Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CAPITOL COMMUNITIES CORPORATION
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(Exact name of registrant as specified in its charter)
Nevada 88-0361144
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(State of incorporation) (I.R.S. employer identification no.)
25550 Hawthorne Boulevard, Suite 207, Torrance, CA 90505, (310) 375-2266
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(Address and telephone number of principal executive offices)
NON-QUALIFIED EMPLOYEE INCENTIVE STOCK PLAN
OF CAPITOL COMMUNITIES CORPORATION
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(Full title of the plan)
MICHAEL G. TODD
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25550 Hawthorne Boulevard, Suite 207, Torrance, CA 90505, (310) 375-2266
(Name, address and telephone number of agent for service of process)
With a copy to:
MICHAEL G. TODD, PRESIDENT
Capitol Communities Corporation
25550 Hawthorne Boulevard, Suite 207, Torrance, California 90505
CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed Proposed Amount of
Securities to be Maximum Maximum Registration
To Be Registered Offering Price Aggregate Fee
Registered Per share Offering
Price
Common Stock, 3,000,000(1) $.085 (2) $255,000 $ 23.46
$.01 par value
per share
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement covers an indeterminate amount of interests to
be offered or sold pursuant to the Employee Benefit Plan described
herein, the number of shares of common stock to be offered or sold
pursuant to a Non-Qualified Employee Incentive Stock Plan of Capitol
Communities Corporation (the "Company"), dated February 20, 2002.
(2) Estimated, in accordance with Rule 457(c) and (h) under the Securities
Act of 1933, solely for the purpose of calculating the registration
fee, based on the average of the high and low prices of the Common
Shares of Registrant for the last five days prior to the filing of this
Report, as reported by the National Quotation Bureau, Inc. ("NQB"), and
reflect inter-dealer prices as reported on the NASDAQ electronic
bulletin board.
PART I
The document(s) containing the information called for in Part I of Form
S-8 will be provided to the holder of the options referred to in the footnotes
above, as specified by Rule 428(b)(1). Such information is not being filed with
or included in this registration statement in accordance with the rules and
regulations of the Securities and Exchange Commission (the "Commission").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Commission by
Capitol Communities Corporation (the "Company" or the "Registrant") pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by this reference and shall be deemed a part hereof:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended September 30, 2001 and any amendments thereof; and
(b) All other reports filed by the Company pursuant to Section
13(a) and 15(d) of the Securities Exchange Act of 1934 since
September 30, 1996.
(c) The description of the Company's common stock, $.01 par value
per share (the "Common Stock") contained in the Form
10-SB-12(g) Registration Statement, filed with the Commission
on September 16, 1996 (the "Form 10-SB Registration
Statement").
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date
of this Registration Statement and 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 herein by reference in this Registration Statement and to be a part
hereof from the date of filing of such reports and documents. Any statement
contained 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 statement. Any such 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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the Common Shares being registered
hereby has been passed upon for the Registrant by Elizabeth Brandon-Brown,
counsel to the Registrant. Ms.Brandon-Brown, in her capacity as counsel, is paid
legal fees by the Registrant and is participating in the Registrant's
Non-Qualified Employee Incentive Stock Plan. Ms. Brandon-Brown holds options to
acquire 500,000 Common Shares.
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ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company is a Nevada corporation. Section 78.751(1) of the Nevada
Revised Statutes ("NRS") authorizes a Nevada corporation to indemnify any
director, officer, employee, or corporate agent "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" due to his corporate
role. Section 78.751(1) extends this protection "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 interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful."
Section 78.751(2) of the NRS also authorizes indemnification of the
reasonable defense or settlement expenses of a corporate director, officer,
employee or agent who is sued, or is threatened with a suit, by or in the right
of the corporation. The party must have been acting in good faith and with the
reasonable belief that his actions were not opposed to the corporation's best
interests. Unless the court rules that the party is reasonably entitled to
indemnification, the party seeking indemnification must not have been found
liable to the corporation.
To the extent that a corporate director, officer, employee, or agent is
successful on the merits or otherwise in defending any action or proceeding
referred to in Section 78.751(1) or 78.751(2), Section 78.751(3) of the NRS
requires that he be indemnified "against expenses, including attorneys' fees,
actually and reasonably incurred by him in connection with the defense."
