As filed with the Securities and Exchange Commission on November 5, 1997.
Registration No. 333-_____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
XPLORER, S.A.
(Exact name of registrant as specified in its charter)
Nevada 95-4280610
(State of Incorporation) (IRS Employer Identification No.)
4750 Kelso Creek Road
Weldon, California 93283
(Address of principal executive offices)
Consultant Agreements/Compensation Plans
THOMAS C. RODDY
Chief Executive Officer
4750 Kelso Creek Road
Weldon, California 93283
(619) 378-3936
(Name, address and telephone number of agent for service)
Copy to:
William B. Barnett, Esq.
Law Offices of William B. Barnett
15233 Ventura Boulevard, Suite 1110
Sherman Oaks, California 91403
(818) 789-2688
Total sequentially numbered pages in this document: 15
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed Amount
Title of Maximum Maximum of
Securities Amount Offering Aggregate Regis-
to be to be Price Per Offering tration
Registered Registered Share(1) Price Fee
Common Stock,
$.001
par value 300,000 $1.25 $375,000 $112.50
(1) Estimated for the sole purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933, as
amended.
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Explanatory Note
This Registration Statement on Form S-8 relates to the registration of
300,000 shares of the Company's Common Stock to be issued from time to time to
employees and officers and/or consultants or advisors of the Company not
relating to services in connection with the offer or sale of securities in a
capital-raising transaction.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan of Information
The document(s) containing the information specified in Items 1 and 2
of Part I of Form S-8 will be sent or given to plan participants as specified in
Rule 428(b)(1) and, in accordance with the instructions to part I, are not filed
with the Commission as part of this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual
Information
The Company will furnish without charge to each person to whom a
Section 10(a) Prospectus is delivered, upon the written or oral request of such
person, a copy of any and all of the documents incorporated herein by reference
in Item 3 of Part II of this registration statement. Requests should be
addressed to: Steven B. Mortensen, Secretary, Xplorer, S.A., 4750 Kelso Creek
Road, Weldon, California 93283, telephone no. (619) 378-3936.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Incorporation by reference in this registration statement are the
following documents and information previously filed with the Securities and
Exchange Commission (the "Commission"):
1. Xplorer, S.A.'s (the "Company") Current Report on Form 8-K filed
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (File No.
0-17874).
2. The Company's Annual Report on Form 10-KSB/A for the year ended
December 31, 1996, filed pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (File No. 0-17874).
3. The Company's Form 10-QSB for the six months ended June 30, 1997, filed
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (File No.
0-17874).
4. All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 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 by
reference herein 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 other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this registration statement except as so
modified or replaced.
Item 4. Description of Securities.
The Company's authorized capital stock consists of 60,000,000 shares of
Common Stock with $.001 par value of which 19,839,890 shares were issued and
outstanding as of October 31, 1997, and 15,000,000 shares of Preferred Stock,
$.001 par value, of which 1,280,550 shares were issued and outstanding as of
October 31, 1997
Item 5. Interests of Named Experts and Counsel.
The legality of the shares of common stock to be issued pursuant to
this registration will be passed upon by the Law Offices of William B. Barnett,
Sherman Oaks, California. A total of approximately 110,000 shares of common
stock, including options to purchase common stock, representing less than .006%
of the total issued and outstanding shares of common stock of the Registrant are
beneficially owned by William B. Barnett, a principal of the firm. In addition,
Mr. Barnett may receive additional shares under the registration statement.
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Item 6. Indemnification of Directors and Officers.
Section 78.751 of the Nevada Revised Statutes permits a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, except an action by or in the
right of the corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' fees, judgment, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with the
action, suit or proceeding if he acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and that, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
A corporation may also indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of an action or suit if he acted in
good faith and in a manner which he reasonably believed to be in not opposed to
the best interests of the corporation. Indemnification may not be made for any
claim, issue or matter as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
to the corporation or for amounts paid in settlement to the corporation, unless
and only to the extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines upon application that in view
of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
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The certificate or articles of incorporation, the bylaws or an
agreement made by the corporation may provide that the expenses of officers and
directors incurred in defending a civil or criminal action, suit or proceeding
must be paid by the corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking by
or on behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the corporation. The provisions of this Section do not affect any
rights to advancement of expenses to which corporate personnel other than
directors or officers may be entitled under any contract or otherwise by law.
