SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post Effective Amendment No. 1
to
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
EMPS CORPORATION
----------------
(Exact name of Registrant as specified in its charter)
NEVADA 87-0617371
------ ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
875 Donner Way, Unit 705
Salt Lake City, Utah 84108
--------------------------
(Address, including zip code of Principal Executive Offices)
EMPS Corporation 1998 Stock Option Plan
---------------------------------------
(Full Title of the Plan)
Louis Naegle, President
EMPS Corporation
875 Donner Way, Unit 705
Salt Lake City, Utah 84108
(801) 582-1881
------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code,of agent for service)
Copy to:
Ronald L. Poulton, Esq.
Poulton & Yordan
136 East South Temple, Suite 1700-A
Salt Lake City, Utah 84111
(801) 355-1341
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Price Aggregate Offering Registration
be Registered Registered(1) Per Share(2) Price(2) Fee
- ----------------------------------------------------------------------------------------------
Common Stock 280,000 $1.01 $282,800 $74.66
par value $.001
- ----------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416 under the Securities Act of 1933, this
registration statement shall be deemed to cover any additional
securities to be offered or issued from stock splits, stock dividends
or similar transactions.
(2) Estimated solely for the purpose of computing the registration fee
required by Section 6(b) of the Securities Act of 1933, as amended (the
"Securities Act")and computed pursuant to Rule 457(c) under the
Securities Act based upon the average of the high and low price of the
Common Stock on January 25, 2002, as reported on the Over-the-Counter
Bulletin Board.
1
EMPS CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
Item 1. Incentive Plan Information.
The documents containing the information specified in this Item 1 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Securities
and Exchange Commission (the "Commission") and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registration Information and Incentive Plan Annual Information.
The documents containing the information specified in this Item 2 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Commission
and the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information previously filed with the
Securities and Exchange Commission (the "Commission") by EMPS Corporation (the
"Registrant") are hereby incorporated herein by reference:
o The Registrant's Quarterly Reports on Form 10-QSB for the
quarters ended September 30, 2001, June 30, 2001 and March 31,
2001, filed with the Commission on October 11, 2001, August
15, 2001 and May 15, 2001, respectively, pursuant to Section
13(a) of the Securities Exchange Act of 1934 as amended (the
"Exchange Act");
o The Registrant's Annual Report on Form 10-KSB for the year
ended December 31, 2000, filed with the Commission on March 7,
2001, pursuant to Section 13(a) the Exchange Act;
o The Registrant's Current Reports on Form 8-K, filed with the
Commission on April 6, 2001, pursuant to Section 13(a) of the
Exchange Act;
2
o Registrant's Form 10SB12G Registration Statement filed with
the Securities and Exchange Commission on October 10, 2001,
and amended on November 21, 2001;
o Registrant's Form SB-1 Registration Statement originally filed
with the Securities and Exchange Commission on September 9,
1999, as amended; and
o Registrant's Form S-8 Registration Statement orginally filed
with the Securities and Exchange Commission on January 29,
2002.
In addition, 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 on or after the date of this registration statement and prior to the filing
of a post-effective amendment which indicates that all securities offered
hereunder have been sold or which deregisters all securities then remaining
unsold under this registration statement, shall be deemed to be incorporated by
reference in this registration statement and to be part hereof from the date of
filing of such documents. Any statement contained herein or 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 earlier 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.
The shares issuable under the incentive plan are shares of common
stock, all of the same class and entitled to the same rights and privileges as
all other shares of common stock.
