As filed with the Securities and Exchange Commission on March 24, 2000
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GLOBAL WATER TECHNOLOGIES, INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 84-1148204
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(State or Other (IRS Employer
Jurisdiction of Identification
Incorporation or Organization) Number)
1767 Denver West Boulevard, Golden, Colorado 80401
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(Address of Principal Executive Offices)
GLOBAL WATER TECHNOLOGIES, INC. 1998 STOCK OPTION PLAN
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(Full Title of the Plans)
George A. Kast Copies to:
Global Water Technologies, Inc. D. Elizabeth Wills, Esq.
1767 Denver West Blvd. Rothgerber Johnson & Lyons LLP
Golden Colorado 80112 1200 17th Street, Suite 3000
(Name and Address of Agent for Service) Denver, Colorado 80202
(303) 623-9000
(303) 215-1100
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(Telephone Number of Agent for Service)
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
<S> <C> <C> <C> <C>
Common Stock 30,000,000 $.47(1) $14,100,000(1) $3,723(1)
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</TABLE>
(1) Pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, the proposed maximum offering price per share and the proposed
maximum aggregate offering price are estimated solely for purposes of
calculating the registration fee and are based upon the average of the
closing bid and asked prices of the Common Stock as quoted on the Nasdaq
OTC Bulletin Board on March 22, 2000.
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TABLE OF CONTENTS
Page
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT . . . . . . . . . II-1
Item 3. Incorporation of Documents by Reference . . . . . . . . . . II-1
---------------------------------------
Item 4. Description of Securities . . . . . . . . . . . . . . . . . II-1
-------------------------
Item 5. Interests of Named Experts and Counsel. . . . . . . . . . . II-1
--------------------------------------
Item 6. Indemnification of Directors and Officers . . . . . . . . . II-2
-----------------------------------------
Item 8. Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . II-2
--------
Item 9. Undertakings. . . . . . . . . . . . . . . . . . . . . . . . II-3
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SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-5
EXHIBIT INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . II-7
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
The following documents, all of which were previously filed by Global
Water Technologies, Inc. (the "Company") (File No. 33-37513-D) with the
Commission pursuant to the Exchange Act, are hereby incorporated by reference:
(1) the Company's Annual Report on Form 10-KSB for the year ended
December 31, 1999; and
All documents subsequently filed by the Company with the Securities
and Exchange Commission (the "Commission") pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, as amended, 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 in this Registration Statement by
reference and to be a part hereof from the date of filing such documents.
Any statement contained herein or in a document, all or a portion of which
is 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 in any subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or replaces such statement. Any such 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
-------------------------
The Company is authorized to issue up to 800,000,000 shares of Common
Stock, $.00001 par value. All shares of Common Stock have equal voting
rights and, when validly issued and outstanding, have one vote per share in
all matters to be voted upon by shareholders. The shares of Common Stock
have no preemptive, subscription, conversion or redemption rights and may
be issued only as fully paid and non-assessable shares. Cumulative voting
in the election of directors is not allowed, which means that the holders
of a majority of the outstanding shares represented at any meeting at which
a quorum is present will be able to elect all of the directors if they
choose to do so and, in such event, the holders of the remaining shares
will not be able to elect any directors. On liquidation of the Company,
each common shareholder is entitled to receive a pro rata share of the
company's assets available for distribution to common shareholders.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
The legality of the Company's stock registered pursuant to this Form
S-8 Registration Statement will be passed upon for the Company by the law
firm of Rothgerber Johnson & Lyons LLP, One Tabor Center, Suite 3000, 1200
17th Street, Denver, Colorado 80202, which has served as special counsel to
the Company in the preparation of the Form S-8 Registration Statement. No
members of this law firm have a substantial interest in the Company or are
employed on a contingent basis by the Company.
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<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The General Corporation law of the State of Delaware empowers a
Delaware corporation to indemnify its directors, officers, employees and
agents under certain circumstance, as well as providing for the elimination
of personal liability of directors and officers of a Delaware corporation
for monetary damages.
Article 7.02 of the Certificate of Incorporation of the Registrant
reads as follows:
"As authorized by Section 102(b)(7) of the General Corporation Law of
Delaware, no Director of the Company shall be personally liable to the
Company or any stockholder thereof for monetary damages for breach of his
fiduciary duty as a Director, except for liability (i) for any breach of a
Director's duty of loyalty to the company of its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for acts in violation of Section 174
of the General Corporation Law of Delaware, as it now exists or may
hereafter be amended, or (iv) for any transaction from which a Director
derives an improper personal benefit. This Article 7.02 shall apply to a
person who has ceased to be a Director of the Company with respect to any
breach of fiduciary duty which occurred when such person was serving as a
Director. This Article 7.02 shall not be construed to limit or modify in
any way any Director's right to indemnification or other right whatsoever
under this Charter, the Company's By-laws or the General Corporation Law of
Delaware. If the General Corporation Law of Delaware hereafter is amended
to authorize the further elimination or limitation of the liability of
directors, then the liability of the company's Directors, in addition to
the limitation on personal liability provided herein, shall be limited to
the fullest extent permitted by the General Corporation Law of Delaware as
so amended. Any repeal or modification of this Article 7.02 by the
stockholders shall be prospective only and shall not adversely affect any
limitation on the personal liability of any Director existing at the time
of such repeal or modification. The affirmative vote of at least two-thirds
(2/3) of the total voting power shall be required to amend or repeal, or
adopt any provision inconsistent with, this Article 7.02."
