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As filed with the Securities and Exchange Commission on March 21, 2000
Registration No. ___-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
NESS ENERGY INTERNATIONAL, INC.
(Exact name of the Company as specified in its charter)
WASHINGTON 91-1067265
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
-----------------
4201 EAST I-20 SERVICE ROAD
WILLOW PARK, TEXAS 76087
(Address of principal executive offices)
-----------------
NESS ENERGY INTERNATIONAL, INC.
STOCK ISSUANCE TO CONSULTANT
-----------------
MR. HAYSEED STEPHENS
NESS ENERGY INTERNATIONAL, INC.
4201 EAST I-20 SERVICE ROAD
WILLOW PARK, TEXAS 76087
(Name and address of agent for service)
(817) 341-1477
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------- ------------- ---------------- ------------------ -------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT OF BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE (1)(2) REGISTRATION FEE(2)
- --------------------- ------------- ---------------- ------------------ -------------------
<S> <C> <C> <C> <C> <C>
COMMON STOCK, $0.00 200,000 $1.40 $280,000 $74.00
- --------------------- ------------- ---------------- ------------------ -------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act"), this Registration Statement also
covers an indeterminate number of additional shares that may be
issuable in connection with share splits, share dividends or similar
transactions.
(2) Estimated pursuant to Rule 457(c) under the Securities Act, solely for
the purpose of calculating the registration fee, based on the average
of the bid and asked prices for the Company's common stock as reported
within five business days prior to the date of this filing.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*The document(s) containing the information specified in Part 1 of Form
S-8 will be sent or given to participants as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"). Such document(s)
are not being filed with the Commission, but constitute (along with the
documents incorporated by reference into the Registration Statement pursuant to
Item 3 of Part II hereof) a prospectus that meets the requirements of Section
10(a) of the Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously or concurrently filed by Ness Energy
International, Inc. (the "Company") with the Commission are hereby incorporated
by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1998 (the "Annual Report") filed by the
Company (SEC File No. 0-10301) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), with the
Commission.
(b) The Company's Form 10-QSB for the quarters ended March 31,
June 30 and September 30, 1999.
(c) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to in (a) above.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities them remaining unsold,
shall be deemed incorporated by reference into this Registration Statement and
to be a part thereof from the date of the filing of such documents. Any
statement contained in the documents incorporated, or deemed to be incorporated,
by reference herein or therein shall be deemed to be modified or superseded for
purposes of this Registration Statement and the prospectus which is a part
hereof (the "Prospectus") to the extent that a statement contained herein or
therein or in any other subsequently filed document which also is, or is deemed
to be, incorporated by reference herein or therein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement and the Prospectus.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with the Texas Business Corporation Act, Article IV of
the Company's Bylaws provides that the Company may advance expenses to and
indemnify directors, officers, employees, agents and other persons who may have
advanced expenses and be indemnified under applicable law.
Section 2.02-1 of the Texas Business Corporation Act permits
indemnification of directors and officers of the Company and officers and
directors of another corporation, partnership, joint venture, trust, or other
enterprise who serve at the request of the Company, against expenses, including
attorney fees, judgments, fines and amount paid in settlement actually and
reasonable incurred by such person in connection with any action, suit, or
proceeding in which such person is a party by reason of such person being or
having been a director or officer of the Company of at the request of the
Company, if he conducted himself in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was
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unlawful. The Company may not indemnify an officer or a director with respect to
any claim, issue or matter as to which such officer or director shall have been
adjudged to be liable to the Company, unless and only to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper. To the extent that an officer of
directors is successful on the merits or otherwise in defense on the merits or
otherwise in defense of any action, suit or proceeding with respect to which
such person is entitled to indemnification, or in defense of any claim, issue or
matter therein, such person is entitled to be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in connection
therewith.
