As filed with the Securities and
Exchange Commission on ___________________
File No. _________________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under the Securities Act of 1933
OHIO & SOUTHWESTERN ENERGY COMPANY
(Exact Name of Registrant as Specified in its Charter)
COLORADO 33-28188 84-1116458
- -------------- -------------------- ----------------------
(State of (Commission File No.) (IRS Employer ID No.)
Incorporation)
#450-650 W. GEORGIA STREET, VANCOUVER, B.C., CANADA V6B 4N8
-------------------------------------------------
(Address of Principal Executive Offices)
1998 EMPLOYEE/CONSULTANT STOCK COMPENSATION PLAN
------------------------------
(Full Title of Plan)
RALPH SHEARING, #450-650 W. GEORGIA STREET, VANCOUVER, B.C., CANADA V6B 4N8
---------------------------------------------
(Name and Address 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 interest
reinvestment plans, check the following line: X
CALCULATION OF REGISTRATION FEE
Proposed(1)(2) Proposed(2)(3)
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(4) Per Share Price Fee (3)
Common Stock 620,000 $.10 $620,000 $131.00
<PAGE>
(1) The securities registered hereunder are shares of the registrant's
common stock, $.0001 par value.
(2) Estimated for purpose of calculating the registration fee.
(3) The fee with respect to these shares has been calculated pursuant
to Rules 457(h) and 457(c) under the Securities Act of 1933, as
amended, and based upon the average of the bid and ask prices per share
of the Registrant's Common Stock on a date within five (5) days prior
to the date of filing of this Registration Statement, if any, as quoted
on Nasdaq. (Since no quote is now published, it was assumed at $.10 for
purposes of calculating the filing fee).
(4) Shares of the registrant's common stock issuable to consultants
under the registrant's 1998 Employee/Consultant Stock Compensation
Plan.
Item 3. Incorporation of Certain Documents by Reference.
The following documents are following by reference into the registration
statement:
(a) -1. The Company's Annual Report on Form 10-KSB for the year ended December
31, 1997, Form 10-QSB for March 31, 1998, Form 8-K for July 10, 1998, and all
other reports filed pursuant to section 13(a) or 15(d) since the end of the year
covered by above annual report.
(a) -2. The Company's Registration Statement on Form S-18 File No. 33-28188.
All documents filed by the Company pursuant to Section 13(a), 13(c), or
15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which de-registers all
securities covered hereby then remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents, except as to any portion of any future Annual or Quarterly
Report to Stockholders which is deemed to be modified or superseded for purposes
of this Registration Statement to the extent that such statement is replaced or
modified by a statement contained in a subsequently dated document incorporated
by reference or contained in this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Common Stock:
The Securities are NOT registered under Section 12 of the Exchange Act.
The description of the Company's common stock which is contained in the
Company's registration statement filed under the Securities Act of 1933, and
subsequent amendments or reports filed for the purpose of updating such
description.
<PAGE>
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Colorado Business Corporation Act (the "Act") provides that a corporation
may indemnify a director or officer of the corporation and to purchase and
maintain liability insurance for those persons as, and to the extent permitted
by the Act.
The Company's Bylaws limits directors' liability for monetary damages for
breaches of their duties of care owed the Company to the fullest extent
permitted by Colorado law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Does not apply.
ITEM 8. EXHIBITS.
5.1 Opinion of Michael A. Littman regarding the legality of the
securities being offered hereby.
10.1 Employee Compensation Plan
24.1 Consent of A.J. Robbins, PC
24.2 Consent of Michael A. Littman (contained in Exhibit 5.1)
ITEM 9. UNDERTAKINGS.
The undersigned hereby undertakes:
(1)(a) To file, during any period in which offers or sales are being
made, a post effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
<PAGE>
Provided, however, that paragraphs (1)(i) and (1)(a)(ii) do not apply
if the Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, 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
benefit offering thereof.
(2) To remove from registration by means of a post effective amendment any of
the securities being registered which remain unsold at the termination of the
Plan.
(3) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act pursuant to section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the 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 benefit offering thereof.
(4) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(5) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 Vancouver, British Columbia, Canada, on the 29th day
of July, 1998.
OHIO & SOUTHWESTERN ENERGY, INC.
