As filed with the Securities and Exchange Commission on January 5, 1999
Registration No.333-____________
------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act Of 1933
DBS INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 84-1124675
(State or other jurisdiction of incorporation (IRS Employer
or organization) Identification No.)
100 Shoreline Highway, Suite 190A, Mill Valley, California 94941
(Address of Principal Executive Office) (Zip Code)
1998 Stock Option Plan
1996 Stock Option Plan
1993 Incentive Stock Option Plan
1993 Non-Qualified Stock Option Plan for Non-Employee Directors
1993 Non-Qualified Stock Option Plan for Consultants
Stock Option to be issued pursuant to
Employment Agreements with:
Fred W. Thompson, Gregory T. Leger
Randall Smith, E.A. James Peretti
(Full title of the plans)
------------------------
FRED W. THOMPSON
President
100 Shoreline Highway, Suite 190A
Mill Valley, California 94941
(Name and address of agent for service)
-------------------------
(415) 380-8055
(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, check the following |X|
<PAGE>2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.0004 2,563,672 $4.3125 $11,055,835 $3,074
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Fee calculated in accordance with Rule 457(h) of the Securities Act of
1933, as amended (the "Securities Act"). Estimated for the sole purpose
of calculating the registration fee and based upon the average
quotation of the high and low price per share of the Company's Common
Stock on December 21, 1998, as quoted on the OTC Bulletin Board.
<PAGE>3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information *
Item 2. Registrant Information and Employee Plan Annual Information *
* Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the "Note" to Part I of Form S-8.
<PAGE>4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed or to be filed by DBS Industries, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
are incorporated by reference in this registration statement.
1. The Company's Prospectus filed pursuant to Rule 424(b) with
the Commission on December 7, 1998.
2. The Company's quarterly report Form 10-QSB for the quarter ended
September 30, 1998.
3. The Company's quarterly report on Form 10-QSB for the quarter
ended June 30, 1998.
4. The Company's quarterly report on Form 10-QSB, as amended, for
the quarter ended March 31, 1998.
5. The Company's proxy statement, as amended, for the Company's
Annual Meeting held on May 12, 1998.
6. The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1997.
7. The Company's Form 8-A.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (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 in this
registration statement and to be a part thereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not Applicable
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock will be passed upon by the
law firm of Bartel Eng Linn & Schroder, Sacramento, California. Certain members
of the firm own shares of Common Stock of the Company representing less than 1%
of the outstanding shares of Common Stock. In addition, the firm has a Warrant
to purchase up to 200,000 shares of Common Stock.
<PAGE>5
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware provides for the
indemnification of officers and directors under certain circumstances against
expenses incurred successfully defending against a claim and authorizes Delaware
corporations to indemnify their officers and directors under certain
circumstances against expenses and liabilities incurred in legal proceedings
involving such persons because of their being or having been an officer or
director. The Certificate of Incorporation and the Bylaws of the Registrant
provide for indemnification of its officers and directors to the full extent
authorized by law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No.
5.1 Opinion of Bartel Eng Linn & Schroder, counsel to Company
10.6 1993 Incentive Stock Option Plan for DBS Industries (1)
10.7 1993 Non-Qualified Stock Option Plan for Non-Employee Directors (1)
10.8 1993 Non-Qualified Stock Option Plan for Consultants (1)
10.31 Employment Agreement between Fred W. Thompson and the Company dated
April 18, 1996 (2)
10.32 Employment Agreement between Randall L. Smith and GEMS dated March 1,
1996 (2)
10.33 Employment Agreement between E.A. James Peretti and GEMS dated April
18, 1996 (2)
10.34 1996 Stock Option Plan (2) 10.36 1998 Stock Option Plan (3)
10.41 Employment Agreement with Gregory T. Leger and the Company dated
March 1, 1998(4)
23.1 Written Consent of PricewaterhouseCoopers LLP, independent
accountants
23.2 Consent of Bartel Eng Linn & Schroder is contained in Exhibit 5.1
(1) Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended July 31, 1993.
(2) Incorporated by reference to the Company's Annual Report on Form 10-KSB
for fiscal year ended December 31, 1996.
(3) Incorporated by reference to the Company's definitive proxy statement for
the Company's Annual Meeting held on May 12, 1998.
(4) Incorporated by reference to Pre-Effective Amendment No. 1 to the Company's
Registration Statement on Form SB-2.
