U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 POS
(Amendment No. 3)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
E.T. CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 74-2026624
(State of Incorporation) (I.R.S. Employer ID No.)
31877 Del Obispo Street, Suite 205, San Juan Capistrano, California 92675
(Address of principal executive offices) (Zip Code)
Amended and Restated Retainer Stock Plan for
Non-Employee Directors and Consultants (Amendment No. 3)
(Full title of the Plan)
Brian F. Faulkner, A Professional Law Corporation,
31877 Del Obispo Street, Suite 205, San Juan Capistrano, California 92675
(Name and address of agent for service)
(949) 240-1361
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities Registered Maximum Aggregate Registration
to be Offering Offering Fee
Registered Price Per Price
Share
Common Stock 30,000,000 $0.001(1) $30,000 $ 2.76
(1) The Amended and Restated Non-Employee Directors and Consultants
Retainer Stock Plan (Amendment No. 3) authorizes a total of 60,000,000
shares, 30,000,000 of which have already been registered in prior Form
S-8's filed on June 2, 2000, November 1, 2001, and May 7, 2002. This
Offering Price per Share is established under Rule 457(h)(1) pursuant to
the deemed issuance price as set forth in the Amended and Restated Non-
Employee Directors and Consultants Retainer Stock Plan (Amendment No. 3)
(see Exhibit 4 to this Form S-8).
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
See Item 2 below.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in Part I, Items
1 and 2, will be delivered to each of the participants in accordance
with Form S-8 and Rule 428 promulgated under the Securities Act of 1933.
The participants shall provided a written statement notifying them that
upon written or oral request they will be provided, without charge, (i)
the documents incorporated by reference in Item 3 of Part II of the
registration statement, and (ii) other documents required to be
delivered pursuant to Rule 428(b). The statement will inform the
participants that these documents are incorporated by reference in the
Section 10(a) prospectus, and shall include the address (giving title or
department) and telephone number to which the request is to be directed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following are hereby incorporated by reference:
(a) The Registrant's latest annual report on Form 10-KSB for the
fiscal year ended September 30, 2002, filed on January 14, 2003;
and
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
registration documents referred to in (a) above, which consist of a
Form 10-QSB filed on February 4, 2003, and a Form 10-QSB/A filed on
March 14, 2003.
(c) A description of the securities of the Registrant is contained
in a Form S-8 filed on June 2, 2000.
All documents subsequently filed by the Registrant 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 which indicates
that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be part thereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Limitation of Liability.
The articles of incorporation of the Registrant provide the
following with respect to liability of an officer and director:
"No Director of this Corporation shall have personal liability to
the Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a Director or officer involving any act or
omission of any such Director or officer. The foregoing provision shall
not eliminate or limit the liability of a Director (i) for any breach of
the Director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or, which involve
intentional misconduct or a knowing violation of law, (iii) under
applicable Sections of the Nevada Revised Statutes, (iv) the payment of
dividends in violation of Section 78.300 of the Nevada Revised Statutes
or, (v) for any transaction from which the Director derived an improper
personal benefit. Any repeal or modification of this Article by the
stockholders of the Corporation shall be prospective only and shall not
adversely affect any limitation on the personal liability of a Director
or officer of the Corporation for acts or omissions prior to such repeal
or modification."
Indemnification.
(a) Articles of Incorporation.
The articles of incorporation of the Registrant do not have any
provisions with respect to indemnification.
(b) Bylaws.
The Article V of the bylaws of the Registrant provide the following
with respect to indemnification:
Section 1. Definitions. For purposes of this Article,
"Indemnitee" shall mean each Director or Officer who was or is a party
to, or is threatened to be made a party to, or is otherwise involved in,
any Proceeding (as hereinafter defined), by reason of the fact that he
or she is or was a Director or Officer of this Corporation or is or was
serving in any capacity at the request of this Corporation as a
Director, Officer, employee, agent, partner, or fiduciary of, or in any
other capacity for, another corporation, partnership, joint venture,
trust, or other enterprise. The term "Proceeding" shall mean any
threatened, pending or completed action or suit (including, without
limitation, an action, suit or proceeding by or in the right of this
Corporation), whether civil, criminal, administrative or investigative.
