As Filed With the Securities and Exchange Commission on July 25, 2006
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
EUGENE SCIENCE, INC.
(Exact name of registrant as specified in its charter)
| | Delaware | | 33-0827004 | |
| | (State or other jurisdiction of | | (I.R.S. Employer Identification No.) | |
| | incorporation or organization) | | | |
16-7 Smjung-dong, Ojung-gu, Bucheon, Kyonggi-do, Korea
(Address of Principal Executive Offices)
2006 Stock Incentive Plan
(Full title of the plan)
Seung Kwon Noh
President and Chief Executive Officer
Eugene Science, Inc.
16-7 Smjung-dong, Ojung-gu
Bucheon, Kyonggi-do, Korea
(Name and address of agent for service)
82-32-676-6283
(Telephone number, including area code, of agent for service)
Copies to:
Shivbir S. Grewal, Esq.
Michael L. Lawhead, Esq.
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600,
Newport Beach, California 92660
(949) 725-4000
CALCULATION OF REGISTRATION FEE
Title of securities to be registered | Amount to be registered(1) | Proposed maximum offering price per share (2) | Proposed maximum aggregate offering price | Amount of registration fee |
| Common Stock, par value $0.0001 per share | 4,000,000 shares | $0.87 | $3,480,000 | $372.36 |
| (1) | Includes an indeterminate number of additional shares of the registrant’s common stock which may be necessary to adjust the number of shares issued pursuant to the 2006 Stock Incentive Plan as the result of stock splits, stock dividends or similar adjustments to the registrant’s outstanding common stock. |
| (2) | Estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457(h)(1) under the Securities Act of 1933, as amended (the “Securities Act”), on the basis of the price of securities of the same class, as determined in accordance with Rule 457(c) under the Securities Act, using the average of the high and low prices reported by the Over-The-Counter Bulletin Board for our common stock on June 30, 2006, which was $0.94 per share. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below have been filed by Eugene Science, Inc. (referred to herein as the “Company,” “we,” “us” or “our”) with the United States Securities and Exchange Commission (the “SEC”) and are incorporated herein by reference:
(a) our Annual Report on Form 10-KSB for the fiscal year ended December 31, 2005 as filed with the SEC on April 17, 2006;
(b) our Quarterly Report on Form 10-QSB for the quarterly period ended March 31, 2006 as filed with the SEC on May 22, 2006;
(c) the description of our common stock contained in our Registration Statement on Form 10-SB as filed with the SEC on February 20, 2004, including any amendment or report filed for the purpose of updating such description; and
(d) all other reports filed by us pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in (a) above.
All documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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 of such securities then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents, except as to any portion of any future annual or quarterly report to stockholders or document that is not deemed filed under such provisions. For the purposes of this registration statement, any statement in a document incorporated by reference shall be deemed to be modified or superseded to the extent that a statement contained in this registration statement modifies or supersedes a statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. Unless specifically stated otherwise, none of the information that we disclose under Items 2.02 or 7.01 in our Current Reports on Form 8-K, nor any exhibits relating to such information, furnished to the SEC prior to, on or subsequent to the date of this registration statement will be deemed to be incorporated by reference into, or otherwise included in, this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify any person made a party to an action (other than an action by or in the right of the corporation) by reason of the fact that he or she was a director, officer, employee or agent of the corporation or was serving at the request of the corporation against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action (other than an action by or in the right of the corporation), has no reasonable cause to believe his or her conduct was unlawful.
