As Filed with the Securities and Exchange Commission on August 2002
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ELITE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Texas 76-025229
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
6991 Peachtree Industrial Blvd.
Norcross, Georgia 30096
(Address of Principal Executive Offices) (Zip Code)
STOCK UNDERLYING VARIOUS
CONSULTING AGREEMENTS
BETWEEN REGISTRANT AND
CONSULTANTS OF THE REGISTRANT
Bryan G. Harrison
1600 Atlanta Financial Center
3343 Peachtree Road, NE
Atlanta, GA 30326
(Name and address, including zip code of agent for service)
404-233-7000
(Telephone number, including area code, of agent for service)
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CALCULATATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed
Proposed Maximum
Maximum Aggregate
Title of Securities Amount to be Offering Price Offering Amount of
to be Registered Registered per Share* Price* Registration Fee
- --------------------------------------------------------------------------------
Common stock par 25,000,000 $.01 $250,000 $23
value $.0001
- --------------------------------------------------------------------------------
* Estimated solely for the purpose of calculating the amount of the registration
fee pursuant to Rule 457(c) on the basis of the average of the low bid and ask
prices of the Common Stock of the Registrant as traded in the over-the-counter
market and reported in the Electronic Bulletin Board of the National Association
of Securities Dealers on August 12, 2002.
PART I
DESCRIPTION OF EXECUTIVE, EMPLOYMENT AND CONSULTING
AGREEMENTS
The following table sets forth the number of shares of Common stock
issued or authorized to be issued pursuant to certain Consulting and Employment
Agreements attached hereto or incorporated herein by reference.
- ----------------------- --------------------------------------------------------
Compensation Number of Shares or
Agreement Options covered by
Selling Shareholder (Name of Plan) this Registration Statement
- ----------------------- --------------------------------------------------------
Terrance Byrne Consulting Agreement 24,000,000
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John Frohling Legal Services Agreement 1,000,000
- ----------------------- --------------------------------------------------------
TOTAL 25,000,000
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by reference in this
registration statement:
(a) Registrant's Annual Report on Form 10-K/A for the fiscal year
ended May 31, 2001, filed pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) Registrant's quarterly report on Form 10-Q for the fiscal quarters
ended August 31, 2001; November 30, 2001 and February 28, 2002
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14, and 15(d) of the Securities Act and Sections 13(a), 13(c), and 14 of the
Exchange Act after the date of this registration statement and prior to the
filing of a post-effective amendment to this registration statement which
indicates that all securities offered hereunder have been sold, or which
registers all securities then remaining unsold under this registration
statement, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
The authorized capital stock of Registrant consists of one hundred
million shares (500,000,000), par value $.0001 per share, all of which are
designated Common Stock par value $.0001 per share. As of August 1, 2002 there
were approximately sixty one million, four hundred twenty seven thousand, six
hundred and nine (61, 427, 609) shares of Common Stock issued and outstanding.
The holders of shares of Common Stock of the Registrant are entitled to
dividends when and as declared by the Board of Directors from funds legally
available therefore and, upon liquidation, are entitled to share pro rata in any
distribution to shareholders. Holders of the Common Stock have one
non-cumulative vote for each share held. There are no preemptive, conversion or
redemption privileges, nor sinking fund provisions, with respect to the Common
Stock.
Stockholders are entitled to one vote for each share of Common Stock
held of record on matters submitted to a vote of stockholders. The Common Stock
does not have cumulative voting rights. As a result, the holders of more than
50% of the shares of Common Stock voting for the election of directors can elect
all of the directors if they choose to do so, and, in such event, the holders of
the remaining shares of Common Stock will not be able to elect any person or
persons to the board of directors of Registrant.
The Registrant has no warrants or options outstanding.
Item 5. Interest of Named Experts and Counsel.
John B. Frohling, Esq., who has been issued 1,000,000 shares of common
stock included in this Registration Statement, is a member of the law firm of
Frohling, Hudak & Pellegrino, LLC Special Securities Counsel to the Registrant.
Item 6. Indemnification of Directors and Officers.
The Registrant's Articles of Incorporation, Article Nine, contains an
indemnification provision for its officers and directors as follows:
"A director of the corporation is not liable to the corporation or its
shareholders or members for monetary damages for an act or omission in
the director's capacity as director, unless the act or omission
involves a breach of a director's duty of loyalty to the corporation or
its shareholders or members; of the act or omission is not in good
faith or involves intentional misconduct or a knowing violation of the
law; or the director engages in a transaction from which he receives an
improper benefit, whether or not the benefit resulted from an action
taken within the scope of the director's office; or the act or omission
is one in which the liability of the director is expressly provided for
by statute; or the director engages in an act related to an unlawful
stock repurchase or payment of dividend."
