As filed with the Securities and Exchange Commission on December 14, 2001
Registration No. 333-
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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BIOMASSE INTERNATIONAL, INC.
(Exact name of registrant as specified in charter)
Florida 65-0909206
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4720, Boulevard Royal, Suite 103
Trois-Rivieres-Ouest, Quebec, Canada G9A 4N1
(Address of principal executive offices, including zip code)
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Consulting Agreement with
David Amsel
(Full Title of the Plan)
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4720, Boulevard Royal, Suite 103
Trois-Rivieres-Ouest, Quebec, Canada G9A 4N1
(819) 374-0093
(Name, Address and telephone number of Agent for Service)
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Copy to:
Irving Rothstein, Esq.
Heller, Horowitz & Feit, P.C.
292 Madison Avenue
New York, New York 10017
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be offering Price per Aggregate Price Amount of Registration
Registered Registered Share(1) (1) Fee
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Common Stock, $0.001 par value 325,000 $ 0.86 $279,500 $69.88
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(1) Estimated solely for the purpose of calculating the registration
fee. Proposed maximum price is estimated based upon the closing sale price of
the Company's Common Stock within the last five days.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Certain Documents By Reference
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) The Company's Quarterly Reports on Form 10-QSB for the fiscal
quarters ended March 31, 2001 and June 30, 2001.
(b) The description of the Common Stock is herein incorporated by
reference to the Company's Registration Statement on Form SB-2, initially filed
on October 24, 2000.
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
offered hereby then remaining unsold, shall be deemed to be incorporated by
reference herein and shall be deemed to be a part hereof from the date of the
filing of each such report or document.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the original issuance of the securities offered hereby
will be passed upon for the Company by the law firm of Heller, Horowitz & Feit,
P.C., New York, New York.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, as amended,
authorizes the Company to indemnify any director or officer under certain
prescribed circumstances and subject to certain limitations against certain
costs and expenses, including attorney's fees actually and reasonably incurred
in connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which a person is a party by reason of being
a director or officer of the Company if it is determined that such person acted
in accordance with the applicable standard of conduct set forth in such
statutory provisions. The Company's Certificate of Incorporation contains
provisions relating to the indemnification of director and officers and the
Company's By-Laws extends such indemnities to the full extent permitted by
Delaware law.
The Company may also purchase and maintain insurance for the benefit of
any director or officer which may cover claims for which the Company could not
indemnify such persons.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration
Statement:
4.1 Consulting Agreement with David Amsel.
5. Opinion of Counsel.
24.1 Consent of Counsel (included in Exhibit No. 5).
24.2 Consent of Mark Cohen, CPA.
Item 9. Undertakings
The undersigned small business issuer hereby undertakes to:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information in the registration statement; and 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 end of the estimated maximum offering range may be
reflected in the form of prospectus filed with Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in the
volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) Include any additional or material information on the plan
of distribution.
(2) For determining liability under the Securities Act of 1933, treat
each post-effective amendment as a new registration statement of the securities
offered, and the offering of securities at that time to be the initial bona fide
offering thereof.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
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 or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Trois-Rivieres-Ouest and Province of Quebec on
the 14th day of December 2001.
BIOMASSE INTERNATIONAL, INC.
By:/s/Benoit Dufresne
Benoit Dufresne
President
Pursuant to the requirements of the Securities Act of 1933, this registration
statement or amendment has been signed below by the following persons in the
capacities and on the dates indicated:
Name Title Date
/s/Benoit Dufresne
____________________________
Benoit Dufresne President and Director December 14, 2001
/s/Jean Gagnon
____________________________
Jean Gagnon VP/Finance and Director December 14, 2001
Pierre H. Vincent
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Pierre H. Vincent Director December 14, 2001
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Maurice Robert Director December ___, 2001
THIS AGREEMENT ("Agreement") is made on this 05th day of December, 2001
BETWEEN: BIOMASSE INTERNATIONAL, Inc. a company duly constituted under the laws
of the State of Florida, and having its head office at 721 S.E. 17th
St. Ft. Lauderdale, FL, (hereinafter referred to as "BIMS")
AND: DAVID AMSEL, businessman, having an office at 454 Ballantyne N.,
Montreal W., Quebec, (hereinafter referred to as the "Consultant")
WHEREAS, BIMS is a public company in the environmental and pollution control
industry, and is seeking to expand its product offerings and market, by, among
other strategies, acquiring and/or merging with companies in similar businesses;
AND,
WHEREAS, the Consultant is an experienced businessman and has experience in
mergers and acquisitions and has developed contacts throughout North America,
and BIMS is desirous to avail itself of the Consultant's experience,
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1: DEFINITIONS
In this Agreement, unless the context otherwise requires:
1.1 Agreement - means this agreement dated as of the date hereof, as well
as any rider, amendment, modification or intervention which might be
made or added thereto in writing, with mutual consent of the parties;
the Agreement is also sometimes designated by the expressions
"hereof", "herein" and "hereunder";
