SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
YELLOW GOLD OF CRIPPLE CREEK, INC.
(Exact name of registrant as specified in its charter)
COLORADO
(State or other jurisdiction of incorporation or organization)
84-0768969
(I.R.S. Employer Identification No.)
57 WEST 200 SOUTH, SUITE 310, SALT LAKE CITY, UTAH 84101
(Address of principal executive offices, including zip code)
1997 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plans)
HOWARD M. OVESON, 57 WEST 200 SOUTH, SUITE 310, SALT LAKE CITY, UTAH 84101
(Name, address, including zip code, of agent for service)
(801) 359-9309
Telephone number, including area code, of agent for service
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 Share Price Fee
Common Stock 500,000 $0.10 $50,000 $100.00
$.001 par value
(1)This calculation is made solely for the purposes of determining the
registration fee pursuant to the provisions of Rule 457 under the Securities
Act of 1933 and is calculated on the basis of the average anticipated cost at
which employee's and consultant's options will be issued.
(2)In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the Plan described herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are hereby incorporated herein by
reference:
1. The Company's Annual Report on Form 10-KSB for the year ended May
31, 1997.
2. All reports filed by the Company with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act of 1934, as amended, since the end
of the fiscal year ended May 31, 1997.
3. The description of the Common Stock contained in the Company's
registration statement filed under the Securities Exchange Act of 1934,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicates that all securities
covered by this Registration Statement 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Ronald N. Vance, Attorney at Law, has agreed to preform legal services
for the Company in exchange for shares of Common Stock of the Company or
options to purchase such shares. It is anticipated by the Company that Mr.
Vance will receive options under the 1997 Non-Qualified Stock Option Plan.
Additionally, it is anticipated that other attorneys who have assisted Mr.
Vance and/or the Company in connection with such work will receive shares of
Common Stock or options to purchase such shares. Except as disclosed above,
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. In addition no such expert or counsel
is connected with the Company as a promoter, managing underwriter, voting
trustee, director, officer, or employee.
Item 6. Indemnification of Directors and Officers.
Article 109 of the Colorado Business Corporation Act expressly authorizes
a Colorado corporation to indemnify its directors, officers, employees,
fiduciaries, and agents against claims or liabilities arising out of such
persons' conduct in such capacities if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests
of the Company. In general, these provisions provide for indemnification in
instances when such persons acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
Company.
Item 7. Exemption from Registration Claimed.
No restricted securities are being reoffered or resold pursuant to this
registration statement.
Item 8. Exhibits. The following exhibits are attached to this
Registration Statement:
SEC
Reference
Exhibit No. No. Description of Exhibit
4.01 4 Specimen certificate for common stock
4.02 4 1997 Non-Qualified Stock Option Plan
5.01 5 & 3 Opinion of Ronald N. Vance, including consent
of Mr. Vance, with respect to the legality of
the issuance of securities being issued
23.01 23 Consent of Orton & Company, Certified Public
Accountants
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 to include any
material information with respect to the plan of distribution.
(2) For determining liability under the Securities Act, to treat each
post-effective amendment as a new registration statement of the securities
being offered, and the offering of the securities at that time to be the
initial bona fide offering.
(3) To file a post-effective amendment to remove from registration
any of the securities that remain unsold at the end 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 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 this
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
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 Salt Lake City, State of Utah, on the 12th day
of December 1997.
Yellow Gold of Cripple Creek, Inc.
By /s/ Howard M. Oveson, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Howard M. Oveson Director, Principal December 12, 1997
Accounting Officer,
and Principal Financial
/s/ Kip Eardley Director December 12, 1997
/s/ Ken Edwards Director December 12, 1997
EXHIBIT NO. 4.02
YELLOW GOLD OF CRIPPLE CREEK, INC.
