As filed with the Securities and Exchange Commission on February 26, 1999
Reg. No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
DYNATEM, INC.
(Exact name of Issuer as specified in its charter)
California 95-3627099
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
23263 Madero, Suite C
Mission Viejo, California 92691
(Address of principal executive offices)
----------------------------
1993 Stock Option Plan
1998 Stock Option Plan
(Full title of the plans)
----------------------------
Eileen DeSwert
President
23263 Madero, Suite C
Mission Viejo, California 92691
(Name and address of agent for service)
(949) 855-3235
(Telephone number, including area code, of agent for service)
Copy to:
Steven J. Dunning, Esq.
Higham, McConnell & Dunning LLP
28202 Cabot, Suite 450
Laguna Niguel, California 92677
CALCULATION OF REGISTRATION FEE
============================================================================================================
Proposed maximum
Title of securities to Amount to be offering price per Proposed aggregate Amount of
be registered registered* share** offering price** registration fee
- ------------------------------------------------------------------------------------------------------------
Common Stock 375,000 $0.44 $165,000 $45.87
============================================================================================================
* Plus, in accordance with Rule 416 of the General Rules and Regulations
under the Securities Act of 1933 (the "General Rules"), such indeterminate
number of additional shares of Common Stock as may become issuable pursuant
to anti-dilution provisions of the 1993 and 1998 Stock Option Plans
(collectively, the "Plans").
** Estimated solely for the purpose of determining the amount of the
registration fee and, pursuant to Rules 457(c) and 457(h) of the General
Rules, based upon the average of the high and low sale prices of the Common
Stock as reported on the NASD OTC Electronic Bulletin Board on February 3,
1999. These shares of Common Stock represent the shares issuable under the
Plans.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from the registration statement in
accordance with Rule 428 under the Securities Act of 1933 and the
Note to Part I of Form S-8.
I-1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents filed by Dynatem, Inc. (the "Company") with
the Securities and Exchange Commission (the"Commission") are incorporated by
reference herein:
(i) the Company's annual report on Form 10-KSB for the fiscal year
ended May 31, 1998; (Commission File No. 0-16250), which report contains certain
information incorporated by reference to portions of the Company's definitive
proxy statement (the "1998 Proxy Statement") for the Company's October 7, 1998
Annual Meeting of Shareholders consisting of the information in the 1998 Proxy
Statement appearing under the headings "Election of Directors" and "Principal
Holders of Voting Securities;"
(ii) the Company's quarterly report on Form 10-QSB for the quarter
ended August 30, 1998;
(iii) the Company's quarterly report on Form 10-QSB for the quarter
ended November 30, 1998; and
(iv) the description of the Company's common stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment or report subsequently filed by the Company for the purpose of
updating that description.
In addition, any document filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date hereof, but prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all shares of Common Stock
registered hereunder have been sold or that de-registers all such shares of
Common Stock then remaining unsold, will be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Articles of Incorporation and the Bylaws of the Company and
indemnity agreements entered into between the Company and its directors and
officers provide for the indemnification of directors and officers to the
fullest extent permitted by the General Corporation Law of the State of
California, the state of incorporation of the Company.
Section 317 of the General Corporation Law of the State of California
authorizes indemnification by a corporation when a person is made a party to any
proceeding by reason of the fact that such person is or was a director, officer,
employee or agent of the corporation or was serving as a director, officer,
employee or agent of another enterprise, at the request of the corporation, and
if such person acted in good faith and in a manner reasonably believed by him or
her to be in, or not opposed to, the best interests of the corporation. With
respect to any criminal proceeding, such person must have had no reasonable
cause to believe that his or her conduct was unlawful. If it is
II-1
determined that the conduct of such person meets these standards, he or she may
be indemnified for expenses incurred and amounts paid in such proceeding
(including attorneys' fees) if actually and reasonable incurred by him or her in
connection therewith.