In addition, a corporation may purchase and maintain insurance or make
other financial arrangements on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise for any
liability asserted against him and liability and expenses incurred by him in his
capacity as a director, officer, employee or agent, or arising out of his status
as such, whether or not the corporation has the authority to indemnify him
against such liability and expenses.
Item 7. Exemption from Registration Claimed.
The common stock to be reoffered under this registration statement has
been issued in exchange for certain bona fide services rendered by the selling
shareholder. These services did not involve the offer or sale of securities in a
capital raising transaction.
The issuance of the common stock to the selling shareholder did not
involve the public offering of securities and has been made in reliance upon
Section 4(2) of the Securities Act and/or such other rule or regulation
promulgated under the Securities Act.
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Item 8(a) Exhibits.
Exhibit
No. Description
- ------- -----------
2.1 Disclosure Statement for Debtor's
Third Amended Plan of Reorganization
incorporated by reference to Exhibit
2.1 to the Company's Form 8-K filed
on September 9, 1996 (File No. 0-
17874).
2.2 Order Confirming Debtor's Third
Amended Plan of Reorganization
incorporated by reference to Exhibit
2.2 to the Company's Form 8-K filed
on September 9, 1996 (File No. 0-
17874).
2.3 Restated Articles of Incorporation
of the Company and Amendments
thereto incorporated by reference to
Exhibit 2.3 to the Company's Form 8-
K filed on September 9, 1996 (File
No. 0-17874).
2.4 Bylaws of the Company incorporated
by reference to Exhibit 3.2 to the
Company's Form 10-KSB/A filed on
June 6, 1997 (File No. 0-17874).
5.1 Opinion of Law Offices of William B.
Barnett, Counsel to Company.
24.1 Consent of Law Offices of William B.
Barnett is contained in Exhibit 5.1.
24.2 Consent of Jay J. Shapiro, C.P.A.
Item 9. Undertakings
(a) The undersigned 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 include (i)
any prospectus required by Section 10(a)(3) of the Securities Act, and to
include (ii) any additional or changed 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;
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provided, however, that paragraph (1) does 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 that paragraph is contained in
periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference 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 that time shall be deemed to be the initial bona
fide offering thereof; and
(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.
(b) The undersigned registrant hereby undertakes 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 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 bond fide offering thereof.
(c) 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 any 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable ground to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Weldon, California on November 4, 1997.
XPLORER, S.A.
By: /s/ Thomas C. Roddy
-------------------
Thomas C. Roddy
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/ Steven B. Mortensen Chairman of the Board,
- ----------------------- Secretary November 4, 1997
Steven B. Mortensen
/s/ Thomas C. Roddy President, Chief Execu-
- ----------------------- tive Officer and
Thomas C. Roddy Director November 4, 1997
/s/ William M. Moreland Chief Operating Officer
- ----------------------- and Director November 4, 1997
William M. Moreland
/s/ Jon W. Bice Treasurer, Chief Finan-
- ----------------------- cial Officer and
Jon W. Bice and Director November 4, 1997
/s/ Joyce J. Pellet Director November 4, 1997
- -----------------------
Joyce J. Pellet
/s/ Benjamin C. Rice Director November 4, 1997
- -----------------------
Benjamin C. Rice
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EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
2.1 Disclosure Statement for Debtor's
Third Amended Plan of Reorganization
incorporated by reference to Exhibit
2.1 to the Company's Form 8-K filed
on September 9, 1996 (File No. 0-
17874).
2.2 Order Confirming Debtor's Third
Amended Plan of Reorganization
incorporated by reference to Exhibit
2.2 to the Company's Form 8-K filed
on September 9, 1996 (File No. 0-
17874).
2.3 Restated Articles of Incorporation
of the Company and Amendments
thereto incorporated by reference to
Exhibit 2.3 to the Company's Form 8-
K filed on September 9, 1996 (File
No. 0-17874).
2.4 Bylaws of the Company incorporated
by reference to Exhibit 3.2 to the
Company's Form 10-KSB/A filed on
June 6, 1997 (File No. 0-17874).
5.1 Opinion of Law Offices of William B.
Barnett, Counsel to Company.
24.1 Consent of Law Offices of William B.
Barnett is contained in Exhibit 5.1.
