SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ENERGY OPTICS, INC.
(Exact name of registrant as specified in its charter)
NEW MEXICO
(State or other jurisdiction of incorporation)
85-0273340
(I.R.S. Employer Identification Number)
25 C.R. 561, Tavares, Florida 32778
(Address of Principal Executive Offices)(Zip code)
Consultant Services Plan
(Full Title of Plan)
James C. Statham, President
29425 C.R. 561, Tavares, Florida 32778
(Name and address of agent for services)
(352) 742-5010
Telephone number, including area code, of agent for service)
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO
BE OFFERED ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE
415 UNDER THE SECURITIES ACT OF 1933, OTHER THAN SECURITIES
OFFERED ONLY IN CONNECTION WITH DIVIDEND OR REINVESTMENT PLAN,
CHECK THE FOLLOWING BOX: [X]
CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES TO BE
REGISTERED: Common Stock
AMOUNT TO BE REGISTERED: 898,800 Shares
PROPOSED MAXIMUM OFFERING
PRICE PER UNIT: $2.94(1)
PROPOSED MAXIMUM AGGREGATE
OFFERING PRICE: $2,642,000(1)
AMOUNT OF REGISTRATION FEE: $800.61
(1) Computed Pursuant to Rule 457( c) solely for the purpose
of calculating the registration fee and not as a
representation as to any actual proposed price. The fee is
based upon the public trading price (average of low and
high) of the common stock on October 14, 1997.
PART I - INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Pursuant to Rule 428(b)(1), the information required by Part
I is included in documents sent or given to each consultant of
Energy Optics, Inc., a New Mexico corporation ("Company").
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3 - Incorporation of Documents by Reference
The following documents are incorporated by reference into
this Registration Statement and made a part hereof:
(a) The Registrant's latest Annual Report on Form 10-K for
the fiscal year ended July 31, 1996, filed under
Section 13(a) or 15(d) of the Securities Act of 1934,
as amended (the "Exchange Act").
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the Registrant
document referred to in (a) immediately above.
All documents subsequently filed with the Commission by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act after the date hereof and prior to the filing
of a post-effective amendment which indicates that all
securities offered have been sold or which registers all
securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such documents.
Any statement contained in a 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 statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
General
The Company has 25,000,000 authorized shares of Common Stock,
$.0001 par value per share. Shares may be issued for such
consideration as fixed by the Board.
Voting Rights
Each share of common stock entitles the holder thereof to one
vote, in person or by proxy, at meetings of shareholders or by
written consent. The holders are not permitted to vote their
shares cumulatively. Accordingly, the holders of more than
fifty (50%) percent of the issued and outstanding shares of
Common Stock can elect all of the directors of the Company.
Dividend Policy
All shares of Common Stock are entitled to participate ratably
in dividends when and as declared by the Company's Board of
Directors out of the funds legally available thereof. Any such
dividends may be paid in cash, property or additional shares
of Common Stock. The Company presently anticipates that all
earnings, if any, will be retained for development of the
Company's business and that no dividends on the shares of
Common Stock will be declared in the foreseeable future. Any
future dividends will be subject to the discretion of the
Company's Board of Directors and will depend upon, among other
things, future earnings, the operating and financial condition
of the Company, its capital requirements, general business
conditions and other pertinent factors.
Miscellaneous
The Company's Common Stock is traded on the NASDAQ Bulletin
Board. Holders of Common Stock have no preemptive or other
subscription rights, conversion rights, redemption or sinking
fund right. In the event of the dissolution, whether voluntary
or involuntary, of the Company, each share of Common Stock is
entitled to share ratably in any assets available for
distribution to holders of the equity of the Company after
satisfaction of all liabilities. The class of securities to be
offered is registered under Section 12 of the Exchange Act.
The Transfer Agent for the Company's Common Stock is:
Securities Transfer Corp.
16910 Dallas Parkway
Suite 100
Dallas Texas 75248
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Articles of Incorporation and By-Laws contain
provisions which reduce the potential personal liability of
directors for certain monetary damages and provide for
indemnity of directors and other persons, among other things,
as does state law.
The provisions are intended to increase the protection
provided Directors and, thus, increase the Company's ability
to attract and retain qualified persons to serve as Directors.
New Mexico Statues, as amended, Chapter 53, authorizes the
indemnification of officers and directors and certain others
under certain circumstances.
The Articles of Incorporation also provide indemnification as
follows (summary):
(a) A person who is or was a officer, Director and certain
others, as to a pending or completed action or suit or certain
other matters.
(b) Certain persons serving under other corporations,
and/or certain other entities, at the request of the Company.
(c) Indemnification for expenses in certain circumstances.
(d) Indemnification only in cases as ordered by court or
determined by the Board.
(e) Indemnification is non-exclusive as to any other rights
to indemnity.
