As filed with the Securities and Exchange Commission on April 26, 2000
Registration No. ___-_____
===========================================================================
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
(State of incorporation) (IRS Employer Identification No.)
8100 SouthPark Way, B-2, Golden, Colorado 80401
(Address of principal executive offices, including Zip Code)
(Registrant's telephone number, including area code): (303) 279-7641
Earth Sciences, Inc. 2000 Stock Compensation Plan #2
(Full title of plan)
Mark H. McKinnies
8100 SouthPark Way, B-2, Littleton, Colorado 80120
(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 Amount to be fering price gregate of- registration
be registered registered per share fering price fee
_____________________________________________________________________________
Common Stock, $.01
par value: 215,128 Shares $ .26 (1) $ 55,933(1) $ 14.76
_____________________________________________________________________________
(1) Determined solely for the purposes of calculating the registration
fee based on the closing bid price of the Common Stock on OTCBB on
April 20, 2000. 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, as amended, on Form 10-KSB for the year
ended December 31, 1999 ("1999 10-KSB").
2. A description of the Company's Common Stock contained in the
Registration Statement on Form 8-A as declared effective by the Securities and
Exchange Commission.
3. 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 best 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* 2000 Stock Compensation Plan #2
* Filed herewith.
- ---------------------------------------------------------------------------
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
of 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 April 26, 2000.
EARTH SCIENCES, INC.
Date: April 26, 2000 /s/ Ramon E. Bisque
------------------------------------
Ramon E. Bisque
Principal Executive Officer
Date: April 26, 2000 /s/ Mark H. McKinnies
-------------------------------------
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: April 26, 2000 /s/ Ramon E. Bisque
-------------------------------------
Ramon E. Bisque, Director
Date: April 26, 2000 /s/ Duane N. Bloom
----------------------------------
Duane N. Bloom, Director
Date: April 26, 2000 /s/ Michael D. Durham
-----------------------------
Michael D. Durham, Director
Date: April 26, 2000 /s/ Robert H. Lowdermilk
----------------------------------
Robert H. Lowdermilk, Director
Date: April 26, 2000 /s/ Mark H. McKinnies
---------------------------------
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
April 26, 2000
Earth Sciences, Inc.
8100 SouthPark Way, B-2
Littleton, Colorado 80120
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 215,128 shares of the Company's Common Stock, $.01
par value, to be offered under the Company's 2000 Stock Compensation Plan
#2 (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 215,128 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 22, 2000
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
April 25, 2000
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Exhibit 99.1
EARTH SCIENCES, INC.
2000 Stock Compensation Plan #2
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 employees for (i) the
services they have and will render during calendar 2000 and in prior years to
the Corporation and its subsidiaries, and (ii) certain pension contributions to
be made by the Corporation to its qualified profit sharing plan for its
employees.
The Corporation maintains a qualified profit sharing plan for its US
employees. Investments in the plan are directed by the individual plan
participants. Under that plan, the Corporation may make profit sharing
contributions and matches certain 401(k) contributions made by the
employee. The shares to be issued for the profit sharing and matching
contributions represent only the Corporation's contribution to the plan and
will be directly deposited into each plan participants' account within the
profit sharing plan.
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
partnership 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 April 13, 2000, the Board of Directors, after due consideration
of past service and future requirements, and the profit sharing
contributions, granted Awards as follows:
Name # of Shares Capacity
- ----------------- ----------- ----------------------------
Brian T. Donnelly 85,867 Employee of ESEC
Michael D. Durham 15,542 Employee of ADAES
C. Jean Bustard 10,094 Employee of ADAES
Kenneth E. Baldrey 8,665 Employee of ADAES
Cameron E. Martin 8,665 Employee of ADAES
Mark H. McKinnies 15,141 Employee of ADAES
John F. Wurster 15,542 Employee of ADAES
Richard Schlager 8,942 Employee of ADAES
Corre D. Short 3,942 Employee of ADAES
Thomas J. Millar, Jr. 6,520 Employee of ADAES
Steve A. Johnson 12,335 Employee of ADAES
John P. Comer 10,036 Employee of ADAES
Kathy Lowsley 3,077 Employee of ADAES
Ronda Zivalich 4,216 Employee of ADAES
Laura Cox 2,267 Employee of ADAES
Douglas W. Jackson 4,727 Employee of ADAES
for a total of 215,128 shares of Common Stock.
3.2 Acceptance of Awards.
A Participant to whom an Award has been granted may, except for those
Awards representing profit sharing plan contributions and 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.
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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
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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.
4.4 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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