As filed with the Securities and Exchange Commission on March 3, 2004
Registration No. __________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Asyst Corporation
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(Exact name of registrant as specified in its charter)
Utah 87-0416131
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(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
43 West 33 Street, New York, New York 10001
(Address of Principal Executive Offices) (Zip Code)
Asyst Corporation 2004 Stock Compensation Plan
(Full title of the plan)
Angelo A. Chinnici, M.D.
Chief Executive Officer
43 West 33 Street
New York, New York 10001
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(Name and address of agent for service)
(212) 695-3003
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(1) per share price fee(2)
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Common Stock, $.001 par value to be issued 4,300,000 shares $1.55 $6,665,000 $844.46
pursuant to the 2004 Asyst Corporation
Stock Compensation Plan
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(1) This Registration Statement shall also cover any additional shares of
common stock which become issuable under the Plan being registered
pursuant to this Registration Statement by reason of any stock
dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of our outstanding shares of common stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of
1933, as amended, based upon the average of the bid and asked price of
the Registrant's common stock on February 25, 2004, as reported in the
over-the-counter bulletin board market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) the Securities Exchange Act of 1934:
1. Our Annual Report on Form 10-KSB for the fiscal year ended July 31,
2003.
2. Our Quarterly Report on Form 10-QSB for the quarter ended October
31, 2003.
3. Our Definitive Proxy Statement on Schedule 14A filed December 2,
2004.
You may request a copy of these filings at no cost by writing or
telephoning us at the following address: Angelo A. Chinnici, Chief Executive
Officer, 43 West 33 Street, New York, New York 10001; (212) 695-3003.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Utah Statutes
Section 16-10a-841 of the Utah Revised Business Corporation Act
provides for the indemnification of the Company's officers, directors, employees
and agents under certain circumstances as follows:
"(1) Without limiting the generality of Subsection 16-10a-840(4), if so
provided in the articles of incorporation or in the bylaws or a resolution to
the extent permitted in Subsection (3), a corporation may eliminate or limit the
liability of a director to the corporation or to its shareholders for monetary
damages for any action taken or any failure to take any action as a director,
except liability for:
(a) the amount of a financial benefit received by a
director to which he is not entitled;
(b) an intentional infliction of harm on the corporation
or the shareholders;
(c) a violation of Section 16-10a-842; or
(d) an intentional violation of criminal law.
(2) No provision authorized under this section may eliminate or limit
the liability of a director for any act or omission occurring prior to the date
when the provision becomes effective.
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(3) Any provision authorized under this section to be included in the
articles of incorporation may also be adopted in the bylaws or by resolution,
but only if the provision is approved by the same percentage of shareholders of
each voting group as would be required to approve an amendment to the articles
of incorporation including the provision.
(4) Any foreign corporation authorized to transact business in this
state, including any federally chartered depository institution authorized under
federal law to transact business in this state, may adopt any provision
authorized under this section.
(5) With respect to a corporation that is a depository institution
regulated by the Department of Financial Institutions or by an agency of the
federal government, any provision authorized under this section may include the
elimination or limitation of the personal liability of a director or officer to
the corporation's members or depositors."
Section 16-10a-902 of the Utah Revised Business Corporation Act
provides for the indemnification of the Company's officers, directors, employees
and agents under certain circumstances as follows:
"(1) Except as provided in Subsection (4), a corporation may indemnify
an individual made a party to a proceeding because he is or was a director,
against liability incurred in the proceeding if:
(a) his conduct was in good faith; and
(b) he reasonably believed that his conduct was in, or
not opposed to, the corporation's best interests; and
(c) in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
(2) A director's conduct with respect to any employee benefit plan for
a purpose he reasonably believed to be in or not opposed to the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of Subsection (1)(b).
(3) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
(4) A corporation may not indemnify a director under this section:
(a) in connection with a proceeding by or in the right of
the corporation in which the director was adjudged
liable to the corporation; or
(b) in connection with any other proceeding charging that
the 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.
(5) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding."
Amended and Restated Articles of Incorporation
Our Articles of Incorporation contain no provisions regarding
indemnification of officers and directors.
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Bylaws
Our Bylaws provide for the indemnification of our directors, officers,
employees, or agents under certain circumstances as follows:
"ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnification. No officer or director shall be personally
liable for any obligations arising out of any acts or conduct of said officer or
director performed for or on behalf of the Corporation. The Corporation shall
and does hereby indemnify and hold harmless each person and his heirs and
administrators who shall serve at any time hereafter as a director or officer of
the Corporation from and against any and all claims, judgments and liabilities
to which such person shall become subject by reason of his having heretofore or
hereafter been a director or officer of the corporation, or by reason of any
action alleged to have been heretofore or hereafter taken or omitted to have
been taken by him as such director or officer, and shall reimburse each such
person for all legal and other expenses reasonably incurred by him in connection
with any such claim or liability; and shall have power to defend such person
from all suits as provided for under the provisions of the Utah Business
Corporation Act; provided, however that no such person shall be indemnified
against, or be reimbursed for, any expense incurred in connection with any claim
or liability arising out of his own negligence or willful misconduct. The rights
occurring to any person under the foregoing provisions of this section shall not
exclude any other right to which he may lawfully be entitled, nor shall anything
herein contained restrict the right of the Corporation to indemnify or reimburse
such person in any proper case, even though not specifically herein provided
for. The Corporation, its directors, officers, employees and agents shall be
fully protected in taking any action or making any payment or in refusing so to
do in reliance upon the advice of counsel.
Section 8.2 Other Indemnification. The indemnification herein provided
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any Bylaw, agreement, note of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer or
employee and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 8.3 Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer or employee
of the Corporation, or is or was serving at the request of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
him against liability under the provisions of this Article VIII or of subsection
(o) of Section 16-10-4 of the Utah Business Corporation Act.
Section 8.4 Settlement by Corporation. The right of any person to be
indemnified shall be subject always to the right of the Corporation by its Board
of Directors, in lieu of such indemnity, to settle any such claim, action, suit
or proceeding at the expense of the Corporation by the payment of the amount of
such settlement and the costs and expenses incurred in connection therewith.
Item 7. Exemption from Registration Claimed.
Inapplicable.
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Item 8. Exhibits.
Exhibit Number Description
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4.1 Asyst Corporation 2004 Stock Compensation Plan
5.1 Opinion of Spectrum Law Group, LLP re: legality of shares.
23.1 Consent of Spectrum Law Group, LLP (filed as Exhibit 5.1 herein).
23.2 Consent of Mantyla McReynolds
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes to file during
any period in which offers or sales of the securities 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 or
any material change to such information set forth in the Registration Statement.
B. The undersigned registrant hereby undertakes that, for
purposes 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.
C. The undersigned registrant hereby undertakes 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.
D. 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.
E. 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
The Registrant
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 New York, New York, on February 29, 2004.
ASYST CORPORATION
By: /s/ Angelo A. Chinnici
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Angelo A. Chinnici, CEO
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following persons in the capacities and
on the dates stated.
Signatures Title Date
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/s/ Angelo A. Chinnici Director February 29, 2004
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Angelo A. Chinnici
/s/ Philip Drachman Director February 29, 2004
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Philip Drachman
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