As filed with the Securities Exchange Commission on October , 1996
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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PHASEOUT OF AMERICA, INC.
(Exact name of Company as specified in its charter)
Delaware 11-2873662
(State of Incorporation) (IRS Employer Ident. No.)
140 Broadway, Lynbrook, New York 11563
(516) 599-1900
(Address of Principal Place of Business and Executive Office)
CONSULTING AGREEMENT
BETWEEN PHASEOUT OF AMERICA, INC. AND
P.K. HICKEY & CO., INC.
CONSULTING AGREEMENT WITH JACK H. HALPERIN
(Full Name of the Plans)
Bernard Gutman, 140 Broadway, Lynbrook, New York 11563
(Name and Address of Agent for Service)
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Copy to:
Jack H. Halperin, Esq.
711 Third Avenue, Suite 1505
New York, New York 10017
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Approximate date of commencement of proposed sale to public: as soon as
practicable after the effective date of this Registration Statement.
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Proposed Maximum Maximum Amount
Title of Each Amount Offering Aggregate of Regist-
Securities Being Being Price Offering ration Fee
Registered Registered per share price (1) ----------
- ---------- ---------- --------- ---------
Common Stock,
par value
$0.00003 (2) 150,000 $ 0.03 $ 4,500 $ 1.55
Common Stock
par value
$0.00003 (3) 150,000 $ 0.03 $ 4,500 $ 1.55
Total: $ 3.20
$ 100 minimum fee
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Represents shares underlying a consulting agreement which allows P.K.
Hickey & Co., and/or its designees to receive 150,000 shares.
(3) Represents shares underlying a consulting agreement which allows Jack
H. Halperin and/or designee to receive 150,000 shares.
<PAGE>
PART 1. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information
Registrant (sometimes referred to herein as the "Company") has entered into a
certain consulting agreement dated January 4, 1996 (the "Consulting Agreement")
with P.K. Hickey & Co., Inc. (Hickey). Pursuant to the Consulting Agreement,
Hickey is to provide business and financial consulting services. As compensation
for the services to be provided, the Company has provided Hickey with an
aggregate of 150,000 shares of the Company's Common Stock. The Registrant is
obligated to prepare and file this Registration Statement on Form S-8 upon
issuance of the shares. The Shares are deliverable to Hickey as follows: 150,000
shares upon the effectiveness of this registration statement.
The Registrant has entered into a consulting agreement with Jack H. Halperin,
Esq. ("Halperin") pursuant to which Halperin will provide legal advice for the
Company with respect to proposed corporate transactions. As compensation for the
services to be provided, Halperin is to receive 150,000 shares of the Company's
Common Stock upon the effectiveness of the registration statement. The term of
the agreement is February and March 1996.
Item 2. Registrant Information and Employee Plan Annual Information.
Registrant shall provide each of the consultant, without charge, upon written or
oral request, the documents incorporated herein by reference in Item 3 of Part
II of this Registration Statement. Registrant shall also provide to consultants,
without charge upon oral or written request, with all other documents required
to be delivered to Consultant pursuant to Rule 428(b). Any and all such requests
shall be directed to Registrant at 140 Broadway, Lynbrook, New York 11563,
telephone (516) 599-1900.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission are
incorporated by reference:
(a) Registrant's annual Report on Form 10-K for the period ended December
31, 1995, filed pursuant to Section 13(a) or 15 (d) of the Securities
Exchange Act of 1934, which contains, either directly or by
incorporation by reference, certified financial statements for the
Company's latest fiscal year for which such statements have been
filed;
(b) All other reports, including but not limited to Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K, filed by Registrant
pursuant to Section 13(a) or 15(d) of the Exchange Act;
<PAGE>
(C) All reports subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to
be part hereof from the date of filing such documents.
Item 4. Description of Securities.
The authorized capital stock of the Company consists of 100,000,000 Shares of
common stock, par value $.00003 per Share. The holders of common stock (I) have
equal and ratable rights to dividends from funds legally available therefor,
when, as and if declared by the Board of Directors for the Company; (ii) are
entitled to share ratably in all of the assets of the Company available for
distribution to holders of common stock upon liquidation, dissolution or winding
up of the affairs of the Company; (iii) do not have pre-emptive, subscription or
conversion rights (there are no redemption or sinking fund provision applicable
thereto); and (iv) are entitled to one non-cumulative vote per share, on all
matters which shareholders may vote at all meetings of the shareholders.
Since its inception, the Company has not paid any cash dividend on its Common
Stock and does anticipate that it will pay cash dividends in the foreseeable
future.
Registrant is registering hereunder 300,000 shares of its authorized but
unissued common stock. All shares of common stock now outstanding are fully paid
for and non-assessable and all shares of common stock which are the subject of
this Registration Statement, when issued, will also be fully paid for and
non-assessable.
