As filed with the Securities and Exchange Commission on
May 28, 1998 File No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under the
Securities Act of 1933
EXTEN INDUSTRIES, INC.
----------------------
(Exact Name of Registrant as Specified in its Charter)
State of Delaware 52-1412493
----------------- ----------
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
-------------------------------------------
(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
------------------
(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 6,607,358 $0.06 $396,441 $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, 1997 and Forms 10-QSB for the quarters ended
February 28, 1998 and and Forms 8-K dated March 19, 1998 and
April 8, 1998, 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 Willaim Aul, Esq.
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 an 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 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 20th day of May 1998.
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 May 20, 1998
W. Gerald Newmin Chief Executive Officer
/S/Jerry G. Simek
- ------------------ Director May 20, 1998
Jerry G. Simek
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 February 9, 1998 appearing in the
Company's Annual Report on Form 10-KSB for the fiscal year ended
November 30, 1997 on our audit of the financial statements of the
Company as of November 30, 1997 and for the year then ended also
appearing in the Form 10-KSB.
J.H. COHN LLP
San Diego, California
May 20, 1998
Exhibit 24.2 Consent and Opinion of Esquire re: Legality
May 20, 1998
Board of Directors
Exten Industries, Inc.
9625 Black Mountain Road, Suite 218
San Diego, California 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 275,000 and 6,607,358 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") which the
Company has prepared for filing 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") which
the Company has indicated it will seek from 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
Securities 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 conjunction 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.
Page Two
Opinion of Counsel: Form S-8 Registration Statement
Board of Directors
May 20, 1998
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 that 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 that the Company has indicated it will seek, 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. Finally, the offering,
issuance, and sale of the shares shall only be undertaken upon
issuance of the Permit and in compliance with Corporate Securities
Act of 1968 as amended.
In connection with the opinion expressed below, I have examined
and relied upon, as to 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 which would limit, restrict, revoke, or repeal the
proposed issuance's of the Company's Shares hereunder.
My law firm has examined and relied upon, as to matters of law,
such considerations 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.
In the event that: (i.) the Company files the Form S-8
Registration Statement for the Shares described herein and the
Registration Statement, as filed, becomes effective; (ii.) upon
the Company's receipt of an Order (issued by the California
Department of Corporations granting the Company's Application
for a limited offering permit arising out of the Application that
the Company has indicated it will file with the California
Department of Corporations; and (iii.) each of the Shares to be
issued pursuant to the Registration Statement are issued in full
compliance with the California Corporate Securities Act of 1968,
as amended, then I will be 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 required by the Permit.
Page Three
Opinion of Counsel: Form S-8 Registration Statement
Board of Directors
May 20, 1998
This opinion is limited solely to the matters 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.
// William M. Aul
