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As filed with the Securities and Exchange Commission on ________, 2000
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BLUE ZONE, INC.
(Exact name of Registrant as Specified in Its Charter)
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<TABLE>
<S> <C>
NEVADA 86-0863053
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
</TABLE>
329 RAILWAY STREET, 5TH FLOOR, VANCOUVER, BRITISH COLUMBIA, CANADA V6A 1A4
(Address of Principal Executive Offices)
BLUE ZONE, INC. AMENDED AND RESTATED 1999 STOCK OPTION PLAN
(Full Title of the Plan)
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BRUCE WARREN
CHIEF EXECUTIVE OFFICER
BLUE ZONE, INC.
329 RAILWAY STREET, 5TH FLOOR
VANCOUVER, BRITISH COLUMBIA
CANADA V6A 1A4
(Name and Address of Agent for Service)
(604) 685-4310
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
DAVID M. HENKOFF, ESQ.
MORRISON & FOERSTER LLP
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104-0050
(212) 468-8000
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be to be Offering Price Aggregate Offering Registration
Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock, $.001 par 2,777,500 $5.00(1) $13,887,500 $3,666.30
value per share
Common Stock, $.001 par 1,100,000(3) $7.44(1) $8,184,000 $2,160.58
value per share
Common Stock, $.001 par 5,000(4) $13.44(1) $67,200 $17.75
value per share
Common Stock, $.001 par 2,897,500(5) $6.13 $17,761,675 $4,689.08
value per share
Total 6,780,000
$ $39,900,375 $10,533.71
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(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act"), solely for the purpose of calculating
the registration fee.
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(2) Represents options granted pursuant to Blue Zone, Inc.'s (the "Registrant")
Amended and Restated 1999 Stock Option Plan (the "Stock Option Plan) at an
exercise price of $5.00 per share.
(3) Represents options granted pursuant to the Stock Option Plan at an exercise
price of $7.44 per share.
(4) Represents options granted pursuant to the Stock Option Plan at an exercise
price of $13.44 per share.
(5) Represents the number of additional shares that may be issued under the
Stock Option Plan.
(6) Estimated in accordance with Rule 457(c) under the Securities Act, solely
for the purpose of calculating the registration fee using the average high
and low prices of the Registrant's Common Stock (as defined herein) as
reported on The Nasdaq National Market for the five day period ended on
September 20, 2000.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission (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 this
Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission are
incorporated by reference herein:
(1) The Registrant's Registration Statement on Form 10 ("Form 10") filed
with the Commission on March 9, 2000 pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(2) The Registrant's Registration Statement on Form 10/A ("Form 10/A")
filed with the Commission on May 1, 2000 pursuant to Section 12 of
the Exchange Act, which contains, among other things, (i) a
description of the Registrant's Common Stock, par value $.001 per
share (the "Common Stock"), and (ii) the audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(3) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2000 and June 30, 2000.
(4) The Registrant's Current Report on Form 8-K filed with the
Commission on September 20, 2000.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement but 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 into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in a document 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.
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ITEM 4. DESCRIPTION OF THE SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the Common Stock will be
passed on by McDonald Carano Wilson McCune Bergin Frankovich & Hicks LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to the Registrant's Certificate of
Incorporation which contains a provision which limits the liability of the
Registrant's officers and directors. Specifically, the Registrant's officers and
directors will not be liable to the Registrant or its shareholders for damages
for any breach of fiduciary duty, except for liability arising as a result of
acts or omissions which involve intentional misconduct, fraud or a knowing
violation of law. However, the Certificate of Incorporation does not eliminate
or limit liability arising in connection with causes of action brought under
federal securities laws and does not eliminate the duty of care.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
3.1 Articles of Incorporation dated March 10, 1997 (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration
Statement filed on Form 10 (Commission File No. 000-29907)).
3.2 Certificate of Amendment to the Registrant's Articles of
Incorporation, dated July 14, 1998, providing for a 5-for-1
stock split of all of the Registrant's outstanding Common Stock
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement filed on Form 10 (Commission File No.
000-29907)).
