As filed with the Securities and Exchange Commission on
October 12, 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.
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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)
1998 STOCK COMPENSATION PLAN
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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
Maximum Maximum
Title of Amount Offering Aggregate Amount of
securities to to be Price Offering Registration
be Registered Registered Per Share Price Fee
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Common Stock, no par value 5,000,000 $0.03 $150,000 $ 44
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 (c) and (h)(1), based on the closing price of the Company's
Common Stock.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
(plan information and registrant information) will be sent or
given to employees as specified by Rule 428(b)(1). Such
documents need not be filed with the Securities and Exchange
Commission either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in
this Registration Statement pursuant to Item 3 of Part II of
this form, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents of Exten Industries, Inc., a Delaware
corporation (the "Company"), previously filed with the
Commission are incorporated herein by reference:
1. Annual Report on Form 10-KSB for the year ended
November 30, 1997 (the " Annual Report").
2. Quarterly Report on Form 10-QSB for the Period ended
February 28, 1998.
3. Quarterly Report on Form 10-QSB for the Period ended
May 31, 1998.
4. The description of the Registrant's Common Stock
contained in the Registration Statement on Form 8-A filed
by the Registrant to register the Common Stock under the
Exchange Act, including all amendments and reports filed
for the purpose of updating such description prior to the
termination of the offering of the Common Stock offered hereby.
In addition, all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
and Exchange Act of 1934 (the "Exchange Act") prior to the filing
of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by
reference into the prospectus and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
The common stock of the Company, $.01 per value (the "Common
Stock"), is registered pursuant to Section 12 of the Exchange
Act, and, therefore, the description of securities is omitted.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers
Delaware General Corporation Law provides that a Delaware
corporation may indemnify any person who is or was serving
at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust or
other enterprise or employee benefit plan ("director"), that
is made a party to any proceeding by reason of service in
that capacity unless it is established that the act or
omission of the director was material to the matter giving
rise to the proceeding and was committed in bad faith or
was the result of active and deliberate dishonesty; or the
director actually received an improper personal benefit in
money, property or services; or, in the case of any criminal
proceeding, the director had reasonable cause to believe that
the act or omission was unlawful. Indemnification may be
against judgments, penalties, fines, settlements, and reasonable
expenses actually incurred by the director in connection with
the proceeding, but if the proceeding was one by or in the
right of the corporation, indemnification may not be made in
respect of any proceeding in which the director shall be
adjudged to be liable to the corporation. Such indemnification
may not be made unless authorized for a specific proceeding
after a determination has been made, in a manner prescribed
by law, that indemnification is permissible in the circumstances
because the director has met the applicable standard of conduct.
The director must be indemnified for expenses, however, if he has
been successful in the defense of the proceeding or as otherwise
ordered by a court. The law also prescribes the circumstances
under which a corporation may advance expenses to, or obtain
insurance or similar cover for, directors.
The Company's Certificate of Incorporation provides for
indemnification of the officers and directors of the Company
and eliminates the liability of a director or officer to the
Company or its stockholders for money damages to the fullest
extent permitted by Delaware law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index appearing at sequentially numbered page 5.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act)
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
bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under
the Securities Act 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 pubic 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 Securities Act and will be governed by the final
adjudication of such issue.
EXHIBIT INDEX
Exhibit Sequential
Number Description Page No.
4.1 1998 Stock Compensation Plan of Exten Industries, Inc., 7
adopted as of September 7, 1998.
5.1 Opinion of Jeffers, Wilson, Shaff & Falk, LLP. 19
23.1 Consent of J.H. Cohn LLP. 21
23.2 Consent of Jeffers, Wilson & Shaff & Falk, LLP 19
(included in Exhibit 5.1).
24.1 Power of Attorney (included on the Signature Page). 6
SIGNATURES
The Registrant. 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
San Diego, State of California, on October 12, 1998.
EXTEN INDUSTRIES, INC.
