As filed with the Securities and Exchange Commission on June 30, 2003
Registration No. 333- ............
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S - 8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EARTH SEARCH SCIENCES, INC.
(Exact name of registrant as specified in its charter)
UTAH 87-0437723
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1729 MONTANA HIGHWAY 35
KALISPELL, MONTANA 59901
(Address of Principal Executive Offices) (Zip Code)
2003 STOCK COMPENSATION PLAN
(Full title of the plan)
LARRY F. VANCE
1729 MONTANA HIGHWAY 35
KALISPELL, MONTANA 59901
With a Copy to
LAWRENCE E. WILSON
FRANKLIN, CARDWELL & JONES
1001 MCKINNEY, 18TH FLOOR
HOUSTON, TX 77002
(Name and address of agent for service)
(406) 751-5200
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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TITLE PROPOSED PROPOSED
OF SECURITIES AMOUNT TO MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED/1/ BE REGISTERED/1/ PRICE PER SHARE/2/ OFFERING PRICE/2/ REGISTRATION FEE
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Common Stock,
$.001 par value per share 15,000,000 $.013 $195,000 $15.78
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/1/ In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plans(s) described herein.
/2/ Pursuant to Rule 457(g) under the Securities Act of 1933, the offering price
of shares of Common Stock to be purchased pursuant to the Plan is based on the
average of the bid and asked prices on June 27, 2003 for the purposes of
computing the filing fees.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's Annual Report on Form 10-K for the year ended March 31,
2002, Quarterly Report on Form 10-Q for the three months ended June 30, 2002,
Quarterly Report on Form 10-Q for the three and six months ended September 30,
2002, Quarterly Report on Form 10-Q for the three and nine months ended December
31, 2002, all Current Reports on Form 8-K filed for periods after March 31,
2002, and the description of the Company's Common Stock included in its
registration statement on Form 10-SB filed with the Securities and Exchange
Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934 are
incorporated herein by reference. All documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 16-10a-902 ("Section 902") of the Utah Revised Business
Corporation Act (the "Revised Act") provides that a corporation may indemnify
any individual who was, is, or is threatened to be made a named defendant or
respondent (a "Party") in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal (a "Proceeding"), because he is or was a director of the
corporation or is or was serving at its request as a director, officer, partner,
trustee, employee, fiduciary or agent of another corporation or other person or
of an employee benefit plan (an "Indemnified Director"), against any obligation
incurred with respect to a Proceeding, including any judgment, settlement,
penalty, fine or reasonable expenses (including attorneys' fees), incurred in
the Proceeding if his conduct was in good faith, he reasonably believed that his
conduct was in, or not opposed to, the best interests of the corporation, and,
in the case of any criminal Proceeding, he had no reasonable cause to believe
his conduct was unlawful; except that (i) indemnification under Section 902 in
connection with a Proceeding by or in the right of the corporation is limited to
payment of reasonable expenses (including attorneys' fees) incurred in
connection with the Proceeding and (ii) the corporation may not indemnify an
Indemnified Director in connection with a Proceeding by or in the right of the
corporation in which the Indemnified Director was
adjudged liable to the corporation, or in connection with any other Proceeding
charging that the Indemnified Director derived an improper personal benefit,
whether or not involving action in his official capacity, in which Proceeding he
was adjudged liable on the basis that he derived an improper personal benefit.
Section 16-10a-906 of the Revised Act provides that a corporation may
not indemnify a director under Section 902 unless authorized and a determination
has been made (by the board of directors, a committee of the board of directors
or by the stockholders) that indemnification of the director is permissible in
the circumstances because the director has met the applicable standard of
conduct set forth in Section 902.
Section 16-10a-903 ("Section 903") of the Revised Act provides that,
unless limited by its articles of incorporation, a corporation shall indemnify a
director who was successful, on the merits or otherwise, in the defense of any
Proceeding, or in the defense of any claim, issue or matter in the proceeding,
to which he was a Party because he is or was a director of the corporation,
against reasonable expenses (including attorneys' fees) incurred by him in
connection with the Proceeding or claim.