1997 NON-QUALIFIED STOCK OPTION PLAN
Yellow Gold of Cripple Creek, Inc., a Colorado corporation, (the
"Company"), hereby adopts this 1997 Non-Qualified Stock Option Plan (the
"Plan") this 11th day of December 1997, under which options to acquire stock
of the Company may be granted from time to tome to employees and consultants
of the Company or its subsidiaries, if any. In addition, at the discretion of
the board of directors, options to acquire stock of the Company may from time
to time be granted under this Plan to other individuals who contribute to the
success of the Company or its subsidiaries, if any, and are not employees of
the Company, all on the terms and conditions set forth herein.
1. PURPOSE OF THE PLAN. The Plan is intended to aid the Company in
maintaining and developing a management team, attracting qualified officers
and employees capable of assisting in the future success of the Company, and
rewarding those individuals who have contributed to the success of the
Company. It is designed to aid the Company in retaining the services of
executives and employees and in attracting new personnel when needed for
future operations and growth and to provide such personnel with an incentive
to remain employees of the Company, to use their best efforts to promote the
success of the company's business, and to provide them with an opportunity to
obtain or increase a proprietary interest in the Company. It is also designed
to permit the Company to reward those individuals who are not employees of the
Company but who are perceived by management as having contributed to the
success of the Company or who re important to the continued business and
operations of the Company. The above aims will be effectuated through the
granting of options ("Options") to purchase shares of common stock of the
company, par value $.001 per share (the "Stock"), subject to the terms and
conditions of this Plan.
2. EFFECTIVE DATE. The Plan shall become effective immediately on
adoption by the board of directors of the Company (the "Board").
3. ADMINISTRATION OF THE PLAN. Administration of the Plan shall be
by the Board. Subject to compliance with applicable provisions of the
governing law, the Board may delegate administration of the Plan or specific
administrative duties with respect to the Plan, on such terms and to such
committees of the Board as it deems proper; provided however, that if less
than the entire Board is administering the Plan or grants under the Plan,
action may be taken only by a committee of tow or more "disinterested
directors" as that term is defined in Rule 16b-3, and the regulations and
releases thereunder all as promulgated by the Securities and Exchange
Commission under authority of the Securities Exchange Act of 1934, as
amended. Any option approved by the Board shall be approved by a majority
vote of those members of the Board in attendance at a meeting at which a
quorum is present. Any option approved by a committee designated by the Board
shall be approved as specified by the Board at the time of delegation. The
interpretation and construction of the terms of the Plan by the Board or a
duly authorized committee shall be final and binding on all participants in
the Plan absent a showing of demonstrable error. No member of the Board or
duly authorized committee shall be liable for any action taken or
determination made in good faith with respect to the Plan.
4. SHARES OF STOCK SUBJECT TO THE PLAN. A total of five hundred
thousand (500,000) shares of Stock may be subject to, or issued pursuant to,
Options granted under the terms of this Plan. Any shares subject to an Option
under the Plan, which Option for any reason expires or is forfeited,
terminated, or surrendered unexercised as to such shares, shall be added back
to the total number of shares reserved for issuance under the terms of this
Plan, and if any right to acquire Stock granted under the Plan is exercised by
the delivery of shares of Stock or the relinquishment of rights to shares of
Stock, only the net shares of Stock issued (the shares of Stock issued less
the shares of Stock surrendered) shall count against the total number of
shares reserved for issuance under the terms of this Plan.
5. RESERVATION OF STOCK ON GRANTING OF OPTION. At the time of
granting any Option under the terms of this Plan, there will be reserved for
issuance on the exercise of the Option the number of shares of Stock of the
Company subject to such Option. The Company may reserve either authorized but
unissued shares or issued shares that have been reacquired by the Company.
6. ELIGIBILITY. Options under the Plan may be granted to employees,
including officers, and directors of the Company or its subsidiaries, as may
be existing from time to time, and to other individuals who are not employees
of the Company, but performed bona fide services to the Company, as may be
deemed in the best interest of the Company by the Board or a duly authorized
committee. Such Options shall be in the amounts, and shall have the rights
and be subject to the restrictions, as may be determined by the Board or a
duly authorized committee, all as may be within the general provisions of this
Plan.