By: /s/ W. Gerald Newmin
W. Gerald Newmin, CEO, Secretary and
Chairman of the Board
POWER OF ATTORNEY
We, the undersigned directors of EXTEN INDUSTRIES, INC.,
do hereby constitute and appoint W. Gerald Newmin, our
true and lawful attorney and agent, to do any and all
acts and things in our name and behalf in our capacities
as directors and to execute any and all instruments for
us and in our names in the capacities indicated below,
which said attorney and agent may deem necessary or
advisable to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules,
regulations, and requirements of the Securities and
Exchange Commission, in connection with this Registration
Statement, including specifically, but without limitation,
power and authority to sign for us or any of us in our names
and in the capacities indicated below, any and all amendments
(including post-effective amendments) hereof; and we do hereby
ratify and confirm all that the said attorney and agent shall
do or cause to be done by virtue hereof.
Signatures Title Date
/s/ W. Gerald Newmin Chief Executive Officer, October 12, 1998
W. Gerald Newmin Secretary and Chairman
of the Board
/s/ Jerry G. Simek President,Chief October 12, 1998
Jerry G. Simek Operating Officer
and Director
/s/ Farrest Loper Director October 12, 1998
Farrest Loper
(Exhibit 4.1)
EXTEN INDUSTRIES, INC.
1998 STOCK COMPENSATION PLAN
TABLE OF CONTENTS
Page
1. PURPOSE 1
2. DEFINITIONS 1
3. EFFECTIVE DATE. 3
4. ADMINISTRATION. 3
5. PARTICIPATION. 4
6. STOCK SUBJECT TO THE PLAN. 4
7. PERFORMANCE AWARDS. 4
8. STOCK PAYMENTS. 5
9. RIGHTS OF ELIGIBLE PERSONS AND BENEFICIARIES 5
a. Employee Status 5
b. No Employment Contract 5
c. Plan Not Funded 5
d. Adjustment Upon Recapitalizations
and Corporate Changes 6
e. Rights as a Stockholder 6
f. Deferral of Payments 6
g. Acceleration of Awards 6
10. MISCELLANEOUS 7
a. Termination, Suspension and Amendment 7
b. No Fractional Shares 7
c. Tax Withholding and Tax Bonuses 7
d. Compliance with Laws 8
e. Governing Laws 8
f. Securities Law Requirements 9
g. Execution 10
EXTEN INDUSTRIES, INC.
1998 STOCK COMPENSATION PLAN
1. PURPOSE
The Plan is intended to provide incentive to key employees,
officers and directors of, and key consultants, vendors,
customers, and others who provide significant services to,
the Corporation, to encourage proprietary interest in the
Corporation, to encourage such key employees to remain in
the employ of the Corporation and its Subsidiaries, to
attract new employees with outstanding qualifications, and
to afford additional incentive to consultants, vendors,
customers, and others to increase their efforts in providing
significant services to the Corporation.
2. DEFINITIONS.
a. "Award" shall mean a Performance Award or a Stock Payment
granted pursuant to the Plan.
b. "Board" shall mean the Board of Directors of the Corporation.
c. "Code" shall mean the Internal Revenue Code of 1986, as amended.
d. "Committee" shall mean the committee, if any, appointed by the
Board in accordance with Section 4 of the Plan; provided, however,
that the Committee shall be reconstituted to include only Non-
Employee Directors if any Award is to be made to a Director or
Officer.
e. "Common Stock" shall mean the Common Stock, par value $0.01,
per share par value, of the Corporation.
f. "Corporation" shall mean Exten Industries, Inc., a Delaware
corporation.
g. "Eligible Person" shall mean any of the following:
i. an individual who is employed (within the meaning of
the Code Section 3401 and the regulations thereunder) by
the Corporation;
ii. a service provider, consultant, customer or vendor to the
Corporation; and
iii. a non-employee director of the Corporation who is not a
member of the Committee
h. "Event" shall mean any of the following:
i. Any person or entity (or group of affiliated persons or
entities) acquired in one or more transactions, whether
before or after the effective date of the Plan, ownership
of more than 50 percent of the outstanding shares of stock
entitled to vote in the election of directors of the
Corporation;
ii. The dissolution or liquidation of the Corporation or a
reorganization, merger or consolidation of the Corporation
with one or more entities, as a result of which the
Corporation is not the surviving entity, or a sale of all
or substantially all of the assets of the Corporation as an
entirety to another entity; or
iii. For purposes of this definition, ownership does not
include ownership (1) by a person owning such shares merely
of record (such as a member of a securities exchange, a
nominee or a securities depositary system), (2) by a person
as a bona fide pledgee of shares prior to a default and
determination to exercise powers as an owner of the shares,
(3) by a person who is not required to file statements on
Schedule 13D by virtue of Rule 13d-1(b) of the Securities
and Exchange Commission under the Exchange Act, or (4) by
a person who owns or holds shares as an underwriter
acquired in connection with an underwritten offering
pending and for purposes of resale.
i. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
j. "Fair Market Value" shall mean the value of one (1) Share of
Common Stock, determined as follows:
i. If the Shares are traded on an exchange, the price at which
Shares traded at the close of business on the date of
valuation;
ii. If the Shares are traded over-the-counter on the NASDAQ
System, the closing price if one is available, or the mean
between the bid and asked prices on said System at the
close of business on the date of valuation; and
iii. If neither (i) nor (ii) applies, the fair market value
as determined by the Board or the Committee in good faith.
Such determination shall be conclusive and binding on all
persons.
k. "Non-Employee Director" shall have the meaning ascribed to that
term in Rule 16b-3(b)(3). (17, C.F.R. 240.16b-3(b)(3).)
l. "Participant" shall mean an Eligible Person who has received an
Award under the Plan.
m. "Performance Award" shall have the meaning ascribed to such term
in Article 7.
n. "Plan" shall mean the Exten Industries, Inc. 1998 Stock
Compensation Plan, as it may be amended from time to time.
o. "Share" shall mean one (1) share of Common Stock, adjusted in
accordance with Section 9(d) of the Plan (if applicable).
p. "Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
q. "Stock Payment" shall mean a payment in the form of Shares made in
lieu of or in addition to all or any portion of the compensation.
3. EFFECTIVE DATE.
The Plan was adopted by the Board on September 7,1998. The effective date of
the Plan shall be September 7, 1998. Initially, 5,000,000 Shares of common
stock have been reserved for issuance under the Plan.
4. ADMINISTRATION.
a. The Plan shall be administered by the Board in compliance with
Rule 16b-3 of the Exchange Act ("Rule 16b-3), or by the Committee
appointed by the Board, which Committee shall be constituted to
permit the Plan to comply with Rule 16b-3, and which shall consist
of not less than two (2) members.
b. The Board shall appoint one of the members of the Committee, if
there be one, as Chairman of the Committee.
c. If a Committee has been appointed, the Committee shall hold
meetings at such times and places as it may determine. Acts of a
majority of the Committee at which a quorum is present, or acts
reduced to or approved in writing by a majority of the members of
the Committee, shall be the valid acts of the Committee.
d. The Board, or the Committee if there be one, shall from time to
time at its discretion select the Eligible Persons who are to be
granted Awards and determine the number of Shares to be applicable
to such Award.
e. The interpretation and construction by the Board, or by the
Committee if there be one, of any provision of the Plan or of any
Award granted thereunder shall be final.
f. No member of the Board or of the Committee shall be liable for any
action or determination made in good faith with respect to the
Plan or any Award granted thereunder.
g. In addition to any right of indemnification provided by the
Certificate of Incorporation or Bylaws of the Corporation, such
person shall be indemnified and held harmless by the Corporation
from any loss, cost, liability or expense that may be imposed upon
or reasonably incurred by him in connection with any claim, suit,
action or proceeding to which he may be a party by reason of any
action or omission under the Plan.
h. In the case of an award to an Eligible Person who is not an
employee of the Corporation, a majority of the Committee shall
determine that the value of the services to be rendered to the
Corporation by such non-employee director or service provider is
at least equal to the value of the Award granted.
5. PARTICIPATION.
The Awards may be granted to such Eligible Persons as the Board
or the Committee may select.