(f) The foregoing is also subject to certain exceptions and
limitations.
The Bylaws also provide indemnification as follows:
The corporation shall indemnify any director or officer or
former director or officer of the corporation, or any person
who may have served at its request as a director or officer or
another corporation in which it owns shares of capital stock
or of which it is a creditor, against expenses actually and
reasonably incurred by him in connection with the defense of
any action, suit or proceeding, civil or criminal, in which he
is made a party by reason of being or having been such a
director or officer, except in relation to matters as to which
he shall be adjudged in such action, suit or proceeding to be
liable for negligence or misconduct in the performance of duty
to the corporation. The foregoing shall not be construed as
prohibiting in any way any broader indemnification permitted
by the articles of incorporation.
In the opinion of the Securities and Exchange Commission,
indemnification for liabilities arising under the Securities
Act of 1933 is contrary to public policy and, therefore, is
unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See - Exhibits and Exhibit Index herein.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or
sells securities, a post-effective amendment to this
Registration Statement to:
(i) Include any prospectus required by section 10(a)(3)
of the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in
the information in the registration statement: and
notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in the volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) Include any additional or changed material
information on the plan of distribution.
(2) For 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) For determining any liability under the Securities
Act, treat the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the
small business issuer under Rule 424(b)(1), or (4) or 497(h)
under the Securities Act as part of this registration
statement as of the time Commission declared it effective.
(4) For determining any liability under the Securities
Act, treat each post-effective amendment as a new
registration statement for the securities offered, and the
offering of the securities at that time to be the initial bona
fide offering.
Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended (the "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 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant. 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 authorized, in the City of Tavares
, State of Florida, on October 21 , 1997.
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.
Energy Optics, Inc.
_______________________________________
James C. Statham, President
(Principal Executive Officer)
and Director
_______________________________________
Mary C. Adkins, Treasurer
(Principal Financial Officer)
and Director
SIGNATURES
The Registrant. 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 authorized, in the City of
Tavares, State of Florida, on October 21, 1997.
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.
Energy Optics, Inc.
/s/ James C. Statham
James C. Statham
/s/ Mary C. Adkins
Mary C. Adkins
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ENERGY OPTICS, INC.
EXHIBIT INDEX
EXH.
NO.DESCRIPTION DOCUMENT PAGE NO.
4 INSTRUMENTS DEFINING (a) ARTICLES OF INCORPORATED FROM
RIGHTS OF SECURITIES INCORPORATION AND COMMISSION FILE NO.
HOLDERS AMENDMENTS 0-10841
(b) BYLAWS AND
AMENDMENTS SAME AS ABOVE
5 OPINION RE:LEGALITY LETTER E-2
(AND CONSENT)
24 CONSENTS OF EXPERTS LETTERS E-2 (AS TO LEGAL CONSENT)
AND COUNSEL E-4 (AS TO ACCOUNTANT'S
CONSENT)
9A ADDITIONAL EXHIBITS CONSULTANT SERVICES E3
PLAN
E-1
EXHIBIT 5
OPINION RE: LEGALITY
(AND CONSENT)
E-2
ROSSI & ASSOCIATES, ATTORNEYS, P.A.
1700 E. Las Olas Blvd., Penthouse III, Ft. Lauderdale,
Florida 33301 305-761-7617 Fax: 305-761-7117
October 21, 1997
Energy Optics, Inc.
Attn: President
29425 C.R. 561
Tavares, FL 32778
Re: SEC Registration Statement on Form S-8
Dear Sir/Madam:
This firm ("Firm") has been engaged as counsel for Energy
Optics, Inc., a New Mexico corporation ("Company"), in
connection with its proposed offering under the Securities
Act of 1933, as amended (the "Act"), of eight hundred ninety-
eight thousand, eight hundred ( 898,800) shares of its Common
Stock which are to be issued under a plan for consulting
services by the Company, by a filing of a Registration
Statement under Form S-8 to which this opinion is a part, to
be filed with the Securities and Exchange Commission
("Commission").
In connection with rendering the opinion as set forth below,
the Firm has reviewed and examined originals or copies of the
following:
1. Articles of Incorporation of the Company, and any
amendments, as filed with the Secretary of State of New
Mexico;
2. By-laws of the Company and Written Consent or
Minutes of a Meeting of the Board of Directors on or about
October 21 , 1997, authorizing the Consulting Plan ("Plan")
with certain consultants and certain other matters;
3. Consultant Services Plan by the Company dated
October 21, 1997;
4. The Company's Registration Statement on Form S-8 and
exhibits thereto as filed with the Commission.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of all persons, the
authenticity of all documents submitted to the Firm as
originals, the conformity with the original documents of all
documents submitted to the Firm as certified or photostatic
copies, and the authenticity of the originals of such copies
and the truth of all information supplied us. We have further
assumed, among other things, that the recipient of the Shares
will have completed the required services, and/or provided
considerations required acceptable to the Board of Directors
and in compliance with Form S-8 and that any Shares to be
issued will have been registered in accordance with the Act,
absent the application of an exemption from registration,
prior to the issuance of such Shares. We have not
independently investigated or verified any matter,
assumption, or representation.
