As filed with the Securities and Exchange Commission on May 16, 1997.
Registration No. _________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
------------------
ECO SOIL SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Nebraska 47-0709577
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10890 Thornmint Road, Suite 200
San Diego, California, California 92127
(Address of principal executive offices) (Zip code)
--------------------
1992 STOCK OPTION PLAN
AND
1996 DIRECTORS' STOCK OPTION PLAN
(Full title of plans)
----------------------
William B. Adams Copy to:
Eco Soil Systems, Inc. Kenneth L. Cutler, Esq.
10890 Thornmint Road, Suite 200 Dorsey & Whitney LLP
San Diego, California 92127 220 South Sixth Street
(Name and address of agent for service) Minneapolis, Minnesota 55402
(619) 675-1660
(Telephone number, including area code, of agent for service)
--------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================
Proposed Proposed
Title of each class Maximum Offering Maximum
of Securities to be Amount to be Price Aggregate Offering Amount of
registered registered per Unit(1) Price(1) Registration Fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
($.005 par value) 960,000 $5.00 $3,550,774.50 $1,076
====================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(b)(1). The proposed maximum offering price has
been calculated as follows: options to purchase 853,100 shares have
been issued with a weighted average stock exercise price of $3.52; and
the stock exercise price of options with respect to 106,900 shares that
are being registered herein but remain unissued is based upon the
average of the high and low prices of the Common Stock as reported on
the Nasdaq consolidated reporting system on May 15, 1997.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Eco Soil
Systems, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission"), are incorporated by reference in this Registration Statement, as
of their respective dates:
(a) The Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1995.
(b) The Company's Quarterly Report on Form 10-QSB for the
quarter ended March 31, 1997.
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A, dated January 14,
1997, and any amendment or report filed to update such description
filed subsequent to the date of this Prospectus and prior to the
termination of the offering of the Common Stock offered hereby.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the respective
dates of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Amended and Restated Articles of Incorporation
limit the liability of its directors to the full extent permitted by the
Business Corporation Act as currently in effect in Nebraska. Specifically,
directors of the Company will not be personally liable for monetary damages for
breach of fiduciary duty as directors except liability for (i) any breach of the
duty of loyalty to the Company or its shareholders, (ii) acts or omissions not
in good faith or that involve intentional misconduct or a knowing violation of
law, (iii) unlawful payment of dividends or unlawful stock purchases or
redemptions under Section 21-2046 of the Nebraska Business Corporation Act, or
(iv) any transaction from which the director derives an improper personal
benefit. Liability under federal securities law is not limited by the Company's
Amended and Restated Articles of Incorporation.
The Business Corporation Act as currently in effect in
Nebraska and the Company's Bylaws require that the Company indemnify any
director or officer who was wholly successful, on the merits or otherwise, in
the defense of any proceeding to which such director or officer was a party
because of his or her status as a director or officer of the Company, against
reasonable expenses incurred by such director or officer in connection with the
proceeding. "Proceeding" means a threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative, arbitration or
investigative, and whether formal or informal. Reference is made to the detailed
terms of the Nebraska mandatory indemnification statutes (Neb. Rev. Stat. ss.
21-20,102 to 21-20,111) for a complete statement of such indemnification rights.
The Company's Bylaws require the Company to provide indemnification to directors
and officers to the fullest extent allowed by the Nebraska indemnification
statutes.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Amended and restated Articles of Incorporation of the Company
(incorporated by reference to the Company's Registration
Statement on Form SB-2, dated November 8, 1996, as amended on
December 2, 1996, December 19, 1996, January 10, 1997 and
January 16, 1997 (File No. 333-15883)).
4.2 Amended Bylaws of the Company (incorporated by reference to
The Company's Registration Statement on Form SB-2, dated
November 8, 1996, as amended on December 2, 1996, December 19,
1996, January 10, 1997 and January 16, 1997 (File No.
333-15883)).
5.1 Opinion of Dorsey & Whitney LLP, including as an exhibit an
opinion and consent of Fitzgerald, Schorr, Barmettler &
Brennan, P.C.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Bigelow & Company, CPA, P.C.
23.3 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1
above).
Item 9. Undertakings.
A. Post-Effective Amendments.
The undersigned issuer hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(a) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(b) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(c) 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;
provided, however, that subparagraphs (a) and (b) above will not apply if the
information required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
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. Subsequent Documents Incorporated by Reference.