6. STOCK SUBJECT TO THE PLAN.
a. The stock subject to Awards granted under the Plan shall be Shares
of the Corporation's authorized but unissued or reacquired Common
Stock. The aggregate number of Shares which may be issued as
Awards under the Plan shall not exceed 5,000,000 Shares.
b. Any Shares withheld by the Corporation pursuant to Section 10(c)
shall not be deemed to be issued. The number of withheld Shares
shall be deducted from the applicable Award and shall not entitle
the Participant to receive additional Shares.
c. The limitations established by this Article 6 shall be subject to
adjustment in the manner provided in Section 9(d) hereof upon the
occurrence of an event specified therein.
7. PERFORMANCE AWARDS.
One or more Performance Awards may be granted to any Eligible Person providing
services to or for the Corporation. The value of such Awards may be linked to
the market value, book value or other measure of the value of the Common Stock
or other specific performance criteria determined appropriate by the Board or
the Committee, in each case on a specified date or over any period determined by
the Board or the Committee, or may be based upon the appreciation in the market
value, book value or other measure of the value of a specified number of shares
of Common stock over a fixed period determined by the Board or the Committee.
In making such determinations, the Board or the Committee shall consider (among
such other factors as it deems relevant in light of the specific type of award)
the contributions, responsibilities and other compensation of the Award
recipient.
8. STOCK PAYMENTS.
The Board or the Committee may approve Stock Payments to Eligible Persons who
elect to receive such payments in the manner determined from time to time by the
Board or the Committee. The number of shares shall be determined by the Board
or the Committee and may be based upon the Fair Market Value, book value or
other measure of the value of such shares on the Award Date or on any date
thereafter.
9. RIGHTS OF ELIGIBLE PERSONS AND BENEFICIARIES
a. Employee Status. Status as an Eligible Employee shall not be
construed as a commitment that any Award will be made under the
Plan to an Eligible Employee or to Eligible Employees generally.
b. No Employment Contract. Nothing contained in the Plan (or in the
Award Agreements or in any other documents related to the Plan or
to Awards) shall confer upon any Eligible Person any right to join
or continue in the employ of the Corporation or constitute any
contract or agreement of employment, or interfere in any way with
the right of the Corporation to reduce such person's compensation
or to terminate the employment or other contract or arrangement of
such Eligible Person, with or without cause, but nothing contained
in the plan or any document related thereto shall affect any other
contractual right of any Participant. Nothing contained in the
Plan (or in the Award Agreements or in any other documents related
to the Plan or the Awards) shall confer upon any director of the
Corporation any right to continue as a director of the
Corporation.
c. Plan Not Funded. No Eligible Person or other person shall have
any right, title or interest in any fund or in any specific asset
(including shares of Common Stock) of the Corporation by reason of
any Award granted hereunder. There shall be no funding of any
benefits which may become payable hereunder. Neither the
provisions of the Plan (or of any documents related hereto), nor
the creation or adoption of the Plan, nor any action taken
pursuant to the provisions of the Plan shall create, or be
construed to create, a trust of any kind or a fiduciary
relationship between the Corporation and any Eligible Person. To
the extent that an Eligible Person acquires a right to receive an
Award hereunder, such recipient shall have no greater rights than
the right of any unsecured general creditor of the Corporation.
Awards payable under the Plan shall be paid in shares of Common
Stock and no special or separate fund or deposit shall be
established and no segregation of shares shall be made to assure
payment of such Awards.
d. Adjustment Upon Recapitalizations and Corporate Changes. If the
outstanding shares of Common Stock are changed into or exchanged
for cash or a different number or kind of shares or securities of
the Corporation, or if the outstanding shares of the Common Stock
are increased, decreased, exchanged for, or otherwise changed, or
if additional shares or new or different shares or securities are
distributed with respect to the outstanding shares of the Common
Stock, through a reorganization or merger in which the Corporation
is the surviving entity or through a combination, consolidation,
recapitalization, reclassification, stock split, stock dividend,
reverse stock split, stock consolidation or other capital change
or adjustment, an appropriate adjustment shall be made in the
number and kind of shares of other consideration that is subject
to or may be delivered under the Plan and pursuant to outstanding
Awards that have been announced but not yet delivered to the
recipient Eligible Person pursuant to section 9(f).
