As filed with the Securities and Exchange Commission on August 13, 1998.
File No. Commission file number: 0-9476
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FLEXWEIGHT CORPORATION
(Name of Small Business Issuer in Its Charter)
Kansas 48-0680109
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
FLEXWEIGHT CORPORATION 1998 STOCK OPTION PLAN
(Full Title of Plan)
1946 Plateau Way, Wendover, Nevada 89883
(Name and Address of Agent for Service)
(702) 664-3484
(Telephone number including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities Amount to be Price Per Offering Registration
to be Registered Registered Share(1) Price(1) Fee
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Common Stock, $.10 p.v. 1,500,000 $ 7.18 $10,770,000 $3,177.15
Total $10,770,000 $3,177.15
(1) Bona Fide estimate of maximum offering price solely for calculating the
registration fee pursuant to Rule 457(c) and (h) of the Securities Act of 1933,
based on the average bid and asked price of the registrant's common stock as of
August 11, 1998, a date within five business days prior to the date of filing of
this registration statement.
In addition, pursuant to Rule 416(c) promulgated under the Securities Act
of 1933, this Registration Statement covers an indeterminate amount of interests
to be offered or sold pursuant to the Flexweight Corporation 1998 Stock Option
Plan described herein.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the information requirements of the Securities
Exchange Act of 1934 and, in accordance therewith, files reports with the
Securities and Exchange Commission (the "Commission"). The documents listed
below are hereby incorporated by reference in this Registration Statement on
Form S-8; and all documents subsequently filed by the Registrant 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 securities then remaining unsold, shall be deemed
to be incorporated herein by reference in this Registration Statement on Form
S-8, and shall be a part hereof from the date of the filing of such documents.
(a) The Registrant's Form 10-K, filed on January 21, 1998; and
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since August 31,1997; and
(c) The description of the Common Stock which is contained in the
registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities and Exchange Act of 1934 after the date of
this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered by this Registration Statement have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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 herein by reference 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.
Item 4. Description of Securities
The common stock of the Company is registered under Section 12 of the
Securities and Exchange Act of 1934, as amended.
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Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Company's Bylaws provide that the Company shall indemnify its officers and
directors for any liability, including reasonable costs of defense, arising out
of certain circumstances.
When a person is sued or prosecuted in a criminal action, either alone
or with others, because he is or was a director or officer of the corporation,
or of another corporation serving at the request of this corporation, in any
proceeding arising out of his alleged misfeasance or nonfeasance in the
performance of his duties or out of any alleged wrongful act against the
corporation or by the corporation, he shall be indemnified for his reasonable
expenses, including attorneys' fees incurred in the defense of the proceedings,
if both of the following conditions exist:
(a) The person sued is successful in whole or in part, or the
proceeding against him is settled with the approval of the
court.
(b) The court finds that his conduct fairly and equitably merits
such indemnity.
The amount of such indemnity which may be assessed against the
corporation, its receiver, or its trustee, by the court in the same or in a
separate proceeding shall be so much of the expenses, including attorneys' fees
incurred in the defense of the proceedings, as the court determines and finds to
be reasonable. Application for such indemnity may be made either by the person
sued or by the attorney or other person rendering services to him in connection
with the defense, and the court may order the fees and expenses to be paid
directly to the attorney or other person, although he is not a party to the
proceeding. Notice of the application for such indemnity shall be served upon
the corporation, its receiver, or its trustee, and upon the plaintiff and other
parties to the proceeding. The court may order notice to be given also to the
stockholders in the manner provided in Article II, Section 2, for giving notice
of stockholders meetings, in such form as the court directs.
According to the Kansas Statutes Chapter 17, Article 63 (Statute 17-6305) the
Corporation has the power to indemnify officers, directors, employees and agents
of the Corporation under certain circumstances. Below is the statute in full:
(a) A corporation shall have power to indemnify any person who was
or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative,
other than an action by or in the right of the corporation, by
reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection
with such action, suit or proceeding, including attorney fees,
if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best
interests of the corporation; and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe such person's conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which
such person reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that such person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was
or is a party, or is threatened to be made a party, to any
threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such action or
suit, including attorney fees, if such person acted in good
faith and in a manner such person reasonably believed to be in
or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation 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, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
subsections (a) and (b), or in defense of any claim, issue or
matter therein, such director, officer, employee or agent
shall be indemnified against expenses actually and reasonably
incurred by such person in connection therewith, including
attorney fees.
(d) Any indemnification under subsections (a) and (b), unless
ordered by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances because such director, officer,
employee or agent has met the applicable standard of conduct
set forth in subsections (a) and (b). Such determination shall
be made (1) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not
obtainable, or even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses incurred by a director or officer in defending a
civil or criminal action, suit or proceeding may be paid by
the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director or officer to repay such amount
if it is ultimately determined that the director or officer is
not entitled to be indemnified by the corporation as
authorized in this section. Such expenses incurred by other
employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems
appropriate.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section
shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may
be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in
a person's official capacity and as to action in another
capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would
have the power to indemnify such person against such liability
under the provisions of this section . (h) For purposes of
this section, references to "the corporation" shall include,
in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to
indemnify its directors, officers and employees or agents, so
that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other
enterprise, shall stand in the same position under this
section with respect to the resulting or surviving corporation
as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references
to "fines" shall include any excise taxes assessed on a person
with respect to any employee benefit plan; and references to
"serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests
of the corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to members of the board of directors, officers, employees, or
persons controlling the Company pursuant to the foregoing provisions, the
Company has been informed 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.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
8.1 Articles of Incorporation of the Company(1)
8.2 Amendment to Articles of Incorporation of the Company(2)
8.3 By-Laws of the Company(1)
8.4 The Company's 1998 Stock Option Plan
8.6 Opinion of Kevin Woltjen, Esq. with consent.
8.7 Consent of Jones, Jensen & Company, LLC, independent accountants.
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Item 9. Undertakings
1. The undersigned Registrant hereby undertakes to file during any period
in which offers or sales are being made, a post-effective amendment to this
Registration Statement 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.
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2. The undersigned Registrant hereby undertakes 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. The undersigned Registrant hereby undertakes 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. 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 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 related to the securities
offered therein, and the offering of such securities at such time shall be
deemed to be the initial bona fide offering thereof.
5. 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 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 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.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, 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 on Form S-8 to be signed on its behalf
by the undersigned, thereunto duly authorized, in Salt Lake City, Utah, on the
date set forth below.
FLEXWEIGHT CORPORATION
Dated: August 3, 1998 By: /s/Walter G. Sanders
Walter Sanders, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the Company and in the capacities and on the dates indicated.
SIGNATURES TITLE DATE
- ------------------------ ------------------------------ ---------------
/s/ Walter G. Sanders President, Director August 3, 1998
Walter Sanders, President
/s/Charles Sonny Longson Vice-President, Director August 3, 1998
Sonny Longson, Vice-President
The Plan. Pursuant to the requirements of the Securities Act of 1933, the Plan
Administrator has duly caused the registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Salt Lake,
State of Utah on August 3, 1998.
FLEXWEIGHT CORPORATION
STOCK OPTION PLAN
By: /s/Walter G. Sanders
Walter Sanders, Plan Administrator
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EXHIBIT INDEX
4.4 The Company's 1998 Stock Option Plan
4.6 Opinion of Kevin Woltjen, Esq., with consent.
4.7 Consent of Jones, Jensen & Company, LLC, independent accountants.
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