As filed with the Securities & Exchange Commission on October 30, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ORBIT TECHNOLOGIES, INC.
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(Exact name of Registrant as specified in its charter)
Delaware 841-00-1269
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(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
5950 La Place Court, Suite 140, Carlsbad, CA 92008
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(Address of Principal Executive Offices, including ZIP Code)
Fee Agreement for Professional Services With Richard O. Weed
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(Full title of the plan)
James A. Giansiracusa, 5950 La Place Court,
Suite 140, Carlsbad, CA 92008
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(Name and address of agent for service)
(760) 918-9168
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(Telephone number, including area code, of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Maximum Aggregate Amount of
Title of Securities Amount of Shares Offering Offering Registration
to be Registered to be Registered Price Per Share(1) Price(1) Fee
---------------------- -------------------- -------------------- ----------------- --------------
<S> <C> <C> <C> <C>
$.01 par value Common
Stock 50,000 $0.30 $15,000 $ 3.96
$.01 par value
Common Stock Underlying
Stock Options 150,000 $0.45 $67,500 $17.82
TOTALS 200,000 N/A $82,500 $21.78
</TABLE>
(1) This calculation is made solely for the purposes of determining
the registration fee pursuant to the provisions of Rule 457 under
the Securities Act and is calculated on the basis of the average
of the high and low prices per share of the Common Stock as of
October 26, 2000, a date within five business days prior to the
filing of this Registration Statement.
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<PAGE>
PROSPECTUS
ORBIT TECHNOLOGIES, INC.
5950 LA PLACE COURT, SUITE 140, CARLSBAD, CA 92008
(760) 918-9168
200,000 SHARES OF COMMON STOCK
This Prospectus relates to the offer and sale by Orbit Technologies, Inc., a
Delaware corporation ("Orbit "), of shares of its $.01 par value per share
common stock (the "Common Stock") to certain consultants and advisors (the
"Consultants") pursuant to a Fee Agreement for Professional Services entered
into between Orbit and the Consultants for payment of services to be rendered
(the "Agreement"). Orbit is registering hereunder and then issuing, upon receipt
of adequate consideration therefore, to the Consultants 50,000 shares of Common
Stock and 150,000 shares of Common Stock underlying certain stock options in
consideration for services to be performed under the Agreements.
The Common Stock is not subject to any restriction on transferability.
Recipients of shares other than persons who are "affiliates" of Orbit within the
meaning of the Securities Act of 1933 (the "Act") may sell all or part of the
shares in any way permitted by law, including sales in the over-the-counter
market at prices prevailing at the time of such sale. Of the shares registered
hereunder, no shares are being registered to an affiliate of Orbit. An affiliate
is summarily, any director, executive officer or controlling shareholder of
Orbit or anyone of its subsidiaries. An "affiliate" of Orbit is subject to
Section 16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). If a Consultant who is not now an "affiliate" becomes an "affiliate" of
the Orbit in the future, he would then be subject to Section 16(b) of the
Exchange Act.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is October 26, 2000
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<PAGE>
This Prospectus is part of a Registration Statement which was filed and became
effective under the Securities Act of 1933, as amended (the "Securities Act"),
and does not contain all of the information set forth in the Registration
Statement, certain portions of which have been omitted pursuant to the rules and
regulations promulgated by the U.S. Securities and Exchange Commission (the
"Commission") under the Securities Act. The statements in this Prospectus as to
the contents of any contracts or other documents filed as an exhibit to either
the Registration Statement or other filings by Orbit with the Commission are
qualified in their entirety by the reference thereto.
A copy of any document or part thereof incorporated by reference in this
Prospectus but not delivered herewith will be furnished without charge upon
written or oral request. Requests should be addressed to: Orbit Technologies,
Inc., 5950 La Place Court, Carlsbad, CA 92008. Orbit's telephone number is (760)
918-9168.
Orbit is subject to the reporting requirements of the Exchange Act and in
accordance therewith files reports and other information with the Commission.
