As filed with the Securities and Exchange Commission on
October 28, 1997 File No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under the
Securities Act of 1933
EXTEN INDUSTRIES, INC.
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(Exact Name of Registrant as Specified in its Charter)
State of Delaware 52-1412493
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State or Other Jurisdiction (IRS Employer Identification No.
of Incorporation or Organization)
9625 Black Mountain Road, Suite 218, San Diego, CA 92126
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(Address of Principal Executive Offices) (Zip Code)
Employee Compensation & Consulting Services
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(Full Title of the Plan)
W. Gerald Newmin,9625 Black Mountain Road, Suite 218,San Diego, CA 92126
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(Name and Address of Agent for Service)
(619) 578-9784
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(Telephone Number, Including Area Code, 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 Proposed
Title of Maximum Maximum
securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- ---------------------------------------------------------------------
Common Stock 4,530,677 $0.04 $181,227 $100
(1) Calculated pursuant to Rule 457(h).
Item 3. Incorporation of Certain Documents by Reference
The Company's Annual Report on Form 10-KSB for the year ended November 30, 1996
and Forms 10-QSB for the quarters ended February 28, 1997 and May 31, 1997, and
Forms 8-K dated February 10, 1997, March 15, 1997 and March 26, 1997, filed
under the Securities Exchange Act of 1934.
Does Not Apply
Item 6. Indemnification of Directors and Officers:
Section 145 of the General Corporation Laws of Delaware (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 Article 7 of the Act.
The By-Laws of the Company contain provisions indemnifying its directors and
officers to the extent permitted by Section 145, Article 7 of the General
Corporation Law of Delaware (the "Act"), as amended from time to time.
The Company's Certificate of Incorporation limits directors' liability for
monetary damages for breaches of their duties of care owed the Company to
the fullest extent permitted by Delaware law.
Item 7. Exemption From Registration Claimed
Does Not Apply
Item 8. Exhibits
The following is a list of exhibits filed as part of the Registration Statement:
24.1 Consent of JH Cohn LLP
24.2 Consent and Opinion of Jeffers, Mangel
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;
Provided, however, that paragraphs (1)(a)(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 bona
fide offering thereof.
(c) File a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
(2) 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.
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 Exchange Act of 1934, are hereby
incorporated by reference.
All documents filed by the Company pursuant to Sections 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 replace 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
Securities are registered under Section 12 of the Exchange Act
Item 5. Interests of Named duly caused this Registration Statement to be signed
on its behalf by the undersigned thereunto duly authorized, in the City of San
Diego, State of California, on the 5th day of September 1997.
EXTEN INDUSTRIES, INC.
By:
W. Gerald Newmin
Chairman, Chief Executive Officer, and 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/W.Gerald Newmin
- ----------------- Chairman, President and October 28, 1997
W. Gerald Newmin Chief Executive Officer
/S/William R. Hoelscher
- --------------------- Vice-President and October 28, 1997
William R. Hoelscher Director
INDEX TO EXHIBITS
Sequentially
Exhibit Number Description
24.1 Consent of JH Cohn LLP
24.2 Consent and Opinion of William Aul, Esquire re: Legality
Exhibit 24.1 Consent of Independent Accountants
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 being filed by Exten Industries, Inc. (the "Company") of our
report dated April 21, 1997 appearing in the Company's Annual Report on Form
10-KSB for the fiscal year ended November 30, 1996 on our audit of the
financial statements of the Company as of November 30, 1996 and for the year
then ended also appearing in the Form 10-KSB.
J.H. COHN LLP
San Diego, California
September 5, 1997
Exhibit 24.2 Consent and Opinion of Esquire re: Legality
William M. Aul
Attorney At Law
4275 Executive Square, Suite 800
La Jolla, CA 92037
October 17, 1997
Board of Directors
Exten Industries, Inc.
9625 Black Mountain Road, Suite 218
San Diego, CA 92126
Re: Legal Opinion - Issuance of New Shares & Consent for Use of Opinion
in Registration Statement
Gentlemen:
You have asked for my law firm's opinion with respect to the matters set forth
below in connection with the issuance and registration of 4,530,677 shares of
the Common Stock (par value $0.01) (the "Shares") of Exten Industries, Inc.,
a Delaware corporation (the "Company") as described on the Form S-8
Registration Statement (the "Registration Statement") filed with the
U.S. Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act") and the limited offering permit (the "Permit") to be
issued to the Company by the California Department of Corporations in
connection with the filing of an Application for Qualification by
Coordination under California Corporations Code Section 25111 of the
California Corporate Securites Act of 1968, as amended.
This Opinion Letter is governed by, and shall be interpreted in accordance
with, the Legal Opinion Accord (the "Accord") of the ABA Section of Business
Law (1991). As a consequence, it is subject to a number of qualifications,
exceptions, definitions, limitations on coverage and other limitations, all
more particularly described in the Accord, and this Opinion Letter should be
read in conjuction therewith.
You have not asked my law firm to participate and we have not participated in
the preparation or review of the accuracy or completeness of the statements
and representations made by the Registration Statement. My law firm has not
been asked to conduct or review any due diligence, and evaluate the
completeness or the accuracy of the Registration Statement's disclosure of
the Company's affairs. My law firm can therefore take no responsibility for
nor have we verified independently or otherwise, any of the information
contained in the Registration Statement.
The Company has provided my office with a certificate of its Chief
Executive Officer certifying that the Company has received full
consideration for the issuance of the Shares. We have also
received photostatic copies of Minutes and Actions of the Board of
Directors which the Company has provided (collectively, the
"Corporate Actions") and upon which these issuances are based and
on which I rely.
The Company has also assured me that all of the Shares to be issued
pursuant to the Registration Statement will be issued only upon the
Company's receipt, from each proposed holder, of an executed
Investment Agreement, acknowledging that the proposed holder meets
or exceeds the suitability standards required by the Permit. The
Permit requires that each proposed holder meet or exceed specified
income and net worth suitability standards at the time that one or
more certificates representing the Shares are to be issued.
In connection with the opinion expressed below, I have examined and
relied upon, as the factual matters, the photostatic copy of the
Company's Registration Statement, the Corporate Actions, and the
Company's assurances that it will comply with the Permit.
With your permission, I have assumed the authenticity of the
signatures presented on all documents received from the Company in
connection with this matter and that there are no other
understandings, arrangements, or other corporate actions or minutes
signatures presented on all documents received from the Company
in connection with this matter and that there are no other understandings,
arrangements, or other corporate actions or minutes which would limit,
restrict, revoke, or repeal the proposed issuances of the Company's
Shares hereunder.
My law firm has examined and relied upon, as to matters of law,
such consideration as I, in my judgement, have deemed necessary or
appropriate to render the opinions expressed below. This opinion
is limited to federal law, the provisions of the Delaware General
Corporation Law and the provisions of the California Corporate
Securities Act of 1968, as amended. I can assume no responsibility
for the law of any other jurisdiction.
Based upon and subject to the foregoing, I am of the opinion that
the Company has received full consideration for the issuance of the
Shares, that the Shares will be validly issued and non-assessable,
and that the Shares will be issued in conformity with the
registration requirements of the Act and the conditions and
suitability standards that are anticipated to be required by the
Permit.
This opinion is limited solely to the matter set forth herein and
is delivered to you only with regard to and is intended for use
solely in connection with the Registration Statement. This Opinion
should not be relied upon for any other purpose.
I hereby consent to the inclusion of this Opinion in the
Registration Statement.
If you have any questions or if we can help you in any way, please
call me. Thank you for your inquiry.
Sincerely,
/S/William M. Aul
