SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under The Securities Act of 1933
WHITNEY AMERICAN CORPORATION
(Exact name of Registrant as specified in charter)
Delaware 84-1070022
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
12373 E. Cornell Avenue Stephen M. Siedow
Aurora, Colorado 80014 12373 E. Cornell Avenue
(303) 337-3384 Aurora, Colorado 80014
(303) 337-3384
(Address and telephone number of
registrant's principal executive (Name, address and telephone
offices and principal place of business) number of agent for service)
1997 EMPLOYEE STOCK COMPENSATION PLAN
(Full Title of the Plan)
Copies to:
John D. Brasher Jr.
90 Madison Street, Suite 707
Denver, Colorado 80206
(303) 355-3000
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
================================================================================
Title of Proposed Proposed
Each Class Amount Maximum Maximum Amount of
of Securities Being Offering Price Aggregate Registration
Being Registered Registered Per Share Offering Price(2) Fee (3)
================================================================================
Common Stock (1) 1,500,000 N/A N/A $ 100.00
================================================================================
(1)The securities registered hereunder are shares of the registrant's common
stock, $.00001 par value, subject to award to persons defined as employees
under the registrant's 1997 Employee Stock Compensation Plan.
(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. The shares
being registered are quoted without price on the OTC Bulletin Board, and the
registrant has no assets; therefore, only the minimum filing fee is due.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and 2,
with respect to these shares will be delivered to the participants in accordance
with Form S-8 and Rule 428 under the Securities Act of 1933, as amended. Such
document(s) are not being filed with the Commission but constitute, along with
the documents incorporated by reference into the Registration Statement pursuant
to Item 3 of Part II hereof, a prospectus that meets the requirements of Section
10(a) of the Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this registration
statement of Whitney American Corporation, a Delaware corporation ("Company"),
and in the related Section 10(a) prospectus:
(a) The Company's annual report on Form 10-KSB for the fiscal year ended May
31, 1997;
(b) Amendment designated Form 10-KSB/A-1 to the Company's annual report on
Form 10-KSB for the fiscal year ended May 31, 1997;
(c The Company's quarterly reports on Form 10-QSB for the fiscal quarters
ended August 31, 1997 and November 30, 1997;
(d) Item 1 (Description of Securities) contained in registration statement
on Form 8-A of the Company, SEC file No. 0-22907.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities registered
hereunder have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
John D. Brasher Jr., proprietor of the law firm Brasher & Company, which
rendered the legal opinion included as Exhibit 5.1 to this registration
statement, is Secretary and a significant shareholder of the Company. Although
Mr. Brasher has not been awarded any shares under this plan, it is possible that
shares will be awarded in the future.
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Item 6. Indemnification of Officers and Directors.
Pursuant to the Company's Certificate of Incorporation, and as permitted by
Section 145 of the General Corporation Law of Delaware, the Company may
indemnify its directors and officers under certain circumstances against
reasonable expenses (including court costs and attorney's fees), judgments,
penalties, fines, and amounts paid in settlement actually and reasonably
incurred in connection with any action, suit or proceeding, whether civil,
criminal, administrative or investigative, to which any of them is a party by
reason of his being a director, officer, employee, or agent of the Company if it
is determined that he acted in accordance with the applicable standard of
conduct set forth in such statutory provisions. Thus, the indemnification
provisions will protect officers and directors from liability only if the
officer or director meets the applicable standard of conduct and the Company has
the financial ability to honor the indemnity. Insofar as indemnification for
liabilities under the Securities Act of 1933 may be permitted to directors,
officers or persons controlling the registrant pursuant to the General
Corporation Law of Delaware, the Certificate of Incorporation, 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 such
Act, and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable; no securities have been issued.
Item 8. Exhibits.
5.1 Consent and opinion of Brasher & Company, counsel to the Company 1
10.1 1997 Employee Stock Compensation Plan of the Company
(incorporated by reference to Exhibit 10.1 to the
Company's report on Form 8-K dated February 12, 1997) 2
23.1 Consent of Gelfond Hochstadt Pangburn and Co., certified
public accountants and business consultants 1
1 Included as part of this registration statement.
2 Incorporated by reference to another registration statement, report or
document.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers and sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement.
(2) 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 such time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration, by means of a post-effective amendment to
this registration statement, any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be initial bona fide offering
thereof.