Section 2. Indemnification. Each Indemnitee shall be indemnified
and held harmless by this Corporation for all actions taken by him or
her, and for all omissions (regardless of the date of any such action or
omission), to the fullest extent permitted by Nevada law, against all
expense, liability and loss (including, without limitation, attorney
fees, judgments, fines, taxes, penalties, and amounts paid or to be paid
in settlement) reasonably incurred or suffered by the Indemnitee in
connection with any Proceeding. Indemnification pursuant to this
Section shall continue as to an Indemnitee who has ceased to be a
Director or Officer and shall inure to the benefit of his or her heirs,
executors and administrators. This Corporation may, by action of its
Board of Directors, and to the extent provided in such action, indemnify
employees and other persons as though they were Indemnitees. The rights
to indemnification as provided in this Article shall be non-exclusive of
any other rights that any person may have or hereafter acquire under an
statute, provision of this Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or Directors, or otherwise.
Section 3. Financial Arrangements. This Corporation may purchase
and maintain insurance or make other financial arrangements on behalf of
any person who is or was a Director, Officer, employee or agent of this
Corporation, or is or was serving at the request of this Corporation in
such capacity for another corporation, partnership, joint venture, trust
or other enterprise for any liability asserted against him or her and
liability and expenses incurred by him or her in such capacity, whether
or not this Corporation has the authority to indemnify him or her
against such liability and expenses.
The other financial arrangements which may be made by this
Corporation may include, but are not limited to, (a) creating a trust
fund; (b) establishing a program of self-insurance; (c) securing its
obligation of indemnification by granting a security interest or other
lien on any of this Corporation's assets, and (d) establishing a letter
of credit, guarantee or surety. No financial arrangement made pursuant
to this section may provide protection for a person adjudged by a court
of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable for intentional misconduct, fraud, or a knowing violation of
law, except with respect to advancing expenses or indemnification
ordered by a court. Any insurance or other financial arrangement made
on behalf of a person pursuant to this section may be provided by this
Corporation or any other person approved by the Board of Directors, even
if all or part of the other person's stock or other securities is owned
by this Corporation. In the absence of fraud:
(a) the decision of the Board of Directors as to the propriety of
the terms and conditions of any insurance or other financial
arrangement made pursuant to this section, and the choice of the
person to provide the insurance or other financial arrangement is
conclusive; and
(b) the insurance or other financial arrangement is not void or
voidable; does not subject any Director approving it to personal
liability for his action; and even if a Director approving the
insurance or other financial arrangement is a beneficiary of the
insurance or other financial arrangement.
Section 4. Contract of Indemnification. The provisions of this
Article relating to indemnification shall constitute a contract between
this Corporation and each of its Directors and Officers, which may be
modified as to any Director or Officer only with that person's consent
or as specifically provided in this section. Notwithstanding any other
provision of the Bylaws relating to their amendment generally, any
repeal or amendment of this Article which is adverse to any Director or
Officer shall apply to such Director or Officer only on a prospective
basis and shall not limit the rights of an Indemnitee to indemnification
with respect to any action or failure to act occurring prior to the time
of such repeal or amendment. Notwithstanding any other provision of
these Bylaws, no repeal or amendment of these Bylaws shall affect any or
all of this Article so as to limit or reduce the indemnification in any
manner unless adopted by (a) the unanimous vote of the Directors of this
Corporation then serving, or (b) the stockholders as set forth in
Article XII hereof; provided that no such amendment shall have
retroactive effect inconsistent with the preceding sentence.
Section 5. Nevada Law. References in this Article to Nevada law
or to any provision thereof shall be to such law as it existed on the
date these Bylaws were adopted or as such law thereafter may be changed;
provided that (a) in the case of any change which expands the liability
of an Indemnitee or limits the indemnification rights or the rights to
advancement of expenses which this Corporation may provide, the rights
to limited liability, to indemnification and to the advancement of
expenses provided in this Corporation's Articles of Incorporation, these
Bylaws, or both shall continue as theretofore to the extent permitted by
law; and (b) if such change permits this Corporation, without the
requirement of any further action by stockholders or Directors, to limit
further the liability of Indemnitees or to provide broader
indemnification rights or rights to the advancement of expenses than
this Corporation was permitted to provide prior to such change,
liability thereupon shall be so limited and the rights to
indemnification and advancement of expenses shall be so broadened to the
extent permitted by law."
(c) Nevada Revised Statutes.
"NRS 78.7502 Discretionary and mandatory indemnification of
officers, directors, employees and agents: General provisions.
