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As filed with the Securities and Exchange Commission on December , 1997.
Registration No. _________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ARXA INTERNATIONAL ENERGY, INC.
(Exact name of Registrant as specified in its Charter)
DELAWARE 13-3784149
------------------------ -----------------------------
(State of Incorporation) (I.R.S. Employer I.D. Number)
110 CYPRESS STATION DRIVE, SUITE 280, HOUSTON, TEXAS 77090
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(Address of Principal Executive Offices) (City) (State) (Zip Code)
CONSULTING AGREEMENT
------------------------
(Full Title of the Plan)
L. Craig Ford, President
110 Cypress Station Drive, Suite 280
Houston, Texas 77090
(281) 444-1088
- --------------------------------------------------------------------------------
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------
Proposed
Title of Each Class of Maximum Proposed Maximum
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Unit Offering Price (1) Registration Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$.001 par value 50,000 $1.00 $50,000 $48.50
- --------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee on the basis of the maximum
number of securities issuable under the plan that are covered by the registration statement as required
by Rule 457(h), computed upon the basis of the average of the bid and asked price of the securities of
the same class as of a recent date pursuant to Rule 457(c).
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which are on file with the Securities and
Exchange Commission, are incorporated herein by reference:
a. ARXA International Energy, Inc.'s ("ARXA" or the "Company") latest
annual report, filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or the latest
prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as
amended ("Securities Act") that contains audited financial statements for the
Company's latest fiscal year for which such statements have been filed or the
Company's effective registration statement on Form 10 or Form 10-SB filed
under the Exchange Act containing audited financial statements for the
Company's latest fiscal year.
b. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
documents of the Company referred to in (a) above.
c. All other reports and documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 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 remaining
unsold, shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of the filing of such reports and documents.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes Delaware
corporations to indemnify its officers, directors, agents and employees.
Under Sections 4.25 through and including 4.28 of the Company's By-Laws, the
Company shall to the fullest extent permitted by Section 145 of the Delaware
General Corporation Law indemnify any and all persons whom it shall have
power to indemnify under said Section from and against any and all of the
expenses, liabilities, or other matters referred to in or covered by said
Section, and the indemnification provided for therein shall not be deemed
exclusive of any other right to which any person may be entitled under any
By-law, resolution of shareholders, resolution of directors, agreement, or
otherwise,
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as permitted by said Article, as to action in any capacity in which he served
at the request of the Company. Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed 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. Section 4.26
of the Company's By-Laws provides for the indemnification of persons in
securities law matters where the indemnified party is successful on the
merits, or the claims are dismissed with prejudice, or the claims have been
settled with court approval and the court approves the indemnification.
Item 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. UNDERTAKINGS.
ARXA International Energy, Inc. hereby undertakes:
(1) To file during any period in which offers or sales are being made,
post-effective amendments(s) to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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;
Provided, however, that paragraphs (1)(i) and (1)(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 Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
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(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed a new registration
statement relating to the securities offered therein and the offering of such
securities at that time shall be deemed the initial BONA FIDE offering
thereof.
(3) 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.
(4) 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
Section 15(d) of the Exchange Act 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 BONA FIDE offering
thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or 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 adjudication of such issue.
EXHIBIT INDEX
5.1 Opinion of Richard C. Fox, Esq.
10.1 Consulting Agreement with Wharton Capital Corp.
24.5 Consent of Richard C. Fox, Esq.
(contained in Exhibit 5.1)
24.4 Consent of McManus & Co., P.C.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing 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 Houston, State of Texas, December 10,
1997.
ARXA INTERNATIONAL ENERGY, INC.
By: /s/ L. Craig Ford
--------------------------------
L. Craig Ford
President/CEO
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ L. Craig Ford
- ------------------------------ President/CEO, 12/10/97
L. Craig Ford Director
/s/ L. Craig Ford
- ------------------------------ Treasurer/CFO 12/10/97
L. Craig Ford
/s/ Dennis P. McGrath
- ------------------------------ Controller 12/10/97
Dennis P. McGrath
/s/ William J. Bippus
- ------------------------------ Director 12/10/97
William J. Bippus
/s/ Gregory A. Stephens
- ------------------------------ Director 12/10/97
Gregory A. Stephens
/s/ John L. Moran
- ------------------------------ Director 12/10/97
John L. Moran
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EXHIBIT 5.1
FOX LAW OFFICES, P.A.
P.O. BOX 1097
PECOS, NEW MEXICO 87552
Telephone (505) 757-6411
Facsimile (505) 757-2411
November 25, 1997
Board of Directors
ARXA International Energy, Inc.
110 Cypress Station Drive, Suite 280
Houston, Texas 77090
In re: ARXA International Energy, Inc.
Registration Statement of Form S-8
Gentlemen:
We have represented ARXA International Energy, Inc., a Delaware Corporation,
("Company") in connection with the preparation of a registration statement filed
with the Securities and Exchange Commission on Form S-8 ("Registration
Statement") relating to the proposed issuance of up to 50,000 shares ("Shares")
of the Company's Common Stock, par value of $.001 per share) ("Common Stock")
pursuant to the terms of a Consulting Agreement with Wharton Capitol Corp. dated
January 2, 1997. In this connection, we have examined such documents, corporate
records and other papers as we deemed necessary to examine for the purposes of
this opinion.