<PAGE>6
Item 9. Undertakings.
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 any
additional or changed material information on the plan of distribution.
(2) That for the purpose of determining liability under the Securities
Act, treat each post-effective amendment as a new registration statement of the
securities offered and the offering of the securities at the time to be the
initial bona fide offering.
(3) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
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 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 the registrant of expenses
incurred or paid by a director, officer or controlling person of the small
business issuer 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.
<PAGE>7
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
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 Mill Valley, State of California, on November 4,
1998.
DBS INDUSTRIES, INC.,
a Delaware Corporation
/s/ FRED W. THOMPSON
FRED W. THOMPSON,
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 date indicated.
Signatures Date
/s/ FRED W. THOMPSON November 4, 1998
- ----------------------------------------------- ------------------------
FRED W. THOMPSON,
President, Director, Chief Executive
Officer, Chief Financial Officer
(Principal Executive Officer)
(Principal Financial and Accounting Officer)
/s/ E. A. JAMES PERETTI November 4, 1998
- ------------------------------------------------ ------------------------
E.A. JAMES PERETTI
Director
/s/ MICHAEL T. SCHIEBER October 30, 1998
- ------------------------------------------------- ------------------------
MICHAEL T. SCHIEBER
Director
/s/ H. TATE HOLT November 2, 1998
- ------------------------------------------------- ------------------------
H. TATE HOLT
Director
/s/ JEROME W. CARLSON November 4, 1998
- -------------------------------------------------- ------------------------
JEROME W. CARLSON
Director
EXHIBIT 5.1 AND 23.2
January 4, 1999
Board of Directors
DBS Industries, Inc.
100 Shoreline Highway, Suite 190A
Mill Valley, CA 94941
Re: Common Stock of DBS Industries, Inc.
Gentlemen:
We act as counsel to DBS Industries, Inc. (the "Company"), a Delaware
corporation, in connection with the registration of 2,563,672 shares of the
Company's Common Stock (the "Shares") that may be issued upon the exercise of
stock options pursuant to the Company's various stock option plans and
employment agreements on Form S-8 of the Securities Act of 1933, as amended (the
"Securities Act") as filed with the Securities and Exchange Commission.
For the purpose of rendering this opinion, we examined originals or
photostatic copies of such documents as we deemed to be relevant. In conducting
our examination, we assumed, without investigation, the genuineness of all
signatures, the correctness of all certificates, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies, and the accuracy and completeness
of all records made available to us by the Company. In addition, in rendering
this opinion, we assumed that the Shares will be offered in the manner and on
the terms identified or referred to in the prospectus, including all amendments
thereto.
Our opinion is limited solely to matters set forth herein. Attorneys
practicing in this firm are admitted to practice in the State of California and
we express no opinion as to the laws of any other jurisdiction other than the
laws of the State of Delaware and the laws of the United States.
Based upon and subject to the foregoing, after giving due regard to
such issues of law as we deemed relevant, and assuming that (i) the Registration
Statement becomes and remains effective, and the prospectus which is part
thereof (the "Prospectus"), and the Prospectus delivery procedures with respect
thereto, fulfill all of the requirements of the Securities Act, throughout all
periods relevant to the opinion, and (ii) all offers and sales of the Shares
have been and will be made in compliance with the securities laws of the states,
having jurisdiction thereof, we are of the opinion that the Shares to be issued
upon the exercise of stock options for adequate consideration will be, validly
issued, fully paid, and nonassessable.
EXHIBIT 5.1 AND 23.2
<PAGE>
Board of Directors
January 4, 1999
Page 2
We hereby consent in writing to the use of our opinion as an exhibit to
the Registration Statement and any amendment thereto.
Very truly yours,
BARTEL ENG LINN & SCHRODER
EXHIBIT 5.1 and 23.2
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
DBS Industries, Inc. (a development stage company) on Form S-8 of our report,
which includes an explanatory paragraph regarding certain factors raising
substantial doubt about the Company's ability to continue as a going concern,
dated March 13, 1998, except for the last paragraph of Note 3 as to which the
date is April 1, 1998, on our audits of the consolidated financial statements of
DBS Industries, Inc. as of December 31, 1997 and 1996 and for the years then
ended and for the period from April 25, 1990 (date of inception) to December 31,
1997.
PRICEWATERHOUSECOOPERS LLP
San Francisco, California
December 23, 1998