By:/s/Ralph Shearing
- ---------------------------
President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
/s/Ralph Shearing President & Director, July 29, 1998
/s/Abbas Salih Secretary & Director July 29, 1998
_____________________ Vice President & Director ____________________
_____________________ Director ____________________
_____________________ Director ____________________
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------------------
OHIO & SOUTHWESTERN ENERGY COMPANY
<PAGE>
EXHIBIT INDEX
Exhibit
NUMBER
5.1 Opinion of Michael A. Littman regarding the legality of the securities
being offered hereby.
10.1 Employee/Consultant 1998 Compensation Plan
24.1 Consent of A.J. Robbins, PC
24.2 Consent of Michael A. Littman
(contained in Exhibit 5.1)
EXHIBIT 5.1
<PAGE>
Michael A. Littman
Attorney at Law
10200 W. 44th Ave., #400
Wheat Ridge, CO 80033
(303) 422-8127 (303) 422-7796 fax
July 29, 1998
Ohio & Southwestern Energy Company
#450-650 W. Georgia Street
Vancouver, B.C. Canada V6B 4N8
Re: S-8 for Ohio & Southwestern Energy Company
Gentlemen:
At your request, I have examined the form of Registration Statement
No., ______________ which you are filing with the Securities and Exchange
Commission, on Form S-8 (the "Registration Statement"), in connection with the
registration under the Securities Act of 1933, as amended, of 620,000 shares of
your Common Stock (the "Stock") issuable pursuant to the 1998
Employee/Consultant Compensation Plan. (the "Plan").
In rendering the following opinion, I have examined and relied only
upon the documents, and certificates of officers and directors of the Company as
are specifically described below. In my examination, I have assumed the
genuineness of all signatures, the authenticity, accuracy and completeness of
the documents submitted to me as originals, and the conformity with the original
documents of all documents submitted to me as copies. My examination was limited
to the following documents and not others:
1. Certificate of Incorporation of the Company, as amended to date;
2. Bylaws of the Company, as amended to date;
3. Certified Resolutions adopted by the Board of Directors of the
Company authorizing the Plan and the issuance of the Stock.
4. The Registration Statements.
5. The Form of Plan.
I have not undertaken, nor do I intend to undertake, any independent
investigation beyond such documents and records, or to verify the adequacy of
accuracy of such documents and records.
<PAGE>
Based on the foregoing, it is my opinion that the Stock to be issued
under the Plan, subject to effectiveness of the Registration Statement and
compliance with applicable blue sky laws, and execution of the Plan in the form
referred to herein, when issued under the Plan, will by duly and validly
authorized, fully paid and non-assessable.
I express no opinion as to compliance with the securities or "blue sky"
laws of any state in which the Stock is proposed to be offered and sold or as to
the effect, if any, which non-compliance with such laws might have on the
validity of issuance of the Stock.
I consent to the filing of this opinion as an exhibit to any filing
made with the Securities and Exchange Commission or under any state or other
jurisdiction's securities act for the purpose of registering, qualifying or
establishing eligibility for an exemption from registration or qualification of
the Stock described in the Registration Statement in connection with the
offering described therein. Other than as provided in the preceding sentence,
this opinion (i) is addressed solely to you, (ii) may not be relied upon by any
other party, (iii) covers only matters of Colorado and federal law and nothing
in this opinion shall be deemed to imply any opinion related to the laws of any
other jurisdiction, (iv) may not be quoted or reproduced or delivered by you to
any other person, and (v) may not be relied upon for any other purpose
whatsoever. Nothing herein shall be deemed to relate to or constitute an opinion
concerning any matters not specifically set forth above.
By giving you this opinion and consent, I do not admit that I am a
expert with respect to any part of the Registration Statement or Prospectus
within the meaning of the term "expert" as used in Section 11 of the Securities
Act of 1933, as amended, or the Rules and Regulations of the Securities and
Exchange Commission promulgated thereunder.
The information set forth herein is as of the date of this letter. I
disclaim any undertaking to advise you of changes which may be brought to my
attention after the effective date of the Registration Statement.
Very truly yours,
/s/Michael A. Littman
Michael A. Littman
EXHIBIT 10.1
<PAGE>
1998 EMPLOYEE/CONSULTANT STOCK COMPENSATION PLAN
OHIO & SOUTHWESTERN ENERGY COMPANY
1. PURPOSE OF THE PLAN.
This Employee/Consultant Stock Compensation Plan is intended to further
the growth and advance the best interest of Ohio & Southwestern Energy Company,
a Colorado corporation (the "Company"), by supporting and increasing the
Company's ability to attract, retain and compensate persons of experience and
ability and whose services are considered valuable, to encourage the sense of
proprietorship in such persons, and to stimulate the active interest of such
persons in the development and success of the Company. This Plan provides for
stock compensation through the award of the Company's Common Stock, as a bonus
or in lieu of cash compensation for services rendered.