In addition to the indemnification provided by Sections 902 and 903,
Section 16-10a-905 ("Section 905") of the Revised Act provides that, unless
otherwise limited by a corporation's articles of incorporation, a director may
apply for indemnification to the court conducting the Proceeding or to another
court of competent jurisdiction. On receipt of an application and after giving
any notice the court considers necessary, (i) the court may order mandatory
indemnification under Section 903, in which case the court shall also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification, or (ii) upon the court's determination that the director is
fairly and reasonably entitled to indemnification in view of all the relevant
circumstances and regardless of whether the director met the applicable standard
of conduct set forth in Section 902, the court may order indemnification as the
court determines to be proper, except that indemnification with respect to
certain Proceedings resulting in a director being found liable for certain
actions against the corporation may be limited to reasonable expenses (including
attorneys' fees) incurred by the director.
Section 16-10a-904 ("Section 904") of the Revised Act provides that a
corporation may pay for or reimburse the reasonable expenses (including
attorneys' fees) incurred by a director who is a Party to a Proceeding in
advance of the final disposition of the Proceeding if (i) the director furnishes
the corporation a written affirmation of his good faith belief that he has met
the applicable standard of conduct described in Section 902, (ii) the director
furnishes to the corporation a written undertaking, executed personally or in
his behalf, to repay the advance if it is ultimately determined that he did not
meet the required standard of conduct, and (iii) a determination is made that
the facts then known to those making the determination would not preclude
indemnification under Section 904.
Section 16-10a-907 of the Revised Act provides that, unless a
corporation's articles of incorporation provide otherwise, (i) an officer of the
corporation is entitled to mandatory indemnification
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under Section 903 and is entitled to apply for court ordered indemnification
under Section 905, in each case to the same extent as a director, (ii) the
corporation may indemnify and advance expenses to an officer, employee,
fiduciary or agent of the corporation to the same extent as a director, and
(iii) a corporation may also indemnify and advance expenses to an officer,
employee, fiduciary or agent who is not a director to a greater extent than the
right of indemnification granted to directors, if not inconsistent with public
policy, and if provided for by its articles of incorporation, bylaws, general or
specific action of its board of directors or contract.
No provision of the Company's Articles of Incorporation or bylaws
limits the application of the Revised Act. Such provisions are sufficiently
broad to permit the indemnification of such persons in certain circumstances
against liabilities arising under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors and officers, and to persons controlling
our company pursuant to the foregoing provisions, we have been informed 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this Registration
Statement pursuant to Item 601 of Regulation S-B.
4.1 2003 Stock Compensation Plan.
5.1 Opinion of Franklin, Cardwell & Jones.
23.1 Consent of Grant Thornton LLP, independent public
accountants.
23.2 Consent of Franklin, Cardwell & Jones (included in Exhibit
5.1).
24.1 Power of Attorney (included on Signature Page).
ITEM 9. UNDERTAKINGS.
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 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
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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.
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.
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.
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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 Kalispell, and the State of Montana, on June 19,
2003.
EARTH SEARCH SCIENCES, INC.
By: /s/ Larry F. Vance
--------------------------
Larry F. Vance
Chief Executive Officer
By: /s/ Tami J. Story
---------------------------
Tami J. Story
Chief Financial Officer
Chief Accounting Officer
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Each person whose signature appears below constitutes and appoints
Larry F. Vance as his/her true and lawful attorney-in-fact and agent, with full
powers of substitution and re-substitution, for him/her and in his/her 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
attorneys-in-fact and agents, each acting alone, full powers 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
attorney-in-fact and agent, or his or her substitute or 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 below by the following persons in the
capacities indicated on June 19, 2003.
/s/ Larry F. Vance /s/ Tami J. Story
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Larry F. Vance Tami J. Story
Director Director
/s/ Ken Danchuk
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Ken Danchuk
Director
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EXHIBIT INDEX
4.1 2003 Stock Compensation Plan
5.1 Opinion of Franklin, Cardwell & Jones
23.1 Consent of Grant Thornton LLP
23.2 Consent of Franklin, Cardwell & Jones (included in Exhibit 5.1)
24.1 Power of Attorney (included on Signature Page)
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