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As filed with the Securities and Exchange Commission on July 26, 1999
Registration No. 333-___________
U.S. 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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R.H. PHILLIPS, INC.
(Exact name of Registrant as specified in its charter)
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26836 County Road 12A
Esparto, California 95627
(530) 662-3215
(Address and telephone number of principal executive office)
CALIFORNIA 68-0313739
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
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R.H. PHILLIPS 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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John E. Giguiere, President
R.H. Phillips, Inc.
26836 County Road 12A
Esparto, California 95627
(530) 662-3215
(Name, address, and telephone number of agent for service of process)
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Copies of all communications to:
Frederick K. Koenen, Attorney at Law
Evers & Henderickson LLP
155 Montgomery Street, Suite 1200
San Francisco, CA 94104
(415) 772-8106
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CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to Registered Offering Price Aggregate Offering Registration
be Registered Per Share 1 Price 1 Fee
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Common Stock, 150,000 Shares 3.156 473,400 131.61
No Par Value
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1 Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(h) and based on the average of the high and low
prices of the Common Stock of R.H. Philliups, Inc. as reported on
July 23, 1999 on the Nasdaq National Market.
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INTRODUCTION
We, R.H. Phillips, Inc., are filing this Registration Statement
on Form S-8 to register under the Securities Act of 1933, as
amended, 150,000 shares of the Company's common stock to be
issued to our employees the R.H. Phillips 1999 Employee Stock
Purchase Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.
We will give documents containing the information specified
in Part I of this Registration Statement to our employees as specified
by Rule 428(b)(1) of the Securities Act of 1933. We are not required
to file these documents with the SEC either as part of this
Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents and the documents
incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II of this Form S-8, taken together, make up a
prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
We incorporate by reference into this Registration Statement
the documents listed below.
(a) Our Annual Report on Form 10-KSB for the year ended
December 31, 1998;
(b) Our Quarterly Report on Form 10-QSB for the period
ended March 31, 1999; and
(c) Our Registration Statement on Form 8-A pertaining to
the common stock, dated April 14, 1995.
In addition, we incorporate by reference into this Registration
Statement all documents we subsequently file pursuant to Sections
13(a), 13(c), 14 and 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. Those
documents we incorporate by reference will be considered a part of
this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
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Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Our Articles of Incorporation eliminate the liability of
directors to us or our shareholders to the extent permitted under
California law for breach of fiduciary duty. The Bylaws further
provide for indemnification of corporate agents, such as officers,
directors and employees, to the extent permitted under Section 317
of the California Corporations Code. The directors have entered into
indemnification agreements with us pertaining to our obligation to
indemnify them for damages and costs they incur in connection with
actions which may be brought against them by reason of them serving
as directors.
As permitted under the California Corporations Code, our
Articles of Incorporation provide that we are authorized to indemnify
our officers and directors for breach of duty through Bylaw
provisions or through agreements with the directors or officers, or
both, in excess of the indemnification otherwise permitted by Section
317 of the California Corporations Code, subject to the limits on
such excess indemnification set forth in Section 204 of the California
Corporations Code.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit Number Description
4.1 1 Articles of Incorporation
4.2 2 Bylaws
4.3 2 Form of Common Stock Certificate
5 Opinion of Counsel regarding legality
23.1 Consent of Ernst & Young LLP,
Independent Auditors
23.2 Consent of KPMG, LLP, Certified
Public Accountants
23.3 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (Contained within
Signature Page)
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1 Filed as an exhibit to R.H. Phillips' Annual Report on Form 10-
QSB for the period ended March 31, 1999 and incorporated by
reference herein.
2 Filed as an exhibit to R.H. Phillips' Annual Report on Form 10-
KSB for the fiscal year ended December 31, 1994 and
incorporated by reference herein.
Item 9. Undertakings.
(a) We hereby undertake:
(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 prospectus required by Section
10(a)(3) of the Securities Act of 1933;
*To reflect in the prospectus any facts or events
arising after the effective date of the 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 the Registration Statement;
*To include any additional or changed material
information on the plan of distribution.
(2) For determining liability under the Securities Act,
we will treat post-effective amendment as a new registration
statement of the securities offered, and the offering of the
securities at that time to be the initial bona fide offering
(3) We will file a post-effective amendment to remove from
registration any of the shares that remain unsold after the
offering has been concluded.
