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As filed with the Securities and Exchange Commission on August 23, 2000
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EYE DYNAMICS, INC.
(Exact name of registrant as specified in its charter)
NEVADA 88-0249812
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2301 205TH STREET, SUITE 106
TORRANCE, CA 90501
(Address of Principal Executive Office) (Zip Code)
MARKETING CONSULTING AGREEMENT WITH BELMONT CAPITAL, DATED AUGUST 21, 2000
(Full title of the plan)
CHARLES E. PHILLIPS
2301 205TH STREET, SUITE 106
TORRANCE, CA 90501
(Name and address of agent for service)
(310) 328-0477
(Telephone number, including area code, of agent for service)
COPY TO:
ROBERT J. ZEPFEL, ESQ.
HADDAN & ZEPFEL LLP
4685 MACARTHUR COURT, SUITE 220
NEWPORT BEACH, CA 92660
(949) 752-6100
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CALCULATION OF REGISTRATION FEE
Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to Be Registered Be Registered Offering Price Per Share (1) Aggregate Offering Price (1) Registration Fee
---------------- ------------- ------------------------- ------------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, 1,000,000 $ .20 $200,000 $52.80
par value $.001
per share
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457, based on the closing price of the Common
Stock, as reported by the OTC Bulletin Board, on August 18, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act") by Eye Dynamics, Inc. (the "Company") are hereby
incorporated by reference in this Registration Statement except as superseded or
modified herein:
(i) the Annual Report on Form 10-K for the year ended December 31,
1999, and the Quarterly Report on Form 10-QSB for the six months ended
June 30, 2000, including any amendments thereto; and
(ii) the description of the Company's capital stock contained in its
Amended Report on Form 10-SB, filed with the Commission on December 13,
1999.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the time a post- effective amendment which
indicates that the securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents.
Any statement contained in any document incorporated or deemed to be
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 such statement so modified or superseded shall not be deemed,
except as 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.
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.
2
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The Articles of Incorporation of the Company 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. The
Articles of Incorporation of the Company also provide that any repeal or
modification of that provision shall apply prospectively only.
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 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.
3
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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. 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 Section 78.751 does
not exclude any other rights to which the Indemnified Party may be entitled
under the articles of 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 the Company 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 the Company
incurred in defending any action, suit or proceeding, whether civil, criminal,
administrative or investigative, must be paid by the Company 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 the Company.
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
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ITEM 8. EXHIBITS.
3.1 Articles of Incorporation of the Company, as amended (1)
3.2 Bylaws of the Company, as amended (1)
5.1 Opinion of Haddan & Zepfel LLP
23.1 Consent of Harold Y. Spector, Certified Public Accountant
24.2 Consent of Haddan & Zepfel LLP (included in Exhibit 5.1)
(1) Incorporated by reference from the Company's Amended Report on Form 10-SB,
filed with the Commission on December 13, 1999, and incorporated herein by
reference.
ITEM 9. UNDERTAKINGS.
The undersigned the Company 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 (the "Securities Act");
(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,
represents a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
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
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post- effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned the Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
5
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(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against pubic 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 Company of expenses incurred or
paid by a director, officer or controlling person of the the Company 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 Company 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 and will be governed by the final
adjudication of such issue.
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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 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 Torrance, State of California, on August 23, 2000.
Eye Dynamics, Inc.
By: /s/ Charles E. Phillips
--------------------------------
Charles E. Phillips, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Charles E. Phillips his 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 or all amendments to this Registration
Statement, 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 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 to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in- fact and
agent, 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 in the
capacities and on the date indicated:
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<CAPTION>
Signature Title Date
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(1) Principal Executive, Financial and
Accounting Officer
<S> <C> <C>
/s/ Charles E. Phillips President, Chief Financial August 23 , 2000
-------------------------------------- Officer and a Director
Charles E. Phillips
(2) Directors
/s/ Ronald A. Waldorf Chairman and a Director August 23 , 2000
--------------------------------------
Ronald A. Waldorf
/s/ Arnold Kay Director August 23 , 2000
--------------------------------------
Arnold Kay
</TABLE>
7
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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3.1 Amended and Restated Articles of Incorporation of the Company(1)
3.2 Amended and Restated Bylaws of the Company (1)
5.1 Opinion of Haddan & Zepfel LLP
23.1 Consent of Harold Y. Spector, Certified Public Accountant
24.2 Consent of Haddan & Zepfel LLP (included in Exhibit 5.1)
(1) Incorporated by reference from the Company's Amended Report on Form 10-SB,
filed with the Commission on December 13, 1999, and incorporated herein by
reference.
8