These reports, as well as the proxy statements, information statements and other
information filed by Orbit under the Exchange Act may be inspected and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W. Washington D.C. 20549. Copies may be obtained at the prescribed
rates. Orbit's stock is currently traded on the OTC Bulletin Board of the NASDAQ
Stock Market.
No person has been authorized to give any information or to make any
representation, other than those contained in this Prospectus, and, if given or
made, such other information or representation must not be relied upon as having
been authorized by Orbit. This Prospectus does not constitute an offer or a
solicitation by anyone in any state in which such is not authorized or in which
the person making such is not qualified or to any person to whom it is unlawful
to make an offer or solicitation.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that there has not been a change in
the affairs of Orbit since the date hereof.
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<PAGE>
TABLE OF CONTENTS
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS 6
Item 1. Plan Information 6
General Information 6
The Company 6
Purposes 6
Common Stock 6
The Consultants 6
No Restrictions on Transfer 6
Tax Treatment to the Consultants 6
Tax Treatment to Orbit 7
Restrictions on Re-sales 7
DOCUMENTS INCORPORATED BY REFERENCE AND ADDITIONAL INFORMATION 8
Item 2. Registrant Information and Employee Plan Annual Information 8
Legal Opinion and Experts 8
Indemnification of Officers and Directors 8
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT 9
Item 3. Incorporation of Documents by Reference 9
Item 4. Description of Securities 9
Item 5. Interests of Named Experts and Counsel 9
Item 6. Indemnification of Directors and Officers 9
Item 7. Exemption from Registration Claimed 10
Item 8. Exhibits 10
Item 9. Undertakings 10
SIGNATURES 12
EXHIBIT INDEX 13
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<PAGE>
PART I: INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
GENERAL INFORMATION
THE COMPANY
Orbit has its principal executive offices at 5950 La Place Court, Suite 140,
Carlsbad, CA 92008 where its telephone number is (760) 918-9168.
PURPOSES
The Common Stock to be issued by Orbit to certain Consultants will be issued
pursuant to a Fee Agreement for Professional Services (the "Agreement") entered
into between Consultants and Orbit, which the agreements have been approved by
the Board of Directors of Orbit (the "Board of Directors"). The Agreement is
intended to provide a method whereby Orbit may be stimulated by the personal
involvement of the Consultants in Orbit's future prosperity, thereby advancing
the interests of Orbit, and all of its shareholders. A copy of the Agreement has
been filed as an exhibit to this Registration Statement.
COMMON STOCK
The Board has authorized the issuance of 200,000 shares of the Common Stock to
the Consultants and upon effectiveness of this Registration Statement.
THE CONSULTANTS
The Consultants have agreed to provide their expertise and advice to Orbit for
the purposes set forth in their Agreement with Orbit.
NO RESTRICTIONS ON TRANSFER
The Consultants will become the record and beneficial owners of the shares of
Common Stock upon issuance and delivery and are entitled to all of the rights of
ownership, including the right to vote any shares awarded and to receive
ordinary cash dividends on the Common Stock.
TAX TREATMENT TO THE CONSULTANTS
The Common Stock is not qualified under Section 401(a) of the Internal Revenue
Code. The
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Consultants, therefore, will be required for federal income tax purposes to
recognize ordinary income during the taxable year in which the first of the
following events occurs: (a) the shares become freely transferable, or (b) the
shares cease to be subject to a substantial risk of forfeiture. Accordingly,
absent a specific contractual provision to the contrary the Consultants will
receive compensation taxable at ordinary rates equal to the fair market value of
the shares on the date of receipt since there will be no substantial risk of
forfeiture or other restrictions on transfer. If, however, the Consultants
receive shares of common stock pursuant to the exercise of an option or options
at an exercise price below the fair market value of the shares on the date of
exercise, the difference between the exercise price and the fair market value of
the stock on the date of exercise will be deemed ordinary income for federal
income tax purposes. The Consultants are urged to consult each of their tax
advisors on this matter. Further, if any recipient is an "affiliate," Section
16(b) of the Exchange Act is applicable and will affect the issue of taxation.