2. DEFINITIONS.
Whenever used in this Plan, except where the context might clearly
indicate otherwise, the following terms shall have the meanings set forth in
this section:
a. "Act" means the U.S. Securities Act of 1933, as amended.
b. "Affiliated Corporation" means any Parent or Subsidiary.
c. "Award" means any grant of Common Stock made under this Plan,
as a bonus, or in lieu of cash compensation for services
rendered.
d. "Board of Directors" means the Board of Directors of the
Company.
e. "Code" means the Internal Revenue Code of 1986, as amended.
f. "Common Stock" or "Common Shares" means the common stock,
$.001 par value per share, of the Company, or in the event
that the outstanding Common Shares are hereafter changed into
or exchanged for different shares of securities of the
Company, such other shares or securities.
g. "Date of Grant" means the day the Board of Directors
authorizes the grant of an Award or such later date as may be
specified by the Board of Directors as the date a particular
Award will become effective.
h. "Employee/Consultant" means any person or entity that renders
bona fide services to the Company, including, without
limitation, (i) a person employed by the Company in any
capacity; (ii) an officer or director of the Company; or (iii)
a person engaged by the Company as a consultant or advisor.
<PAGE>
i. "Participant" means an Employee or Consultant to whom an Award
of Plan Shares has been made.
j. "Plan Shares" means shares of Common Stock from time to time
subject to this Plan.
3. EFFECTIVE DATE OF THE PLAN.
The effective date of this Plan is July 29, 1998. No Plan Shares may be
issued after December 31, 1999.
4. ADMINISTRATION OF THE PLAN.
The Board of Directors will be responsible for the administration of
this Plan, and will negotiate compensation under this Plan. Subject to the
express provisions of this Plan, the Board of Directors shall have full
authority and sole and absolute discretion to interpret this Plan, to prescribe,
amend and rescind rules and regulations relating to it, and to make all other
determinations which it believes to be necessary or advisable in administering
this Plan. The determination of those eligible to receive Plan Shares shall rest
in the sole discretion of the Board of Directors, subject to the provisions of
this Plan. The Board of Directors may correct any defect, supply any omission or
reconcile any inconsistency in this Plan in such manner and to such extent it
shall deem necessary to carry it into effect. Any decision made, or action
taken, by the Board of Directors arising out of or in connection with the
interpretation and administration of the Plan shall be final and conclusive. The
Board of Directors may appoint a compensation committee from among the members
of the full Board of Directors to administer this Plan.
5. STOCK SUBJECT TO THE PLAN.
The maximum number of Plan Shares as to which Awards may be granted
under this Plan is 620,000 shares.
6. PERSONS ELIGIBLE TO RECEIVE AWARDS.
Awards may be granted only to Employees or Consultants
7. GRANTS OF AWARDS.
Except as otherwise provided herein, the Board of Directors shall have
complete discretion to determine when and to which Employees Awards are to be
granted, and the number of Plan Shares to be Awarded to each
Employee/Consultant. No grant will be made if, in the judgment of the Board of
Directors, such a grant would constitute a public distribution with the meaning
of the Act or the rules and regulations promulgated thereunder.
<PAGE>
8. DELIVERY OF STOCK CERTIFICATES.
As promptly as practicable after authorizing the grant of an Award, the
Company shall deliver to the person who is the recipient of the award, a
certificate or certificates registered in that person's name, representing the
number of Plan Shares that were granted. Unless the Plan Shares have been
registered under the Act, each certificate evidencing Plan Shares shall bear a
legend to indicate that such shares represented by the certificate were issued
in a transaction which was not registered under the Act, and may only be sold or
transferred in a transaction that is registered under the Act or is exempt from
the registration requirements of the Act.
9. ASSIGNABILITY.
No Award of Plan Shares may be assigned. Plan Shares may be assigned
after such shares have been delivered, only in accordance with law and any
transfer restrictions imposed at the time of Award.
10. EMPLOYMENT.
Nothing in this Plan or in the grant of an Award shall confer upon any
Employee/Consultant the right to continue in the employ of the Company nor shall
it interfere with or restrict in any way the lawful rights of the Company to
discharge any Employee/Consultant at any time for any reason whatsoever, with or
without cause.