e. Rights as a Stockholder. A Eligible Person, or a transferee of a
Eligible Person, shall have no rights as a stockholder with
respect to any Shares covered by his or her Award until the date
of the issuance of a stock certificate for such Shares. No
adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property), distributions or
other rights for which the record date is prior to the date such
stock certificate is issued, except as provided in Section 9(d)
hereof.
f. Deferral of Payments. The Board or the Committee may approve the
deferral of any payments that may become due under the Plan. Such
deferrals shall be subject to any conditions, restrictions or
requirements as the Board or the Committee may determine.
g. Acceleration of Awards. Immediately prior to the occurrence of an
Event, each Award outstanding under the Plan shall be fully vested
or exercisable, unless, prior to the Event, the Board or the
Committee otherwise determines that there shall be no such
acceleration or vesting of an Award or otherwise determines those
Awards which shall be accelerated or vested and to the extent to
which they shall be accelerated or vested, or that an Award shall
terminate, or unless in connection with such Event the Board
provides (i) for the assumption of such Awards theretofore
granted, or (ii) for the substitution for such Awards of new
awards covering securities or obligations (or any combination
thereof) of a successor corporation, or a parent or subsidiary
thereof, with appropriate adjustments as to number and kind of
shares and prices, or (iii) for the payment of the Fair Market
Value of the then outstanding Awards. In addition, the Board or
the Committee may grant such additional rights in the foregoing
circumstances as the Board or the Committee deems to be in the
best interest of the recipient and the Corporation in order to
preserve for the recipient the benefits of an Award. For
purposes of this Section 9(g) only, Board shall mean the
Board of Directors of the Corporation as constituted immediately
prior to the Event. In addition, the Board may in its sole
discretion accelerate vesting of any or all Awards outstanding
under the Plan in circumstances under which the Board or the
Committee determines such acceleration appropriate.
10. MISCELLANEOUS
a. Termination, Suspension and Amendment. The Board may, at any
time, suspend, amend, modify or terminate the Plan (or any part
thereof) and may, with the consent of an Award recipient,
authorize such modifications of the terms and conditions of such
recipient's Award as it shall deem advisable.
i. No Awards under the Plan may be granted or amended during
any suspension of the Plan or after its termination. The
amendment, suspension or termination of the Plan shall not,
without the consent of the Award recipient, alter or impair
any rights or obligations pertaining to any Awards granted
under the Plan prior to such amendment, suspension or
termination.
ii. Neither adoption of the Plan nor the provisions hereof
shall limit the authority of the Board to adopt other plans
or to authorize other payments of compensation and benefits
under applicable law.
b. No Fractional Shares. No Award or installment thereof shall be
exercisable except in respect of whole shares, and fractional
share interests shall be disregarded.
c. Tax Withholding and Tax Bonuses.
i. Federal, state or local taxes that are subject to the
withholding of tax at the source shall be withheld by the
Corporation so required by applicable law.
ii. The Corporation is entitled to require deduction from
other compensation, if any, payable to each Eligible Person
or, in the alternative:
(1) The Corporation may require the Participant to
advance such sums; or
(2) If a Participant elects, the Corporation may
withhold (or require the return of) Shares having
the Fair Market Value equal to the sums required to
be withheld. If the Participant elects to advance
such sums directly, written notice of that election
shall be delivered prior to the Award and whether
pursuant to such election or pursuant to a
requirement imposed by the Corporation, payment in
cash or by check of such sums for taxes shall be
delivered within 10 days after the Award date.
iii. If the Participant elects to have the Corporation withhold
Shares (or be entitled to the return of Shares) having a
Fair Market Value equal to the sums required to be
withheld, the value of the Shares to be withheld (or
returned) will be equal to the Fair Market Value on the
date the amount of tax to be withheld (or subject to
return) is to be determined. Elections by Eligible Persons
to have Shares withheld (or subject to return) for this
purpose will be subject to the following restrictions:
(1) the election must be made prior to the Tax Date;
(2) the election must be irrevocable;
(3) the election will be subject to the Board's
disapproval; and
(4) if the Participant is an "officer" within the
meaning of Section 16 of the Exchange Act, the
election shall be subject to such additional
restrictions as the Board or the Committee may
impose in an effort to secure the benefits of any
regulations thereunder.