Description of Common Stock. Our authorized capital stock consists of
150,000,000 shares of common stock with a $.001 par value. As of the date of
this registration statement, we have outstanding 2,655,300 shares of common
stock, all of which is validly issued, fully paid and nonassessable. Pursuant to
an action by the Board of Directors, the Company filed a Certificate of
Amendment to its Articles of Incorporation with the State of Nevada on January
3, 2002, to increase the authorized capital stock of the Company from 50,000,000
shares to 150,000,000 shares and to correspondingly increase the total issued
and outstanding common stock thereby effecting a three-for-one forward stock
split. All sharesholders received an additional two shares for every share they
held. Holders of our common stock are entitled to receive dividends when
declared by the Board of Directors out of funds legally available therefore. Any
such dividends may be paid in cash, property or shares of our common stock. All
dividends are subject to the discretion of the Board of Directors, and will
depend upon, among other things, our operating and financial conditions, our
capital requirements and our general business conditions. Therefore, there can
be no assurance that any additional dividends on our common stock will be paid
in the future.
All shares of our common stock have equal voting rights and, when
validly issued and outstanding, have one vote per share on all matters to be
voted upon by the shareholders. Cumulative voting in the election of directors
is not allowed, and a quorum for shareholder meetings shall result from a
majority of the issued and outstanding shares present in person or by proxy.
Accordingly, the holders of a majority of the shares of common stock present, in
person
3
or by proxy at any legally convened shareholders' meeting at which the Board of
Directors is to be elected, will be able to elect all directors and the minority
shareholders will not be able to elect a representative to the Board of
Directors.
There are no pre-emptive or conversion rights, no redemption or sinking
fund provisions, and shares are not liable for further call or assessment. Each
share is entitled to share pro rata any assets available for distribution to
holders of its equity securities upon our liquidation.
The Transfer Agent for the Registrant is Interwest Transfer Company,
Inc., 1981 East 4800 South, Suite 100, Salt Lake City, Utah 84117, Telephone
(801) 272-9294.
Item 5. Interests of Named Experts and Counsel.
Other than as set forth below, no named expert or counsel was hired on
a contingent basis, will receive a direct or indirect interest in the small
business issuer, or was a promoter, underwriter, voting trustee, director,
officer, or employee of the Registrant.
Poulton & Yordan, counsel for the Registrant named in this registration
statement as giving an opinion on the validity of the securities, will be
receiving a stock grant of 140,000 shares of common stock pursuant to the EMPS
Corporation 1998 Stock Option Plan under this Form S-8 in exchange for legal
services previously rendered to the Company.
Item 6. Indemnification of Directors and Officers.
The statutes, charter provisions, bylaws, contracts or other
arrangements under which controlling persons, directors or officers of the
registrant are insured or indemnified in any manner against any liability which
they may incur in such capacity are as follows:
(a) Section 78.751 of the Nevada Business Corporation Act provides that
each corporation shall have the following powers:
1. A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the right of
the corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with the action, suit or proceeding if he
acted in good faith and in a manner which he reasonably believed to be
in or not opposed to the best interest of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action,
suit or
4
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, does not, of itself create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
2. A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him
in connection with the defense or settlement of the action or suit if
he acted in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the corporation.
Indemnification may not be made for any claim, issue or matter as to
which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable
to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the
action or suit was brought or other court of competent jurisdiction,
determines upon application that in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnity for
such expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections 1
and 2, or in defense of any claim, issue or matter therein, he must be
indemnified by the corporation against expenses, including attorneys'
fees, actually and reasonably incurred by him in connection with the
defense.
4. Any indemnification under subsections 1 and 2, unless
ordered by a court or advanced pursuant to subsection 5, must be made
by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee
or agent is proper in the circumstances. The determination must be
made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a
quorum consisting of directors who were not parties to the
act, suit or proceeding;
(c) If a majority vote of a quorum consisting of
directors who were not parties to the act, suit or proceeding
so orders, by independent legal counsel, in a written opinion;
or
5
(d) If a quorum consisting of directors who were not
parties to the act, suit or proceeding cannot be obtained, by
independent legal counsel in a written opinion.
