U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 POS
(Amendment No. 2)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE MAJESTIC COMPANIES, LTD.
(Exact name of registrant as specified in its charter)
Nevada 88-0293171
(State of Incorporation) (I.R.S. Employer ID No.)
8880 Rio San Diego Road, 8th Floor, San Diego, California 92108
(Address of Principal Executive Offices) (Zip Code)
Amended and Restated Employee Stock Incentive Plan
Amended and Restated Retainer Stock Plan for Non-Employee Directors and
Consultants
(Full title of the Plan)
Brian F. Faulkner, Esq., 3900 Birch Street, Suite 113, Newport Beach,
California 92660
(Name and address of agent for service)
(949) 975-054
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities Registered Maximum Aggregate Registration
to be Offering Offering Fee
Registered Price Per Price
Share (1)
Common
Stock 8,000,000 $0.200 (1) $1,600,000 $422.40
Common Stock 20,000,000 $0.001 (2) $ 20,000 $ 5.28
(1) This Offering Price per Share is used solely for purposes of estimating
the registration fee pursuant to Rule 457(h)(1) and is based on the option
exercise price set forth in the Amended and Restated Employee Stock Incentive
Plan, set forth in Exhibit 4.1 to this Form S-8.
(2) This Offering Price per Share is also esablished under Rule 457(h)(1)
pursuant to the deemed issuance price as set forth in the Amended and Restated
Retainer Stock Plan for Non-Employee Directors and Consultants (see Exhibit
4.2 to this Form S-8).
Part I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.
See Item 2 below.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in Part I, Items 1 and 2,
will be delivered to each of the participants in accordance with Form S-8 and
Rule 428 promulgated under the Securities Act of 1933. The participants shall
be provided a written statement notifying them that upon written or oral
request they will be provided, without charge, (i) the documents incorporated
by reference in Item 3 of Part II of the registration statement, and (ii)
other documents required to be delivered pursuant to Rule 428(b). The
statement will inform the participants that these documents
are incorporated by reference in the Section 10(a) prospectus, and shall
include
the address (giving title or department) and telephone number to which the
request is to be directed.
Part II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following are hereby incorporated by reference:
(a) The Registrant's latest annual report on Form 10-KSB for the fiscal year
ended December 31, 1999.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the Form 10-KSB referred to in
(a) above.
(b)
(c) A description of the securities of the Registrant is contained in a Form
10-SB filed on November 12, 1999.
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 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 in the registration statement and to be part
thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Other than as set forth below, no named expert or counsel was hired on a
contingent basis, will receive a direct or indirect interest in the small
business issuer, or was a promoter, underwriter, voting trustee, director,
officer, or employee of the Registrant.
Counsel for the company named in this registration statement as giving an
opinion on the validity of the securities being registered has previously
received 240,000 shares of stock under the Retainer Plan for Non-Employee
Directors and Consultants under a Form S-8 in exchange for legal
services consisting of advice and preparation work in connection with reports
of the company under the Securities Exchange Act of 1934 and general corporate
legal work.
Item 6. Indemnification of Directors and Officers.
Limitation of Liability.
The articles of incorporation of the company provide that except for acts
or omissions which involve intentional misconduct, fraud or knowing violation
of law or for the payment of dividends in violation of NRS 78.300, there shall
be no personal liability of a director or officer to the company or its
stockholders for damages for breach of fiduciary duty as a director or officer.
Indemnification.
(a) Articles of Incorporation.
The articles of incorporation of the company provide the following with respect
to indemnification:
Pursuant to NRS 78.751 Paragraphs 1 through 6 inclusive, and any amendments,
additions or changes thereto, the company may indemnify any person for expenses
incurred, including attorneys fees, in connection with their good faith acts if
they reasonably believe such acts are in and not opposed to the best interests
or the company and for acts for which the person had no reason to believe his
or her conduct was unlawful.
The company will indemnify the officers and directors for expenses incurred in
defending a civil or criminal action, suit or proceeding as they are incurred
in advance of the final disposition of the action, suit or proceeding, upon
receipt of an undertaking by or on behalf of the director or officer to
repay the amount of such expenses if it is ultimately determined by a court of
competent jurisdiction.