The circumstances under which indemnification is granted in an action brought on
behalf of the Company are generally the same as those set forth above; however,
expenses incurred by an officer or a director in defending a civil or criminal
action, suit or proceeding may be paid by the Company in advance of final
disposition upon receipt of an undertaking by or on behalf of such officer or
director to repay such amount if it is ultimately determined that such officer
or director is not entitled to indemnification by the Company.
No director of the Company shall be personally liable to the Company or
any of its shareholders for damages for any act or omission in such capacity
except to the extent Texas law expressly precludes limitation of such personal
liability, which it does when the director is found liable for a breach of his
duty of loyalty, an act or omission not in good faith that constitutes a breach
of duty or intentional misconduct or knowing violation of law, a transaction
from which the director received an improper benefit or any other case where
liability is provided by statute.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index following the signature page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective
amendment to the 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 arising after the effective date of
the Registration Statement which,
individually or in the aggregate, represent
a fundamental change in the information set
forth 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 a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20 percent change
in the maximum aggregate offering price set
forth in the
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"Calculation of Registration"
table in the effective registration
statement; and (iii) 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, provided however,
that provisions (i) and (ii) of this
undertaking are inapplicable if the
information to be filed thereunder is
contained in periodic reports filed by the
Company pursuant to the Exchange Act that
are incorporated by reference into the
Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each
such post-effective amendment shall be
deemed to be a new registration statement
relating to the securities offered therein,
and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of
post-effective amendment any of the
securities being registered which remains
unsold at the termination of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities 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 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 Company
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 its is against public policy as expressed
in the Securities Act and will be governed by the final
adjudication of such issue.
(c) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each
filing of the Company's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Longview, State of Texas, on March 21, 2000.
NESS ENERGY INTERNATIONAL, INC.
By: /s/ HAYSEED STEPHENS
------------------------------------
Hayseed Stephens
Chief Executive Officer and
President
(Principal Executive Officer)
By: /s/ ROBERT LEE
-----------------------------------
Robert Lee, Controller and
Principal Accounting Officer
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Hayseed Stephens his true and lawful
attorney-in-fact and agent, each will full power of substitution and
re-substitution, for them and in their name, place and stead, in any and all
capacities to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibit thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as
they might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or any of the, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by each of the following persons in the
capacities indicated on the dates indicated below on March 21, 2000.
<TABLE>
<CAPTION>
Signatures Title
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<S> <C>
/s/ Richard Nash Director
----------------
Richard Nash
</TABLE>
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NESS ENERGY INTERNATIONAL, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Exhibit Incorporated Herein by Filed
No. Description Reference To Herewith
- --------------- ----------------------------------- ------------------------------------------ ---------------------
<S> <C> <C> <C>
3.1 Articles of Incorporation of Ness Exhibits 2.1 and 2.2 of the Form 10SB
Energy International, Inc., as Registration Statement filed with the
amended Commission (SEC File No. 0-10301)
3.2 Bylaws of Ness Energy Incorporated by reference to Exhibit 2.3
International, Inc. of Form 10SB filed with the Commission
(SEC File No. 0-10301)
4.1 Consulting Agreement dated March
21, 2000, with X
Curtis A. Swanson
5.1 Opinion of James Hada, JD
X
23.1 Consent of Weaver Tidwell &
Associates X
23.2 Consent of James Hada, JD
(included in Exhibit 5.1)
24.1 Power of Attorney Included on
Signature Page to
the Registration
Statement
</TABLE>
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EXHIBIT 4.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as
effective the 21st day of March, 2000, by and between NESS ENERGY INTERNATIONAL,
INC., a Washington corporation ("Company") and Curtis A. Swanson ("Consultant").
A. The Company has engaged the services of Consultant as an
independent contractor to provide reporting services to the
Company;
B. The Consultant represents that it has no prior or existing
legally binding obligations that are in conflict with its
entering into this Agreement; and
C. The Consultant is willing to be so retained on the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Engagement. The Company hereby retains Consultant as an independent
contractor to provide services to the Company, and Consultant hereby accepts
such engagement on the terms and conditions hereinafter set forth.
