As filed with the Securities and Exchange Commission on September 18, 2000
Commission file number: I-9418
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
CyberAmerica Corporation
------------------------
(Exact name of registrant as specified in its charter)
Nevada 87-0509512
------ ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
268 West 400 South, Suite 300, Salt Lake City, Utah 84101
---------------------------------------------------------
(Address of principal executive offices)
2000 Stock Option Plan of CyberAmerica Corporation
--------------------------------------------------
(Full title of the plan)
LaVonne Frost, 711 S. Carson Street, Suite 1, Carson City, NV 89701
-------------------------------------------------------------------
(Name, address, including zip code, of agent for service)
Telephone number, including area code, of agent for service: (775) 883-5755
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities to be Amounts Proposed Maximum Proposed Maximum Amount of
Registered to be Offering Price Per Aggregate Offering Registration
Registered Share(1) Price Fee
<S> <C> <C> <C> <C>
================================== ================= ======================== ========================== ==================
Common Stock, issuable upon 500,000 $1.3125 $656,250 $173.25
exercise of Options
=================================== ================ ========================= =========================== ==================
</TABLE>
(1) Bona Fide estimate of maximum offering price solely for calculating the
registration fee pursuant to Rule 457(h) of the Securities Act of 1933,
based on the average bid and asked price of the registrant's common
stock as of September 12, 2000, a date within five business days prior
to the date of filing of this registration statement.
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.
1
<PAGE>
2000 Stock Option Plan of CyberAmerica Corporation
Cross-Reference Sheet Pursuant to Rule 404(a)
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
------------------------------------------------ ------------------
1. Plan Information Section 10(a) Prospectus
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 CyberAmerica Corporation, a Nevada corporation
(the "Company"), with the Securities and Exchange Commission (the "Commission")
are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999.
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 December 31,
1999.
3. The description and specimen certificate of the Common Stock contained
in the Company's Form S-18 Registration Statement filed on January 21,
1986 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 Registration Statement 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 Exchange 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 of the Company 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
initial Form S-18 Registration Statement filed with the Commission on January
21, 1986, and is incorporated herein by reference. (See "Item 3. Incorporation
of Documents by Reference.")
2
<PAGE>
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.
Item 6. Indemnification of Directors and Officers
Insofar as indemnification for liabilities arising under the Securities Act of
1933, as amended (the "Securities Act"), may be permitted to members of the
board of directors, officers, employees, or persons controlling the Company
pursuant to the immediately subsequent provisions, the Company has been informed
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
The Company's Restated Articles of Incorporation, specifically Article Eight,
however, eliminate the personal liability of the officers and directors to
shareholders or the corporation for money damages to the extent permitted by
Nevada Revised Statutes ("NRS") Section 78.037. NRS Section 78.037 provides that
a corporation may limit or eliminate officers' and directors' personal liability
for breach of fiduciary duty so long as liability is not eliminated or limited
for acts or omissions involving intentional misconduct, fraud or a knowing
violation of law or the payment of unlawful distributions.
Section Eight of Article VI of the Company's Bylaws provides that the Company
shall indemnify its officers and directors for any liability, including
reasonable costs of defense, arising out of any act or omission of any officer
or director on behalf of the Corporation to the fullest extent allowed by the
laws of the State of Nevada.
In actions, proceedings and suits involving an officer or director because of
their being or having been an officer or director, other than actions by or in
the right of the corporation, NRS Section 78.751 (the "Nevada Statute") permits
a corporation to indemnify directors or officers against actual and reasonable
expenses, including attorney fees, judgments, fines and amounts paid in
settlement. The Nevada Statute applies to actions, proceedings or suits whether
civil, criminal, administrative or arbitrative in nature. However, unless a
court directs otherwise, indemnification is permissible only if the officer or
director meets the applicable standard of conduct and indemnification is proper
under the circumstances. In civil cases, the standard of conduct requires the
officer or director to act in good faith and in a manner he or she reasonably
believes to be in or not opposed to the best interests of the Company. In
criminal cases, an officer or director meets the standard of conduct if they had
no reasonable cause to believe his or her conduct was unlawful. The board of
directors acting through a quorum of disinterested directors, independent legal
counsel designated by the board of directors, or the shareholders shall
determine whether indemnification is proper under the circumstances. Termination
of proceedings by judgment, order, settlement, conviction or plea of no contest
or its equivalent, does not of itself establish a presumption that the officer
or director did not meet the applicable standard of conduct.
