As filed with the Securities and Exchange Commission on January 11, 1999
File No. Commission file number: 0-17371
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HYTK Industries, Inc.
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(Exact name of registrant as specified in its charter)
Nevada 88-0182808
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(State or Other Jurisdiction of (Employer Identification Number)
Incorporation or Organization)
701 East Main Street, Benedict, KS 66714
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(Address of Principal Executive Offices)
1999 Stock Option Plan of HYTK Industries, Inc.
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(Full Title of the Plan)
Douglas L. Lamb, 701 East Main Street, Benedict, KS 66714
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(Name, Address, Including Zip Code, of Agent for Service)
Telephone number, including area code, of agent for service: 316-698-2250
CALCULATION OF REGISTRATION FEE
- ------------------- ----------- ---------------- ---------------- ------------
Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be Registered be Offering Price Aggregate Registration
Registered Per Share Offering Price Fee(1)
- ------------------- ----------- ---------------- ---------------- ------------
Common Stock, 1,600,000 (2) (2) $76.00
par value $0.001
- ------------------- ----------- ---------------- ---------------- ------------
(1) Based on the pro forma May 31, 1998 year end book value of the common
stock.
(2) No offering prices are provided because the Company's common stock is
not traded on any public trading market or quotation system.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the Plan described herein.
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PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Cross-Reference Sheet Pursuant to Rule 404(a) under the Securities Act of 1933
Cross-reference between items of Part I of Form S-8 and the Section
10(a) Prospectus that will be delivered to each employee, consultant, or
director who participates in the Plan.
Registration Statement Item Numbers and Headings Prospectus Heading
- ------------------------------------------------ ------------------
Item 1. Plan Information Section 10(a) Prospectus
Item 2. Registrant Information and Section 10(a) Prospectus
Employee Plan Annual Information
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by HYTK Industries, Inc., a Nevada
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-KSB for the fiscal year ended
May 31, 1998.
2. All reports filed by the Company with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year ended May 31, 1998.
3. The description and specimen certificate of the Company's common
stock, par value $0.001 ("Common Stock"), contained in the Company's
registration statement under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
Prior to the filing, if any, of a post-effective amendment that
indicates that all securities covered by this Form S-8 have been sold or that
de-registers all such securities then remaining unsold, all reports and other
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14, or 15(d) of the 1934 Act 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 4. Description of Securities.
The Common Stock being registered pursuant to this registration
statement is part of a class of securities registered under Section 12 of the
Exchange Act. A description of such securities is contained in the Company's
registration statement under the Exchange Act, and is incorporated herein by
reference.
Item 5. Interests of Named Experts and Counsel.
No expert is named as preparing or certifying all or part of the
registration statement to which this prospectus pertains, and no counsel for
the Company who is named in this prospectus as having given an opinion on the
validity of the securities being offered hereby was hired on a contingent
basis or has or is to receive, in connection with this offering, a substantial
interest, direct or indirect, in the Company.
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Item 6. Indemnification of Directors and Officers.
The Company's Bylaws and certain sections of Nevada law allow for the
indemnification of the Company's officers and directors in certain situations
where liability would otherwise personally attach to such officers and
directors.
Item 7. Exemption from Registration Claimed.
Although no restricted securities are being reoffered or resold pursuant
to this registration statement, certain control securities are being
reoffered, specifically pursuant to the Reoffer Prospectus attached hereto as
Exhibit B.
Item 8. Exhibits.
The exhibits are attached to this Form S-8 are listed in the Exhibit
Index, which is found on page 5.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement 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.
(2) To treat, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment as 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 a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
[THIS SPACE HAS BEEN INTENTIONALLY LEFT BLANK]
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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 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 County of Wilson, State of Kansas, on
January 11, 1999.
HYTK Industries, Inc.
By: /s/ Douglas L. Lamb
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Douglas L. Lamb, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Douglas L. Lamb, with power of substitution, as
his attorney-in-fact for him, in all capacities, to sign any amendments to
this registration statement and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact or
his substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Form
S-8 has been signed by the following persons in the capacities and on the date
indicated.