(b) Bylaws.
The bylaws of the company provide the following with respect to
indemnification:
(1) In General. Subject to the laws of the State of Nevada, the company shall
indemnify any director, officer, employee or agent of the company, or any
personserving in such capacity for any other entity or enterprise at the
request of the company, against any and all legal expenses (including attorneys
fees), claims and liabilities arising out of any action, suit or proceeding,
except an action by or in the right of the company.
(2) Lack Of Good Faith; Criminal Conduct. The company shall not be required to
indemnify any person unless such person acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
company and, with respect to any criminal action or proceeding, where there was
no reasonable cause to believe the conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order of settlement, conviction or upo
a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
reasonably believed to be in or not opposed to the best interests
of the company, and that, with respect to any criminal action or proceeding,
there was reasonable cause to believe that the conduct was unlawful. Moreover,
the company shall not indemnify any person adjudged to be liable for negligence
or misconduct in the performance of a duty to the company unless and only to
the extent that the court in which such action or suit was brought
determines upon application that, despite the adjudication of liability, such
person is fairly and reasonably entitled to indemnity for such expenses as the
court deems proper.
(3) Successful Defense Of Actions. The company shall reimburse or otherwise
indemnify any director, officer, employee or agent against legal expenses
(including attorneys fees) actually and reasonably incurred in connection with
the defense of any action, suit or proceeding herein above referred to, to the
extent such person is successful on the merits
or otherwise.
(4) Authorization. Indemnification shall be made by the company only when
authorized in the specific case and upon a determination that indemnification
is proper by:
(i) The shareholders;
(ii) Majority vote of a quorum of the board of directors consisting of
directors who are not parties to the action, suit or proceeding; or
(iii) Independent legal counsel in a written opinion if a quorum of
disinterested directors cannot be obtained.
(5) Advancing Expenses. Expenses incurred in defending any action,
suit or proceeding may be paid by the company in advance of the final
disposition, when authorized by the board of directors, upon receipt of an
undertaking by or on behalf of the person defending to repay such
advances if indemnification is not ultimately available under these provisions.
(6) Other Rights; Continuing Indemnification. The indemnification
provided by the bylaws does not exclude any other rights to which the person
seeking indemnification may be entitled under the law, shall continue as to a
person who has ceased to be a director, officer, employee or agent, and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
(7) Insurance. The company may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the company
or who is or was serving at the request of the company in any capacity against
any liability asserted against such person.
The board of directors may from time to time adopt further bylaws with respect
to indemnification and may amend these bylaws to provide at all times the
fullest indemnification permitted by the Nevada Revised Statutes.
(a) NRS 78.7502 Discretionary and mandatory indemnification of
officers, directors, employees and agents: General provisions.
(1) A corporation may 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,
except an action by or in the right of the corporation, by reason of the fact
that he 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 venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with the action, suit or proceeding if he acted in good
faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
does not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his conduct was
unlawful.
(2) A corporation may indemnify any person 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 he 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 venture, trust or other enterprise against expenses, including amounts
paid in settlement and attorneys' fees actually and reasonably incurred by him
in connection with the defense or settlement of the action or suit if he
acted in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the corporation. Indemnification may not
be made for any claim, issue or matter as to which such a person has been
adjudged by a court of competent jurisdiction, after exhaustion of all
appeals therefrom, 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 the action or suit was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for such expenses
as the court deems proper.
(3) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him
in connection with the defense.
(b) NRS 78.751 Authorization required for discretionary indemnification;
advancement of expenses; limitation on indemnification and advancement of
expenses.
(1) Any discretionary indemnification under NRS 78.7502 unless ordered
by a court or advanced pursuant to subsection 2, may be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made:
(i) By the stockholders;
(ii) By the board of directors by majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding;
(iii) If a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding so orders, by independent legal
counsel in a written opinion; or
(iv) If a quorum consisting of directors who were not parties to the action,
suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
(2) The articles of incorporation, the bylaws or an agreement made by
the corporation may provide that the expenses of officers and directors
incurred in defending a civil or criminal action, suit or proceeding must be
paid by the corporation 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 the director or officer to repay the amount if
it is ultimately determined by a court of competent jurisdiction that he is
not entitled to be indemnified by the corporation. The provisions of this
subsection do not affect any rights to advancement of expenses to which
corporate personnel other than directors or officers may be entitled under any
contract or otherwise by law.