7. TERM OF OPTIONS AND CERTAIN LIMITATIONS ON RIGHT TO EXERCISE.
(a) Each Option shall have the term established by the Board or
duly authorized committee at the time the Option is granted but in no event
may an Option have a term in excess of five (5) years.
(b) The term of the Option, once it is granted, may be reduced only
as provided for in this Plan and under the written provisions of the Option.
(c) Unless otherwise specifically provided by the written
provisions of the Option, no holder or his or her legal representative,
legatee, or distributee will be, or shall be deemed to be, a holder of any
shares subject to an Option unless and until the holder exercises his or her
right to acquire all or a portion of the Stock subject to the Option and
delivers the required consideration to the Company in accordance with the
terms of this Plan and then only to the extent of the number of shares of
Stock acquired. Except as specifically provided in this Plan or as otherwise
specifically provided by the written provisions of the Option, no adjustment
to the exercise price or the number of shares of Stock subject to the Option
shall be made for dividends or other rights for which the record date is prior
to the date the Stock subject to the Option is acquired by the holder.
(d) Options under the Plan shall vest and become exercisable at
such time or times and on such terms as the Board or a duly authorized
committee may determine at the time of the grant of the Option.
(e) Options granted under the Plan shall contain such other
provisions, including, without limitation, further restrictions on the vesting
and exercise of the Option, as the Board or a duly authorized committee shall
deem advisable.
(f) In no event may an Option be exercised after the expiration of
its term.
8. EXERCISE PRICE. The exercise price of each Option issued under
the Plan shall be determined by the Board or a duly authorized committee on
the date of grant.
9. PAYMENT OF EXERCISE PRICE. The exercise of any Option shall be
contingent on receipt by the Company of cash, certified bank check to its
order, or other consideration acceptable to the Company; provided, that at the
discretion of the Board or a duly authorized committee, the written provisions
of the Option may provide that payment can be made in whole or in part in
shares of Stock of the Company, which Stock shall be valued at its then fair
market value as determined by the Board or a duly authorized committee, or by
the surrender or cancellation of other rights to Stock of the Company. Any
consideration approved by the Board or a duly authorized committee, that calls
for the payment of the exercise price over a period of more than one year
shall provide for interest, which shall not be included as part of the
exercise price, that is equal to or exceeds the imputed interest provided for
in section 483 of the Code or any amendment or successor section of like
tenor.
10. WITHHOLDING. If the grant or exercise of an Option pursuant to
this Plan is subject to withholding or other trust fund payment requirements
of the Code or applicable state or local laws, such requirements may, at the
discretion of the Board or a duly authorized committee and to the extent
permitted by the terms of the Option and the then governing provisions of the
Code and the Exchange Act, be met (i) by the holder of the Option either
delivering shares of Stock or canceling Options or other rights to acquire
Stock with a fair market value equal to such requirements; (ii) by the Company
withholding shares of Stock subject to the Option with a fair market value
equal to such requirements; or (iii) by the Company making such withholding or
other trust fund payment and the Option holder reimbursing the Company such
amount paid within 10 days after written demand therefor from the Company.
