SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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: 72,000 Shares
PROPOSED MAXIMUM OFFERING PRICE PER UNIT: $0.83(1)
PROPOSED MAXIMUM AGGREGATE OFFERING PRICE: $59,760(1)
<PAGE>
AMOUNT OF REGISTRATION FEE: $18.11(1)
(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 offering price, maximum aggregate offering price and registration fee is
based upon the public trading price (average of low and high) of the common
stock on April 7, 1998.
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-KSB for the fiscal year
ended July 31, 1997, 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
<PAGE>
cumulatively. Accordingly, the holders of more than fifty percent (50%) 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.
Brenda Lee Hamilton, Esquire, has rendered legal services and prepared S-8.
555 South Federal Highway
Suite 400
Boca Raton, Florida 33432
Dohan and Company, CPA, Consent to Incorporation by reference of 10-KSB dated
July 31, 1997.
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.
<PAGE>
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.
(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 twenty
percent (20%) change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
<PAGE>
(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 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 April 1, 1998. 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
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James C. Statham, President
(Principal Executive Officer)
and Director
<PAGE>
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ENERGY OPTICS, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXH. NO. DESCRIPTION DOCUMENT PAGE NO.
- -------- ----------- -------- --------
<S> <C> <C> <C>
4 INSTRUMENTS DEFINING (a) ARTICLES OF FORM
RIGHTS OF INCORPORATION AND FILE NO.
SECURITIES HOLDERS COMMISSION 0-10841
INCORPORATED
AMENDMENTS
(b) BY-LAWS AND SAME AS
AMENDMENTS ABOVE
5 OPINION RE: LEGALITY LETTER E-2
(AND CONSENT)
9.A ADDITIONAL EXHIBITS CONSULTANT E-3
SERVICES PLAN
23 CONSENTS OF LETTER E-2
EXPERTS AND
COUNSEL (AS TO LEGAL CONSENT)
23.1 (AS TO ACCOUNTANT'S CONSENT) E-4
</TABLE>
E-3
EXHIBIT 9.A
CONSULTING SERVICES PLAN
1. The Law Firm of Brenda Lee Hamilton, P.A. (hereinafter referred to as the
"Law Firm") will represent Energy Optics, Inc. (hereinafter referred to as "the
Client") in various corporate and securities matters, including documents
required for compliance with the reporting requirements and any registration
statements for the sale of securities pursuant to the Securities Act of 1934.
2. The above legal services and others will be performed by the Law Firm after
consultation and authorization from the Client.
3. The total retainer fee to be paid is six thousand (6,000) Shares monthly of
the Client's free trading securities. Said fee includes legal services up forty
(40) hours monthly upon request of Company. A certificate for the Shares shall
be issued to Brenda Lee Hamilton on the first day of each month. This is a
non-refundable monthly fee. If additional legal services are performed they will
be charged to the Client. The charges will be agreed upon in advance, when
possible, otherwise the Client will be charged a reasonable fee in light of the
circumstances.
The Law Firm and the Client mutually agree that if Energy Optics' share price
exceeds $1.25, then the monthly number of shares issued by the Client to the Law
Firm will be adjusted downward to an amount that would equal approximately
$6,000 upon liquidation for that particular month. Conversely, if the price per
share retreats to below $0.75, the Client will increase the number of shares to
be issued to the Law Firm that would equal approximately $6,000 upon liquidation
for that particular month.
The stock valuation references above will be based upon the average of the bid
and ask on the last trading day of each month with the appropriate number of
shares to be issued to the Law Firm by the Client no later than the fifth day of
the following month.
The Law Firm shall prepare the S-8 registration for 72,000 shares of the
Client's common stock in twelve (12) certificates of 6,000 shares each to be
held by the Client for issuance to the Law Firm as is required as per above.
4. Costs to be payable to the Law Firm. The Client agrees to compensate the Law
Firm for the cost of photocopying, telephone toll charges, postage, messenger
service or other out-of-pocket expenses required in the representation of the
Client in excess of $100.00 for each month. The Law Firm pays the first $100.00.
