U. S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INVESTAMERICA, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEVADA 87-0400797
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(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1776 PARK AVENUE, PARK CITY, UTAH 84060
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
435-615-8801
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ISSURER'S TELEPHONE NUMBER
1999 STOCK OPTION PLAN
BONUS SHARES ISSUABLE TO JAMES DUNCAN,
LYLE KERR AND NEIL WIELER UNDER EMPLOYMENT
AGREEMENTS WITH OPTICA COMMUNICATIONS INC.
(Full title of the plans)
Douglas Smith
4664 Loughheed Hwy,
Burnaby, BC, Canada 84123
(Name and address of agent for service)
(801) 808-6096
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES OF COMMUNICATIONS TO:
Eric W. Nodiff, Esq.
Dornbush Mensch Mandelstam & Schaeffer, LLP
747 Third Avenue
New York, New York 10017
(212) 759-3300
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price offering registration
to be registered registered per unit price fee
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Common Stock, par 20,300,000 shares $5.06 $102,718,500 $27,117.68
value, $.001 per
share
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* Estimated solely for purposes of calculating the registration fee.
Calculated in accordance with Rule 457(c) under the Securities Act of 1933
based upon the average of the bid and asked price of Common Stock of
InvestAmerica, Inc. as reported on the NASD over-the-counter bulletin board
on March 8, 2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(a) The Registration Statement of the
Company on Form 10-SB filed on November
30, 1999 registering the Company's Common
Stock, par value $.001 per share (the
"Common Stock"), under Section 12 of the
Securities Exchange Act of 1934 which
contains a description of the Common
Stock.
(b) All other reports of the Company
filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934
since the end of the fiscal year ended
September 30, 1999.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the
filing of a post-effective amendment indicating that all securities offered
hereby have been sold or deregistering all such securities then unsold,
shall be deemed to be incorporated by reference into this Registration
Statement 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.
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ITEM 6. Indemnification of Directors and Officers.
The Amended Articles of Incorporation for the Company do contain provisions
for indemnification of the officers and directors; in addition, Section
78.751 of the Nevada General Corporation Laws provides as follows: 78.751
Indemnification of officers, directors, employees and agents; advance
of expenses.
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
attorney's fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with the action, suitor proceeding 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, 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 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 o directors
who were not parties to 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
(d) If a quorum consisting of directors who were not parties to the act, suit
or proceeding cannot to obtained, by independent legal counsel in a written
opinion; or
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5. The 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, 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 corporation. The provisions of this subsection do not affect
any rights to advancement of expenses to which corporate personnel other than
the 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 articles of incorporation or any bylaw,
agreement, vote of stockholders or 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 act 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 endures to the
benefit of the heirs, executors and administrators of such a person. 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 Securities and Exchange 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
Securities Act and will be governed by the final adjudication of such issue.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
4.1 - 1999 Stock Option Plan of the Company, as amended.
4.2 - Employment Agreement dated February 8, 2000 between
Optica Communications Inc., a subsidiary of the Company
("Optica") and James Duncan.
4.3 - Employment Agreement dated February 8, 2000 between
Optica and Lyle Kerr.
4.4 - Employment Agreement dated February 8, 2000 between
Optica and Neil Wieler.
5.1 - Opinion of Dornbush Mensch Mandelstam & Schaeffer, LLP.
23.1 - Consent of Dornbush Mensch Mandelstam & Schaeffer, LLP
(included in Exhibit 5).
23.2 - Consent of Braverman & Company.
24.1 - Power of Attorney (included in signature page).
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ITEM 9. Undertakings.
(a) The undersigned 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 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 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 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.
(c) Insofar as indemnification for liabilities arising under
Securities Act of 1933 may be permitted to directors, officers, and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company 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 payment by the
Company of expenses paid or incurred 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 Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Burnaby, Province of British
Columbia, Canada, on the 13th day of March, 2000.
INVESTAMERICA, INC.
By:/s/ Douglas E. Smith
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Douglas E. Smith, President
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Douglas E. Smith and Brian
Kitts, and each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any or 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, and each of them, full power and authority to
do and perform each and every act and thing requisite and 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 any of them or their 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 and on the dates indicated:
/s/ Douglas E. Smith March 13, 2000
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Douglas E. Smith
President and Chief Executive Officer
and Director
/s/ Brian Kitts March 13, 2000
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Brian Kitts, Secretary and Director
/s/ Ernst Gemassmer March 13, 2000
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Ernst Gemassmer, Director
/s/ Fred F. Fierling March 13, 2000
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Fred F. Fierling, Director
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