1.2 M-A - means merger and/acquisition.
ARTICLE 2: RESPONSIBILITIES OF BIMS
2.1. BIMS shall provide within 30 days of the signing of this Agreement the
parameters and guidelines for any potential M-A candidate.
ARTICLE 3: RESPONSIBILITIES OF THE CONSULTANT
3.1 Based on the guidelines furnished by BIMS, the Consultant shall
present to BIMS introductions to at least one potential M-A candidate
each month.
3.2 Should the M-A candidate be acceptable to BIMS, the Consultant shall
then undertake to negotiate on behalf of BIMS the merger agreement,
providing advise and recommendations with respect to the merger,
preparing and supervising all filings, and interfacing with all
persons required to effect the merger.
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ARTICLE 4: TERM and TERMINATION OF THE AGREEMENT
4.1 The term of this Agreement shall be for one (1) year from the signing
date of the Agreement.
4.2 In the event that either party materially or repeatedly defaults in
the performance of any of its duties or obligations under this
Agreement, and within thirty (30) days after written notice is given
to the defaulting party specifying the default, and (i) such default
is not substantially cured, or (ii) the defaulting party does not
obtain the approval of the other party to a plan to remedy the
default, then the party not in default may terminate this Agreement by
giving written notice to the defaulting party.
4.3 If either party becomes or is declared insolvent or bankrupt, is the
subject of any proceedings relating to its liquidation, insolvency or
for the appointment of a receiver or similar officer for it, makes a
general assignment for the benefit of all or substantially all of it
creditors, or enters into an agreement for the composition, extension
or readjustment of all or substantially all of its obligations, then
the other party, within the conditions of applicable law, may
immediately terminate this Agreement by giving written notice.
4.4 Should this Agreement be terminated through the fault or the actions
of the Consultant prior to the termination date, the Consultant shall
return to BIMS the fees (in common shares) paid under this agreement
less an amount pro-rated monthly or any portion of a month.
ARTICLE 5: CONFIDENTIALITY
5.1 During the term of this Agreement, and for a period of two (2) years
after the expiration of the term of this Agreement, proprietary or
confidential information ("Information") of any kind pertaining to
both parties' businesses, and all written material marked by ether
party as "Confidential" or "Proprietary" shall be treated by the other
party as secret and confidential and accorded the same protection as
the parties give to their own Information of a similar nature.
Verbally disclosed information which is to be treated as confidential
or proprietary by a party shall be confirmed as such in writing by the
party within thirty (30) days of such disclosure.
5.2 Notwithstanding the foregoing, confidential Information does not
include information that:
o has been published or is otherwise readily available to the
public other than by breach of this Agreement;
o has been rightfully received by the receiving party from a third
party without breach of any confidentiality obligations;
o has been independently developed by the receiving party's
personnel without access to, or use of, the other party's
Confidential Information;
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o was known to the receiving party prior to its first receipt from
the other party and which the receiving party has documented
prior to the date hereof; or
o is required to be disclosed by law whether under an order of a
court or government, tribunal or other legal process. In such
cases, the receiving party must immediately notify the other
party of the disclosure requirement, in order to allow the other
party a reasonable opportunity to obtain a court order to protect
its rights, or otherwise to protect the confidential nature of
the Confidential Information.
ARTICLE 6: FEES and CHARGES
6.1 The parties agree that the activities undertaken to be provided to
BIMS shall be valued at Two Hundred Thousand ($240,000), (hereinafter
"Fees or Charges") and is to be paid by the issuance of three hundred
and twenty-five thousand (325,000) common shares (the "Shares") of
BIMS to the Consultant.