Item 5. Interest of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Officers and Directors.
There is no charter provision, by-law, contract or other arrangement under which
any controlling person, director or officer of Registrant is insured or
indemnified in any manner against liability which he may incur in his capacity
as such. However, pursuant to Delaware Corporation Law Section 145, Registrant
may indemnify its directors, officers, employees and agents against liabilities
which they may incur in their capacity as such.
Section 145 of Delaware General Corporation law contains various provision
entitling directors, officers, employees or agents of the Company to
indemnification from judgements, fines, amounts paid in settlement and
reasonable expenses, including attorney's fees, as the result of an action or
proceeding (whether civil, criminal, administrative or investigative) in which
they may be involved by reason of being or having been a director, officer,
employee or agent of the Company provided said person acted in good faith and in
a manner reasonably believed to be in or not opposed to the best interests of
the Company (and, with respect to any criminal action or proceedings, had not
reasonable cause to believe that the conduct complained of was unlawful). Also,
the By-Laws of the
<PAGE>
Company state that the indemnification provisions of Section 145 of the Delaware
Corporation Code shall be utilized to the fullest extent permitted.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Title
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5. Opinion of Jack H. Halperin regarding the legality of
the securities registered.
10.(a) Consulting Agreement with P.K. Hickey & Co., Inc.
10.(b) Consulting Agreement with Jack H. Halperin
24. Consent of Jack H. Halperin, counsel to Registrant, to
the use of his opinion with respect to the legality of
the securities being registered hereby -- included in Exhibit
5.
Item 9. Undertakings.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of Registrant
pursuant to the foregoing provisions, or otherwise, Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Registrant of expenses
incurred or paid by a director, officer or controlling person of Registrant in
the successful defense of any action, suit or proceeding) is asserted by such
directors, officer or controlling person in connection with the securities being
registered, 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 is against public policy
as expressed in the Act and will be governed by the final adjudication of such
issue.
a. Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to:
(I) include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) 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, represents a fundamental change in the information set
forth in the Registration Statement; and
(iii)include any material information with respect to the plan of
distribution not previously
<PAGE>
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
Provided, however, that Paragraph a(1)(I) and a(1)(ii) do not apply if the
Registration Statement is on Form S-8, and the information required to be
included in the post effective amendment is incorporated by reference from
periodic reports filed by a small business issuer under the Exchange Act.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to the Registration
Statement shall be deemed to be a new registration statement relating
to the securities offered therein and the offering such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) 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 offering.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned thereunto duly authorized in the Town of
Lynbrook, State of New York on the 14th day of February, 1996.
Phase-Out of America, Inc.
(Registrant)
By: /s/ Bernard Gutman
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Bernard Gutman , Chairman of the Board
Pursuant to the requirements of the 1933 Act, this Registration Statement or
amendment has been signed by the following persons in the capacities and on the
dates indicated.
Signatures Title Date
/s/ Bernard Gutman
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Bernard Gutman Chairman of the Board of Directors
& Chief Executive Officer 2/14/96
/s/ James F. Leary
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James F. Leary Vice Chairman of the Board &
Director 2/14/96
/s/ Irwin Pearl
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Irwin Pearl President, Chief Operating Officer
And Director 2/14/96
/s/ Drew A. Gutman
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Drew A. Gutman Secretary-Treasurer and Director 2/14/96
/s/ Daniel Silkiss
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Daniel Silkiss Director 2/14/96
/s/ Luther H. Hodges, Jr.
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Luther H. Hodges, Jr. Director 2/14/96
JACK H. HALPERIN, ESQ.
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711 THIRD AVENUE
SUITE 1505
NEW YORK, NEW YORK 10017
TELEPHONE: (212) 545-1700
TELEFAX: (212) 545-1703
February 14, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Phase-Out of America, Inc.
Gentlemen:
I have been requested by Phase-Out of America, Inc., a Delaware
corporation (the "Company"), to furnish you with my opinion as to the matters
hereinafter set forth in connection with a Registration Statement on Form S-8
(the "Registration Statement") covering 300,000 shares of the Company's common
stock, par value $.00003 per share (the "Common Stock"). I have been advised by
the Company that these shares are being issued in connection with certain
consulting agreements.
In connection with this opinion, I have examined such documents as I
have deemed necessary to enable me to render the opinion hereinafter expressed.
Based upon and subject to the foregoing, I am of the opinion that the
shares of Common Stock which are registered under the Registration Statement
when issued will be legally authorized, fully paid and non-assessable shares of
the Company.
I render no opinion as to the laws of any jurisdiction other than the
internal laws of the State of Delaware.
I hereby consent to the use of this opinion as an exhibit to the
Company's Registration Statement on Form S-8.
Very truly yours,
/s/ Jack H. Halperin
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Jack H. Halperin