2. Term. This Agreement shall be in effect for an initial term of six
months, commencing upon execution by both parties, and shall be renewable
automatically, without any action of the parties, on an semi-annual basis
thereafter, unless either party gives the other written notice of an intention
not to renew this Agreement at least thirty (30) days prior to the end of the
initial term or any renewal term thereof.
3. Duties of Consultant. The Company retains Consultant to provide
advise and counsel to management on matters pertaining to the business of the
Company in the areas of mergers and acquisitions, litigation, and SEC reporting.
None of the services provided under this Agreement shall pertain to any advice
regarding federal or state securities laws or trading in the Company's stock.
Consultant shall render the services required in this Agreement as
an independent contractor. Deadlines in respect of the service and functions of
Consultant shall be mutually agreed upon. Consultant shall have no authority or
power of decision over any of the Company's activities or employees.
Consultant shall use his best efforts to advance the business and
welfare of the Company, and shall not intentionally take any action adverse to
the best interests of the Company.
4. Compensation. As full compensation for the services described herein
that Consultant has rendered to the Company, the Company shall make a one-time
grant of 100,000 restricted shares
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of the Company's Common Stock, at an issue price of $1.30 per share, to be
registered for resale under Form S-8 or other available form as soon as
reasonably practical. In the event the agreement is extended for an additional 6
month period at the sole option of the Company then the Company shall make an
additional one-tome grant of 100,000 restricted shares of the Company's Common
Stock, at an issue price of $1.30 per share, to be registered for resale under
Form S-8 or other available form as soon as reasonably practical.
5. Disclosure of Information. Consultant recognizes and acknowledges as
a result of his engagement by the Company, he will have access to discover
information which is of a proprietary manner to the Company, including methods,
inventions, improvements, trade secrets, or discoveries, whether patentable or
not, and similar information relating to the Company's products and services. In
addition, information will or has been disclosed to Consultant, or has been
discovered by Consultant, concerning marketing plans, processes, products,
apparatus, techniques, know-how, trade secret, strategies, customer lists, and
technical requirements of customers of the Company. Consultant agrees that he
will not, without the prior written approval of the Company, disclose any such
proprietary information of the Company to anyone not in the employ of the
Company, or use any such information other than for the purposes of this
Agreement. Consultant agrees that he will not allow any other person engaged by
him to have access to any of the proprietary information unless he first obtains
such person's agreement not to disclose or use such information, and such
agreement is binding upon the Company, Consultant, and such third person. These
obligations shall not apply, however, to information which is or becomes
generally available to the public through no fault of Consultant.
6. Termination. This Agreement shall terminate on the earliest of:
(i) On September 21, 2000;
(ii) At Company's option, upon a thirty (30) day written notice; or
(iii) Upon mutual written agreement of the parties hereto.
7. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and personally delivered, or if sent
by certified mail, postage prepaid to its residence in the case of Consultant,
its principal office in the case of the Company and shall be effective upon
deposit into the United States Postal Service, or in the case of personal
delivery when actually delivered. Such notice shall be directed to the
individuals and addresses below:
Ness Energy International, Inc.
4201 East I-20 Service Road
Willow Park, Texas 76087
Curtis A. Swanson
911 N.W. Loop 281, Suite 111
Longview, Texas 75604
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8. Waiver. The waiver by the Company of a breach of any provision of
this Agreement by Consultant shall not operate or be construed as a waiver of
any subsequent breach by Consultant.
9. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, their respective heirs, representatives,
successors, and assigns, but shall not be assignable by Consultant without the
prior written consent of the Company.
10. Severability. If any provision of this Agreement is held to be
contrary to law, that provision shall be deemed severable from the balance of
this Agreement, and the balance of this Agreement shall remain in force between
the parties to the fullest extent permitted by law.