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:
(a) Is not liable pursuant to NRS 78.138 [directors and officers
duty to exercise their powers in good faith and with a view to the
interests of the corporation]; or
(b) 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 is
liable pursuant to NRS 78.138 or 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, or 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:
(a) Is not liable pursuant to NRS 78.138; or
(b) 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, the
corporation shall indemnify him against expenses, including attorneys'
fees, actually and reasonably incurred by him in connection with the
defense.
NRS 78.751 Authorization required for discretionary
indemnification; advancement of expenses; limitation on indemnification
and advancement of expenses.
1. Any discretionary indemnification pursuant to NRS 78.7502,
unless ordered by a court or advanced pursuant to subsection 2, may 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 action, suit or
proceeding;
(c) If a majority vote of a quorum consisting of directors who were
not parties to the action, 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
action, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion.
2. 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 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.
3. The indemnification pursuant to NRS 78.7502 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 NRS 78.7502 or for the advancement
of expenses made pursuant to subsection 2, 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.
NRS 78.752 Insurance and other financial arrangements against
liability of directors, officers, employees and agents.
(1) A corporation may purchase and maintain insurance or make
other financial arrangements on behalf of any person who 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 for any liability asserted against him and
liability and expenses incurred by him in his capacity as a director,
officer, employee or agent, or arising out of his status as such,
whether or not the corporation has the authority to indemnify him
against such liability and expenses.
(2) The other financial arrangements made by the corporation
pursuant to subsection 1 may include the following:
(i) The creation of a trust fund.
(ii) The establishment of a program of self-insurance.
(iii) The securing of its obligation of indemnification by
granting a security interest or other lien on any assets of the
corporation.
(iv) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection may provide
protection for a person adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable for intentional
misconduct, fraud or a knowing violation of law, except with respect to
the advancement of expenses or indemnification ordered by a court.
(3) Any insurance or other financial arrangement made on behalf of
a person pursuant to this section may be provided by the corporation or
any other person approved by the board of directors, even if all or part
of the other person's stock or other securities is owned by the
corporation.
(4) In the absence of fraud:
(i) The decision of the board of directors as to the propriety of
the terms and conditions of any insurance or other financial arrangement
made pursuant to this section and the choice of the person to provide
the insurance or other financial arrangement is conclusive; and
(ii) The insurance or other financial arrangement:
(A) Is not void or voidable; and
(B) Does not subject any director approving it to personal
liability for his action, even if a director approving the
insurance or other financial arrangement is a beneficiary of
the insurance or other financial arrangement.
(5) A corporation or its subsidiary which provides self-insurance
for itself or for another affiliated corporation pursuant to this
section is not subject to the provisions of Title 57 of NRS."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits required by Item 601 of Regulation S-B, and an index
thereto, are attached.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this 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;
(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) 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.
(e) To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and,
where interim financial information required to be presented by
Regulation S-B are not set forth in the prospectus, to deliver, or cause
to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information
(h) That 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 authorize, in the City of Vancouver,
Province of British Columbia, on April 7, 2003.
E.T. Corporation
/s/ Sidney B. Fowlds
Sidney B. Fowlds, President
Special Power of Attorney
The undersigned constitute and appoint Sidney B. Fowlds their true
and lawful attorney-in-fact and agent with full power of 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 Form S-8 Registration Statement, and to file the same with all
exhibits thereto, and all documents in connection therewith, with the
U.S. Securities and Exchange Commission, granting such attorney-in-fact
the 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 and to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that such attorney-in-fact 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 date indicated:
Signature Title Date
/s/ Sidney B. Fowlds President/Chairman of the April 7, 2003
Sidney B. Fowlds Board
/s/ John Johnston Vice President/Director April 7, 2003
John Johnston
/s/ Anthony V. Feimann Secretary/Treasurer April 7, 2003
Anthony V. Feimann (principal financial and
accounting officer)
/s/ Robert M. Miller Director April 7, 2003
Robert M. Miller
EXHIBIT INDEX
Number Description
4 Amended and Restated Retainer Stock Plan for Non-Employee
Directors and Consultants (Amendment No. 3), dated March 15,
2003 (see below).
5 Opinion Re: Legality (see below).
23.1 Consent of Accountant (see below).
23.3 Consent of Counsel (see below).
24 Special Power of Attorney (see signature page).