24.2 Consent of Jay J. Shapiro, C.P.A.
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EXHIBIT 5.1
Law Offices of
William B. Barnett
Of Counsel
Eleanor J. Michon
TRANSWORLD BANK PLAZA
15233 VENTURA BOULEVARD, SUITE 1110
SHERMAN OAKS, CALIFORNIA 91403
Telephone (818) 789-2688
FAX (818) 789-2680
November 4, 1997
Xplorer, S.A.
4750 Kelso Creek Road
Weldon, California 93283
Re: Registration Statement on Form S-8
Gentlemen:
At your request, we have examined the form of the Registration Statement on Form
S-8 relating to the 1997 Stock Incentive Plan and Non-Qualified Stock Option
Agreements and Consulting Agreements/Compensation Plan (the "Plans") to be filed
with the Securities and Exchange Commission on or about November 5, 1997
(the "Registration Statement"), in connection with the registration under
the Securities Act of 1933, as amended, of Three Hundred Thousand (300,000)
shares of the Common Stock, $.001 par value (the "Stock"), which have been
granted under the Plans for services rendered to Xplorer, S.A. (the "Company")
not in connection, directly or indirectly, in any capital-raising transaction.
In rendering the following opinion, we have examined and relied only upon the
documents and certificates of officers and directors of the Company as are
specifically described below. In our examination, we have assumed the
genuineness of all signatures, the authenticity, accuracy and completeness of
the documents submitted to us as originals, and the conformity with the original
documents of all documents submitted to us as copies. Our examination was
limited to the following documents and no others:
1. Restated Articles of Incorporation of the Company.
2. By-Laws of the Company, as amended to date.
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Xplorer, S.A.
November 4, 1997
Page 2
3. Resolutions adopted by the Board of Directors of the
Company authorizing the issuance of 300,000 shares of the
Stock issued to officers, directors and consultants pursuant
to consulting agreements/compensation plans for services
rendered in non-capital raising activities and transactions.
4. The Form S-8 Registration Statement.
We have not undertaken, and do not intend to undertake, any independent
investigation beyond such documents and records, or to verify the adequacy or
accuracy of such documents and records.
Based on the foregoing, it is our opinion that Stock to be issued, subject to
effectiveness of the Registration Statement and compliance with applicable blue
sky laws, when issued upon the completion of services rendered to the Company,
will be duly and validly authorized, fully-paid and non-assessable.
We express no opinion as to compliance with the securities or "blue sky" laws of
any state in which the Stock is proposed to be offered and sold or as to the
effect, if any, which noncompliance with such laws might have on the validity of
issuance of the Stock.
We hereby consent to the filing of this opinion as an exhibit to any filing made
with the Securities and Exchange Commission or under any state or other
jurisdictions' securities act for purposes of registering, qualifying or
establishing eligibility for an exemption from registration or qualification of
the Stock in connection with the offering described in the Registration
Statement. Other than as provided in the preceding sentence, this opinion (i) is
addressed solely to you; (ii) may not be relied upon by any other party; (iii)
covers only matters of Delaware and Federal law, and nothing in this pinion
shall be deemed to apply any pinion related to the laws of any other
jurisdiction; (iv) may not be quoted or reproduced or delivered by you to any
other person; and (v) may not be relied upon for any other purpose whatsoever.
Nothing herein shall be deemed to relate to or constitute an opinion concerning
any matters not specifically set forth above.
13
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Xplorer, S.A.
November 4, 1997
Page 3
By giving you this opinion and consent, we do not admit that we are an expert
with respect to any part of the Registration Statement or Prospectus within the
meaning of the term "expert" as used in Section 11 of the Securities Act of
1933, as amended, or the Rules and Regulations of the Securities and Exchange
Commission promulgated thereunder.
The information set forth herein is as of the date of this letter. We disclaim
any undertaking to advise you of changes which may be brought to our attention
after the effective date of the Registration Statement.
Very truly yours,
/s/ William B. Barnett
---------------------------------
LAW OFFICES OF WILLIAM B. BARNETT
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EXHIBIT 24.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Xplorer, S.A. Consulting
Agreements/Compensation Plans of our report dated April 30, 1997, with respect
to the consolidated financial statements of Xplorer, S.A. included in its Form
10-KSB/A filed with the Securities and Exchange Commission on June 6, 1997.
/s/ Jay J. Shapiro
---------------------
Jay J. Shapiro, C.P.A.
Encino, California
November 4, 1997
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