As filed with the Securities and Exchange Commission on February 3, 1999
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
Earth Sciences, Inc.
(Exact name of registrant as specified in its charter)
Colorado 84-0503749
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(State of incorporation) (IRS Employer Identification No.)
910 12th Street, Golden, Colorado 80401
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(Address of principal executive offices, including Zip Code)
(Registrant's telephone number, including area code): (303) 279-7641
EARTH SCIENCES, INC. 1999 COMPENSATION PLAN
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(Full title of plan)
Mark H. McKinnies
910 12th Street, Golden, Colorado 80401
(303) 279-7641
(Name, address, including zip code and telephone number,
including area code, of agent for service of process)
CALCULATION OF REGISTRATION FEE
______________________________________________________________________________
Proposed Proposed
Title of maximum of- maximum ag- Amount of
securities to be Amount to be fering price gregate of- registration
registered registered per share fering price fee
______________________________________________________________________________
Common Stock, $.01
par value: 100,000 Shares $ .81 (1) $ 81,000 (1) $ 22.52
______________________________________________________________________________
(1) Determined solely for the purposes of calculating the registration fee
based on the closing bid price of the Common Stock on NASDAQ's SmallCap Market
on February 1, 1999. Fee calculated pursuant to section (c) of Rule 457 of
Regulation C.
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PART II
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company (File No. 0-6088) with the
Commission are incorporated herein by reference.
1. The Company's annual report on Form 10-KSB for the year ended December
31, 1997 ("1997 10-KSB").
2. The Company's quarterly reports on Form 10-QSB for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998.
3. The Company's current report on Form 8-K dated May 12, 1998 reporting
the completion of the acquisition of ADA Environmental Solutions LLC.
4. A description of the Company\rquote s Common Stock contained in the
Registration Statement on Form 8-A as declared effective by the
Securities and Exchange Commission.
5. All documents filed by the Company pursuant to Section 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date hereof, which documents shall be deemed to be
incorporated by reference into this Registration Statement as a part
hereof from the date of filing such documents until a post-effective
amendment to this Registration Statement is filed which indicates that
all shares of Common Stock being offered hereby have been sold or
which deregisters all shares of Common Stock then remaining unsold.
Item 4. DESCRIPTION OF SECURITIES.
Not Applicable
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not Applicable
Item 6. Indemnification of Directors and Officers.
Article 7-109 of the Colorado Business Corporation Act authorizes the
indemnification of directors and officers against liability incurred by reason
of being a director or officer and against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement and reasonably incurred in
connection with any action seeking to establish such liability, in the case of
third-party claims, if the officer or director acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and in the case of actions by or in the right of the
corporation, if the officer or director acted in good faith and in a manner he
reasonably believed to be in or not opposed to the bests interests of the
corporation and if such officer or director shall not have been adjudged liable
to the corporation, unless a court otherwise determines. Indemnification is
also authorized with respect to any criminal action or proceeding where the
officer or director also had no reasonable cause to believe his conduct was
unlawful.
The above discussion of the Colorado Business Corporation Act is only a summary
and is qualified in its entirety by the full text of the foregoing.
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Article VIII of the Registrant's Bylaws provides as follows:
Each past, present and future director and officer of the corporation shall
be indemnified by the corporation against all expenses, penalties, and
liabilities, including attorneys' fees, reasonably incurred by or imposed
upon him in connection with any actual or threatened claim, demand, action or
proceeding, whether civil or criminal, or in connection with any settlement
thereof, to which he may be made a party, or in which he may become involved, by
reason of his being or having been a director or officer of the corporation,
whether or not he is a director or officer at the time such expenses, penalties
or liabilities are incurred, except in cases where he shall be finally adjudged
in such action or proceeding to be liable for willful misconduct in the
performance of his duties as such director or officer. The right of
indemnification herein provided shall be in addition to, and not exclusive of,
all other rights to which such director or officer may be entitled and the right
of indemnification herein provided shall inure to the benefit of the personal
representatives of deceased directors and officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
Item 8. EXHIBITS.
