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As filed with the Securities and Exchange Commission on December 13, 2001
SEC File No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
DIATECT INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
CALIFORNIA 95-355578
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
875 South Industrial Parkway, Heber, UT 84032
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(Address of Principal Executive Offices) (Zip Code)
ELLIOTT N. TAYLOR NON-QUALIFIED STOCK OPTION
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(Full title of the plan)
JOHN C. THOMPSON NON-QUALIFIED STOCK OPTION
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(Full title of the plan)
Jay Downs, 875 South Industrial Parkway, Heber, UT 84032
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(Name, address, including zip code of agent for service)
Telephone number, including area code, of agent for service: (435) 654-4370
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered (2) Share (1) Price Fee
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Common Stock,
no par value 200,000 $0.31 $62,000 $ 14.82
(1) Bona fide estimate of maximum offering price solely for the purpose of
calculating the registration fee as determined under Regulation C, Rule 457(c)
and/or (g), of the Securities Act of 1933, based on the average of the bid and
ask price of the Registrant's common stock as reported on the NASD's OTC
Bulletin Board on December 10, 2001.
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DIATECT INTERNATIONAL CORPORATION
PART I
Cross Reference Sheet Pursuant to Rule 404(a)
Cross-reference between items of part I of form S-8 and the section 10(a)
prospectus which will be delivered to each employee, director or consultant
who participates in the stock option plan.
Registration Statement Item Numbers and Headings Prospects Headings
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1) Plan Information Section 10(a) Prospectus
2) Registration Information and Employee
Plan Annual Information Section 10(a) Prospectus
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are hereby
incorporated by reference:
1) The Company's annual report on Form 10-KSB for the period ended December
31, 2000, dated March 29, 2001;
2) The Company's quarterly report on Form 10-QSB for the period ended
September 30, 2001, dated November 14, 2001; and
3) All additional reports filed by the Company with the Commission pursuant
to section 13(a) or 15(d) of the Exchange Act after September 30, 2001.
All reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 12, or 15(d) of the Exchange Act prior to the filing of
any post-effective amendment which indicates that all securities covered by
this Prospectus have been sold or which deregisters all such securities then
remaining unsold shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such reports and documents.
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ITEM 4. DESCRIPTION OF SECURITIES
Common Stock
The Company is authorized to issue 50,000,000 shares of common stock, no
par value per share (the "Common Stock"). The holders of the Common Stock are
entitled to one vote per share on each matter submitted to a vote at any
meeting of shareholders. Shares of Common Stock do not carry cumulative
voting rights and, therefore, a majority of the shares of outstanding Common
Stock will be able to elect the entire board of directors and, if they do so,
minority shareholders would not be able to elect any persons to the board of
directors. The Company's articles of incorporation and bylaws provide that a
majority of the issued and outstanding shares of the Company shall constitute
a quorum for shareholders' meetings, except with respect to certain matters
for which a different percentage quorum is required by statute.
Shareholders of the Company have no preemptive rights to acquire
additional shares of Common Stock or other securities. The Common Stock is
not subject to redemption and carries no subscription or conversion rights. In
the event of liquidation of the Company, the shares of Common Stock are
entitled to share equally in corporate assets after satisfaction of all
liabilities and payment of any preferences on preferred stock.
Holders of Common Stock are entitled to receive such dividends as the
board of directors may from time to time declare out of funds legally
available for the payment of dividends.
The board of directors has the authority to issue the authorized but
unissued shares of Common Stock without action by the shareholders. The
issuance of such shares would reduce the percentage ownership held by persons
purchasing Common Stock in this offering and may dilute the book value of the
then existing shareholders.
Registrar and Transfer Agent
The registrar and transfer agent of the Company's securities is Interwest
Transfer Company, 1981 East Murray-Holladay Road, Holladay, Utah 84117, (801)
272-9294.