The Registrant's By- Laws, Section 8.2, AUTHORITY TO INDEMNIFY provides
that
A Except as otherwise provided in this section, the Corporation shall
indemnify an individual who is a party to a proceeding because he or
she is or was a director against liability incurred in the proceeding
if such individual conducted himself or herself in good faith and such
individual reasonably believed (i) in the case of conduct in his or
her official capacity, that such conduct was in the best interests of
the Corporation; (ii) in all other cases, that such conduct was at
least not opposed to the best interests of the Corporation; and (iii)
in the case of any criminal proceeding, that the individual had no
reasonable cause to believe such conduct was unlawful.
B The termination of proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the director did not meet the
standard or conduct described in Section 8.2 (A).
C The Corporation shall not indemnify a director under Section 8.2 (A)
in connection with a proceeding by or in the right of the Corporation,
except for reasonable expenses incurred in connection with the
proceeding if it is determined that the director has met the relevant
standard of conduct under this section; or in connection with any
proceeding with respect to conduct for which he was adjudged liable on
the basis that personal benefit was improperly received by him,
whether or not involving action in his official capacity.
Section 8.1 of the By- Laws contains various definitions including who
is an officer and director, Section 8.2 deals with Advances for Expenses;
Section 8.4 the authorization of the Indemnification of Officers, Employees, and
Agents.
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, the Registrant has been
informed 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 registrant of expenses incurred 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, 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.
Except to the extent hereinabove set forth, there is no charter
provision, by-law, contract, arrangement or statute pursuant to which any
director or officer of registrant is indemnified in any manner against any
liability which he may incur in his capacity as such.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The exhibits filed as a part of this Report or incorporated herein by reference
are as follows:
Exhibit
No. Item
4.5 Consulting Agreement between Terrance Byrne and the Registrant effective
July 23, 2002.
4.2 Letter of Engagement between Frohling, Hudak & Pellegrino, LLC and the
Registrant dated August 5, 2002 effective August 9, 2002.
5.1 Opinion of Frohling, Hudak & Pellegrino, LLC, regarding the legality of the
securities being registered under this Registration Statement.
24.1 Consent of Ricardo Blanco Vega, Certified Public Accountant.
24.2 Consent of Kirschner and Associates Certified Public Accountants.
24.3 Consent of KPMG LLP, Certified Public Accountants
24.4 Consent of Frohling, Hudak & Pellegrino, LLC, (set forth in the opinion of
counsel included as Exhibit 5.1).
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 section
10(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 thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the 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 information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this 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 plans 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 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 the City of Norcross, Georgia, on the ___ day of August, 2002.
By /s/ Scott Schuster
------------------------------
Scott Schuster
Chief Executive Officer/Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, the
following persons in the capacities and on the date indicated have signed this
Registration Statement.
Signature Title Date
--------- ----- ----
/s/ Scott Schuster Chief Executive Officer/ August __,2002
Chief Financial Officer
- ----------------------------
Scott Schuster
Majority of the Board of Directors
/s/ Frank Noori Director August__, 2002
- ----------------------------
Frank Noori
/s/ David Aksoy Director August__, 2002
- ----------------------------
David Aksoy
/s/ Stephen Randy Ragsdale Director August__, 2002
- ----------------------------
Stephen Randy Ragsdale
Signature on File
INDEX TO EXHIBITS BEING FILED HEREWITH
Exhibit
No. Item
4.5 Consulting Agreement between Terrance Byrne and the Registrant effective
July 23, 2002.
4.6 Letter of Engagement between Frohling, Hudak and Pellegrino LLC and the
Registrant dated August 9, 2002.
5.1 Opinion of Frohling, Hudak & Pellegrino, LLC, regarding the legality of the
securities being registered under this Registration Statement.
24.1 Consent of Ricardo Blanco Vega, Certified Public Accountants.
24.2 Consent of Kirchner and Associates Certified Public Accountants
24.3 Consent of KPMG LLP, Certified Public Accountants
24.4 Consent of Frohling, Hudak, & Pellegrino Counsel for the Registrant (Set
forth in the opinion of counsel included as Exhibit 5.1).