Section 78.751(4) of the NRS limits indemnification under Sections
78.751(1) and 78.751(2) to situations in which either (1) the stockholders, (2)
the majority of a disinterested quorum of directors, or (3) independent legal
counsel determine that indemnification is proper under the circumstances.
Pursuant to Section 78.751(5) of the NRS, the Company may advance an
officer's or director's expenses incurred in defending any action or proceeding
upon receipt of an undertaking. Section 78.751(6)(a) provides that the rights to
indemnification and advancement of expenses shall not be deemed exclusive of any
other rights under any bylaw, agreement, stockholder vote or vote of
disinterested directors. Section 78.751(6)(b) extends the rights to
indemnification and advancement of expenses to former directors, officers,
employees and agents, as well as their heirs, executors and administrators.
Regardless of whether a director, officers, employee or agent has the
right to indemnity, Section 78.752 allows the corporation to purchase and
maintain insurance on his behalf against liability arising from this corporate
role.
Article VII, Section 7 of the Company's Bylaws restates the
above-referenced indemnification provisions of the NRS. Article 9 of the
Company's Articles of Incorporation requires the Company, to the fullest extent
permitted by Nevada law, to indemnify all persons whom it shall have the power
to indemnify under said law against any and all expenses, liabilities or other
matters referred to in or covered thereby, without excluding any other rights to
which the party to be indemnified may have. These rights continue as to persons
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who have ceased to be agents of the Company and inures to the benefit of such
persons' heirs, executors and administrators.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following documents, which have been filed by the Company with the
Securities and Exchange Commission, are incorporated into this Registration
Statement by reference, except those which are filed herewith.
Exhibit
Number
4. Non-Qualified Employee Incentive Stock Plan
4.1 Articles of Incorporation of the Registrant, as amended *
4.2 Bylaws of the Registrant *
5 Opinion of Elizabeth Brandon-Brown, Esq.
23.2 Consent of Elizabeth Brandon-Brown, Esq.**
23.3 Consent of Joel S. Baum P.A.
24 Power of Attorney (included on page 6 of this Registration Statement)
* Exhibit(s) incorporated by reference from the Registration on Form
10-SB of the Company, Registration No. 915636 filed on September 16,
1996.
** Incorporated by reference from Exhibit 5.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes, pursuant to Item 512 of
Regulation S-B:
(1) To file, during any period in which Registrant offers or sells the
securities registered hereunder, a post-effective amendment to this registration
statement to include any additional or changed material information with respect
to the plan of distribution.
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(2) That, for the purpose of determining 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Torrance, State of California, on March 4, 2002.
CAPITOL COMMUNITIES CORPORATION
By: /s/ Michael G. Todd
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President, Chairman of the Board, and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Michael G. Todd as his true and
lawful attorney-in-fact and agent with full powers of substitution and
re-substitution, for him in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, and any substitutes
therefor, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the foregoing, as fully to
all intents and purposes as he might or could do in person, lawfully do or cause
to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Raymond Baptista Director, Vice President March 4, 2002
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Raymond Baptista
/s/ Thomas C. Blake Director March 4, 2002
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Thomas C. Blake
/s/ David Paes Vice President, Treasurer March 4, 2002
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David Paes
EXHIBIT INDEX
The following documents, which have been filed by the Company with the
Securities and Exchange Commission, are incorporated in this Registration
Statement by reference, except those which are filed herewith.
Exhibit Description
4 Non-Qualified Employee Incentive Stock Plan
4.1 Articles of Incorporation of the Registrant, as amended *
4.2 Bylaws of the Registrant *
5 Opinion of Elizabeth Brandon-Brown, Esq.
10.44 Non-Qualified Employee Incentive Stock Plan
23.2 Consent of Elizabeth Brandon-Brown, Esq.**
23.3 Consent of Joel S. Baum P.A.
24 Power of Attorney (included on page 6 of this
Registration Statement)
* Exhibit(s) incorporated by reference from the Registration on Form
10-SB of the Company, Registration No. 915636 filed on September 16,
1996.
** Incorporated by reference from Exhibit 5.
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