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Insofar as indemnification for liabilities 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 has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
DATED: December 10, 1997
WHITNEY AMERICAN CORPORATION
By /s/ Stephen M. Siedow
-------------------------------------------
Stephen M. Siedow, Chief Executive Officer,
Chief Financial Officer and President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons, in the
capacities and on the dates respectively indicated.
Signature Title Date
/s/ Stephen M. Siedow Director, Chief Executive Officer, 12/10/97
---------------------- Chief Financial Officer, and President
Stephen M. Siedow
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<PAGE>
Brasher & Company
ATTORNEYS AT LAW
90 Madison Street, Suite 707
Denver, Colorado 80206
TELEPHONE FACSIMILE
(303) 355-3000 (303) 355-3063
December 10, 1997
Board of Directors
WHITNEY AMERICAN CORPORATION
12373 E. Cornell Avenue
Aurora, Colorado 80014
Re: Registration Statement on Form S-8
1997 Employee Stock Compensation Plan
Gentlemen:
We have acted as counsel to Whitney American Corporation, a Delaware
corporation ("Company"), in connection with the preparation and filing with the
U.S. Securities and Exchange Commission ("Commission") under the Securities Act
of 1933, as amended ("Act"), of the Company's registration statement on Form S-8
(together with all amendments, supplements and exhibits, the "Registration
Statement"). This Registration Statement relates to the registration under the
Act of 1,500,000 shares of the Company's common stock, $.00001 par value
("Shares"), which may be awarded under the Company's 1997 Employee Stock
Compensation Plan ("Plan").
In connection with the opinions herein expressed, we have reviewed the
Plan and the Registration Statement and included prospectus, and have examined
and relied upon, as to factual matters, originals or certified or photostatic
copies of such corporate records, including, without limitation, minutes of the
Board of Directors and other instruments, certificates of corporate officers and
such other documents as we have deemed necessary or appropriate for the opinions
expressed herein. In making such examinations, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of
documents submitted to us as originals, the conformity to original documents of
documents submitted to us as certified or photostatic copies, and the
authenticity of originals of such photostatic copies.
We have examined and relied upon, as to matters of law, such statutes,
rules and judicial precedents and such other considerations of law as we, in our
judgment, have deemed necessary or appropriate for the purposes of rendering the
opinions expressed herein.
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<PAGE>
Brasher & Company
Board of Directors
WHITNEY AMERICAN
CORPORATION
December 10, 1997
Page 2 of 2
Based upon and in reliance upon the foregoing, and subject to the
qualifications and limitations herein set forth, we are of the opinion that,
when the Registration Statement shall have become effective pursuant to the
rules and regulations of the Commission, and the Shares have been sold and
issued as contemplated in the Registration Statement, such Shares will be
legally issued, fully paid and nonassessable.
This opinion is limited to the laws of the United States of America
and the laws of the State of Delaware, and we express no opinion with respect to
the laws of any other jurisdiction.
We consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to all references made to our firm in
the Registration Statement. However, in rendering this opinion, we do not hereby
admit that we are acting within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission under the Act.
This opinion is being delivered and is intended for use solely in
regard to the transactions contemplated by the Registration Statement and may
not be used, circulated, quoted in whole or in part or otherwise referred to for
any purpose without our prior written consent and may not be relied upon by any
person or entity other than the Company, its successors and assigns. This
opinion is based upon our knowledge of law and facts as of its date. We assume
no duty to communicate to you with respect to any matter which comes to our
attention hereafter.
Very truly yours,
BRASHER & COMPANY
/s/ John D. Brasher Jr.
--------------------------
John D. Brasher Jr.
for the Firm
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<PAGE>
GELFOND, HOCHSTADT
PANGBURN & CO.
A Professional Corporation
Certified Public Accountants
and Business Consultants
Suite 2500
1600 Broadway
Denver, CO 80202-4925
(303) 831-5000 / Fax: (303) 831-5032
A member of Horwath International
INDEPENDENT AUDITORS' CONSENT
-----------------------------
We hereby consent to the incorporation in this Registration Statement on Form
S-8 of our report dated July 25, 1997, by reference to the Annual Report on Form
10-KSB for the year ended May 31, 1997, of Whitney American Corporation.
/s/ Gelfond Hochstadt Pangburn & Co.
----------------------------------
Gelfond Hochstadt Pangburn & Co.
Denver, Colorado
December 10, 1997
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