SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
----------------------------
THE SECURITIES ACT OF 1933
--------------------------
Gump & Company, Inc.
--------------------
(Exact name of registrant as specified in its charter)
Delaware 75-2256798
-------------------------- ---------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
192 Searidge Court, Shell Beach, CA 93449
------------------------------------------------------
(Address of Principal Executive Offices)(Zip Code)
Employee/Consultant Stock Plan 2002
-----------------------------------
(Full title of the plan)
Mark A. DiSalvo, 192 Searidge Court, Shell Beach, CA 93449
----------------------------------------------------------
(Name and address of agent for service)
(805) 773-5350
---------------
(Telephone number, including area code, of agent for service)
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR
REINVESTMENT PLAN, CHECK THE FOLLOWING BOX; [X]
CALCULATION OF REGISTRATION FEE
Proposed
Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered price per share price registration fee
- ------------------- ---------------- ---------------- ------------------- ----------------
Common Stock 600,000 Shares $ .13(1) $78,000 $21.00
(1) Computed pursuant to Rule 457 solely of the purpose of calculating the
registration fee and not as a representation as to any actual proposed price.
The fee is based upon the average of the closing bid and ask price of the common
stock reported on the NASD Bulletin Board for April 19, 2002. Includes shares of
common stock, and common stock underlying options, to be granted by
determination of the Board.
PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
-------------------------------------------------------------
Item 1 - Plan Information
- -------------------------
Pursuant to Rule 428(b)(1), the information required by Part I is included in
documents sent or given to each consultant of Gump & Company, Inc., a Delaware
corporation (herein "Registrant" or "Company").
Item 2 - Registrant Information and Employee Plan Annual Information
- --------------------------------------------------------------------
Plan participants have been advised of the availability without charge, upon
written or oral request, of the documents incorporated by reference in Item 3 of
Part II of this registration statement, and that these documents are
incorporated by reference in the prospectus, and the availability without
charge, upon written or oral request, of other documents required to be
delivered pursuant to Rule 424 (b). The address (to the attention of the
President of the Company) and telephone number to which the request is to be
directed is as follows: Mark A. DiSalvo, C.E.O., 192 Searidge Court, Shell
Beach, CA 93449 Phone: 805-773-5350.
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
------------------------------------------------------------
Item 3 - Incorporation of Documents by Reference
- ------------------------------------------------
The following documents are incorporated by reference to this Registration
Statement and made a part hereof:
(a) the Registrant's Form 10KSB for the fiscal year ended October 31,
2001;
(b) Form 10QSB for the quarter ended January 31, 2002;
(c) all other reports, including amendments, filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act since the end of
the fiscal year covered by the Registrant Annual Report document
referred to in (a) immediately above.
All documents subsequently filed with the Commission by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which 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. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein 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 by reference herein modifies or supersedes such
statement. Any 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
- ----------------------------------
DESCRIPTION OF CAPITAL STOCK
Capital Stock
Our authorized capital stock consists of 20,000,000 shares of common stock,
par value $.01 per share, and 2,000,000 shares of Preferred Stock, par value
$.01 per share.
Common Stock
General. We have 20,000,000 authorized shares of common stock, par value
$.01 per share, 2,033,201 of which are issued and outstanding prior to this
offering. All shares of common stock currently outstanding are validly issued,
fully paid and non-assessable. All shares which are the subject of this
prospectus, when issued and paid for under this offering, will be validly
issued, fully paid and non-assessable.
Voting rights. Each share of our common stock entitles the holder to one
vote, either in person or by proxy, at meetings of shareholders. Our board of
directors is elected annually at each annual meeting of the shareholders. The
holders are not permitted to vote their shares cumulatively. Accordingly, the
holders of more than fifty percent of our voting power can elect all of our
directors.
Dividend policy. All shares of common stock are entitled to participate
ratably in dividends when, as and if declared by our board of directors out of
the funds legally available to distribute dividends. Any such dividends may be
paid in cash, property or additional shares of common stock. We have not paid
any dividends since our inception and presently anticipate that all earnings, if
any, will be retained for development of our business. We expect that no
dividends on the shares of common stock will be declared in the foreseeable
future. Any future dividends will be subject to the discretion of our board of
directors and will depend upon, among other things, our future earnings,
operating and financial condition, capital requirements, general business
conditions and other pertinent facts. There can be no assurance that any
dividends on the common stock will ever be paid.
Miscellaneous rights and provisions. Holders of common stock have no
preemptive or other subscriptions rights, conversions rights, redemption or
sinking fund provisions. In the event of our liquidation or dissolution, whether
voluntary or involuntary, each share of common stock is entitled to share
ratably in any assets available for distribution our holders of the equity after
satisfaction of all liabilities.
Shares eligible for future sale. Upon completion of this offering, we will
have 2,033,201 shares of common stock outstanding if the minimum number of
shares offered in this offering are sold, or 2,633,201 shares of common stock
outstanding if the maximum number of shares offered in this offering are sold.
Of these shares, the shares sold in this offering will be freely tradable
without restriction or further registration under the Securities Act, except for
any shares purchased by an "affiliate" of Gump & Company, which will be subject
to the limitations of Rule 144 adopted under the Securities Act. In general, a
person who has a control relationship with Gump & Company is defined as an
"affiliate." All of the shares held by Mr. DiSalvo are deemed to be "restricted
securities", as that term is defined in Rule 144 under the Securities Act.