iv. The Corporation shall not be obligated to issue shares to
the Participant upon any Award exercise until such payment
has been received or Shares have been withheld, unless
withholding (or offset against a cash payment) as of or
prior to the exercise date is sufficient to cover all such
sums due or which may be due with respect to such exercise.
d. Compliance with Laws.
i. The granting of Awards under the Plan is subject to such
additional requirements as the Board or the Committee may
impose to assure or facilitate compliance with all
applicable federal and state laws, rules and regulations
(including, without limitation, securities laws and margin
requirements) and to such approvals by any regulatory or
governmental agency which may be necessary or advisable in
connection therewith.
ii. In connection with the administration of the Plan or the
grant of any Award, the Board or the Committee may impose
such further limitations or conditions as in its opinion
may be required or advisable to satisfy, or secure the
benefits of, applicable regulatory requirements (including
those rules that facilitate exemption from or compliance
with the Securities Act or the Exchange Act), the
requirements of any stock exchange upon which such shares
or shares of the same class are then listed, and any blue
sky or other securities laws applicable to such shares.
e. Governing Laws. The Plan and all Awards granted under the Plan
and the documents evidencing Awards shall be governed by, and
construed in accordance with, the laws of the State of California,
except as to those matters governed by the laws of the State of
Delaware as the state of incorporation of the Corporation.
f. Securities Law Requirements.
i. Legality of Issuance. The issuance of any Shares upon the
granting of any Award shall be contingent upon the
following:
(1) the Corporation and the Participant shall have taken
all action required to register the Shares under the
Securities Act of 1933, as amended (the "Act"), and
to qualify the Shares under any and all applicable
state securities or "blue sky" laws or regulations,
or to perfect an exemption from the respective
registration and qualification requirements thereof;
(2) any applicable listing requirement of any stock
exchange on which the Common Stock is listed shall
have been satisfied; and
(3) any other applicable provision of state or federal
law shall have been satisfied.
ii. Restrictions on Transfer. Regardless of whether the
offering and sale of Shares under the Plan has been
registered under the Securities Act or has been registered
or qualified under the securities laws of any state, the
Corporation may impose restrictions on the sale, pledge or
other transfer of such Shares (including the placement of
appropriate legends on stock certificates) if, in the
judgment of the Corporation and its counsel, such
restrictions are necessary or desirable in order to achieve
compliance with the provisions of the Securities Act, the
securities laws of any state or any other law, or as a
condition of making the Award. In the event that the sale
of Shares under the Plan is not registered under the
Securities Act but an exemption is available which required
and investment representation or other representation, each
Participant shall be required to represent that such Shares
are being acquired for investment, and not with a view to
the sale or distribution thereof, and to make such other
representations as are deemed necessary or appropriate by
the Corporation and its counsel. Any determination by the
Corporation and its counsel connection with any of the
matters set forth in this Section 10(f)(ii) shall be
conclusive and binding on all persons. Stock certificates
evidencing Shares acquired under the Plan pursuant to an
unregistered transaction shall bear the following
restrictive legend and such other restrictive legends as
are required or deemed advisable under the provisions of
any applicable law.
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"). ANY TRANSFER OF SUCH SECURITIES WILL BE
INVALID UNLESS A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT IS IN EFFECT AS TO SUCH TRANSFER OR IN THE
OPINION OF COUNSEL FOR THE ISSUER SUCH REGISTRATION IS
UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE
SECURITIES ACT."
iii. Registration or Qualification of Securities. The
Corporation may, but shall not be obligated to register or
qualify the issuance of Awards and/or the sale of Shares
under the Securities Act or any other applicable law. The
Corporation shall not be obligated to take any affirmative
action in order to cause the issuance of Awards or the sale
of Shares under the plan to comply with any law.
iv. Exchange of Certificates. If, in the opinion of the
Corporation and its counsel, any legend placed on a stock
certificate representing shares issued under the Plan is no
longer required, the holder of such certificate shall be
entitled to exchange such certificate for a certificate
representing the same number of Shares but lacking such
legend.
g. Execution. To record the adoption of the Plan in the form set
forth above by the Board effective as of September 7, 1998,
the Corporation has caused this Plan to be executed in the name
and on behalf of the Corporation where provided below by an
officer of the Corporation thereunto duly authorized.