(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, we have 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. If a director, officer or controlling person asserts a
claim for indemnification against those liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer, or controlling person of the registrant in the successful
defense of any action, suit or proceeding) in connection with the
securities being registered, we 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,
R.H. Phillips, Inc. 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
Francisco, State of California, on July 26, 1999.
R.H. PHILLIPS, INC.
By://s//John E. Giguiere
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John E. Giguiere, President and
Co-Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each
person whose signature appears below appoints John E. Giguiere and
Michael J. Motroni, substitution, for them in any and all capacities,
to sign any amendments to this Registration Statement, and to file the
same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact, or his
substitute, may do or cause to be done by virtue hereof.
In accordance with the Securities Act, this registration
statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature Title Date
//s//John E. Giguiere 7/26/99
- --------------------- President, Co-Chief Executive Officer, -------
John E. Giguiere Director (Principal Executive Officer)
//s//Karl E. Giguiere
- --------------------- Co-Chief Executive Officer, 7/26/99
Karl E. Giguiere Director (Principal Executive Officer) -------
//s//Michael J. Motroni
- ----------------------- Vice President, Finance 7/23/99
Michael J. Motroni (Principal Financial Officer) -------
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//s//Richard A. Pierce 7/23/99
- ---------------------- Controller (Principal Accounting Officer)-------
Richard A. Pierce
//s//Lane C. Giguiere 7/23/99
- --------------------- Vice President, Secretary, Director -------
Lane C. Giguiere
//s//R. Ken Coit 7/26/99
- ---------------- Director -------
R. Ken Coit
//s//Victor L. Motto 7/26/99
- -------------------- Director -------
Victor L. Motto
July 12, 1999
Board of Directors
R.H. Phillips, Inc.
26836 County Road 12A
Esparto, CA 95627
Re: Registration Statement on Form S-8
Employee Stock Purchase Plan.
Ladies and Gentlemen:
At your request, we have examined the Registration
Statement on Form S-8 of R.H. Phillips, Inc. (the "Company") which
is to be filed with the Securities and Exchange Commission for the
purposes of registering under the Securities Act of 1933, as amended
(the "Act") 150,000 shares of common stock (the "Stock") for
issuance to the Company's employees under its 1999 Employee
Stock Purchase Plan (the "Plan").
As counsel to the Company, we have examined the
Registration Statement, the Plan and the form of subscription
agreements to be used with the Plan. We have reviewed documents
pertaining to and are familiar with the proceedings the Company has
taken to date and which are proposed to be taken in connection with
the sale and issuance of the Stock under the Plan. We have assumed
the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to authentic original
documents of all documents submitted to us as copies.
Based on the foregoing, and following the effectiveness of the
Registration Statement under the Act, it is our opinion that the Stock
shall be legally and validly issued, fully paid and nonassessable when
issued in the manner described in the Plan and in accordance with the
subscription agreements.
We further consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to the undersigned
elsewhere in the Registration Statement and any amendments to it.
This consent is not to be construed as an admission that we are
persons whose consent is required to be filed with the Registration
Statement under the provisions of Section 7 of the Act.
We are expressing opinions only as to matters governed by the
laws of California and the federal securities laws of the United
States. This opinion is furnished in connection with the filing of
the Registration Statement, and is not to be used, circulated,
quoted or otherwise relied upon for any other purpose.
Sincerely,
//s//EVERS & HENDRICKSON, LLP
EVERS & HENDRICKSON, LLP
By: Frederick K. Koenen, Partner
Encl.
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the R.H. Phillips 1999 Employee
Stock Purchase Plan of R.H. Phillips, Inc. of our report dated March
18, 1999, with respect to the financial statements of R.H. Phillips,
Inc. included in the Annual Report (Form 10-KSB) for the year
ended December 31, 1998.
//s//ERNST & YOUNG LLP
Sacramento, California
July 20, 1999
The Board of Directors
R.H. Phillips:
We consent to incorporation by reference in the registration statement
of R.H.Phillips 1999 Employee Stock Purchase Plan on Form S-8 of R.H.
Phillips, Inc., of our report dated March 13, 1998, relating to statements
of income, shareholders' equity, and cash flows of R.H. Phillips, Inc.
for the year ended December 31, 1997, which report appears in the
December 31, 1998, annual report on Form 10-KSB of R.H. Phillips, Inc.
//s//KPMG LLP
Sacramento, California
July 22, 1999