6.2 Issuance and delivery of the Shares shall be within 30 days of the
signing date of this Agreement, and BIMS shall deliver to the
Consultant:
(i) the certificate or certificates evidencing the Shares to be
issued to the Consultant and the respective dates registered in
the name of the Consultant; and
(ii) evidence that the Shares have been registered on Form S-8 to
be filed with the U.S. Securities and Exchange Commission, upon
issuance of the Shares to the Consultant, registering for resale
thereof.
6.3 All charges and amounts in this agreement are stated in legal currency
of the United States of America.
6.4 The above fees shall not prevent nor preclude the Consultant from
earning fees from other parties involved in any merger, or other
business associations, introduced to BIMS by the Consultant.
ARTICLE 7: TAXES
7.1 BIMS shall assume responsibility for, and hold the Consultant harmless
from all taxes, duties, or similar liabilities arising under this
Agreement, under any present or future tax laws, except for the
personal income tax of the Consultant.
ARTICLE 8: LIABILITY, INDEMNITY, WARRANTIES, AND INSURANCE
8.1 BIMS shall indemnify the Consultant and hold him harmless against and
in respect to any and all claims, damages, losses, costs, expenses,
obligations, liabilities, actions, suits, including without
limitation, interest and penalties, reasonable attorneys' fees and
costs and all amounts paid in settlement of any claim, action or suit
that may be asserted against BIMS or the Consultant or that BIMS or
the Consultant shall incur or suffer, that arise out of, result from
or relate to: (a) the non-fulfillment of any agreement, covenant or
obligation of BIMS in connection with this Agreement; (b) any breach
of any representation or warranty made by BIMS hereunder; (c) any
claim of any nature whatsoever brought by any third person or entity
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who may suffer damages of any sort as a direct or indirect result of
BIMS's activities pursuant to the Agreement relating to or in
connection with, or any claims of infringement that arise out of,
result from or related to any services provided by the Consultant.
8.2 The Consultant warrants that he will perform his obligations under
this Agreement in a professional and workmanlike manner. In the event
the Consultant is liable to BIMS on account of the Consultant's
performance or nonperformance of his obligations under this Agreement,
whether arising by negligence or otherwise, (i) the amount of damages
recoverable against the Consultant for all events, act or omissions
will not exceed in the aggregate the Charges paid by BIMS for the last
twelve (12) months and (ii) in no event will the Consultant be
responsible for any indirect, consequential, incidental or punitive
damages of any party, including third parties, or for lost profits. In
connection with the conduct of any litigation with third parties
relating to any liability of the Consultant to BIMS or to such third
parties, the Consultant will have all rights to accept or reject
settlement offers and to participate in such litigation. BIMS and the
Consultant expressly acknowledge that the limitations contained in
this Section have been the subject of active and complete negotiation
between the parties and represent the parties' agreement.
ARTICLE 9: EXCUSABLE DELAY
9.1 If either party is unable to perform any of its obligations hereunder
due to Force Majeure, the failure to perform by such party shall not
constitute a basis for termination or default under this Agreement
provided that notice thereof is given to the other party within seven
(7) days after the party becomes aware of such event. BIMS shall not
be required to make any payment to the Consultant pursuant to Article
4 during the period of the Consultant's inability, as a result of an
event of Force Majeure, to provide his services.
9.2 For the purposes of this Agreement, Force Majeure shall be understood
to be any cause beyond the reasonable control of the non-performing
party and without its fault or negligence and includes, without
limiting the generality of the foregoing, acts of God or of a public
enemy, acts of any Government or any State or Territory, or any agency
thereof, in its sovereign capacity, fires, floods, epidemic,
quarantine restrictions, unusually severe weather conditions,
extraordinary vehicle traffic conditions, or mechanical malfunctions
ARTICLE 10: NOTICES
Any notice or communication under this Agreement shall be in writing
and shall be hand delivered, given by fax or sent by registered mail
return receipt requested, postage prepaid, to the other party's
designated representative, receiving such communication at the address
specified herein, or such other address or person as either party may
in the future specify to the other party. Such notice shall be deemed
to be received upon delivery or, by fax, on the next business day
following transmission provided electronic evidence of transmission is
produced at point of origin or, if mailed, on the fourth business day
following the date of mailing.
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If to The Consultant:
David Amsel
454 Ballantyne N.
Montreal W, Quebec H4X 2C9
If to BIMS:
Biomasse International, Inc.
721 S.E. 17th St.
Ft. Lauderdale, FL.
