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 the registrant as specified in its charter)
NEW MEXICO
(State or other jurisdiction of incorporation)
85-0273340
(I.R.S. Employer Identification Number)
29425 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: 150,000 Shares
PROPOSED MAXIMUM OFFERING
PRICE PER UNIT: $2.65(1)
PROPOSED MAXIMUM AGGREGATE
OFFERING PRICE: $397,500(1)
<PAGE>
AMOUNT OF REGISTRATION FEE: $125.00
(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 November 7, 1997.
PART 1 - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to Rule 428 (b)(1), the information required by Part 1 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 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 purposed 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
<PAGE>
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 an 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.
<PAGE>
(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 By-Laws 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 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 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
<PAGE>
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 previsions or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification in 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 November 7, 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
<PAGE>
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 November 7, 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
<PAGE>
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 (a) ARTICLES OF INCORPORATED
DEFINING RIGHTS OF INCORPORATION AND FORM COMMISSION
SECURITIES HOLDERS AMENDMENTS FILE NO. 0-10841
(b) BY-LAWS AND SAME AS ABOVE
AMENDMENTS
5 OPINION RE: LEGALITY LETTER E-2
(AND CONSENT)
9.A ADDITIONAL EXHIBITS CONSULTANT E3
SERVICES PLAN
23 CONSENTS OF LETTER E-2 (AS TO LEGAL
EXPERTS AND CONSENT)
COUNSEL E-4 (AS TO
23.1 ACCOUNTANT'S
CONSENT)
E-1
EXHIBIT 9.A
CONSULTANT SERVICES PLAN
THIS CONSULTANT SERVICES PLAN ("Plan) is made as of the 7th day of November,
1997 by ENERGY OPTICS, INC., a New Mexico corporation ("Company"), for each
Consultant (each a "Consultant") the various consultants below.
RECITALS:
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 premises, 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 any one or more
Consultants selected by the Company up to 150,000 shares of Common Stock (the
"Shares") in the Company.
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.
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
<PAGE>
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, interest or obligation hereunder shall be assigned by any party hereto
without the prior written consent of the other parties hereto, except as
otherwise provided herein. The 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 the 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 initiated 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.
<PAGE>
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 the
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:
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
150,000 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 are 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").
<PAGE>
(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 Therefore. 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.
EXHIBIT 23
CONSENTS OF EXPERTS AND COUNSEL
ROSSI & ASSOCIATES, ATTORNEYS, P.A.
1700 E. Las Olas Blvd., Penthouse III, Ft. Lauderdale,
Florida 33301 305-761-7617 Fax: 305-761-7117
November 7, 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 one hundred fifty
thousand (150,000) 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 November 7, 1997, authorizing the
consulting Plan ("Plan") with certain consultants and certain other matters;
3. Consultant Services Plan by the Company dated November 7, 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.
<PAGE>
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 preformed 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 23.1
CONSENTS OF EXPERTS AND COUNSEL
CONSENT OF INDEPENDENT AUDITORS
Energy Optics, Inc.
We hereby consent to the incorporation by reference in this November 7, 1997,
filing of Energy Optics, Inc. on Form S-8 of our report appearing in the
Company's Annual Report of Form 10-K for the year ended July 31, 1996.
/s/ Mackie, Reid & Company, P.A.
Mackie, Reid & Company, P.A.
Certified Public Accountants