5. The certificate or articles of incorporation, the bylaws or
an agreement made by the corporation may provide that the expenses of
officers and directors incurred in defending a civil or criminal
action, suit or proceeding must be paid by the corporation as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately determined
by a court of competent jurisdiction that he is not entitled to be
indemnified by the corporation. The provisions of this subsection do
not affect any rights to advancement of expenses to which corporate
personnel other than directors or officers may be entitled under any
contract or otherwise by law.
6. The indemnification and advancement of expenses authorized
in or ordered by a court pursuant to this section:
(a) Does not exclude any other rights to which a
person seeking indemnification or advancement of expenses may
be entitled under the certificate or articles of incorporation
or any bylaw, agreement, vote of stockholders of disinterested
directors or otherwise, for either an action in his official
capacity or an action in another capacity while holding his
office, except that indemnification, unless ordered by a court
pursuant to subsection 2 or for the advancement of expenses
made pursuant to subsection 5, may not be made to or on behalf
of any director or officer if a final adjudication establishes
that his acts or omissions involved intentional misconduct,
fraud or a knowing violation of the law and was material to
the cause of action.
(b) Continues for a person who has ceased to be a
director, officer, employee or agent and inures to the benefit
of the heirs, executors and administrators of such a person.
7. The registrant's Articles of Incorporation limit liability
of its Officers and Directors to the full extent permitted by the
Nevada Business Corporation Act.
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 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 Securities Act
of 1933 and is, therefore, unenforceable.
6
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description Location
4.1 Form of Registrant's Articles of Incorporation, (1)
as amended.
4.2 Form of Registrant's By-laws. (1)
4.3 Form of EMPS Corporation (1)
1998 Stock Option Plan.
5.1 Opinion of counsel as to legality of securities Attached
being registered.
23.1 Consent of counsel (contained in Exhibit 5.1). Attached
23.2 Consent of David T. Thomson, P.C. Attached
Independent Auditors
24.1 Power of Attorney (included on page 5 herein). Attached
(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form SB-1 filed September 9, 1999. (File No. 333-86779).
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
Section10(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
7
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 the 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) if, in the aggregate, the changes in
volume and price represent no more than 20 percent 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) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, 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
8
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, 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, on January 30, 2002.
EMPS COPRORATION
By: /s/ Louis Naegle
--------------------------------------
Louis Naegle, President and Secretary
By: /s/ Timothy Adair
---------------------------------------
Timothy Adair, Treasurer and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Louis Naegle his or her true and
lawful agent, proxy and attorney-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to (i) act on, sign and file with the Securities and
Exchange Commission any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 together with all schedules and
exhibits thereto (ii) act on, sign and file such certificates, instruments,
agreements and other documents as may be necessary or appropriate in connection
therewith, and (iii) take any and all actions that may be necessary or
appropriate to be done, as fully for all intents and purposes as he or she might
or could do in person, hereby approving, ratifying and confirming all that such
agent, proxy and attorney-in-fact or any of his substitutes may lawfully do or
cause to be done by virtue thereof.
9
In accordance with the requirements of the Securities Act of 1933,
this Registration Statement has been signed on this 30th day of January 2002, by
the following persons in the capacities indicated:
Signatures Title
---------- -----
/s/ Louis Naegle President, Secretary and Director
- ------------------------
Louis Naegle
/s/ Timothy L. Adair Treasurer, Chief Financial Officer
- ------------------------ and Director
Timothy L. Adair
Index to Exhibits
Exhibit
Number Description Location
4.1 Form of Registrant's Amended and Restated (1)
Articles of Incorporation, as amended.
4.2 Form of Registrant's Amended and Restated By-laws. (1)
4.3 Form of EMPS Corporation (1)
1998 Stock Option Plan.
5.1 Opinion of counsel as to legality of securities Attached
being registered.
23.1 Consent of counsel (contained in Exhibit 5.1). Attached
23.2 Consent of David T. Thomson, P.C., Attached
Independent Auditors.
24.1 Power of Attorney (included on page 5 herein). Attached
(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form SB-1, filed September, 2001. (File No. 333-86779).
10