Article 11.01 of the Certificate of Incorporation of the Registrant
reads as follows:
"The Company shall 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 (other than an action by or in the right of the Company), by
reason of the fact that he is or was or has agreed to become a director or
officer of the Company, or is or was serving or has agreed to serve at the
request of the Company as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against
costs, charges, expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or on
his behalf in connection with such action, suit or proceeding and any
appeal therefrom, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall 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 Company."
Article 11.02 of the Certificate of Incorporation of the Registrant
reads as follows:
"The Company shall 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 Company to procure a judgment in
its favor by reason of the fact that he is or was or has agreed to become
a director or officer of the Company, or is or was serving or has agreed to
serve at the request of the Company as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, or by
reason of any action alleged to have been taken or omitted in such
capacity, against costs, charges and expenses (including attorney's fees)
actually and reasonably incurred by him or on his behalf in connection with
the defense or settlement of such action or suit and any appear therefrom,
if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the Company
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in
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view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which
the Court of Chancery or such other court shall deem proper."
ITEM 8. EXHIBITS
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The Company hereby undertakes that it will submit or has submitted any
of the plans intended to be qualified under Section 401 of the Internal
Revenue Code and any amendment thereto to the Internal Revenue Service (the
"IRS") in a timely manner and has made or will make all changes required by
the IRS in order to qualify the Plan.
The following exhibits are attached to this registration statement:
4.1* Global Water Technologies, Inc. 1998 Stock Option Plan
5 Opinion of Rothgerber Johnson & Lyons LLP
23.1 Consent of Comiskey & Company P.C.
23.2 Consent of Rothgerber Johnson & Lyons LLP (included in
Exhibit 5 hereto)
* Incorporated by reference to Exhibit 10.6 of the Registrant's Annual
Report on Form 10-KSB for the fiscal year ended December 31, 1998.
ITEM 9. UNDERTAKINGS
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(a) Rule 415 Offering
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The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement;
(iii) 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 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.
(b) Filings Incorporating Subsequent Exchange Act Documents by
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Reference
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The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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 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) Filing of Registration Statement on Form S-8
--------------------------------------------
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that "in the opinion of the
Securities and Exchange Commission" such indemnification is against public
- II-3 -
<PAGE>
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 Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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
Company 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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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Golden and the State of Colorado,
on this 24th day of March, 2000.
GLOBAL WATER TECHNOLOGIES, INC.
By:/s/ George A. Kast
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George A. Kast, Chief Executive Officer
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/ George A. Kast Director, Chairman March 24, 2000
- ------------------------ of the Board and CEO
George A. Kast (Principal Executive Officer)
/s/ Martin E. Hout Chief Financial Officer March 24, 2000
- ------------------------ (Principal Accounting and
Martin E. Hout Financial Officer)
/s/ Gary L. Brown Director March 24, 2000
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Gary L. Brown
/s/ Michael A. Kast Director March 24, 2000
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Michael A. Kast
/s/ Robert C. Koch Director March 24, 2000
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Robert C. Koch
- II-5 -
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
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4.1* Global Water Technologies, Inc. 1998 Stock Option Plan
5 Opinion of Rothgerber Johnson & Lyons LLP
23.1 Consent of Comiskey & Company P.C.
23.2 Consent of Rothgerber Johnson & Lyons LLP (included in
Exhibit 5 hereto)
* Incorporated by reference to Exhibit 10.6 of the Registrant's Annual
Report on Form 10-KSB for the fiscal year ended December 31, 1998.
EXHIBIT 5
ROTHGERBER JOHNSON & LYONS LLP
SUITE 3000
ONE TABOR CENTER
1200 SEVENTEENTH STREET
DENVER, COLORADO 80202
(303) 628-9525
March 24, 2000
Global Water Technologies, Inc.
1767 Denver West Blvd.
Golden Colorado 80112
Ladies and Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") which is expected to
be filed by Global Water Technologies, Inc. (the "Company") on or about
March 24, 2000, with respect to the offer and sale of 30,000,000 shares of
the Company's Common Stock, $.00001 par value ("Company Stock"), issuable
under the Global Water Technologies, Inc. 1998 Stock Option Plan (the
"Plan") as described in the Registration Statement.
We have examined such records and documents and have made such
investigations of law as we have deemed necessary under the circumstances.
Based on that examination and investigation, it is our opinion that the
shares of Company Stock referred to above will be, when sold in accordance
with the Plan and in the manner described in the Registration Statement,
validly issued, fully paid and non-assessable.
We consent to the use in the Registration Statement of our name and
the statement with respect to our firm under the heading of "Interests of
Named Experts and Counsel."
Sincerely yours,
ROTHGERBER JOHNSON & LYONS LLP
/s/ ROTHGERBER JOHNSON & LYONS LLP
EXHIBIT 23.1
Consent of Comiskey & Company P.C.
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Global Water Technologies, Inc. on Form S-8 of our report
dated February 18, 2000 appearing in the Annual Report on Form 10KSB of
Global Water Technologies, Inc. for the year ended December 31, 1999.
COMISKEY & COMPANY
a Professional Corporation
/s/ COMISKEY & COMPANY
Denver, Colorado
March 24, 2000