In actions by or in the right of the Company, the Company may indemnify an
officer or director against expenses provided he or she satisfies the applicable
standard of conduct. However, the Company cannot indemnify an officer or
director adjudged liable to the corporation on any claim, issue or matter
unless, and to the extent, the court determines that despite the adjudication of
liability, and in light of all the circumstances, the officer or director is
fairly and reasonably entitled to indemnity for expenses.
3
<PAGE>
In all proceedings, whether by or in the right of the Company or otherwise, the
Nevada Statute requires indemnification to the extent the officer or director is
successful on the merits or otherwise in defense of the proceeding or in defense
of any claim, issue or matter therein. A Nevada corporation may provide, either
in its articles, bylaws or agreements, that the corporation shall pay the
expenses on behalf of a director or officer prior to the final disposition of
the action upon receipt of an undertaking by or on behalf of the director or
officer to repay those advancements if it is ultimately determined that the
officer or director is not entitled to indemnification. The Nevada Statute does
not exclude other indemnification rights to which a director or officer may be
entitled under the articles of incorporation, the bylaws, an agreement, a vote
of shareholders or disinterested directors, or otherwise; provided that those
rights would not indemnify an officer or director against a judgment or other
final adjudication adverse to the officer or director that establishes the
officer's or director's acts or omissions involved intentional misconduct, fraud
or known violation of the law and were material to the cause of action.
The foregoing discussion of indemnification merely summarizes certain aspects of
indemnification provisions and is limited by reference to the NRS Section
78.751, Article VI, Section 8 of the Company's Bylaws, as amended, and Article
Eight of the Company's Restated Articles of Incorporation.
Item 7. Exemption from Registration Claimed
No restricted securities are being re-offered or resold pursuant to this
registration statement.
Item 8. Exhibits.
The exhibits attached to this Registration Statement are listed in the Exhibit
Index, which is found on page 8.
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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report 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 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.
4
<PAGE>
(c) 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.
[THIS SPACE HAS BEEN INTENTIONALLY LEFT BLANK]
5
<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 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 Salt Lake City, State of Utah, on September 8, 2000.
CyberAmerica Corporation
By: /s/ Richard D. Surber
---------------------------------------------------
Richard D. Surber as President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Richard D. Surber 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 Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
--------- ----- ----
/s/ Richard D. Surber President, CEO and Director September 8, 2000
----------------------------
Richard D. Surber
/s/ Edwin Haidenthaller Chief Financial Officer September 8, 2000
----------------------------
Edwin Haidenthaller
/s/ Adrienne Bernstein Director September 8, 2000
----------------------------
Adrienne Bernstein
/s/ Gerald Einhorn Director September 8, 2000
----------------------------
Gerald Einhorn
/s/ Nathan Henin Director September 8, 2000
----------------------------
Nathan Henin
/s/ John E. Fry, Jr. Director September 8, 2000
----------------------------
John E. Fry, Jr.
6
<PAGE>
As filed with the Securities and Exchange Commission on September 8, 2000
File No. I-9418
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CyberAmerica Corporation
------------------------
(A Nevada corporation)
7
<PAGE>
INDEX TO EXHIBITS
Exhibits SEC Ref. No. Description of Exhibit Pages
-------- ------------ ---------------------- -----
A 4 2000 Stock Option Plan of the Company 9
B 5, 23(b) Opinion and consent of Counsel with respect
to the legality of the issuance of securities
being issued 13
C 23(a) Consent of Accountant 16
8