TAX TREATMENT TO ORBIT
The amount of income recognized by any recipient hereunder in accordance with
the foregoing discussion will be an expense deductible by Orbit for federal
income tax purposes in the taxable year of Orbit during which the recipient
recognizes income.
RESTRICTIONS ON RE-SALES
In the event that an affiliate of Orbit acquires shares of Common Stock
hereunder, the affiliate will be subject to Section 16(b) of the Exchange Act.
Further, in the event that any affiliate acquiring shares hereunder has sold or
sells any shares of Common Stock in the six months preceding or following the
receipt of shares hereunder, any so called "profit", as computed under Section
16(b) of the Exchange Act, would be required to be disgorged from the recipient
to Orbit. Services rendered have been recognized as valid consideration for the
"purchase" of shares in connection with the "profit" computation under Section
16(b) of the Exchange Act. Orbit has agreed that for the purpose of any "profit"
computation under 16(b) the price paid for Orbit's Common Stock issued hereunder
to affiliates is equal to the value of services rendered. Shares of Orbit's
Common Stock acquired hereunder by persons other than affiliates are not subject
to Section 16(b) of the Exchange Act.
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<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE AND ADDITIONAL INFORMATION
Orbit hereby incorporates by reference (i) its annual report on Form 10-KSB for
the year ended December 31, 1999, filed pursuant to Section 13 of the Exchange
Act, (ii) any and all Quarterly Reports and Current Reports on Forms 10-Q (or
10-QSB or 8-K) which were not reviewed by independent certified public
accountants, filed under the Securities or Exchange Act subsequent to the filing
of Orbit's Annual Report on Form 10-K (or 10-KSB) for the fiscal year ended
December 31, 1999, as well as all other reports filed under Section 13 of the
Exchange Act, and (iii) its annual report, if any, to shareholders delivered
pursuant to Rule 14a-3 of the Exchange Act. In addition, all further documents
filed by Orbit pursuant to Section 13, 14, or 15(d) of the Exchange Act prior to
the termination of this offering are deemed to be incorporated by reference into
this Prospectus and to be a part hereof from the date of filing. All documents
which when together, constitute this Prospectus, will be sent or given to
participants by the Registrant as specified by Rule 428(b)(1) of the Securities
Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
A copy of any document or part thereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus or any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Requests should be
addressed to: Orbit Technologies, Inc., 5950 La Place Court, Suite 140,
Carlsbad, CA 92008 (760) 918-9168.
LEGAL OPINION AND EXPERTS
Richard O. Weed has rendered an opinion on the validity of the securities being
registered. Mr. Weed is not an "affiliate" of Orbit. He does not currently own
any shares of Orbit's common stock.
The consolidated financial statements of Orbit Technologies, Inc. incorporated
by reference in this Prospectus for the year ended December 31, 1999 have been
audited by Tabb, Conigliaro & McGann, P.C., independent certified public
accountants, as set forth in their report incorporated herein by reference, and
are incorporated herein in reliance upon such report given upon the authority of
said firm as experts in auditing and accounting.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of registrant
pursuant to the foregoing provisions, or otherwise, 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 registrant of expenses
incurred or paid by a director, officer or controlling person of 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
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<PAGE>
registered, 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 is against public policy
as expressed in the Act and will be governed by the final adjudication of such
issue.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Registrant hereby states that (i) all documents set forth in (a) through (c),
below, are incorporated by reference in this registration statement, and (ii)
all documents subsequently filed by registrant pursuant to Section 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which de-registers all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents.
(a) Registrant's latest Annual Report, whether filed pursuant to Section 13(a)
or 15(d) of the Exchange Act;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by annual report referred to in
(a), above; and
(c) The latest prospectus filed pursuant to Rule 424(b) under the Securities
Act.