11. LAWS AND REGULATIONS.
The obligation of the Company to sell and deliver Plan Shares on the
grant of an Award under this Plan shall be subject to the condition that the
Company be satisfied that the sale and delivery thereof will not violate the Act
or any other applicable laws, rules or regulations.
12. WITHHOLDING OF TAXES.
If subject to withholding tax, the Company may require that the
Employee concurrently pay to the Company the entire amount or a portion of any
taxes which the Company is required to withhold by reason of granting an Award,
in such amount as the Company in its discretion may determine. In lieu of part
or all of any such payment, the Employee may elect to have the Company withhold
from the Plan Shares issued hereunder a sufficient number of shares to satisfy
withholding obligations. If the Company becomes required to pay withholding
taxes to any federal, state or other taxing authority as a result of the
granting of an Award, and the Employee fails to provide the Company with the
funds with which to pay that withholding tax, the Company may withhold up to 50%
of each payment of salary or bonus to the Employee (which will be in addition to
any required or permitted withholding), until the Company has been reimbursed
for the entire withholding tax it was required to pay in respect of issuance of
any Plan Shares.
If shares pursuant to the plan are issued to a consultant, not a
regular employee under the Internal Revenue Code, such shares shall not be
delivered until a W-2 is received and a Form 1099 shall be issued with delivery
of the shares.
<PAGE>
13. RESERVATION OF SHARES.
The stock subject to this Plan shall, at all times, consist of
authorized but unissued shares of Common Stock reacquired or held by the Company
equal to the maximum number of shares the Company may be required to issue on
the grant of Awards under this Plan, and such number of Common Shares hereby is
reserved for such purpose. The Board of Directors may decrease the number of
shares subject to this Plan, but not increase such number, except as a
consequence of a stock split or other reorganization or recapitalization
affecting all Common Shares.
14. AMENDMENT AND TERMINATION OF THE PLAN.
The Board of Directors may suspend or terminate this Plan at any time
or from time to time, but no such action shall adversely affect the rights of a
person granted an Award under this Plan prior to that date. Otherwise, this Plan
shall terminate on the earlier of the terminal date stated in Section 3 of this
Plan or the date when all Plan Shares have been issued. The Board of Directors
shall have absolute discretion to amend this Plan, subject to any limitations
expressly set forth herein.
15. DELIVERY OF PLAN.
A copy of this Plan shall be delivered to all participants, together
with a copy of the resolution or resolutions of the Board of Directors
authorizing the granting of the Award and establishing the terms, if any of
participation, prior to an Award of Plan Shares.
16. LIABILITY.
No member of the Board of Directors, any committee of directors, or
officers, employees or agents of the Company shall be personally liable for any
action, omission or determination made in good faith in connection with this
Plan.
17. MISCELLANEOUS PROVISIONS.
The place of administration of the Plan shall be in the State of
Colorado, and the validity, construction, interpretation and effect of this Plan
and of its rules, regulations and rights relating to it, shall be determined
solely in accordance with the laws of such state.
Without amending this Plan, the Board of Directors may issue Plan
Shares to employees of the Company who are foreign nationals or employed outside
the United States, or both, on such terms and conditions different form those
specified in this Plan but consistent with the purpose of this Plan, as it deems
necessary and desirable to create equitable opportunities given differences in
tax laws in other countries.
All expenses of administering this Plan and issuing Plan Shares shall
be borne by the Company.
<PAGE>
By signature below, the undersigned officers of the Company hereby
certify that the foregoing is a true and correct copy of the 1998
Employee/Consultant stock Compensation Plan of the Company.
Dated: July 29, 1998
OHIO & SOUTHWESTERN ENERGY COMPANY
by:/s/Ralph Shearing
------------------------------------
President
Attest:
by:/s/Abbas Salih
- -------------------
Secretary
<PAGE>
EXHIBIT 24.1
<PAGE>
A.J. ROBBINS, PC
CERTIFIED PUBLIC ACCOUNTANTS AND CONSULTANTS
CONSENT FOR INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Ohio and Southwestern Energy Company on Form S-8 of our report dated April 16,
1998 appearing in the Annual Report on Form 10-KSB of Ohio and Southwestern
Energy Company for the year ended December 31, 1997 and to the reference to us
under the heading "Experts" included in this Registration Statement.
Denver, CO
Dated: July 29, 1998
/s/A.J. Robbins, PC
-------------------
A.J. Robbins, PC
Certified Public
Accountants and
Consultants
3033 East 1st Avenue * Suite 201 * Denver, CO 80206
303 321-1281 * FAX: 303 321-1288