This does not include any State or Federal Filing Fees.
5. All payments for costs and expenses are due upon presentation of invoices.
6. The Law Firm is authorized to take all actions which the Firm deems advisable
on behalf of the Client. The Law Firm agrees to notify the Client promptly of
all significant developments in this matter.
7. Client will fully cooperate with the Law Firm and provide all information
known to the Client or available to the Client which, in the opinion of the Law
Firm, would aid the Law Firm in
<PAGE>
representing the Client in this matter.
8. If the Law Firm is representing the Clients jointly, then it is the Client's
individual responsibility to advise the Law Firm if any of the information
provided to the Law Firm is to be kept confidential and to be withheld from the
other Clients. Otherwise the Law Firm will assume that all information is
available to be disclosed to all Clients.
9. The Law Firm agrees to use its best efforts in representing the Client in
this matter.
10. The Law Firm may terminate this Agreement if the Client is in breach of its
obligations under this Agreement or if the Law Firm is otherwise required to do
so in accordance with the rules of professional conduct governing attorneys. The
Client is entitled to terminate this Agreement subject to its contractual
liability to the Law Firm for services rendered.
11. Either party may terminate this Agreement upon thirty (30) days written
notice. The Client agrees that the Law Firm shall be paid in full for any
services performed preceding termination for which the Law Firm has not been
paid.
12. This writing includes the entire Agreement between the Client and the Law
Firm regarding this matter. This Agreement can only be modified with another
written agreement signed by the Client and the Law Firm. This Agreement shall be
binding upon the Client and the Law Firm and their respective heirs, legal
representatives and successors in interest.
13. Both the Client and the Law Firm have read and agreed to this Agreement. The
Law Firm has provided the Client with answers to any questions and has further
explained this Agreement to the complete satisfaction of the Client. The Client
has also been given a copy of this Agreement.
In Witness Whereof, the parties have executed this Agreement on the 1
day of April, 1998.
LAW OFFICE OF BRENDA LEE HAMILTON, P.A.
/s/Brenda Lee Hamilton
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By: Brenda Lee Hamilton
ENERGY OPTICS, INC.
/s/Jimmy Statham
- ----------------------------
By: Jimmy Statham, President
<PAGE>
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 Consultant
72,000 shares of the company as compensation for legal 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 3277, telephone (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. Consultant is the sole
participants in this Plan. Consultant 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 Consultant as soon as practicable.
(e) Resale Restrictions. Consultant , 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. Consultant
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
<PAGE>
Item 2 - Registrant Information and Employee Plan Annual Information.
Registrant, upon oral or written request by Consultant, 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
THE LAW OFFICE OF BRENDA LEE HAMILTON, P.A.
555 South Federal Highway, Suite 400, Boca Raton, Florida 33432
Phone: 561-416-8956 Fax: 561-416-2855
April 8, 1998
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 (" the Firm") has been engaged as counsel for Energy Optics, Inc., a
New Mexico corporation ("the Company"), in connection with its proposed offering
under the Securities Act of 1933, as amended (the "Act"), of seventy two
thousand (72,000) 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 April 1, 1998, authorizing the Consulting
Plan ("Plan") with certain consultants and certain other matters;
3. Consultant Services Plan by the Company dated April 1, 1998; and
4. The Company's Registration Statement on Form S-8 and exhibits
thereto as filed with the Commission.
<PAGE>
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 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,
THE LAW OFFICE OF BRENDA LEE HAMILTON, P.A.
/s/Brenda Lee Hamilton
- -----------------------
by: Brenda Lee Hamilton
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 April 1, 1998 filing
of Energy Optics, Inc. on Form S-8 of our report appearing in the Company's
Annual Report of Form 10-KSB for the year ended July 31, 1997.
/s/ Steve Dohan
- ----------------------------
Dohan & Company
Certified Public Accountants
7700 North Kendall Drive, Suite 204
Miami, Florida 33135-7564
Telephone: (305)274-1366; Facsimile: (305)274-1368