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ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Members of the law firm Taylor and Associates, Inc., legal counsel to the
Registrant, have been granted options under the plan being registered
hereunder aggregating 200,000 shares at an exercise price of $0.20 per share,
for an aggregate fair market value of $62,000, based on the average of the bid
and ask price of the Registrant's common stock as reported on the NASD's OTC
Bulletin Board on December 10, 2001. Except as otherwise disclosed herein, no
other expert or counsel for the Company named in this registration statement
as having prepared or certified any part hereof, or as giving an opinion as to
the validity of the securities being registered was employed on a contingency
basis, or has or is to receive, in connection with the offering, a substantial
interest in the Company or its subsidiaries. In addition no such expert or
counsel is connected with the Company or its subsidiaries as a promoter,
managing underwriter, voting trustee, director, officer, or employee.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The following is a brief summary of certain indemnification provisions of the
Company's certificate of incorporation and the California Corporations Code.
This summary is qualified in its entirety by reference to the text thereof.
Section 317 of the California Corporation code, as amended ("Section 317")
permits a California corporation to indemnify its directors and officers for
certain of their acts. More specifically, Section 317 grants authority to any
corporation to indemnify directors and officers against any judgments, fines,
amounts paid in settlement and reasonable expenses, including attorneys' fees,
by reason of his having been such a corporate director or officer. Such
provision is limited to instances where the director or officer acted in good
faith and in a manner he reasonably believed to e in or not opposed to the
best interests of the corporation, or, in criminal proceedings, he had no
reasonable cause to believe his conduct was unlawful. Such section confers on
the director or officer an absolute right to indemnification for expenses,
including attorney's fees, actually and reasonably incurred by him to the
extent he is successful on the merits or otherwise defense of any claim,
issue, or matter. Section 317 expressly makes indemnification contingent upon
a determination that indemnification is proper in the circumstances. Such
determination must be made by the board of directors acting through a quorum
of disinterested directors, or by the board of directors acting on the advice
of independent legal counsel, or by the shareholders. Further, Section 317
permits a corporation to pay attorneys' fees and other litigation expenses on
behalf of a director or officer in advance of the final disposition of the
action upon receipt of an undertaking by or on behalf of such director or
officer to repay such expenses to the corporation if it is ultimately
determined that he is not entitled to be indemnified by the corporation or to
the extent the expenses so advanced by the corporation exceed the
indemnification to which he is entitled. Such indemnification provisions do
not exclude other indemnification rights to which a director or officer may
be entitled under the certificate of incorporation, a bylaw, an agreement, a
vote of shareholders, or otherwise. The corporation may also purchase and
maintain insurance to provide indemnification.
The foregoing discussion of indemnification merely summarizes certain aspects
of indemnification provisions and is limited by reference to Section 317 of
the California Corporations code, as amended.
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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 8. EXHIBITS
Exhibits.
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Copies of the following documents are included as exhibits to this
registration statement pursuant to Item 601 of Regulation S-K.
SEC
Exhibit Reference
No. No. Description Location
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4.01 4 Elliott N. Taylor
Non-qualified Stock Option This filing
4.02 4 John C. Thompson
Non-qualified Stock Option This Filing
5.01 5 & 23 Letter opinion, including consent
of Taylor and Associates, Inc.
Attorneys and Counselors at Law,
regarding legality of Common Stock
to be issued pursuant to options
granted under the Plans. This Filing
23.01 23 Consent of Williams & Webster, P.S.
Certified Public Accountants This Filing
25.01 25 Powers of Attorney See Signature
Page
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ITEM 9. UNDERTAKINGS
REGULATION S-K
Post-Effective Amendments-Item 512(a)
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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, 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.
(2) That, for the purpose of determining any liability under the Securities
Act, 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.
Filings Incorporating Subsequent Exchange Act Documents by Reference-Item
512(b)
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The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, as amended , each filing of
the Registrant's annual report pursuant to section 13(a) or 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(a) 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.
Filing of Registration Statement on Form S-8 - Item 512(h)
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Insofar as indemnification for liabilities arising under the Securities Act
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 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 the Securities Act of 1933, as amended, 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 Heber, state of Utah, this 11th day
of December, 2001.
DIATECT INTERNATIONAL CORPORATION
By /S/ Jay Downs, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Jay Downs, with power of substitution, as his
attorney-in-fact for him, in all capacities, to sign any amendments to
this registration statement and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact or
his substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/S/ Jay Downs Director December 10, 2001
/S/ David Andrus Director December 10, 2001
/S/ John Runft Director December 10, 2001
/S/ Stewart Hyndman Director December 10, 2001
/S/ Robert Crouch Director December 10, 2001