Based upon the foregoing and in reliance thereof, it is our
opinion that, subject to the limitations set forth herein,
the Shares to be issued will be duly and validly authorized,
legally issued, fully paid and nonassessable. This opinion
is expressly limited in scope to the Shares enumerated herein
which are to be expressly covered by the referenced
Registration Statement and does not cover subsequent
issuances of shares, pertaining to services to be performed
in the future (such transactions are required to be included
in either a new Registration Statement or a Post-Effective
Amendment to the Registration Statement including updated
opinions.
This opinion is limited. We consent to you filing this
opinion with the Commission as an exhibit to the Registration
Statement on Form S-8. This opinion is not to be used,
circulated, quoted or otherwise referred to for any other
purpose without our prior written consent. This opinion is
based upon our assumptions as to application of the law and
facts as of the date hereof. We assume no duty to
communicate with you with respect to any matters which come
to our attention hereafter.
Sincerely yours,
ROSSI & ASSOCIATES, ATTORNEYS, P.A.
EXHIBIT 10
CONSULTANT SERVICES PLAN
E-3
CONSULTANT SERVICES PLAN
THIS CONSULTANT SERVICES PLAN ("Plan") is made as of the 21st
day of October, 1997 by ENERGY OPTICS, INC., a New Mexico
corporation ("Company"), for each a (each a "Consultant")
the various consultants below.
R E C I T A L S:
The Company wishes to grant, and the Consultant wishes
to receive, as compensation for consultation services
provided to the Company, the Shares of the common stock of
the Company ("Common Stock"), all pursuant to the provisions
set forth herein;
NOW, THEREFORE, in consideration of the sum of Ten
($10.00) Dollars, premises, mutual promises, covenants, terms
and conditions herein, and other good and valuable
considerations, the receipt and sufficiency of which are
hereby acknowledged by the parties, the parties agree as
follows:
1. Grant of Shares. The Company hereby grants to the
Consultant the following shares of Common Stock (the
"Shares") in the Company.
Name # of Shares
Consultants 898,000
2. Services. Consultant has been engaged by the Company
and the Company has received business consultation services
including providing consulting services as to new business
opportunities, promotion of the company to the public and
professionals, personnel recruitment, acquisition
opportunities spin-off transactions, restructuring the
capitalization of the Company, and other matters as requested
by the President.
3. Compensation. The Consultant is not entitled to
receive cash compensation. Consultant's compensation is the
Shares identified herein. The parties agree the Shares are
valued at $_____ each.
4. Registration or Exemption. Notwithstanding anything
to the contrary contained herein, the Shares may not be
issued unless the Shares are registered pursuant to the
Securities Act of 1933, as amended ("Act"), and any
applicable state securities acts, or for such Shares not so
registered, the Company has reasonably determined that such
issuance would be exempt from the registration requirements
of the Act and applicable state securities laws.
5. Delivery of Shares. The Company shall deliver,
subject to the terms and conditions of this Plan, to the
Consultant, as soon as practicable, a Certificate
representing the Shares. Consultant agrees to be bound by
the terms and conditions under the Plan by accepting delivery
of the Shares.
6. Company's Rights and Florida Delivery. The
existence of the Shares and/or this Plan shall not affect in
any way the rights of the Company to conduct its business.
The Consultant agrees not to sell or transfer the Shares to
any person in Florida.
7. Disclosure. Consultant agrees to having read and
fully considered the disclosures under Exhibit "A" attached
hereto and incorporated herein by reference.
8. Waiver. No waiver is enforceable unless in writing
and signed by such waiving party, and any waiver shall not be
construed as a waiver by any other party or of any other or
subsequent breach.
9. Amendments. This Plan may not be amended unless by
the mutual consent of all of the parties hereto in writing.
10. Governing Law. This Plan shall be governed by the
laws of the State of Florida, and the sole venue for any
action arising hereunder shall be Lake County, Florida.
11. Assignment and Binding Effect. Neither this Plan
nor any of the rights, interests or obligations hereunder
shall be assigned by any party hereto without the prior
written consent of the other parties hereto, except as
otherwise provided herein. This Plan shall be binding upon
and for the benefit of the parties hereto and their
respective heirs, permitted successors, assigns and/or
delegates.
12. Integration and Captions. This Plan includes the
entire understanding of the parties hereto with respect to
the subject matter hereof. The captions herein are for
convenience and shall not control the interpretation of this
Plan.