11. DILUTION OR OTHER ADJUSTMENT. In the event that the number of
shares of Stock of the Company from time to time issued and outstanding is
increased pursuant to a stock split or a stock dividend, the number of shares
of Stock then covered by each outstanding Option granted hereunder shall be
increased proportionately, with no increase in the total purchase price of the
shares then so covered, and the number of shares of Stock subject to the Plan
shall be increased by the same proportion. In the event that the number of
shares of Stock of the Company from time to time issued and outstanding is
reduced by a combination or consolidation of shares, the number of shares of
Stock then covered by each outstanding Option granted hereunder shall be
reduced proportionately, with no reduction in the total purchase price of the
shares then so covered, and the number of shares of Stock subject to the Plan
shall be reduced by the same proportion. In the event that the Company should
transfer assets to another corporation and distribute the stock of such other
corporation without the surrender of Stock of the Company, and if such
distribution is not taxable as a dividend and no gain or loss is recognized by
reason of section 355 of the Code or any amendment or successor statute of
like tenor, then the total purchase price of the Stock then covered by each
outstanding Option shall be reduced by an amount that bears the same ratio to
the total purchase price then in effect as the market value of the stock
distributed in respect of a share of the Stock of the Company, immediately
following the distribution, bears to the aggregate of the market value at such
time of a share of the Stock of the Company plus the stock distributed in
respect thereof. In the event that the Company distributes the stock of a
subsidiary to its shareholders, makes a distribution of a major portion of its
assets, or otherwise distributes significant portion of the value of its
issued and outstanding Stock to its shareholders, the number of shares then
subject to each outstanding Option and the Plan, or the exercise price of each
outstanding Option, may be adjusted in the reasonable discretion of the Board
or a duly authorized committee. All such adjustments shall be made by the
Board or duly authorized committee, whose determination upon the same, absent
demonstrable error, shall be final and binding on all participants under the
Plan. No fractional shares shall be issued, and any fractional shares
resulting from the computations pursuant to this section shall be eliminated
from the respective Option. No adjustment shall be made for cash dividends,
for the issuance of additional shares of Stock for consideration approved by
the Board, or for the issuance to stockholders of rights to subscribe for
additional Stock or other securities.
12. OPTIONS TO FOREIGN NATIONALS. The Board or a duly authorized
committee may, in order to fulfill the purposes of this Plan and without
amending the Plan, grant Options to foreign nationals or individuals residing
in foreign countries that contain provisions, restrictions, and limitations
different from those set forth in this Plan and the Options made to United
States residents in order to recognize differences among the countries in law,
tax policy, and custom. Such grants shall be made in an attempt to provide
such individuals with essentially the same benefits as contemplated by a grant
to United States residents under the terms of this Plan.
13. ASSIGNMENT. No Option granted under this Plan shall be
transferable other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the Code.
Except as permitted by the foregoing, each Option granted under the Plan and
the rights and privileges thereby conferred shall not be transferred,
assigned, pledged, or hypothecated in any way (whether by operation of law or
otherwise), and shall not be subject to execution, attachment, or similar
process. On any attempt to transfer, assign, pledge, hypothecate, or
otherwise dispose of the Option, or of any right or privilege conferred
thereby, contrary to the provisions thereof, or on the levy of any attachment
or similar process on such rights and privileges, the Option and such rights
and privileges shall immediately become null and void.
14. EFFECT OF TERMINATION OF EMPLOYMENT. In the event that any
holder is terminated or resigns from his or her position with the Company or a
subsidiary within six months of the grant of an award, any unexercised portion
of such Option shall immediately become null and void and such holder shall
have no further rights thereunder. In the event that any officer or employee
of the Company or a subsidiary is terminated at any time for, in the
determination of the Board or a duly authorized committee, gross negligence in
the performance of his or her duties, substantial failure to meet written
standards established by the Company for the performance of his or her duties,
criminal misconduct, or willful or gross misconduct in the performance of his
or her duties, the Board or a duly authorized committee may cancel any and all
rights such individual may have in the unexercised portion of any Option held
at the time of termination. The Board or a duly authorized committee may, at
the time of the grant of the Option, establish any other restrictions on the
exercise of such Option subsequent to the termination or resignation of any
individual that it deems appropriate. The foregoing paragraph shall not apply
to consultants who are issued options.
15. LISTING AND REGISTRATION OF SHARES. Each Option shall be subject
to the requirement that if at any time the Board shall determine, in its sole
discretion, that it is necessary or desirable to list, register, or qualify
the shares covered thereby on any securities exchange or under any state or
federal law, or obtain the consent or approval of any governmental agency or
regulatory body as a condition of, or in connection with, the granting of such
Option or the issuance or purchase of shares thereunder, such Option may not
be exercised in whole or in part unless and until such listing, registration,
consent, or approval shall have been effected or obtained free of any
conditions not acceptable to the Board.