Exhibit
Number Description
5.1* Opinion of Law Office of Reed & Reed, P.C. as to legality of the
shares
23.1* Consent of Hein + Associates LLP
23.2* Consent of Law Office of Reed & Reed, P.C. (contained in Exhibit
5.1)
99.1* 1999 Compensation Plan
* Filed herewith.
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Item 9. UNDERTAKINGS.
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 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.
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(2) That, for purposes of determining liability under the Securities Act, treat
each post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any if the
securities that remain unsold at the end of the offering.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant hereby 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 and any amendment thereto to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Golden, State of
Colorado on February 3, 1999.
EARTH SCIENCES, INC.
Date: February 3, 1999 /s/ Ramon E. Bisque
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Ramon E. Bisque
Principal Executive Officer
Date: February 3, 1999 /s/ Mark H. McKinnies
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Mark H. McKinnies
President, Principal Financial and
Accounting Officer
Pursuant to the requirements of the Securities Exchange Act of 1933, as
amended, this Registration Statement and any amendment thereto has been signed
below by the following persons in the capacities and on the dates indicated.
Date: February 3, 1999 /s/ Ramon E. Bisque
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Ramon E. Bisque, Director
Date: February 3, 1999 /s/ Duane N. Bloom
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Duane N. Bloom, Director
Date: February 3, 1999 /s/ Michael D. Durham
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Michael D. Durham, Director
Date: February 3, 1999 /s/ Robert H. Lowdermilk
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Robert H. Lowdermilk, Director
Date: February 3, 1999 /s/ Mark H. McKinnies
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Mark H. McKinnies, Director
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Exhibit 5.1
Law Office of Reed & Reed, P.C.
Attorneys at Law
Suite 330
1919 14th Street
Boulder, Colorado 80302
Telephone (303) 413-0691
Telecopier (303) 413-0645
February 3, 1999
Earth Sciences, Inc.
910 12th Street
Golden, Colorado 80401
Gentlemen:
In connection with the Registration Statement on Form S-8 being filed by
the Earth Sciences, Inc. (the "Company") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
registration of 100,000 shares of the Company's Common Stock, $.01 par value,
to be offered under the Company's 1999 Compensation Plan (the "Plan"), we are
of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Colorado.
2. All necessary corporate action has been taken to authorize the
establishment of the Plan and the issuance of 100,000 shares of the
Company's Common Stock under the Plan: and
3. The shares of the Company's Common Stock, when issued in accordance
with the Plan, will be legally issued, fully paid and nonassessable
shares of Common Stock of the Company.
We hereby consent to the filing of a copy of this opinion as an exhibit to
the Registration Statement referred to above.
Very truly yours,
/s/ Scott Reed
Law Office of Reed & Reed, P.C.
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Exhibit 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference of our report dated March 24,
1998 accompanying the financial statements of Earth Sciences, Inc. to Form
S-8 Registration Statement of Earth Sciences, Inc. and to the use of our name as
appearing under the heading "Required Opinions and Consents" in the
Registration Statement.
/s/ Hein + Associates LLP
HEIN + ASSOCIATES
Denver, Colorado
February 1, 1999
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Earth Sciences, Inc.
910 12th Street
Golden, Colorado 80401
Telephone (303) 279-7641
Telecopier (303) 279-1180
February 3, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8
Covering the Registration of 100,000
Common Shares of Earth Sciences, Inc.
Gentlemen and Ladies:
On behalf of Earth Sciences, Inc., a Colorado Corporation (the "Company"),
we transmit through EDGAR, pursuant to the Securities Act of 1933, as amended
(the "1933 Act"), a registration statement on Form S-8 (the "Registration
Statement") covering 100,000 shares of Common Stock, par value $.01 per share
(the "Securities").
The Securities are being registered in connection with the issuance of
100,000 shares of Common Stock of the Company pursuant to the Earth Sciences,
Inc. 1999 Compensation Plan authorized by the Board of Directors of the Company
on January 28, 1999.