ITEM 4. DESCRIPTION OF SECURITIES
No description of the class of securities (i.e. the $.01 par value Common Stock)
is required under this item because the Common Stock is registered under Section
12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Mr. Weed does not presently own any shares of Orbit's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Nine of Orbit's Restated Certificate of Incorporation limits the
liability of any officer or Director and permit Orbit to indemnify its directors
and officers as follows:
"(a) The Corporation shall indemnify to the full extent authorized or
permitted by law (as now or hereafter in effect) any person made, or threatened
to be made, a defendant or witness to any action, suit or proceeding (whether
civil or criminal or otherwise) by reason of the fact that he, his testator or
intestate, is or was a director or officer of the Corporation, is or was serving
any other corporation, partnership, joint venture, trust, employee benefit or
any other enterprise, in any capacity. Nothing contained herein shall affect any
rights to indemnification to which
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employees, other than directors or officers may be entitled to by law. No
amendment or repeal of this subdivision (a) shall apply to or have any effect on
any right to indemnification provided hereunder for any acts or omissions
occurring prior to such amendment or repeal.
(b) No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such director as a director. Not withstanding the foregoing sentence, a
director shall be liable to the extent provided by applicable law (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for the acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of the law, (iii) pursuant to Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from which
such director derived an improper personal benefit. No amendment or repeal of
this subdivision (b) shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or concerning any acts
or omissions of such director occurring prior to such amendment or repeal."
Section 145 of the Delaware General Corporation Law, filed as Exhibit 99.1 to
this registration statement, sets out a corporation's authority to indemnify
officers and directors in the state of Delaware.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
(a) The following exhibits are filed as part of this registration statement
pursuant to Item 601 of Regulation S-B and are specifically incorporated herein
by this reference:
Exhibit No. Title
----------- ------
5. Opinion of Richard O. Weed regarding the legality of the
securities registered.
10.1 Fee Agreement for Professional Services with Richard O. Weed
23.1 Consent of Richard O. Weed, special counsel to registrant, to
the use of his opinion with respect to the legality of the
securities being registered hereby and to the references to
him in the Prospectus filed as a part hereof.
23.2 Consent of Tabb, Conigliaro & McGann, P.C., independent
auditors of registrant.
99.1 Section 145 of Delaware General Corporation Law
ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
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<PAGE>
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to:
(i) include any prospectus required by Section 10 (a) (3) of the Securities Act;
(ii) 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, represents a fundamental
change in the information set forth in the registration statement;
(iii) 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, paragraphs (i) and (ii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs are
incorporated by reference from periodic reports filed by the registrant small
business issuer under the Exchange Act.
(2) That, for the purpose of determining any liability under the Securities Act,
each post-effective amendment to 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.
(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.
(4) To deliver or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14e-3 under the
Securities Exchange Act of 1934; and, where interim financial information
require to be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of registrant's annual report
pursuant to Section 13(a) of the Securities 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.
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<PAGE>
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 Carlsbad, State of California on the 26th day of
October, 2000.
Orbit Technologies, Inc.
(Registrant)
By: /s/ James B. Lahey
James B. Lahey, President
Pursuant to the requirements of the 1933 Act, this registration statement or
amendment has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Signatures Title Date
---------------------------- ------------------------------ ------------------
<S> <C> <C> <C>
/s/ James B. Lahey Chief Executive Officer and
James B. Lahey Chairman of the Board October 26, 2000
/s/ James A. Giansiracusa Vice President-Operations,
James A. Giansiracusa Chief Financial Officer (Chief
Financial and Accounting October 26, 2000
Officer), Secretary and Director
/s/ Ian C. Gent Director October 26, 2000
Ian C. Gent
/s/ William N. Whelan, Jr. Director October 26, 2000
William N. Whelan, Jr.
</TABLE>
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EXHIBIT INDEX
The following Exhibits are filed as part of this registration statement pursuant
to Item 601 of Regulation S-B and are specifically incorporated herein by this
reference:
--------------------------------------------------------------------------------
Exhibit
Number in
Registration Numbered
Statement Description
Page
--------------------------------------------------------------------------------
5. Opinion of Counsel 14
10.1 Fee Agreement for Professional Services with Richard O. Weed 16
23.1 Consent of Richard O. Weed to Use of Opinion 20
23.2 Consent of Tabb, Conigliaro & McGann, P.C. 21
99.1 Section 145 of Delaware General Corporation Law 22
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