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
Securities Exchange Act of 1934, as amended) 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.
C. Claims for Indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "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 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 other
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 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 San Diego, State of California, on this 19th day of
March, 1997.
ECO SOIL SYSTEMS, INC.
By: /s/ William B. Adams
------------------------------
William B. Adams
Chairman of the Board and
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 date indicated:
Signature Title Date
- --------- ----- ----
/s/ William B. Adams Chairman of the Board March 19, 1997
- ------------------------- and Chief Executive Officer
William B. Adams (principal executive officer)
/s/ L. Jean Dunn, Jr. Chief Financial March 19, 1997
- ------------------------- Officer (principal financial
L. Jean Dunn, Jr. and accounting officer)
/s/ Jeffrey A. Johnson President, Chief Operating Officer, March 19, 1997
- ------------------------- Secretary and Director
Jeffrey A. Johnson
/s/ Douglas M. Gloff Executive Vice President March 19, 1997
- ------------------------- and Director
Douglas M. Gloff
/s/ Bradley K. Edwards Director March 19, 1997
- -------------------------
Bradley K. Edwards
/s/ S. Bartley Osborn Director March 19, 1997
- -------------------------
S. Bartley Osborn
/s/ William S. Potter Director March 19, 1997
- -------------------------
William S. Potter
EXHIBIT INDEX
Exhibit
Number Exhibit Page
- ------ ------- ----
4.1 Amended and restated Articles of Incorporation of the
Company (incorporated by reference to the Company's
Registration Statement on Form SB-2, dated November 8, 1996,
as amended on December 2, 1996, December 19, 1996, January
10, 1997 and January 16, 1997 (File No. 333-15883)).
4.2 Amended Bylaws of the Company (incorporated by reference to
The Company's Registration Statement on Form SB-2, dated
November 8, 1996, as amended on December 2, 1996, December
19, 1996, January 10, 1997 and January 16, 1997 (File No.
333-15883)).
5.1 Opinion of Dorsey & Whitney LLP, including as an exhibit an
opinion and consent of Fitzgerald, Schorr, Barmettler &
Brennan, P.C.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Bigelow & Company, CPA, P.C.
23.3 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1
above).
Exhibit 5.1
DORSEY & WHITNEY LLP
PILLSBURY CENTER SOUTH
220 SOUTH SIXTH STREET
MINNEAPOLIS, MINNESOTA 55402-1498
(612) 340-2600
FAX (612) 340-2868
Eco Soil Systems, Inc.
10890 Thornmint Road, Suite 200
San Diego, CA 92127
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Eco Soil Systems, Inc., a Nebraska
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 (the "Registration Statement") relating to the sale by the Company from time
to time of up to 960,000 shares of Common Stock, $.005 par value, of the Company
(the "Shares"), of which 900,000 are issuable pursuant to the 1992 Stock Option
Plan (the "Stock Option Plan") and 60,000 are issuable pursuant to the 1996
Directors' Stock Option Plan (the "Directors' Plan").
We have examined such documents and have reviewed such
questions of law as we have considered necessary and appropriate for the
purposes of the opinions set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares
have been duly authorized and, upon issuance, delivery and payment therefor in
accordance with the terms of the Stock Option Plan or the Directors' Plan, as
applicable, will be validly issued, fully paid and nonassessable.
We are admitted to practice in the State of Minnesota, and we
express no opinion as to the laws of any jurisdiction other than the State of
Minnesota and the federal laws of the United States of America. Insofar as our
opinions pertain to matters of Nebraska law, we have relied on the opinion of
Fitzgerald, Schorr, Barmettler & Brennan, P.C. attached hereto, and we have made
no independent examination of the laws of such jurisdiction. We are not able to
express, and do not express, any opinion with respect to the Nebraska Business
Corporation Act.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Dated: May 16, 1997
Very truly yours,
/s/ Dorsey & Whitney LLP
KLC
[Letterhead of Fitzgerald, Schorr, Barmettler & Brennan, P.C.]
May 14, 1997
Dorsey & Whitney LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402
Board of Directors
Eco Soil Systems, Inc.
10890 Thornmint Road
Suite 200
San Diego, California 92127
Re: Eco Soil Systems, Inc.: Registration
Statement on Form S-8
Ladies and Gentlemen:
This firm has been engaged to act as special counsel to Eco Soil Systems, Inc.