(3) The indemnification and advancement of expenses authorized in NRS
78.7502 or ordered by a court pursuant to this section:
(i) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles
of incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to or for the advancement
of expenses made pursuant to subsection 2, may not be made to or on behalf of
any director or officer if a final adjudication establishes that his acts or
omissions involved intentional misconduct, fraud or a knowing violation of the
law and was material to the cause of action.
(ii) Continues for a person who has ceased to be a director, officer, employee
or agent and inures to the benefit of the heirs, executors and administrators
of such a person.
(c) NRS 78.752 Insurance and other financial arrangements against liability
of directors, officers, employees and agents.
(1) A corporation may purchase and maintain insurance or make other
financial arrangements on behalf of any person who 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 venture, trust or other enterprise for any
liability asserted against him and liability and expenses incurred by him in
his capacity as a director, officer, employee or agent, or arising out of his
status as such, whether or not the corporation has the authority to indemnify
him against such liability and expenses.
(2) The other financial arrangements made by the corporation pursuant to
subsection 1 may include the following:
(i) The creation of a trust fund.
(ii) The establishment of a program of self-insurance.
(iii) The securing of its obligation of indemnification by granting
a security interest or other lien on any assets of the corporation.
(iv) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection may provide
Protection for a person adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable for intentional misconduct,
fraud or a knowing violation of law, except with respect to the advancement of
expenses or indemnification ordered by a court.
(3) Any insurance or other financial arrangement made on behalf of a person
pursuant to this section may be provided by the corporation or any other person
approved by the board of directors, even if all or part of the other person's
stock or other securities is owned by the corporation.
(4) In the absence of fraud:
(i) The decision of the board of directors as to the propriety of the
terms and conditions of any insurance or other financial arrangement made
pursuant to this section and the choice of the person to provide the insurance
or other financial arrangement is conclusive; and
(ii) The insurance or other financial arrangement:
(A) Is not void or voidable; and
(B) Does not subject any director approving it to personal liability for his
action, even if a director approving the insurance or other financial
arrangement is a beneficiary of the insurance or other financial arrangement.
(5) A corporation or its subsidiary which provides self-insurance for itself
or for another affiliated corporation pursuant to this section is not subject
to the provisions of Title 57 of NRS.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits required by Item 601 of Regulation S-B, and an index thereto, are
attached.
Item 9. 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:
(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) 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.
(e) To deliver or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
(h) That insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant 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.
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
authorize, in the City of San Diego, State of California, on July 31, 2000.
The Majestic Companies, Ltd.
By: /s/ Francis A. Zubrowski
Francis A. Zubrowski
President/Chief Executive Officer
Special Power of Attorney
The undersigned constitute and appoint Francis A. Zubrowski their true and
lawful attorney-in-fact and agent with full power of substitution, 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 Form S-8
Registration Statement, and to file the same with all exhibits thereto, and all
documents in connection therewith, with the U.S. Securities and Exchange
Commission, granting such attorney-in-fact the full power 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 and to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that such attorney-
in-fact 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 by the following persons in the capacities and on the
date indicated:
Signature Title Date
/s/ Francis A. Zubrowski President, Chief Executive July 31, 2000
Francis A. Zubrowski Officer, and Director
/s/ Alejandro V. Tovar Secretary, and Controller July 31, 2000
Alejandro V. Tovar Chief Financial and
Accounting Officer)
/s/ Ralph D. Morren, Jr. Director July 31, 2000
Ralph D. Morren, Jr.
/s/ Paul S. Hewitt Director July 31, 2000
Paul S. Hewitt
EXHIBIT INDEX
Exhibit. Description
No.
4.1 Amended and Restated Employee Stock Incentive Plan (see below).
4.2 Amended and Restated Retainer Stock Plan for Non-Employee Directors and
Consultants (see below).
5 Opinion Re: Legality (see below).
23.1 Consent of Accountant (see below).
23.2 Consent of Counsel (see below).
24 Special Power of Attorney (see signature page).
