As filed with the Securities and
Exchange Commission on September 5, 1996
File No. _________________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
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Registration Statement
Under the
Securities Act of 1933
NEMDACO, INC.
(Exact Name of Registrant as Specified in its Charter)
Colorado 0-19064 84-1027731
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(State of incorporation) (Commission File No.) (IRS Employer ID No.)
1801 Avenue of the Stars, 6th Floor, Los Angeles, CA 90067
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(Address of principal executive offices) ( Zip Code)
1996 Employee/Consultant Stock Compensation Plan
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(Full Title of Plan)
Gary Larkin, 1801 Avenue of the Stars, 6th Floor
Los Angeles, CA 90067
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(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
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Proposed(2) Proposed(2)
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Title of(1)(4) Maximum Maximum
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Securities Amount Offering Aggregate Amount of
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to be to be Price Offering Registration
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Registered Registered Per Share Price Fee (3)
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Common Stock 1,000,000 $.14 $140,000 $100.00
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(1) The securities registered hereunder are shares of the
registrant's common stock, $.01 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, as quoted on Nasdaq
Bulletin Board.
(4) Shares of the registrant's common stock subject to award to employees
and consultants under the registrant's 1996 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-K for the year ended April
30, 1995, and Form 10-QSB for period ended July 31, 1995, Form 10-QSB
for period ended October 31, 1995 and Form 10-QSB for period ended
January 31, 1996 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 8-A File No.
0-19064.
(a) -3. The Company's Form 8-K for February 16, 1995 and February 22,
1995, and Form 8-K for September 5, 1996.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 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.
The description of the Company's common stock which is contained in the
Company's registration statement filed under Section 12 of the Securities
Exchange Act of 1934, including any amendments or reports filed for the purpose
of updating such description.
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ITEM 4. DESCRIPTION OF SECURITIES.
Securities are registered under Section 12 of the Exchange Act.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the securities registered pursuant
to this registration statement is being passed upon for the Company
by Michael A. Littman, Attorney at Law, 10200 W. 44th Ave., #400,
Wheat Ridge, CO 80033. Mr. Littman owns 50,000 shares of NEMDACO,
Inc. constituting less than .1% of the outstanding shares.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Colorado Business Corporation Act of Colorado (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 By-Laws limit 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, Esq. regarding the legality of
the securities being offered hereby.
10.1 1996 Employee and Consultant Compensation Plan
24.1 Co nsent of Gelfond Hochstadt Pangburn & Company
24.2 Consent of Michael A. Littman, Esq. (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;
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(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)(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
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and is, therefore, unenforceable. In the event that a claim for
indemnification against such labilities (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.
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 Los Angeles, State of California, on the 5th day
of September, 1996.
NEMDACO, Inc.
By:_______________________________
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
_____________________ President & Director _________
_____________________ Secretary & Director _________
_____________________ Vice-President & Director _________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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NEMDACO, INC.
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EXHIBIT INDEX
Exhibit
Number Page
5.1 Opinion of Michael A. Littman, Esq. regarding
the legality of the securities being offered
hereby. 9
10.1 1996 Employee and Consultant Compensation Plan 11
24.1 Consent of Gelfond Hochstadt Pangburn & Company. 17
24.2 Consent of Michael A. Littman, Esq.
(contained in Exhibit 5.1) 19
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EXHIBIT 5.1
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September 5, 1996
NEMDACO, Inc.
1801 Avenue of the Stars, 6th Floor
Los Angeles, CA 90067
Re: S-8 for NEMDACO, Inc.
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 1,000,000 shares of your Common
Stock (the "Stock") issuable pursuant to the 1996 Employee 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.
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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.
Sincerely,
Michael A. Littman
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EXHIBIT 10.1
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1996 EMPLOYEE AND CONSULTANTS STOCK COMPENSATION PLAN
NEMDACO, INC.
1. Purpose of the Plan.
This Employee and Consultants Stock Compensation Plan is intended to
further the growth and advance the best interest of NEMDACO, Inc., a Colorado
corporation (the "Company"), and Affiliated Corporations, 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 and
Affiliate Corporations. 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, $.01
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" means any person or entity that renders bona
fide services to the Company, including, without
limitation, (i) a person employed by the Company or an
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Affiliate Corporation in a key capacity; (ii) an officer or
director of the Company or an Affiliate Corporation; (iii) a
person or company engaged by the Company or an Affiliate
Corporation as a consultant or advisor; or (iv) a lawyer, law
firm, accountant or accounting firm, engaged by the Company or
an Affiliate Corporation.
i. "Parent" means any corporation owning 50% or more of the
total combined voting stock of all classes of the Company
or of another corporation qualifying as a Parent within
this definition.
j. "Participant" means an Employee or consultant to whom an
Award of Plan Shares has been made.
k. "Plan Shares" means shares of Common Stock from time to
time subject to this Plan.
l. "Subsidiary" means a corporation more than 50% of whose
total combined capital stock of all classes is held by
the Company or by another corporation qualifying as a
Subsidiary within this definition.
3. Effective Date of the Plan.
The effective date of this Plan is May 30, 1996. No Plan Shares
hereunder may be issued after November 31, 1999.
4. Administration of the Plan.
The Board of Directors will be responsible for the administration of
this Plan, and will grant Awards 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 1,000,000 shares.
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6. Persons Eligible to Receive Awards.
Awards may be granted only to Employees as defined in 2(h) above.
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. 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.
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 the right to continue in the employ of the Company or Affiliated
Corporation nor shall it interfere with or restrict in any way the lawful rights
of the Company or any Affiliated Corporation to discharge any Employee 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.
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12. Withholding of Taxes.
If subject to withholding tax, the Company or any Affiliated
Corporation may require that the Employee concurrently pay to the Company the
entire amount or a portion of any taxes which the Company or Affiliated
Corporation is required to withhold by reason of granting an Award, in such
amount as the Company or Affiliated Corporation in its discretion may determine.
In lieu of part or all of any such payment, the Employee may elect to have the
Company or Affiliated Corporation withhold from the Plan Shares issued hereunder
a sufficient number of shares to satisfy withholding obligations. If the Company
or Affiliated Corporation 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 or Affiliated Corporation
with the funds with which to pay that withholding tax, the Company or Affiliated
Corporation 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 or Affiliated Corporation has been reimbursed for the entire
withholding tax it was required to pay in respect of issuance of any Plan
Shares.
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
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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 or any Affiliated Corporation 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.
By signature below, the undersigned officers of the Company hereby
certify that the foregoing is a true and correct copy of the 1996 Employee and
Consultant Stock Compensation Plan of the
Company.
Dated: May 30, 1996.
NEMDACO, INC.
BY:
President
Attest:
By:_______________________________
Secretary
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EXHIBIT 24.1
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CONSENT FOR INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
NEMDACO, INC.
We consent to the use in the Form S-8, Registration Statement Under the
Securities Act of 1933, of NEMDACO, Inc. of our report Incorporated by
Reference, of the financial statements of NEMDACO, Inc. and Subsidiaries as of
April 30, 1995, accompanying the financial statements contained in the Form 10-K
for the period then ended April 30, 1995, and to the use of our name and the
statements with respect to us as appearing under the heading "Exhibits" in the
Form S-8.
Dated: _________________________
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EXHIBIT 24.2
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CONSENT
I hereby consent to the use in the Form S-8 of NEMDACO, Inc., under the
Securities Act of 1933, of my opinion letter dated September 5, 1996.
Michael A. Littman
Attorney at Law
September 5, 1996