Signature Title Date
- --------- ----- ----
/s/ Douglas L. Lamb
- ------------------------ President and Director January 11, 1999
Douglas L. Lamb
/s/ John C. Garrison
- ------------------------ Treasurer and Director January 11, 1999
John C. Garrison
/s/ Richard M. Cornell
- ------------------------ Secretary and Director January 11, 1999
Richard M. Cornell
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INDEX TO EXHIBITS
Exhibit No. SEC Ref. No. Description of Exhibit
- ----------- ----------- ----------------------
A 4 1999 Stock Option Plan of the Company
B 5, 23 Opinion and consent of counsel
C 23 Consent of accountant
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THE 1999 STOCK OPTION PLAN OF HYTK INDUSTRIES, INC.
HYTK Industries, Inc., a Nevada corporation (the "Company"), hereby
adopts the 1999 Stock Option Plan of HYTK Industries, Inc. (this "Plan"), this
7th day of January 1999. Under this Plan, the Company may grant options to
acquire (the "Options") shares of its common stock, par value $0.001 (the
"Common Stock"), from time to time to employees of the Company or its
subsidiaries, all on the terms and conditions set forth herein. In addition,
at the discretion of the Board of Directors, options to acquire Common Stock
of the Company may from time to time be granted under this Plan to other
individuals, including consultants or advisors, who contribute to the success
of the Company or its subsidiaries and are not employees of the Company or its
subsidiaries, provided that bona fide services shall be rendered by
consultants and advisors and such services shall not be in connection with the
offer or sale of securities in a capital-raising transaction.
1. Purpose of this Plan. This Plan is intended to aid the Company in
maintaining and developing a management team, and in attracting new personnel
as needed and to provide such personnel with an incentive to remain employees
of the Company, to use their best efforts to promote the success of the
Company's business, and to provide them with an opportunity to obtain or
increase a proprietary interest in the Company. It is also designed to permit
the Company to reward those individuals who are not employees of the Company
but who management perceives to have contributed to the success of the Company
or who are important to the continued business and operations of the Company.
The above goals will be achieved through the granting of Options.
2. Administration of this Plan. Administration of this Plan shall be
determined by the Company's Board of Directors (the "Board"). Subject to
compliance with applicable provisions of governing law, the Board may delegate
administration of this Plan or specific administrative duties with respect to
this Plan on such terms and to such committees of the Board as it deems proper
(hereinafter the Board or its authorized committee shall be referred to as
"Plan Administrators"). The interpretation and construction of the terms of
this Plan by the Plan Administrators thereof shall be final and binding on all
participants in this Plan absent a showing of demonstrable error. No member
of the Plan Administrators shall be liable for any action taken or
determination made in good faith with respect to this Plan. Any Option
approved by a majority vote of those Plan Administrators attending a duly and
properly held meeting shall be valid. Any Option approved by the Plan
Administrators shall be approved as specified by the Board at the time of
delegation.
3. Shares of Common Stock Subject to this Plan. A total of One Million Six
Hundred Thousand (1,600,000) shares of Common Stock may be subject to, or
issued pursuant to, Options granted under this Plan. If any right to acquire
Common Stock granted under this Plan is exercised by the delivery of shares of
Common Stock or the relinquishment of rights to shares of Common Stock, only
the net shares of Common Stock issued (the shares of Common Stock issued less
the shares of Common Stock surrendered) shall count against the total number
of shares reserved for issuance under the terms of this Plan.
4. Reservation of Common Stock on Granting of Option. At the time any
Option is granted under the terms of this Plan, the Company will reserve for
issuance the number of shares of Common Stock subject to such Option until it
is exercised or expires. The Company may reserve either authorized but
unissued shares or issued shares reacquired by the Company.
5. Eligibility. The Plan Administrators may grant Options to employees,
officers, and directors of the Company and its subsidiaries, as may be
existing from time to time, and to other individuals who are not employees of
the Company or its subsidiaries, including consultants and advisors, provided
that such consultants and advisors render bona fide services to the Company or
its subsidiaries and such services are not rendered in connection with the
offer or sale of securities in a capital-raising transaction. In any case,
<PAGE>
the Plan Administrators shall determine, based on the foregoing limitations
and the Company's best interests, which employees, officers, directors,
consultants and advisors are eligible to participate in this Plan. Options
shall be in the amounts, and shall have the rights and be subject to the
restrictions, as may be determined by the Plan Administrators, all as may be
within the provisions of this Plan.