(the "Company") for the limited purpose of providing an opinion as to the status
of the up to 960,000 shares of the common stock, $.005 par value of the Company
(the "Shares") issuable pursuant to the 1992 Stock Option Plan (the "Stock
Option Plan") and the 1996 Directors' Stock Option Plan (the "Directors' Plan").
This opinion is being given in connection with the proposed registration of the
Shares on Form S-8 with the Securities and Exchange Commission (the
"Registration Statement").
In rendering this opinion, we have examined the law and the following documents:
A. A telefaxed copy of the Certificate of Existence issued by the
Secretary of State of the State of Nebraska and dated April 22,
1997.
B. A copy of the Amended and Restated Articles of Incorporation as
certified by the Secretary of State of the State of Nebraska on
February 14, 1997.
C. A copy of the Articles of Correction filed with the Secretary of
State of the State of Nebraska on April 30, 1997.
D. A telefaxed copy of the Secretary's Certificate, executed by
Jeffrey A. Johnson as Secretary of the Company and dated April
25, 1997 (the "Secretary's Certificate") with respect to the
authorized and outstanding shares of the common stock of the
Company.
E. A copy of the Bylaws of the Company containing a certificate
that such are Amended and Restated Bylaws adopted by the Company
by the Board of Directors at a meeting held on January 16, 1997
with the Secretary's name typed into the Certificate, as
attached as Exhibit II to the Secretary's Certificate and as
Exhibit 3.2 to Amendment 4 to the Registration Statement filed
with the Securities and Exchange Commission on January 16, 1997
(Filing No. 333-15883).
F. A telefaxed copy of the Minutes of the meeting of the Board of
Directors of the Company held December 7, 1996, as certified by
Jeffrey A. Johnson, Secretary of the Company on May 6, 1997.
G. A telefaxed copy of the Minutes of a Shareholders' Meeting held
December 6, 1996 as signed by L. Jean Dunn, Chief Financial
Officer.
We have not been engaged nor have undertaken to review the accuracy,
completeness or sufficiency of the Registration Statement, nor with respect to
any other matter not specifically stated in this opinion, and we express no
opinion relating thereto.
As to questions of fact material to our opinion, we have relied upon the
foregoing documents, including the representations of officials of the Company
contained in the above specified documents. We have not undertaken to verify any
of the foregoing by independent investigation and have assumed the authenticity
of the original documents and the conformity of the copies submitted to us to
the authentic original documents. Moreover, we have assumed the legal capacity
for all purposes relevant hereto of all natural persons and that such persons
had the requisite power and authority to execute and deliver such documents and
that the signatures thereon are genuine.
Based upon the foregoing, we are of the opinion that under the Business
Corporation Act in effect on the date hereof in Nebraska the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Stock Option Plan and Directors' Plan, respectively, as
applicable, will be validly issued and will be fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Nebraska and we
express no opinion as to matters governed by any laws other than those of the
State of Nebraska nor to any matter not expressly addressed herein. Our opinion
is further subject to the following qualifications and exceptions:
a) The effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar law of general
application governing creditor's rights; and
b) General principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair
dealing, and other similar doctrines affecting the
enforceability of agreements generally.
We hereby consent to the filing of this opinion as an exhibit to the opinion of
Dorsey & Whitney LLP as an exhibit to the Registration Statement.
Yours very truly,
/s/ Gregory B. Minter
GREGORY B. MINTER
For the Firm
GBM:mjh
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1992 Stock Option Plan and 1996 Directors' Stock Option
Plan of Eco Soil Systems, Inc. of our report dated March 14, 1997, with respect
to the consolidated financial statements of Eco Soil Systems, Inc. included in
its Annual Report (Form 10-KSB) for the year ended December 31, 1996, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
San Diego, California
May 15, 1997
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
CONSENT OF BIGELOW & COMPANY, CPA, P.C., INDEPENDENT AUDITORS
We consent to the use of our reports dated July 19, 1996, with respect
to the financial statements for the years ended December 31, 1994 and 1995 of
Turf Specialty, Inc., included in the Registration Statement on Form S-8
pertaining to the stock option plans of Eco Soil Systems, Inc.
BIGELOW & COMPANY
Certified Public Accoutants, P.C.
By:
/s/ Marie C. McKay
Marie C. McKay
Certified Public Accountant
May 15, 1997
Manchester, New Hampshire