EXTEN INDUSTRIES, INC.
By: /s/ Jerry G. Simek
Jerry G. Simek, President
ATTEST:
/s/ W. Gerald Newmin
W. Gerald Newmin, Chief Executive
Officer and Secretary
Exhibit 5.1
JEFFERS, WILSON, SHAFF & FALK, LLP
ATTORNEYS AT LAW
18881 VON KARMAN AVENUE
SUITE 1400
IRVINE, CALIFORNIA 92612
TELEPHONE: (949) 660-7700
FACSIMILE: (949) 660-7799
October 12, 1998
Exten Industries, Inc.
9625 Black Mountain Road, Suite 218
San Diego, CA 92126
Attention: W. Gerald Newmin
Re: Issuance of Shares Pursuant to S-8 Registration Statement
Dear Mr. Newmin:
This letter relates to the issuance of up to 5,000,000 shares
of Common Stock, no par value (the "Shares"), of Exten Industries,
a Delaware corporation (the "Company") registered pursuant to that
Registration Statement on Form S-8, filed with the Securities and
Exchange Commission on October 12, 1998 (the "Registration
Statement"). You have requested that we deliver to you an opinion
as to whether the Shares will have been duly authorized, validly
issued, and, when issued, will be fully paid and nonassessable
shares of Common Stock of the Company. We have also examined
the Certificate of Incorporation, as amended, and such other
corporate records, including the resolutions of the Company's
Board of Directors, and such other documents as we have deemed
necessary in order to express the opinion set forth below. In
our examination we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals
and the conformity of all originals of all documents submitted to
us as copies. As to questions of fact material to such opinion,
we have relied upon statements and representations of the Company.
Our opinion is based on existing law which is subject to change
either prospectively or retroactively. Relevant laws could
change in a manner that could adversely affect the Company or
its stockholders. We have no obligation to inform the Company
of any such change in the law. We have not been requested to
opine, and we have not opined, as to any issues other than those
expressly set forth herein. This opinion extends only to
questions relating to the validity of the Shares offered and
sold under the Registration Statement. We express no opinion
with respect to any other issue.
We are admitted to practice law in the State of California and
our opinion is limited to federal law and the corporate laws of
the State of California and the State of Delaware that affect
such opinion. We express no opinion with respect to any other
law or the laws of any other jurisdiction.
Assuming the Shares are issued and paid for in accordance with
the terms of the offering described in the Registration Statement,
including documents incorporated by reference thereto, and when
certificates representing such Shares have been issued to the
purchasers, based on the foregoing, we are of the opinion that
the Shares will have been duly authorized, validly issued, and
will be fully paid and nonassessable shares of Common Stock of
the Company.
For purposes of rendering this opinion we have made such legal
and factual inquiries as we have deemed necessary under the
circumstances. Although we have not independently verified all
of the facts relied upon for purposes hereof, nothing has come to
our attention that has led us to believe that the facts are other
than as stated herein or that there exist other material facts not
considered.
Our Opinion contained herein is solely for the benefit of the
Company and may be relied upon by the Company only in connection
with the Registration Statement. In this regard, we hereby
consent to the filing of this opinion, including this consent,
as an exhibit to the Registration Statement.
Very truly yours,
/s/ Jeffers, Wilson, Shaff & Falk, LLP
Jeffers, Wilson, Shaff & Falk, LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED 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 (which includes
an explanatory paragraph as to the Company's ability to continue
as a going concern) appearing in the Company's Annual Report on
Form 10-KSB (the "Form 10-KSB") for the fiscal year ended
November 30,1997 on our audits of the financial statements of
the Company as of November 30, 1997 and for the years ended
November 30,1997 and 1996 also appearing in the Form 10-KSB.
/s/ J.H. Cohn LLP
J.H. Cohn LLP
San Diego, California
October 1, 1998