If such proceeding is brought by or on behalf of the corporation (i.e., a
derivative suit), such person may be indemnified against expenses actually and
reasonably incurred if he or she acted in good faith and in a manner reasonably
believed by him or her to be in, or not opposed to, the best interests of the
corporation. There can be no indemnification with respect to any matter as to
which such person is adjudged to be liable to the corporation; however, a court
may, even in such case, allow such indemnification to such person for such
expenses as the court deems proper. Where such person is successful in any such
proceeding, he or she is entitled to be indemnified against expenses actually
and reasonably incurred by him or her. In all other cases, indemnification is
made by the corporation upon determination by it that indemnification of such
person is proper because such person has met the applicable standard of conduct.
The Company maintains an errors and omissions liability policy for the
benefit of its officers and directors, which may cover certain liabilities of
such individuals to the Company.
The foregoing indemnification provisions are broad enough to encompass
certain liabilities of directors and officers of Company under the Securities
Act of 1933.
Item 7. Exemption from Registration Claims
Not applicable.
Item 8. Exhibits
4.1 1993 Stock Option Plan
4.2 1998 Stock Option Plan
4.3 Restated Articles of Incorporation*
4.4 Bylaws, as amended*
5.1 Opinion of Higham, McConnell & Dunning LLP
23.1 Consent of Corbin & Wertz
23.2 Consent of Higham, McConnell & Dunning LLP (included as part of
Exhibit 5.1)
24.0 Power of Attorney (included at page II-4)
- -----------------------------
* Filed as an Exhibit to the Company's Annual Report on Form 10-KSB for the
fiscal year ended May 31, 1997 and incorporated herein by reference.
II-2
Item 9. Undertakings
The Company 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 this 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 this Registration
Statement;
(ii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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 hereunder which remain unsold
at the termination of the offering.
The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company'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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the above-described provisions, or otherwise,
the Company 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 a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-3
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 Mission Viejo, State of California, on this 26th day
of February, 1999.
DYNATEM, INC.
By: /s/ Eileen DeSwert
------------------
Eileen DeSwert
President
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Eileen DeSwert and Harry Cavanaugh, and each of
them, his true and lawful attorney in fact and agent with full power of
substitution and re-substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys in fact and
agents full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys in fact and agents or his substitute or
substitutes, may lawfully 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 indicated on the dates stated.
Signature Title Date
- --------- ----- ----
/s/ Eileen DeSwert President, Principal Executive Officer and Director February 26, 1999
- -----------------------
Eileen DeSwert
/s/ Harry Cavanaugh Chairman of the Board and Director February 26, 1999
- -----------------------
Harry Cavanaugh
/s/ Belen Ramos Chief Financial Officer, Principal Financial and February 26, 1999
- ----------------------- Accounting Officer
Belen Ramos
/s/ Robert Anslow Director February 26, 1999
- -----------------------
Robert Anslow
/s/ Richard Jackson Director February 26, 1999
- -----------------------
Richard Jackson
/s/ Charles Spear Director February 26, 1999
- -----------------------
Charles Spear
/s/ Costis Toregas Director February 26, 1999
- -----------------------
Charles Toregas
/s/ Richard Anderson Director February 26, 1999
- -----------------------
Richard Anderson
II-4
EXHIBIT INDEX
Exhibit No. Description Sequential Page Number
- ----------- ----------- ----------------------
4.1 1993 Stock Option Plan
4.2 1998 Stock Option Plan
4.3 Restated Articles of Incorporation*
4.4 Bylaws, as amended*
5.1 Opinion of Higham, McConnell & Dunning LLP
23.1 Consent of Corbin & Wertz
23.2 Consent of Higham, McConnell & Dunning
(included as part of Exhibit 5.1)
24.0 Power of Attorney (included at page II-4)
- ---------------------------------
* Filed as an Exhibit to the Company's Annual Report on Form 10-KSB for the
fiscal year ended May 31, 1997, and incorporated herein by reference.
II-5