Exhibit 4.5
CONSULTING AGREEMENT
ELITE TECHNOLOGIES, INC. A TEXAS CORPORATION, (HEREINAFTER
REFERRED TO AS
"COMPANY") AND TERRENCE BYRNE (HEREINAFTER REFERRED TO AS
"CONSULTANT") AGREE AS
FOLLOWS:
1. CONSULTANT: Company hires Consultant and Consultant hereby accepts consulting
with the Company upon the terms and conditions hereinafter set forth.
2. TERM OF CONSULTING AGREEMENT:
A. INITIAL TERM: The term of this Consulting Agreement shall commence on
July 23, 2002 and shall terminate on July 22, 2004, unless otherwise
extended or terminated as provided for under this agreement.
3. CONSULTANT'S DUTIES:
A. TITLE: Consultant shall serve as an independent outside Marketing
Advisor to the Company. In that capacity, Consultant shall provide
introduction to business contacts, marketing outlets and other such
services, acts, or things necessary to increase the marketing
awareness of the Company's product lines.
B. LOYAL AND CONSCIENTIOUS PERFORMANCE: Consultant agrees that to
the
best of his ability and experience he will at all times loyally and
conscientiously perform all of the obligations required of him either
expressly or implicitly by the terms of this agreement.
C. COMPETITIVE ACTIVITIES: During the term of this agreement Consultant
shall not, directly participate in any business that is in competition
in any manner whatsoever with the business of the Company.
D. TRADE SECRETS:
(i) The parties acknowledge and agree that during the
term of this agreement and in the course of the
discharge of his consulting hereunder, Consultant
shall have access to and become acquainted with
information concerning the operation of the Company,
including without limitation, customers, financial,
personnel, sales, planning, marketing and other
information that is owned by the Company and
regularly used in the operation of the Company's
business and that this information constitutes the
Company's trade secrets.
(ii) Consultant agrees that he shall not disclose any such
trade secrets, directly or indirectly, to any other
person or use them in any way, either during the term
of this agreement or at any time thereafter, except
as is required in the course of his consulting with
the Company. The unauthorized use or disclosure of
any of the Company's trade secrets obtained by
Consultant during his consulting with the Company
shall constitute unfair competition.
(iii) Consultant further agrees that all files, records,
documents, equipment and similar items relating to
Company's business, whether prepared by Consultant or
others, are and shall remain exclusively the property
of the Company.
4. COMPENSATION:
A. BASE COMPENSATION: The Consultants shall receive 20,000,000 shares of
Stock in Elite Technologies, Inc. with S-8 registration rights.
B. SEVERANCE ALLOWANCE: Notwithstanding any provision of this agreement,
if, during the initial term of this agreement or any extension
thereof, the Company terminates this agreement without cause or
materially breaches this agreement, the Company shall pay Consultant,
without setoff, the balance owing under this agreement ("Severance
Allowance") upon termination.
C. TAX WITHHOLDING: Consultant hereby acknowledges and warrants that
neither it, nor any of its employees or agents, will be treated as an
employee of the Company with respect to any services rendered to the
Company for any purpose whatever, including without limitation for the
purpose of Social Security, Federal or State Unemployment taxes or
income tax withholding at any source. Consultant shall be solely
responsible for its Federal, State and Local income taxes, if any.
D. PROXY AND VOTING RIGHTS: Consultant hereby agrees to execute an
irrevocable proxy to a designee of Company transferring all voting
rights of the shares issued as compensation under the terms and
provisions hereof.
5. EXPENSE ALLOWANCE: Company shall reimburse Consultant for all business
related expenses incurred by Consultant during the course of his consulting on
behalf of the Company.
6. TERMINATION:
A. TERMINATION FOR CAUSE: The Company reserves the right to terminate
this agreement, if Consultant willfully breaches or habitually
neglects his consulting duties which he is asked to perform under the
terms of this agreement, or commits such acts of dishonesty, fraud,
misrepresentation or other acts of moral turpitude as would prevent
the effective performance of his consulting. Any outstanding stock
options would be considered void as of the date of termination.
B. TERMINATION BY CONSULTANT: Consultant may terminate his obligations
under this agreement by giving the Company at least 30 days (30)
notice in advance. Any stock paid by the Company to Consultant shall
be returned, on a pro rata basis, so that for each month remaining
under the original term of this Agreement, Consultant shall return
1/24 of the shares issued as compensation under the terms and
provisions of this Agreement. If Consultant has liquidated or in any
manner disposed of, traded, sold, hypthicated or otherwise transferred
the owernship of the shares issued as compensation under this
Agreement, Consultant shall be required to purchase the shares from
the Company or from the open public market.