Attention: General Counsel
ARTICLE 11: MISCELLANEOUS
11.1 Neither party may assign or transfer all or any part of its rights
under this Agreement, without the prior written consent of the other,
except when assigning all of their rights and obligations to any legal
entity controlling, controlled by, or under common control with it,
but with thirty (30) days' prior notice to the other party.
11.2 The Consultant can assign this Agreement or any obligations hereunder
to a third party. If any obligations of the Consultant are assigned to
a subcontractor, the Consultant will remain responsible for such
obligations under this Agreement.
11.3 This Agreement is not intended to create, nor shall it be construed to
be, a joint venture, association, partnership, franchise, or other
form of business relationship. Neither party shall have, nor hold
itself out as having, any right, power or authority to assume, create,
or incur any expenses, liability, or obligation on behalf of the other
party, except as expressly provided herein.
11.4 If any provision of this Agreement is held invalid, illegal or
unenforceable in any respect, such provision shall be treated as
severed, leaving the remaining provisions unimpaired, provided that
such does not materially prejudice either party in their respective
rights and obligations contained in the valid terms, covenants, or
conditions.
11.5 There are no intended third party beneficiaries to this Agreement.
11.6 The failure of either party to require the performance of any of the
terms of this Agreement or the waiver by either party of any default
under this Agreement shall not prevent a subsequent enforcement of
such term, nor be deemed a waiver of any subsequent breach.
11.7 This Agreement may not be modified, supplemented, or amended or
default hereunder waived except upon the execution and delivery of a
written agreement signed by the authorized representative of each
party.
11.8 Both parties represent and warrant that each has the full authority to
perform its obligations under this Agreement and that the person
executing this Agreement has the authority to bind it.
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11.9 This Agreement shall be governed by and construed in accordance with
the laws of the Province of Quebec and the applicable federal laws of
Canada therein, and the parties irrevocably submit to the jurisdiction
of the courts of the Province of Quebec, city of Montreal.
11.10 The Parties have requested that this Agreement and all documents and
communications pursuant to or in connection with this Agreement be
drawn up in the English language. Les Parties ont requis que cette
Convention ainsi que tous documents ou communications en vertu de
cette Convention ou s'y rapportant, soient rediges en langue anglaise.
11.11 This Agreement constitutes the final and full terms of understanding
between the parties and supersedes all previous agreements,
understandings, negotiations, and promises, whether written or oral,
between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the day and year set forth below.
BIOMASSE INTERNATIONAL, INC. The Consultant
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Signature Signature
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Printed Name & Title Printed Name
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Date Date
6
December 14, 2001
Board of Directors
Biomasse International, Inc.
4720, Boulevard Royal,
Suite 103
Trois-Rivieres-Ouest, Quebec,
Canada G9A 4N1
Gentlemen:
As counsel for your Company, we have examined your certificate of
incorporation, by-laws, and such other corporate records, documents and
proceeding and such questions of law as we have deemed relevant for the purpose
of this opinion.
We have also, as such counsel, examined the Registration Statement (the
"Registration Statement") of your Company on Form S-8, covering the registration
under the Securities Act of 1933, as amended, of 325,000 shares of the Company's
Common Stock which are to be issued to a consultant of the Company (the
"Consulting Stock").
On the basis of such examination, we are of the opinion that:
1. The Company is a corporation duly authorized and validly existing
and in good standing under the laws of the State of Delaware, with corporate
power to conduct its business.
2. The Company has an authorized capitalization of 60,000,000 Shares of
Common Stock, divided into Class A (5,000,000 shares) and Class B (55,000,000
shares).
3. The Consulting Stock have been duly and validly authorized and when
issued will represent fully paid and non-assessable shares of the Company's
Common Stock.
We hereby consent to the use of our name in the Registration Statement
under the caption "Legal Opinions" and we also consent to the filing of this
opinion as an exhibit thereto.
Very truly yours,
/s/Heller, Horowitz & Feit, P.C.
HELLER, HOROWITZ & FEIT, P.C.
HH&F/jr
Exhibit 24.2
CONSENT OF INDEPENDENT AUDITORS
I consent to the use in this Registration Statement on Form S-8 of
Biomasse International, Inc., of my report dated December 26, 2000, appearing in
the Prospectus which is part of the Registration Statement on Form SB-2
initially filed on October 24, 2000 which is incorporated by reference.
By: /s/ Mark Cohen
_____________________________
Mark Cohen C.P.A.
Hollywood, Florida
12/13/01