In connection with the foregoing, we are transmitting one copy of the
Registration Statement and copies of the exhibits listed beneath the caption
"Item 8. EXHIBITS" contained in Part II of the Registration Statement.
The registration fee in the amount of $ 22.52 has been wired transferred to
the SEC by the Company.
The following supplemental information is supplied in order to facilitate
timely review of the Registration Statement by the Staff:
(1) The Company has reviewed the various criteria for eligibility for use of
Form S-8 and we believe that such criteria are satisfied. Moreover, we believe
that the Registration Statement is in compliance with the applicable Form,
instructions and rules pertaining thereto and (except as otherwise indicated
herein) is complete.
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Securities and Exchange Commission
February 3, 1999
Page 2
(2) Concurrently with this filing, we are filing the Registration Statement
with the National Association of Securities Dealers, Inc., ("NASD"). We
undertake to furnish the Staff with copies of any letter of comment or other
documents received from the staff of NASD.
The Staff is requested to address any correspondence, comment or inquiry to
the undersigned, at the address or telephone number, as the case may be, set
forth above.
Very truly yours,
Earth Sciences, Inc.
/s/ Mark H. McKinnies
Mark H. McKinnies
President
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Exhibit 99.1
EARTH SCIENCES, INC.
1999 COMPENSATION PLAN
ARTICLE I
Purpose of Plan
The purpose of this Plan is to promote the growth and profitability of Earth
Sciences, Inc. and its subsidiaries by awarding rights to receive shares of
the Common Stock of the corporation to certain select employees and
consultants for the services they will render during calendar 1999 to the
Corporation and its subsidiaries.
ARTICLE II
Definitions
2.1 "Award" means a grant to an employee or consultant of a right to be
issued shares of Common Stock under this Plan.
2.2 "Board of Directors" means the board of directors of the Corporation.
2.3 "Common Stock" means the $0.01 par value common stock of the Corporation.
2.4 "Corporation" means Earth Sciences, Inc., and any corporate successor
thereto (whether by merger, acquisition, consolidation, liquidation or other
reorganization) which has adopted this Plan and assumed the Corporation's
obligations hereunder.
2.5 "Date of Award" means the date on which the Board of Directors authorizes
an Award to a Participant under this Plan.
2.7 "Executive Committee" means the executive committee of the Board of
Directors of the Corporation.
2.8 "Participant" means any employee or consultant of the corporation or any
Subsidiary who has been granted an Award pursuant to this Plan.
2.9 "Subsidiary" means any corporation 50 percent or more of the voting stock
of which is owned by the Corporation or another Subsidiary, or any partner-
ship or joint venture, 50 percent or more of the capital and profits
interest in which is owned by the Corporation or any other Subsidiary, or
any limited liability company 50 percent or more of the voting membership
interests of which is owned by the Corporation or another Subsidiary.
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ARTICLE III
Award of Common Stock
3.1 Award of Common Stock.
On January 28, 1999, the Board of Directors, after due consideration of
past service and future requirements granted Awards as follows:
80,000 shares of Common Stock to Ronald B. Johnson, President of Twin Kem
International, Inc., for marketing services for Earth Sciences Extraction
Company, a Subsidiary of the Corporation; and
20,000 shares of Common Stock to Jean Pasquali Z., President of Recursos
Minerales Venesi, C.A., a Subsidiary of the Corporation.
3.2 Acceptance of Awards.
A Participant to whom an Award has been granted may, upon written notice
to the Executive Committee, decline to accept the Award.
ARTICLE IV
Miscellaneous
4.1 Adjustment in Number of Shares.
In the event of any change in the number of outstanding shares of Common
Stock by reason of any stock split, stock dividend, or other capital
transaction, the Executive Committee shall determine, in its absolute
discretion, whether such change equitably requires an adjustment in the
aggregate number of shares of Common Stock which are the subject of an Award,
but which have not yet been issued. If the Executive Committee determines
that an adjustment is required, it shall make such adjustments as it deems
appropriate. The Executive Committee shall not, however, award any fractional
shares as a result of any adjustment made under this Section 4.1.
