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As filed with the Securities and Exchange Commission on July 31, 2000
Registration No. _________
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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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ECO SOIL SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
NEBRASKA 47-0709577
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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10740 THORNMINT ROAD
SAN DIEGO, CA 92127
(858) 675-1660
(Address of principal executive offices, including zip code,
and telephone number)
2000 EMPLOYEE STOCK OPTION PLAN OF ECO SOIL SYSTEMS, INC.
(Full title of the plans)
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WILLIAM B. ADAMS Copies to:
CHAIRMAN AND CHIEF EXECUTIVE OFFICER ROBERT E. BURWELL, ESQ.
ECO SOIL SYSTEMS, INC. LATHAM & WATKINS
10740 THORNMINT ROAD 701 "B" STREET, SUITE 2100
SAN DIEGO, CALIFORNIA 92127 SAN DIEGO, CALIFORNIA 92101
(858) 675-1660 (619) 236-1234
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
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Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
To be Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock, $.005 par value 800,000(1)(2) $2.22(3) $1,776,000(3) $469
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(1) A maximum of 800,000 shares of Common Stock were reserved for issuance
under 2000 Employee Stock Option Plan of Eco Soil Systems, Inc. (the "2000
Plan"), all of which are being registered hereunder.
(2) Pursuant to Rule 416(a), this Registration Statement shall also cover any
additional shares of Common Stock that become issuable under the 2000 Plan
by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without receipt of consideration that
increases the number of the Company's outstanding shares of Common Stock.
(3) This estimate is made pursuant to Rule 457(h) solely for purposes of
calculating the registration fee. The price per share and aggregate
offering price are based upon the actual exercise price for shares subject
to outstanding stock options previously granted under the 2000 Plan.
Options to purchase 800,000 shares of Common Stock have been issued under
the 2000 Plan, all of which have an exercise price of $2.00 per share.
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PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by Eco Soil Systems, Inc, a Nebraska
corporation (the "Company"), are hereby incorporated by reference in this
Registration Statement:
(a) The Annual Report on Form 10-K for the year ended December 31,
1999 filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on April 14, 2000 (the "Annual
Report");
(b) The Quarterly Report on Form 10-Q for the quarter ended March
31, 2000 filed pursuant to the Exchange Act on May 15, 2000;
(e) The Current Report on Form 8-K filed pursuant to the Exchange
Act on January 26, 2000; and
(f) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on January
14, 1997, pursuant to Section 12(g) of the Exchange Act.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date this Registration Statement
is filed with the Commission and 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 of it
from the respective dates 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 or is deemed to be incorporated by
reference herein modifies or supersedes 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.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 21-20,103 through 21-20,111 of the Nebraska Business
Corporation Act provide, in summary, that the directors and officers of the
Company may, under certain circumstances, be indemnified by the Company against
all liability expenses incurred by or imposed upon them as a result of actions,
suits or proceedings brought against them as such directors and officers, or as
directors or officers of any other organization at the request of the Company,
if they act in good faith and in a manner they reasonably believe to be in or
not opposed to the best interests of the Company, and with respect to any
criminal action or proceeding, have no reasonable cause to believe their conduct
was unlawful, except that no indemnification shall be made against expenses in
respect of any claim, issue or matter as to which they shall have been adjudged
to be liable to the Company unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, they are fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper. Sections 21-20,104 and 21-20,108(a) of the
Nebraska Business Corporation Act also provide that directors and officers of
the Company are entitled to such indemnification by the Company to the extent
that such persons are successful on the merits or otherwise in defending any
such action, suit or proceeding to which he or she is a party because he or she
was serving a director or officer of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned 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;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the "Securities
Act");
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this 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 and 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 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement;
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the Registration Statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Company pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (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 this
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) Insofar as indemnification for liabilities arising under the
Securities Act 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 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 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 Securities 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, 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 San Diego, State of California, on July 28, 2000.
Eco Soil Systems, Inc.
By: /s/ WILLIAM B. ADAMS
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William B. Adams
Chief Executive Officer and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints William B. Adams his true and
lawful attorney-in-fact, acting alone, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all amendments including post-effective amendments
and any registration statement filed pursuant to Rule 462(b) under the
Securities Act to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, hereby ratifying and confirming all that said attorney-in-fact or
his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ WILLIAM B. ADAMS Chairman of the Board and Chief July 28, 2000
---------------------------------- Executive Officer (Principal Executive
William B. Adams Officer)
/s/ DENNIS SENTZ Chief Financial Officer and Secretary July 28, 2000
---------------------------------- (Principal Financial Officer and
Dennis Sentz Principal Accounting Officer)
/s/ MAX D. GELWIX President, Chief Operating Officer and July 28, 2000
---------------------------------- Director
Max Gelwix
Vice Chairman
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William S. Potter
Director
----------------------------------
Robert W. O'Leary
/s/ EDWARD STEEL, JR. Director July 28, 2000
----------------------------------
Edward Steel, Jr.
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EXHIBIT INDEX
EXHIBIT
3.1 Amended and Restated Articles of Incorporation (incorporated by
reference to Amendment No. 4 to the Company's Registration Statement on
Form SB-2 (File No. 333-15883) filed with the Commission on January 16,
1997).
3.2 Articles of Amendment to Amended and Restated Articles of Incorporation
(incorporated by reference to Amendment No. 1 to the Company's
Registration Statement on Form SB-2 (File No. 333-39399) filed with the
Commission on November 21, 1997).
3.3 Articles of Correction to Amended and Restated Articles of
Incorporation (incorporated by reference to the Company's Registration
Statement on Form SB-2 (File No. 333-39399) filed with the Commission
on November 4, 1997).
3.4 Articles of Amendment to Amended and Restated Articles of Incorporation
dated July 21, 1998 (incorporated by reference to the Company's
Quarterly Report on Form 10-QSB filed August 13, 1998).
3.5 Amended and Restated Bylaws of Eco Soil Systems, Inc. (incorporated by
reference to Amendment No. 4 to the Company's Registration Statement on
Form SB-2 (File No. 333-15883) filed with the Commission on January 16,
1997).
4.1 2000 Employee Stock Option Plan of Eco Soil Systems, Inc.
5.1 Opinion of Fitzgerald, Schorr, Barmettler & Brennan, P.C.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Fitzgerald, Schorr, Barmettler & Brennan, P.C. (included in
Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature page hereto).