16. EXPIRATION AND TERMINATION OF THE PLAN. The Plan may be
abandoned or terminated at any time by the Board or a duly authorized
committee except with respect to any Options then outstanding under the Plan.
The Plan shall otherwise terminate on the earlier of the date that is: (i)
ten years after the date the Plan is adopted by the Board; or (ii) ten years
after the date the Plan is approved by the shareholders of the Company.
17. FORM OF OPTIONS. Options granted under the Plan shall be
represented by a written agreement which shall be executed by the Company and
the holder and which shall contain such terms and conditions as may be
determined by the Board or a duly authorized committee and permitted under the
terms of this Plan.
18. NO RIGHT OF EMPLOYMENT. Nothing contained in this Plan or any
Option awarded pursuant to this Plan shall be construed as conferring on a
director, officer, or employee any right to continue or remain as a director,
officer, or employee of the Company or its subsidiaries.
19. AMENDMENT OF THE PLAN. This Plan may not be amended more than
once during any six month period, other than to comport with changes in the
Code or the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder. Subject to the foregoing and the
limitations, the Board or a duly authorized committee may modify and amend the
Plan in any respect.
Yellow Gold of Cripple Creek, Inc.
By /s/ Howard M. Oveson, President
ATTEST:
The undersigned hereby attests to this Yellow Gold of Cripple Creek, Inc.
1997 Non-Qualified Stock Option Plan.
Yellow Gold of Cripple Creek, Inc.
By /s/ Kip Eardley, Secretary
EXHIBIT NO. 5.01
RONALD N. VANCE, P.C.
ATTORNEY AT LAW
57 West 200 South
Suite 310
Salt Lake City, UT 84101
December 12, 1997
Board of Directors
Yellow Gold of Cripple Creek, Inc.
57 West 200 South, Suite 310
Salt Lake City, Utah 84101
Re: Yellow Gold of Cripple Creek, Inc.; Registration Statement on Form S-8
Gentlemen:
I have been retained by Yellow Gold of Cripple Creek Inc. (the "Company")
in connection with the registration statement (the "Registration Statement")
on Form S-8 to be filed by the Company with the Securities and Exchange
Commission relating to the securities of the Company. You have requested that
I render my opinion as to whether or not the securities proposed to be issued
on the terms set forth in the Registration Statement will be validly issued,
fully paid, and nonassessable.
In connection with this request, I have examined the following:
1.Articles of Incorporation of the Company, and amendments thereto;
2.Bylaws of the Company;
3.Unanimous consent resolutions of the Company's board of directors;
4.The Registration Statement; and
5.The Company's 1997 Non-Qualified Stock Option Plan.
I have examined such other corporate records and documents and have made
such other examinations as I have deemed relevant.
Based on the above examination, I am of the opinion that the securities
of the Company to be issued pursuant to the Registration Statement are validly
authorized and, when issued in accordance with the terms set forth in the
Registration Statement, will be validly issued, fully paid, and nonassessable
under corporate laws of the state of Colorado.
This opinion is limited in scope to the shares to be issued pursuant to
the Registration Statement and does not cover subsequent issuance of shares to
be made in the future. Such transactions are required to be included in
either a new registration statement or a post-effective amendment to the
Registration Statement, including updated opinions concerning the validity of
issuance of such shares.
Further, I consent to my name being included in the Registration
Statement as having rendered the foregoing opinion and as having represented
the Company in connection with the Registration Statement.
Sincerely,
/s/ Ronald N. Vance
EXHIBIT NO. 23.01
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated August 30, 1997, accompanying the
financial statements of Yellow Gold of Cripple Creek, Inc., for its annual
report on Form 10-KSB for the fiscal year ended May 31, 1997, and hereby
consent to the incorporation by reference to such report in this Registration
Statement on Form S-8.
/s/ Orton & Company, Certified Public Accountants
50 West Broadway
Suite 1130
Salt Lake City, Utah 84101
December 12, 1997