3.3 Certificate of Amendment to the Registrant's Certificate of
Incorporation, dated September 28, 1999, changing the name of
the Registrant to "Blue Zone, Inc." and providing for a
1.125-for-1 stock of all of the Registrant's issued and
outstanding Common Stock (incorporated by reference to Exhibit
3.1 to the Registrant's Registration Statement filed on Form
10 (Commission File No. 000-29907)).
3.4 Bylaws (incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement filed on Form 10
(Commission File No. 000-29907)).
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5.1 Opinion of Consent of McDonald Carano Wilson McCune Bergin
Frankovich & Hicks LLP.
10.1 Amended and Restated 1999 Stock Option Plan (incorporated by
reference to the Registrant's Proxy Statement dated August 30,
2000 (Commission File No. 000-29907)).
23.1 Consent of McDonald Carano Wilson McCune Bergin Frankovich &
Hicks LLP (contained in Exhibit 5.1).
23.2 Consent of KPMG LLP Independent Auditors.
24.1 Power of Attorney (See page 7).
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;
(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 this 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 this Registration Statement is on Form S-3 or Form S-8 and 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 Exchange Act that are incorporated by reference in this
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 herein, 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, each filing of the
Registrant's annual report pursuant to
5
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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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities 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 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 of 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, 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 Vancouver, British Columbia, on this 20th day of
September, 2000.
BLUE ZONE, INC.
By: /s/ Bruce Warren
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Bruce Warren
Chief Executive Officer and Director
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Bruce Warren and Jamie Ollivier, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution, to sign on his
behalf, individually and in each capacity stated below, all amendments and
post-effective amendments to this Registration Statement on Form S-8 and to file
the same, with all exhibits thereto and any other documents in connection
therewith, with the Commission under the Securities Act, granting unto said
attorneys-in-fact and agents 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 each might or could do in
person, hereby ratifying and confirming each act that said attorneys-in-fact and
agents may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act this Registration
Statement has been signed by the following persons in the capacities indicated
on September 20, 2000.
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<CAPTION>
Signature Title
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<S> <C>
/s/ F. Michael P. Warren Chairman of the Board of Directors
---------------------------------
F. Michael P. Warren
/s/ Bruce Warren Chief Executive Officer and Director
--------------------------------- (Principal Executive Officer)
Bruce Warren
/s/ Jamie Ollivier President and Director
---------------------------------
Jamie Ollivier
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<TABLE>
<S> <C>
/s/ Tryon Williams Director
---------------------------------
Tryon Williams
/s/ David Thomas Director
---------------------------------
David Thomas
/s/ Jay Shecter Director
---------------------------------
Jay Shecter
/s/ Rick Low Controller (Principal Accounting Officer)
---------------------------------
Rick Low
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INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
3.1 Articles of Incorporation dated March 10, 1997 (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement
filed on Form 10 (Commission File No. 000-29907)).
3.2 Certificate of Amendment to the Registrant's Articles of
Incorporation, dated July 14, 1998, providing for a 5-for-1 stock
split of all of the Registrant's outstanding Common Stock
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement filed on Form 10 (Commission File No.
000-29907)).
3.3 Certificate of Amendment to the Registrant's Certificate of
Incorporation, dated September 28, 1999, changing the name of the
Registrant to "Blue Zone, Inc." and providing for a 1.125-for-1
stock of all of the Registrant's issued and outstanding Common Stock
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement filed on Form 10 (Commission File No.
000-29907)).
3.4 Bylaws (incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement filed on Form 10 (Commission File No.
000-29907)).
5.1 Opinion of Consent of McDonald Carano Wilson McCune Bergin
Frankovich & Hicks LLP.
10.1 Amended and Restated 1999 Stock Option Plan (incorporated by
reference to the Registrant's Proxy Statement dated August 30,
2000 (Commission File No. 000-29907)).
23.1 Consent of Consent of McDonald Carano Wilson McCune Bergin
Frankovich & Hicks LLP (contained in Exhibit 5.1).
23.2 Consent of KPMG LLP Independent Auditors.
24.1 Power of Attorney (See page 7).
</TABLE>