Neither our certificate of incorporation, as amended, nor our bylaws contain any provisions entitling our directors or executive officers to indemnification or insurance against any liability which they may incur in their capacities as our directors or executive officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this registration statement:
Exhibit Number | Description |
| 3.1 | Certificate of Incorporation (incorporated by reference to Exhibit 3.11 to the Company’s Registration Statement on Form 10-SB filed with the SEC on February 20, 2004). |
| 3.2 | Certificate of Amendment to Certificate of Incorporation (incorporated by reference to Exhibit 3.12 to the Company’s Registration Statement on Form 10-SB filed with the SEC on February 20, 2004) |
| 3.3 | Certificate of Amendment to Certificate of Incorporation (incorporated by reference to Exhibit 3.3 to the Company’s Current Report on Form 8-K filed with the SEC on October 6, 2005). |
| 3.4 | Certificate of Amendment to Certificate of Incorporation (incorporated by reference to Exhibit A to the Company’s Information Statement on Schedule 14C filed with the SEC on December 1, 2005). |
| 3.5 | Bylaws (incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement on Form 10-SB filed with the SEC with the SEC on February 20, 2004) |
| 5.1 | Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation. |
| 23.1 | Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in Exhibit 5.1). |
| 23.2 | Consent of Independent Registered Public Accounting Firm. |
| 24.1 | Power of Attorney (included on signature page to the Registration Statement). |
| 99.1 | 2006 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, filed with the SEC on May 31, 2006). |
Item 9. Undertakings.
(a) The undersigned registrant 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;
(ii) 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; and
(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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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 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) 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), 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) 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, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 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
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 Bucheon, Kyonggi-do, Korea, on the 5th day of July, 2006.
| | | |
| | EUGENE SCIENCE, INC. |
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|
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| | By: | /s/ Seung Kwon Noh |
| |
Seung Kwon Noh |
| | President and Chief Executive Officer |
POWER OF ATTORNEY
We, the undersigned directors and officers of Eugene Science, Inc., do hereby constitute and appoint Seung Kwon Noh and Jae Hong Yoo, or either of them, our true and lawful attorneys and agents, to do any and all acts and things in our name and behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents, or either of them, may deem necessary or advisable to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules, regulations, and requirements of the Securities and Exchange Commission, in connection with this registration statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names and in the capacities indicated below, any and all amendments (including post-effective amendments) to this registration statement, or any related registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended; and we do hereby ratify and confirm all that the said attorneys and agents, or either of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
| Signature | Title | Date |
| | | |
| /s/ Seung Kwon Noh | President, Chief Executive Officer and Director | July 5, 2006 |
| Seung Kwon Noh | (Principal Executive Officer) | |
| | | |
| /s/ Jae Hong Yoo | Chief Financial Officer | July 5, 2006 |
| Jae Hong Yoo | (Principal Financial and Accounting Officer) | |
| | | |
| /s/ Tae Hwan Lee | Director | July 5, 2006 |
| Tae Hwan Lee | | |
| | | |
| /s/ Se Cheon Ahn | Director | July 5, 2006 |
| Se Cheon Ahn | | |
| | | |
| /s/ Tony Kim | Director | July 5, 2006 |
| Tony Kim | | |
EXHIBIT INDEX
Exhibit Number | Description |
| 3.1 | Certificate of Incorporation (incorporated by reference to Exhibit 3.11 to the Company’s Registration Statement on Form 10-SB filed with the SEC on February 20, 2004). |
| 3.2 | Certificate of Amendment to Certificate of Incorporation (incorporated by reference to Exhibit 3.12 to the Company’s Registration Statement on Form 10-SB filed with the SEC on February 20, 2004) |
| 3.3 | Certificate of Amendment to Certificate of Incorporation (incorporated by reference to Exhibit 3.3 to the Company’s Current Report on Form 8-K filed with the SEC on October 6, 2005). |
| 3.4 | Certificate of Amendment to Certificate of Incorporation (incorporated by reference to Exhibit A to the Company’s Information Statement on Schedule 14C filed with the SEC on December 1, 2005). |
| 3.5 | Bylaws (incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement on Form 10-SB filed with the SEC with the SEC on February 20, 2004) |
| 5.1 | Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation. |
| 23.1 | Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in Exhibit 5.1). |
| 23.2 | Consent of Independent Registered Public Accounting Firm. |
| 24.1 | Power of Attorney (included on signature page to the Registration Statement). |
| 99.1 | 2006 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, filed with the SEC on May 31, 2006). |