13. Legal Representation. Each party has been
represented by independent legal counsel in connection with
this Plan, or each has had the opportunity to obtain
independent legal counsel and has waived such right, and no
tax advice has been provided to any party.
14. Construction. Each party acknowledges and agrees
having had the opportunity to review, negotiate and approve
all of the provisions of this Plan.
15. Cooperation. The parties agree to execute such
reasonable necessary documents upon advice of legal counsel
in order to carry out the intent and purpose of this Plan as
set forth hereinabove.
16. Hand-Written Provisions. Any hand-written
provisions hereon, if any, or attached hereto, which have
been initialed by all of the parties hereto, shall control
all typewritten provisions in conflict therewith.
17. Fees, Costs and Expenses. Each of the parties
hereto acknowledges and agrees to pay, without reimbursement
from the other party (ies), the fees, costs, and expenses
incurred by each such party incident to this Plan.
18. Consents and Authorizations. By the execution
hereinbelow, each party acknowledges and agrees that each
such party has the full right, power, legal capacity and
authority to enter into this Plan, and the same constitutes
a valid and legally binding Plan of each such party in
accordance with the terms, conditions and other provisions
contained herein.
19. Gender and Number. Unless the context otherwise
requires, references in this Plan in any gender shall be
construed to include all other genders, references in the
singular shall be construed to include the plural, and
references in the plural shall be construed to include the
singular.
20. Severability. In the event anyone or more of the
provisions of this Plan shall be deemed unenforceable by any
court of competent jurisdiction for any reason whatsoever,
this Plan shall be construed as if such unenforceable
provision had never been contained herein.
22. Counterparts. This Plan may be executed in
counterparts.
23. Facsimile. This Plan may be executed by
facsimile.
WITNESS: COMPANY:
ENERGY OPTICS, INC.
By:
Its:
/10141.rti EXHIBIT "A"
Item 1 - Plan Information
(a) General Plan Information
1. The title of the Plan is: Consultant Services Plan
("Plan") and the name of the registrant whose securities are
to be offered pursuant to the Plan is Energy Optics, Inc.
("Company").
2. The general nature and purpose of the Plan is to
grant Consultants 898,800 shares of the Company as
compensation for consultation services to be rendered to the
Company.
3. To the best of Company's knowledge, the Plan is not
subject to any of the provisions of the Employee Retirement
Income Security Act of 1974.
4. The Company shall act as Plan Administrator. The
Company's address and telephone number are - 29425 C.R. 561,
Tavares, FL 32778 (352) 742-5010. The Company, as
administrator of the Plan, will merely issue to the
Consultant shares of Common Stock pursuant to the terms of
the Plan.
(b) Securities to be Offered. Pursuant to the terms of the
Plan, shares of the Company's common stock will be offered.
(c) Employees Who May Participate in the Plan. Consultants
are the sole participants in this Plan. Consultants is
eligible to receive the securities provided the securities
have been registered or are exempt from registration under
the Securities Act of 1933, as amended (the "Act").
(d) Purchase of Securities Pursuant to the Plan. The
Company shall issue and deliver the underlying securities to
Consultants as soon as practicable.
(e) Resale Restrictions. Consultants, after receipt of the
Shares, may assign, sell, convey or otherwise transfer the
securities received, subject to the requirements of the Act.
(f) Tax Effects of Plan Participation. The Consultant
Services Plan is not qualified under Sec. 401 of the Internal
Revenue Code of 1986, as amended.
(g) Investment of Funds. n/a
(h) Withdrawal from the Plan; Assignment of Interest.
Withdrawal or termination as to the Plan may occur upon
mutual written consent of the parties. Consultants have the
right to assign or hypothecate Consultant's interest in the
Plan, subject to Plan provisions.
(i) Forfeitures and Penalties. n/a
(j) Charges and Deductions and Liens Therefor. n/a
Item 2 -Registrant Information and Employee Plan Annual
Information.
Registrant, upon oral or written request by Consultants,
shall provide, without charge, the documents incorporated by
reference in Part II, Item 3 of Company's Form S-8
Registration Statement for the securities as well as any
other documents required to be delivered pursuant to SEC Rule
428(b) (17 CFR Section 230.428(b)). All requests are to be
directed to the Company at the address provided in paragraph
(a)(4) above.
3202.irt
EXHIBIT 24
CONSENTS OF EXPERTS AND COUNSEL
E-4
CONSENT OF INDEPENDENT AUDITORS
Energy Optics, Inc.
We hereby consent to the incorporation by reference in this
filing of Energy Optics, Inc. on Form S-8 of our report dated
October 11, 1996 appearing in the Company's Annual Report on
Form 10-K for the year ended July 31, 1996.
/S/ Mackie, Reid & Company, P.A.
Mackie, Reid
& Company, P.A.
Certified Public Accountants