We are of the opinion that the Share of Common Stock will be, when issued
pursuant to the Consulting Agreement, legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this Opinion as an Exhibit to the
Registration Statement.
Yours truly,
FOX LAW OFFICES, P.A.
/s/ Richard C. Fox
By: Richard C. Fox
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EXHIBIT 10.1
CONSULTING AGREEMENT
This agreement made on January 2, 1997, by and between Arxa International
Energy, Inc. having its business address at 1331 Lamar, Suite 1375, Houston,
Texas 77010 (hereinafter the "Company") and Wharton Capitol Corp., 35 West
Street, Northport, N. Y. 11768 or (hereinafter the "Consultant").
In the consideration of the mutual promises contained herein and on the terms
and conditions hereinafter set forth, the Company and the Consultant agree as
follows:
1. PROVISIONS OF SERVICES:
(1) Consultant agrees, to the extent reasonably required in the conduct of
business of the Company to place at the disposal of the Company his judgement
and to provide business development services to the Company including the
following:
(I) Advice with respect to finance and marketing plans;
(II) Assistance in development of public relations plans and media;
(III) Evaluation of future financing and advice with respect to potential
acquisitions;
(IV) Advice with respect to short and long-term strategic business plans;
(V) Other related services deemed necessary by the Company.
(b) Consultant agrees to use his best efforts in the furnishing of advice
recommendations, and for this purpose Consultant shall at all times maintain
or keep available an adequate organization of personnel or a network of
outside professionals for the performance of its obligations under this
agreement.
2. COMPENSATION: In consideration of Consultant agreeing to provide services
described herein, the Company agrees to deliver 50,000 common shares free
and clear of all liens, which shares shall be registered by the Company
at its expense with the Securities and Exchange Commission as soon as
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practicable after the date hereof, (in lieu of cash) as a retainer to the
Consultant upon signing of the Agreement and aforementioned is to
commence immediately. Additional compensation will be issued as needed
and mutually agreed upon by both parties.
The Company agrees to reimburse Consultant for reasonable expenses by the
Consultant in connection with services hereunder. All expenses in excess
of $2,000.00 shall by approved in advance by the Company.
3. LIABILITY OF CONSULTANT: In furnishing the Company with management advice
and other services as herein provided, neither Consultant nor any officer,
director or agent thereof shall not be liable to the Company or its
creditors for errors of judgment or for any matters except willful
malfeasance, bad faith or gross negligence in the performance or its
duties or reckless disregard of its obligations and duties under the
terms of this Agreement.
It is further understood and agreed that Consultant may rely upon
information furnished to it by the Company which Consultant reasonably
believes to be accurate and reliable and that, except as herein provides,
Consultant shall not be accountable for any loss suffered by the Company
by the reason of the Company's action or non-action on the basis if any
advice, recommendation or approval of Consultant, its partners, employees
or agents, except as provided in the previous paragraph hereof.
4. STATUS OF CONSULTANT: Consultant shall be deemed to be an independent
contractor and, except as expressly provided or authorized in the
Agreement, shall have no authority to act or represent the Company.
5. OTHER ACTIVITIES OF CONSULTANT: The Company recognizes that Consultant now
renders and may continue to render management and other services to other
companies which may or may not have policies and conduct activities
similar to those of the Company. Consultant shall be free to render such
advice and other services and the Company hereby consents thereto.
Consultant shall not be required to devote its full time and attention to
the performance of its duties under this Agreement, but shall devote only
so much of its time and attention as the Company and Consultant mutually
deem reasonable and necessary for such purposes.
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6. CONTROL: Nothing contained herein shall be deemed to require the Company to
take any action contrary to its Certificate of Incorporation or By-Laws,
or any applicable statue or regulation, or to deprive its Board of
Directors of their responsibility for any control of the conduct or the
affairs of the Company.
7. TERMS: Consultant's retention hereunder shall be for a term of twelve
months commencing on the date of this Agreement.
8. MISCELLANEOUS: This Agreement is executed in and shall be constructed and
interpreted according to the laws of the State of Texas.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of
the day and year first above written.
By: /s/ JOSEPH NICOLOSI, JR. By: /s/ BILL BIPPUS
------------------------------- ------------------------------
Wharton Capitol Corp. Bill Bippus, President
Arxa International Energy,Inc.
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EXHIBIT 24.4
[MCMANUS & CO., P.C., LETTERHEAD]
CONSENT OF INDEPENDENT AUDITORS
We consent to the inclusion in this S-8 Registration Statement of our report
dated May 14, 1997 on our audit of the consolidated financial statements of
ARXA International Energy, Inc. and Subsidiary. We also consent to the
reference to our firm under captions "Selected Financial Data" and "Experts".
/s/ McManus & Co., P.C.
McManus & Co., P.C.
Certified Public Accountants
Morris Plains, New Jersey
December 4, 1997
