person's status as an Indemnified Party whether or
not the corporation has the authority to indemnify such person against such
liability and expenses.
The Bylaws of Registrant provide for indemnification of Indemnified
Parties substantially identical in scope to that permitted under the Nevada
Law. Such Bylaws provide that the expenses of directors and officers of
Registrant incurred in defending any action, suit or proceeding, whether
civil, criminal, administrative or investigative, must be paid by
Registrant as they are incurred and in advance of the final disposition of
the action, suit or proceeding, upon receipt of an undertaking by or on behalf
of such director or officer to repay all amounts so advanced if it is ultimately
determined by a court of competent jurisdiction that the director or officer
is not entitled to be indemnified by Registrant.
Registrant has a contract for insurance coverage under which Registrant and
certain Indemnified Parties (including the directors and officers of
Registrant) are indemnified under certain circumstances with respect to
litigation and other costs and liabilities arising out of actual or alleged
misconduct of such Indemnified Parties. In addition, Registrant has entered into
indemnification agreements with its directors and officers that require
Registrant to indemnify such directors and officers to the fullest extent
permitted by applicable provisions of Nevada law, subject to amounts paid by
insurance.
The above-described provisions relating to the indemnification of directors
and officers are sufficiently broad to permit the indemnification of such
persons in certain circumstances against liabilities (including reimbursement
of expenses incurred) arising under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
- ----------- ----------------------
5 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (a)
3
<PAGE>
23.1 Consent of Goldstein, Golub, Kessler LLP. (a)
23.2 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
opinion filed as Exhibit 5).
_________________________________________________________________________
(a) Filed herewith.
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 end 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 a 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)
do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained
in periodic reports filed 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
4
<PAGE>
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 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 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 Securities Act of 1933
and will be governed by the final adjudication of such issue.
5
<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 San Antonio, State of Texas, on May 9, 2000.
ENVIRO-CLEAN OF AMERICA, INC.
By: /s/Randall K. Davis
----------------------------
Randall K. Davis
President
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 below.
<TABLE>
<CAPTION>
Name Title Date
- ----------------------------------- ------------------------------------------ ---------------------
<S> <C> <C>
Chairman of the Board and Chief Executive May 9, 2000
/s/ Richard Kandel Officer
- -----------------------------------
Richard Kandel
/s/ Randall K. Davis President and Director May 9, 2000
- -----------------------------------
Randall K. Davis
/s/ Steven Etra Secretary, Treasurer and Director May 9, 2000
- -----------------------------------
Steven Etra
/s/ Gary C. Granoff Director May 9, 2000
- -----------------------------------
Gary C. Granoff
/s/ Mark A. Rice Director May 9, 2000
- -----------------------------------
Mark A. Rice
/s/ Jan Pasternack Chief Financial Officer May 9, 2000
- -----------------------------------
Jan Pasternack
</TABLE>
6
<PAGE>
EXHIBITS
INDEX TO EXHIBITS
-----------------
Exhibit No. Exhibit
- ----------- -------
5 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (a)
23.1 Consent of Goldstein, Golub, Kessler LLP. (a)
23.2 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
opinion filed as Exhibit 5.1).
_________________________________________________________________________
(a) Filed herewith.
7
<PAGE>
EXHIBIT 5
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
300 Convent Street, Suite 1500
San Antonio, Texas 78205
May 5, 2000
ENVIRO-CLEAN OF AMERICA, Inc.
211 Park Avenue
Hicksville, New York 11801
We have acted as counsel to Enviro-Clean of America, Inc. (the "Company")
in connection with the preparation for filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended. The Registration
Statement relates to 1,500,000 shares of the Company's common stock, par value
$0.001 per share (the "Common Stock"), all 1,500,000 of which are issuable upon
exercise of options or other stock incentive grants to be granted under the
Enviro-Clean of America, Inc. 2000 Stock Incentive Plan (the "Plan") (the "Plan
Shares").
The law covered by the opinions expressed herein is limited solely to the
Federal laws of the United States and the laws of the State of Nevada. This firm
is a registered limited liability partnership organized under the laws of the
State of Texas.
We have examined such corporate records, documents, instruments and
certificates of the Company and have received such representations from the
officers and directors of the Company and have reviewed such questions of law as
we have deemed necessary, relevant or appropriate to enable us to render the
opinion expressed herein. In such examination, we have assumed the genuineness
of all signatures and the authenticity of all documents, instruments, records
and certificates submitted to us as originals.
We have further assumed that:
(i) all applicable state and foreign securities laws will have been
complied with, as of any option exercise date with respect to the Plan;
(ii) the shares of Common Stock issuable upon exercise of the options or
other incentive grants granted under the Plan will be validly authorized and
available for issuance (as of the date hereof, there is a sufficient number of
shares of Common Stock authorized, unissued and reserved to cover the issuance
of the maximum number of shares of Common Stock currently provided for under the
Plan);
<PAGE>
(iii) the options or other incentive grants granted under the Plan will be
exercised in accordance with the terms of the Plan and any other applicable
documents;
(iv) the shares of Common Stock issued upon exercise of the incentive
grants granted under the Plan will be evidenced by appropriate certificates
properly executed and delivered; and
(vii) on the date of exercise, the options or other incentive grants
granted under the Plan (and all documents related thereto) will be duly
executed, as applicable, authorized, issued and delivered; will constitute the
valid and binding obligations of the Company enforceable in accordance with
their respective terms; and will be entitled to the benefits provided by the
Plan.
Based upon the foregoing, we are of the opinion that the Plan Shares will,
if, as, and when the Plan Shares are distributed in the manner contemplated by
the Plan, be validly issued, fully paid and non-assessable shares of Common
Stock of the Company.
We consent to the filing of this opinion as Exhibit 5 to the Registration
Statement and to the reference to this firm under the heading "Legal Opinion" in
the Information Statement forming a part thereof.
Very truly yours,
/s/ AKIN,GUMP, STRAUSS, HAUER & FELD L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS CONSENT
THE BOARD OF DIRECTORS
ENVIRO-CLEAN OF AMERICA, INC.
We hereby consent to incorporation by reference in the Registration
Statement on Form S-8 of Enviro-Clean of America, Inc. of our report dated March
11, 2000, except for the first and second paragraphs of Note 12 as to which the
date is April 1, 2000, related to the consolidated balance sheet of Enviro-Clean
of America, Inc. and Subsidiaries as of December 31, 1999, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
each of the two years in the period ended December 31, 1999, which report
appears in the December 31, 1999 annual report on Form 10-KSB of Enviro-Clean of
America, Inc.
/s / Goldstein Golub, Kessler L.L.P.
------------------------------------
Goldstein Golub Kessler LLP
May 10, 2000
New York, New York