In general, under Rule 144, commencing 90 days after the date of this
prospectus, a person, including an affiliate or persons whose shares are
aggregated, who has owned restricted shares of common stock beneficially for at
least one year, is entitled to sell, within any three-month period, a number of
shares that does not exceed the greater of one per cent of the total number of
outstanding shares of the same class or the average weekly trading volume of our
common stock on all exchanges and/or reported through the automated quotation
system of a registered securities association during the four calendar weeks
preceding the date on which notice of the sale is filed with the SEC. Sales
under Rule 144 are also subject to manner of sale provisions, notice
requirements and the availability of current public information about us. A
person who has not been an affiliate of ours for at least the three months
immediately preceding the sale and who has beneficially owned shares of common
stock for at least two years is entitled to sell such shares under Rule 144
without regard to the limitations described above.
16,480 of the shares of stock presently owned by Mr. DiSalvo have been held
at least one year and are eligible for resale under Rule 144. As of April 24,
2002, the balance of Mr. DiSalvo's shares will have been held for at least one
year. Accordingly, commencing following the completion of the offering, all of
Mr. DiSalvo's currently held shares will be eligible for resale under Rule 144
at the rates and subject to the conditions discussed above. No predictions can
be made as to the effect, if any, that sales of shares under Rule 144 or
otherwise or the availability of shares for sale will have on the market, if
any, prevailing from time to time. The sale of any substantial number of these
shares in the public market could adversely affect prevailing market prices
following the offering.
Preferred Stock
The board of directors is authorized by our certificate of incorporation to
issue up to an additional 2,000,000 shares of one or more series of preferred
stock, par value $.01 per share. No shares of such preferred stock have been
authorized for issuance by our board of directors, and we have no present plans
to issue any such shares. In the event that the board of directors issues shares
of serial preferred stock, it may exercise its discretion in establishing the
terms of such preferred stock; provided, that any issuance of serial preferred
stock must be approved by a majority of our independent directors, who do not
have an interest in the transaction and who have access, at our expense, to our
legal counsel or to independent legal counsel.
Subject to approval by the independent directors, the board of directors
may determine the voting rights, if any, of the series of preferred stock being
issued, which would include the right to vote separately or as a single class
with the common stock and/or other series of preferred stock; to have more or
less voting power per share than that possessed by the common stock or other
series of preferred stock; and to vote on specified matters presented to the
shareholders or on all of such matters or upon the occurrence of any specified
event or condition. On our liquidation, dissolution or winding up, the holders
of preferred stock may be entitled to receive preferential cash distributions
fixed by the board of directors when creating the particular preferred stock
series before the holders of the common stock are entitled to receive anything.
Preferred stock authorized by the board of directors could be redeemable or
convertible into shares of any other class or series of our stock.
The issuance of preferred stock by the board of directors could adversely
affect the rights of holders of the common stock by, among other things,
establishing preferential dividends, liquidation rights or voting powers.
TRANSFER AGENT
The transfer agent for the common stock is Securities Transfer Corporation,
2591 Dallas Parkway, Suite 102, Frisco, Texas 75034.
Item 5 - Interests of Named Experts and Counsel
- -----------------------------------------------
Not Applicable.
Item 6 - Indemnification of Directors and Officers
- --------------------------------------------------
The Company's Certificate of Incorporation provides that officers and
directors shall not be personally liable to the Company or its stockholders for
damages for breach of fiduciary duty, to the extent provided by Delaware.
Under Delaware law a corporation may indemnify, and the Company's Bylaws
requires indemnification of, an officer or director if he acted in good faith
and in a manner in which he reasonably believed to be in or not opposed to the
best interests of the corporation; provided, however, under Delaware law no
indemnification shall be made in actions by or in the right of the corporation
if such officer or director has been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation, unless the court
orders otherwise. Under Delaware law, an officer or director that is successful
in any action shall be indemnified. Also, any indemnification, unless ordered by
the court, shall only be made if determined appropriate by the stockholders, or
disinterested directors or, under certain circumstances, independent legal
counsel. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers 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 that Act and is,
therefore, unenforceable.
A corporation may also pay or reimburse expenses incurred by a person in
connection with his appearance as a witness or other participation in a
proceeding at a time when he is not a named defendant or respondent in the
proceeding.
We believe that the above protections are necessary to attract and retain
qualified persons as directors and officers.
Item 7 - Exemption from Registration Claimed.
- ---------------------------------------------
Not Applicable.
Item 8 - Exhibits.
- ------------------
See - Exhibits and Exhibit Index below.
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 in the
registration statement. 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.
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 the Commission pursuant
to Rule 424 (b) (Sec.230.424(b) of this chapter) if, in the aggregate,
the changes in volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(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 registration statement is on Form S-3
(Sec.239.13 of this chapter) or Form S-8 (Sec.239.16b of this chapter)
or Form F-3 (Sec.239.33 of this chapter), and the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic 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 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.
SIGNATURES
The Registrant. 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 Shell Beach, California on April 22, 2002.
Gump & Company, Inc.
By: /s/ Mark A. DiSalvo
----------------------
Mark A. DiSalvo,
Chief Executive Officer (Principal Executive Officer)
Chief Financial Officer, Director
(Principal Financial Officer and Director)
U. S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
GUMP & COMPANY, INC.
--------------------
EXHIBIT INDEX
-------------
No. Description Document
- -------------------------------------------------------------------------------
4.1 Articles of Incorporation*
4.2 Bylaws*
5.1 Opinion re: Legality
24.1 Legal Consent
(included in Exhibit 5)
24.2 Accountants Consent
10.1 Employee Consultant Stock
Plan 2002
- -------------------------------------------------------------------------------
* Incorporated by reference to the Company's SEC Files, No. 33-26616