4.2 Non-Alienation of Benefits.
No Award or other right or benefit under this Plan shall be subject to
anticipation, alienation, sale, assignment, pledge, encumbrance, or charge,
and any attempt to anticipate, alienate, sell, assign, pledge, encumber or
charge the same shall be void. Except with respect to any indebtedness owed
by the Participant to the Corporation or a Subsidiary, no Award or other right
or benefit hereunder shall in any manner be liable for or subject to the
debts, contracts, liabilities or torts of any Participant. If any Participant
hereunder should become bankrupt or attempt to anticipate, alienate, sell,
assign, pledge, encumber or charge any Award, right or benefit hereunder, then
such Award, right or benefit shall, in the discretion of the Executive
Committee, cease and, in such event, the Corporation may hold or apply the
same or any part thereof for the benefit of the Participant, his or her
spouse, children or other dependents, or any of them, in such manner and in
such proportion as the Executive Committee may deem appropriate.
4.3 Effect of Plan.
Neither the establishment of this Plan, the granting of any Award, nor
the issuance of any shares of Common Stock thereunder, shall be construed as
giving any employee, Participant, or any other person, any legal right, except
as expressly provided herein, against the Corporation, its Subsidiaries,
shareholders, directors or officers, the Executive Committee or the Board of
Directors. Nothing contained in this Plan shall be construed as a contract of
employment between the Corporation (or its Subsidiaries) and any employee or
Participant, as a right of any employee or Participant to be continued in the
employ of the Corporation (or its Subsidiaries), or as a limitation on the
right of the Corporation (or its Subsidiaries) to employ, discipline or
discharge any employee or Participant. No Participant shall acquire any
rights as a shareholder of the Corporation except to the extent that shares of
Common Stock have been issued to him. The rights of any Participant shall be
limited to the right to receive shares of Common Stock, if and when such shares
become issuable under the terms and conditions of this Plan.
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4.5 Withholding of Taxes.
The Corporation shall have the right to deduct from any salary or bonuses
payable to any Participant any and all income or payroll taxes required by law
to be withheld from the compensation, whether in cash or shares of Common
Stock, payable to such Participant.
ARTICLE V
Continuation and Amendment of Plan
5.1 Discontinuance of Plan.
The continuation of this plan is not assumed as a contractual obligation
by the Corporation, and the right is reserved to the Corporation, by action of
its Board of Directors, to discontinue the Plan at any time. If the Plan
shall be discontinued, no additional Awards shall be made under the Plan after
the date of discontinuance, but the Plan shall continue to be operated in
accordance with its terms, as they may hereafter be amended, with respect to
any Awards made prior to the date of discontinuance.
5.2 Amendment.
The Corporation, by action of its Board of Directors, shall have the
right at any time, whether before or after discontinuance of the Plan, to
amend all or any of the provisions of the Plan in any manner. Any such
amendment may prohibit or postpone the issuance of any shares of Common Stock
even though such shares may have become issuable after the effective date of
the amendment pursuant to any Award granted before the effective date of the
amendment.
ARTICLE VI
Representations of Participants
6.1 Acceptance of Plan. By accepting any Award, a Participant shall be
deemed to have accepted all the terms and conditions of this Plan.
6.2 Transfer Restrictions. Each Participant upon receiving any shares of
Common Stock shall represent in writing to the Corporation that, if such is
the case, the Common Stock so acquired has not been registered under the
Securities Act of 1933 or any state "Blue Sky" or securities law, that such
Common Stock is not freely transferable and that such Common Stock cannot be
offered, sold or transferred in whole or in part except in compliance with
such laws. Such Participant shall also represent in writing that he is
acquiring such Common Stock for his own account, without any intention to make
an unregistered distribution thereof within the meaning of the Securities Act
of 1933 and that any certificate representing such Common Stock shall bear an
appropriate legend to such effect and the transfer agent for the Common Stock
shall be instructed to enter suitable "stop-transfer" notations in its records
to reflect the foregoing.
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