11. Entire Agreement. This Agreement shall be deemed to express,
embody, and supersede all previous understandings, agreements and commitments,
whether written or oral, between the parties hereto with respect to the subject
matter hereof and to fully and finally set forth the entire agreement between
the parties hereto. No modifications shall be binding unless stated in writing
and signed by both parties hereto with the approval of the President of the
Company.
12. Governing Law; Venue; Mediation, if needed, Arbitration. This
Agreement shall be governed by the laws of the State of Texas. Any dispute
involving or affecting this Agreement or the services to be performed shall be
determined and resolved by binding arbitration in the County of Gregg, State of
Texas, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association.
13. Prior Agreements. This Agreement supersedes and renders null and
void all prior written or oral agreements by and between the Company or its
affiliates and Consultant, except as provided herein or in any amendments or
addendums hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the date set forth above.
COMPANY: /s/ HAYSEED STEPHENS
NESS ENERBY INTERNATIONAL, INC.
By: /s/ Hayseed Stephens
------------------------------
Hayseed Stephens, Chairman
CONSULTANT:
CURTIS A. SWANSON
By: /s/ Curtis A. Swanson
------------------------------
Curtis A. Swanson
<PAGE> 1
EXHIBIT 5.1
[Counsel Letterhead]
March 21, 2000
Ness Energy International, Inc.
4201 East I-20 Service Road
Willow Park, Texas 756087
Re: Form S-8 Registration Statement relating to the registration
of 200,000 shares of common stock, $.00 par value of Ness
Energy International, Inc. pursuant to one Consulting
Agreement
Gentlemen:
We are acting as counsel for Ness Energy International, Inc., a
Washington corporation (the "Company"), in connection with the filing under the
Securities Act of 1933, as amended, of a Registration Statement for the Company
on Form S-8 filed with the Securities and Exchange Commission ("SEC") (the
"Registration Statement"), covering an aggregate of 200,000 shares (the
"Shares") of common stock, par value $.01 per share (the "Common Stock"), of the
Company which will be issued pursuant to a Consulting Agreement with Curtis A.
Swanson.
In that connection, we have examined the Form S-8 Registration
Statement in the form to be filed with the SEC. We have also examined and are
familiar with the originals or authenticated copies of all corporate or other
documents, records and instruments that we have deemed necessary or appropriate
to enable us to render the opinion expressed below.
We have assumed that all signatures on all documents presented to us
are genuine, that all documents submitted to us as originals are accurate and
complete, that all documents submitted to us as copies are true and correct
copies of the originals thereof, that all information submitted to us was
accurate and complete and that all persons executing and delivering originals or
copies of documents examined by us were competent to execute and deliver such
documents. In addition, we have assumed that the Shares will not be issued for
consideration equal to less than the par value thereof and that the form of
consideration to be received by the Company for the Shares will be lawful
consideration under the Texas Business Corporation Act.
<PAGE> 2
Restaurant Teams International, Inc.
March 10, 2000
Page 2
Based on the foregoing and having due regard for the legal
considerations we deem relevant, we are of the opinion that the Shares, or any
portion thereof, when issued as described in the Registration Statement, will be
validly issued by the Company, fully paid and nonassessable.
This opinion is limited in all respects to the laws of the United
States of America and the State of Texas.
This opinion may be filed as an exhibit to the Registration Statement.
Sincerely,
/s/ James H. Hada
James H. Hada, JD
<PAGE> 1
[Auditor Letterhead]
CONSENT OF INDEPENDENT AUDITOR
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Ness Energy International, Inc. of our report dated
July 29, 1999 relating to the financial statements of Ness Energy International,
Inc. as of and for the year ended December 31, 1998.
/s/ Weaver and Tidwell, L.L.P.
WEAVER AND TIDWELL, L.L.P.
Fort Worth, Texas
March 21, 2000