6. Term of Options and Certain Limitations on Right to Exercise.
a. Each Option shall have its term established by the Plan
Administrators at the time the Option is granted but in no event may
such term exceed one (1) year.
b. The term of the Option, once it is granted, may be reduced only as
provided for in this Plan and under the express written provisions of
the Option.
c. Unless otherwise specifically provided by the written provisions of
the Option or required by applicable disclosure or other legal
requirements promulgated by the Securities and Exchange Commission
("SEC"), no participant of this Plan or his or her legal representative,
legatee, or distributee will be, or shall be deemed to be, a holder of
any shares subject to an Option unless and until such participant
exercises his or her right to acquire all or a portion of the Common
Stock subject to the Option and delivers the required consideration to
the Company in accordance with the terms of this Plan and the Option and
then only as to the number of shares of Common Stock validly acquired.
Except as specifically provided in this Plan or as otherwise
specifically provided by the written provisions of the Option, no
adjustment to the exercise price or the number of shares of Common Stock
subject to the Option shall be made for dividends or other rights for
which the record date is prior to the date on which the Common Stock
subject to the Option is acquired by the holder.
d. Options shall vest and become exercisable at such time or times and
on such terms as the Plan Administrators may determine at the time
Options are granted, but in no event longer than one (1) year after such
grant.
e. Options may contain such other provisions, including further lawful
restrictions on the vesting and exercise of the Options as the Plan
Administrators may deem advisable.
f. In no event may an Option be exercised after the expiration of its
term.
g. Options shall be non-transferable, except by the laws of descent
and distribution.
7. Exercise Price. The exercise price, if applicable, payable to the
Company for shares to be obtained pursuant to Options shall be established by
the Board at the time Options are granted.
8. Payment of Exercise Price. The exercise of any Option shall be
contingent on receipt by the Company of the exercise price paid in either
cash, certified or personal check payable to the Company.
9. Withholding. If the grant or exercise of an Option is subject to
withholding or other trust fund payment requirements of the Internal Revenue
Code of 1986, as amended (the "Code"), or applicable state or local laws, the
Company may initially pay the Optionee's liability and be reimbursed by
Optionee no later than six months after such liability arises and as a
condition of accepting Options hereunder, all Optionees hereby agree to such
reimbursement terms.
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10. Dilution or Other Adjustment. The shares of Common Stock subject to
this Plan and the exercise price of outstanding Options are subject to
proportionate adjustment in the event of a stock dividend on the Common Stock
or a change in the number of issued and outstanding shares of Common Stock as
a result of a stock split, consolidation, or other recapitalization. The
Company, in its discretion, may adjust the Options, issue replacements, or
declare Options void.
11. Options to Foreign Nationals. The Plan Administrators may, in order to
fulfill the purpose of this Plan and without amending this Plan, grant Options
to foreign nationals or individuals residing in foreign countries that contain
provisions, restrictions, and limitations different from those set forth in
this Plan and the Options made to United States residents in order to
recognize differences among the countries in law, tax policy, and custom.
Such grants shall be made in an attempt to give such individuals essentially
the same benefits as contemplated by a grant to United States residents under
the terms of this Plan.
12. Listing and Registration of Shares. Each Option shall be subject to the
requirement that if at any time the Plan Administrators shall determine, in
its sole discretion, that it is necessary or desirable to list, register, or
qualify the shares covered thereby on any securities exchange or under any
state or federal law, or obtain the consent or approval of any governmental
agency or regulatory body as a condition of, or in connection with, the
granting of such Option or the issuance or purchase of shares thereunder, such
Option may not be exercised in whole or in part unless and until such listing,
registration, consent, or approval shall have been effected or obtained free
of any conditions not acceptable to the Plan Administrators.
13. Expiration and Termination of this Plan. This Plan may be abandoned or
terminated at any time by the Plan Administrators except with respect to any
Options then outstanding under this Plan. This Plan shall otherwise terminate
on the earlier of the date that is five years from the date first appearing in
this Plan or the date on which the one million two hundred thousandth share is
issued hereunder.