7. CONSULTANT'S OBLIGATION AFTER TERMINATION: The Consultant agrees that for a
period of one year (1) immediately following the termination of his consulting
with the Company, Consultant shall not directly or indirectly make known to any
person, firm, or corporation the names or addresses of any of the customers of
the Company or any other information pertaining to them, or call on, solicit,
take away, or attempt to call on, solicit, or take away any of the acquaintances
during his term of consulting with the Company, either for himself or for any
other person, firm, or corporation.
8. MEDIATION. Any controversy between the parties involving the construction or
application of any terms, provisions, or conditions of this agreement, shall on
the written request of either party served on the other, be submitted to
mediation before a neutral third party. The parties shall share the cost of
mediation jointly.
9. ENTIRE AGREEMENT: This agreement supersedes any and all other agreements,
either written or oral, between the parties hereto with respect to the
consulting of the Consultant to the Company and contains all of the covenants
and agreements between the parties with respect to such consulting for the
Company in any manner whatsoever. Both parties must sign any modification to
this agreement.
10. PARTIAL INVALIDITY: If any part of this agreement shall be determined by a
court or mediator to be invalid, the remainder hereof shall be construed as if
the invalid portion has been omitted.
11. WAIVER: No waiver of any of the provisions of this agreement shall be deemed
or shall constitute a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
12. LAW GOVERNING AGREEMENT: This agreement shall be governed by and
construed
in accordance with the laws of the State of Georgia.
COMPANY: CONSULTANT:
Elite Technologies, Inc. Name: Terrance Byrne
By:___________________________ By:___________________________
Scott Schuster, President & CEO
Title:_________________________
Date:_________________________
Date:_________________________
Exhibit 4.6
FROHLING, HUDAK, & PELLEGRINO, LLC COUNSELLORS AT LAW
17 Fulton Street Newark,
New Jersey 07102
(973) 622- 2800
(973) 622- 2865fax
August 5, 2002
Scott Schuster, CEO
Elite Technologies, Inc.
3340 Peachtree Place, ste 1800
Atlanta, GA 30326
RE: Letter of engagement
Dear Mr. Schuster:
This letter will confirm our engagement to provide legal services to
Elite Technologies, Inc. commencing as of the date you engage us and pay the
retainer referred to herein.
We have agreed to provide the following services: review of filings to
the Securities & Exchange Commission ("SEC") and comment letters if any, prepare
and prosecute the filing of an S-8 and other SEC filing forms such as 10qs and
10-KA.
We will render you bills on a monthly basis for services rendered and
for out-of-pocket expenses incurred. We require that all bills be paid within 15
days of being received by you.
We will require a retainer in the amount of $7,500 payable against
services to be rendered with respect to this matter. In the event that your
prefer we would consider payment in the Company's common stock registered under
S-8 at a mutually agreeable price per share.
Thank you for retaining this firm.
Sincerely yours,
John B.M. Frohling
accepted this ____day of august, 2002
elite technologies, inc.
by:_____________________________________
Scott Schuster, CEO
Schedule A
Sr. Partner $300.00 per hour
Partner $250.00 per hour
Associate $175.00 per hour
Legal assistant $ 60.00 per hour
Exhibit 24.2
Kirschner & Associates, PC.
Certified Public Accountants
531 Roselane Street NW
Suite 310
Marietta, Georgia 30060
The Board of Directors Elite Technologies, Inc.
We consent to the inclusion in the Registration Statement on Form S-8 of Elite
Technologies, Inc., dated on or about August 22, 2002, our report dated November
9, 2000, except for Note 13 (c) as to which the date is February 21, 2001,
related to the consolidated balance sheet as of May 31, 2000, and the
consolidated statements of operations, stockholders' equity, and cash flows of
Elite Technologies, Inc. and subsidiaries for year ended May 31, 2000.
/s/ Kirschner & Associates, P.C.
Certified Public Accountants
Marietta, Georgia
August 22, 2002
Office 770-590-8969 - FAX 770-590-1523 - email kircpa@bellsouth.net
Exhibit 24.3
Consent of KPMG, LLP
We hereby consent to the use of our name, financial statements and opinions in
the registration statement filed on form S-8 by the Elite Technologies, Inc.
KPMG LLP Dated, August 30, 2002
By /s/ Wendall Sealey, KPMG
-------------------------
Wendall Sealey, KPMG