14. Amendment of this Plan. This Plan may not be amended more than once
during any six-month period, other than to comport with changes in the Code or
the Employee Retirement Income Security Act or the rules and regulations
promulgated thereunder. The Plan Administrators may modify and amend this
Plan in any respect; provided, however, that to the extent such amendment or
modification would cause this Plan to no longer comply with the applicable
provisions of the Code governing incentive stock options as they may be
amended from time to time, such amendment or modification shall also be
approved by the shareholders of the Company.
ATTEST:
/s/ Douglas L. Lamb
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Douglas L. Lamb, President
Kevin S. Woltjen, P.C.
Attorney at Law
(Admitted in Illinois Only)
900 Jackson Street - Suite 600
Dallas, Texas 75202
Telephone: 214-712-5673
Facsimile: 214-712-5674
January 11, 1999
Board of Directors
HYTK Industries, Inc
701 East Main Street
Benedict, Kansas 66714
Gentlemen:
Kevin S. Woltjen, P.C. (the "Firm") has acted as counsel in connection with
the preparation and filing of that certain Registration Statement on Form S-8
(the "Registration Statement") to be filed by you with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, in
connection with the registration of 1,600,000 shares of common stock, $0.001
par value (the "Common Stock"), of HYTK Industries, Inc, a Nevada corporation
(the "Company"), issuable upon the exercise of options granted to certain
employees and others of the Company pursuant to the Company's 1999 Stock
Option Plan (the "Plan"). As such counsel, the Firm has examined the
proceedings taken in connection with the Plan and proposed to be taken in
connection with the sale and issuance of the Common Stock pursuant thereto and
such other matters and documents as the Firm has deemed necessary or relevant
as a basis for this opinion.
Based on these examinations, it is the Firm's opinion that such Common Stock,
when sold and issued in the manner referred to in the Registration Statement
and the Plan, will be legally issued, fully paid and non-assessable.
Additionally, the Firm is of the opinion that Form S-8 is a form of
registration available to the Company as of the date above.
The Firm consents to the use of this opinion as an exhibit to the Registration
Statement.
Sincerely,
/s/ Kevin S. Woltjen, P.C.
Kevin S. Woltjen, P.C.
Kevin S. Woltjen, P.C.
Attorney at Law
(Admitted in Illinois Only)
900 Jackson Street - Suite 600
Dallas, Texas 75202
Telephone: 214-712-5673
Facsimile: 214-712-5674
January 11, 1999
Board of Directors
HYTK Industries, Inc
701 East Main Street
Benedict, Kansas 66714
Gentlemen:
Kevin S. Woltjen, P.C. (the "Firm") has acted as counsel in connection with
the preparation and filing of that certain Registration Statement on Form S-8
(the "Registration Statement") to be filed by you with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, in
connection with the registration of 1,600,000 shares of common stock, $0.001
par value (the "Common Stock"), of HYTK Industries, Inc, a Nevada corporation
(the "Company"), issuable upon the exercise of options granted to certain
employees and others of the Company pursuant to the Company's 1999 Stock
Option Plan (the "Plan"). As such counsel, the Firm has examined the
proceedings taken in connection with the Plan and proposed to be taken in
connection with the sale and issuance of the Common Stock pursuant thereto and
such other matters and documents as the Firm has deemed necessary or relevant
as a basis for this opinion.
Based on these examinations, it is the Firm's opinion that such Common Stock,
when sold and issued in the manner referred to in the Registration Statement
and the Plan, will be legally issued, fully paid and non-assessable.
Additionally, the Firm is of the opinion that Form S-8 is a form of
registration available to the Company as of the date above.
The Firm consents to the use of this opinion as an exhibit to the Registration
Statement.
Sincerely,
/s/ Kevin S. Woltjen, P.C.
Kevin S. Woltjen, P.C.
CONSENT OF INDEPENDENT AUDITORS
We consent to the use in Form S-8 of our report dated September 10, 1998
accompanying the financial statements of HYTK Industries, Inc. for the years
ended May 31, 1998 and 1997.
January 7, 1999
Sellers & Associates
