UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SEALIFE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 34-1444240
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
5601 W. SLAUSON AVENUE, SUITE 283
CULVER CITY, CALIFORNIA 90230
(Address of Principal Executive Offices) (Zip Code)
FIVE EMPLOYMENT, CONSULTING AND/OR LEGAL SERVICES AGREEMENTS
2004 STOCK AWARD PLAN
(Full Title of the Plans)
ROBERT MCCASLIN, CHIEF EXECUTIVE OFFICER
5601 W. SLAUSON AVENUE, SUITE 283
CULVER CITY, CALIFORNIA 90230
(Name and Address of Agent for Service)
(310) 338-9757
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
V. JOSEPH STUBBS, ESQ.
GREGORY AKSELRUD, ESQ.
STUBBS ALDERTON & MARKILES, LLP
15821 VENTURA BOULEVARD, SUITE 525
ENCINO, CALIFORNIA 91436
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Class Offering Aggregate Amount Of
of Securities Amount To Be Price Per Offering Registration
To Be Registered Registered(1) Share(2)(3) Price(2)(3) Fee(3)
---------------- ------------- ----------- ----------- ------
Common Stock, par
value $.0001 per
share ........... 1,616,119 $0.37 $449,964 $57.01
- ----------
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers such additional
shares as may hereinafter be offered or issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions
effected without the receipt of consideration.
(2) Determined in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the Registration Fee.
(3) Pursuant to Instruction E of Form S-8, the calculated filing fee is with
respect to the additional securities (1,216,119 shares) only.
- --------------------------------------------------------------------------------
EXPLANATORY NOTE
SeaLife Corporation, a Delaware corporation (the "Registrant"), filed a
Registration Statement on Form S-8 with the Securities and Exchange Commission
on August 6, 2004 (File No. 333-118018) (the "Original Registration Statement"),
registering 400,000 shares of the Common Stock (the "Common Stock"), par value
$0.0001 per share, of the Registrant, to be issued pursuant to employment,
consulting and/or legal services agreements as follows:
(i) 141,667 shares of Common Stock to be issued to Gael Himmah
pursuant to that certain Consulting Agreement dated as of January
1, 2003, as amended, between the Registrant and Gael Himmah;
(ii) 108,333 shares of Common Stock to be issued to Barre Rorabaugh
pursuant to that certain Executive Employment Agreement dated as
of June 14, 2004, as amended, between the Registrant and Barre
Rorabaugh;
(iii) 100,000 shares to be issued in the aggregate to individual
partners of Stubbs Alderton & Markiles, LLP pursuant to that
certain Engagement Letter dated May 17, 2004, as amended, between
the Registrant and Stubbs Alderton & Markiles, LLP; and
(iv) 50,000 shares of Common Stock to be issued to Lee Dicker pursuant
to that certain Engagement Letter dated December 15, 2003, between
the Registrant and Leonard, Dicker & Schreiber, LLP.
The purpose of this Post-Effective Amendment is to register 1,216,119 additional
shares of the Common Stock of the Registrant to be issued as follows:
(i) 160,714 shares of Common Stock to be issued to Gael Himmah
pursuant to that certain Consulting Agreement dated as of January
1, 2003, as amended, between the Registrant and Gael Himmah;
(ii) 110,000 shares of Common Stock to be issued to Barre Rorabaugh
pursuant to that certain Executive Employment Agreement dated as
of June 14, 2004, as amended, between the Registrant and Barre
Rorabaugh;
(iii) 405,405 shares to be issued in the aggregate to individual
partners of Stubbs Alderton & Markiles, LLP pursuant to that
certain Engagement Letter dated May 17, 2004, as amended, between
the Registrant and Stubbs Alderton & Markiles, LLP;
(iv) 10,000 shares of Common Stock to be issued to Michael Caraway, CPA
pursuant to that certain Consulting Agreement effective as of
October 18, 2004, between the Registrant and Michael Caraway, CPA.
(v) 50,000 shares of Common Stock to be issued to Donald Davis
pursuant to that certain Engagement Letter dated November 15, 2004
between the Registrant and Davis & Associates, LLP; and
(vi) 80,000 shares of Common Stock to be issued to Robert Lee pursuant
to that certain Letter Agreement dated as of November 10, 2004,
between the Registrant and Robert Lee.
(vii) 400,000 shares to be issued to employees, officers, directors and
consultants of the Registrant pursuant to the provisions of the
Registrant's 2004 Stock Award Plan.
Because the shares herein registered are of the same class as the 400,000 shares
previously registered by the Registrant on the Original Registration Statement,
Instruction E to Form S-8 allows the Registrant to, and the Registrant hereby
does, incorporate that Original Registration Statement on Form S-8 by reference.
This Post-Effective Amendment also includes a Reoffer Prospectus prepared in
accordance with the requirements of Instruction C to Form S-8 and Part I of Form
S-3.
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2
PART I*
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
* Except for the Reoffer Prospectus included herein, information
required by Part I to be contained in the Section 10(a) prospectus is omitted
from the Registration Statement in accordance with Rule 428 under the Securities
Act of 1933, as amended, and the Note to Part I of Form S-8.
REOFFER PROSPECTUS
SEALIFE CORPORATION
110,000 SHARES OF COMMON STOCK
($0.0001 par value)
----------
This reoffer prospectus relates to the offer and sale from time to time
of 110,000 shares of our common stock held by the stockholder named in the
"Selling Stockholder" section of this reoffer prospectus. The shares of our
common stock offered pursuant to this prospectus were originally issued to the
selling stockholder pursuant to our Registration Statement on Form S-8, filed
with the Securities and Exchange Commission on August 6, 2004, as amended, in
accordance with an Executive Employment Agreement dated June 14, 2004. The
selling stockholder is the President of our indirect wholly-owned subsidiary and
may be deemed an "affiliate" of us under Rule 405, promulgated under the
Securities Act of 1933, as amended.
The prices at which the selling stockholder may sell the shares in this
offering will be determined by the prevailing market price for the shares or in
negotiated transactions. We will not receive any of the proceeds from the sale
of the shares. We will bear all expenses of registration incurred in connection
with this offering. The selling stockholder whose shares are being registered
will bear all selling and other expenses.
Our common stock is traded on the Over-The-Counter Bulletin Board under
the symbol "SLIF." October 25, 2004, the last reported sale price of the common
stock on the Over-The-Counter Bulletin Board was $0.34 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 6 TO READ ABOUT THE RISKS YOU
SHOULD CONSIDER CAREFULLY BEFORE BUYING SHARES OF OUR COMMON STOCK.
----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
----------
The date of this prospectus is November 15, 2004
3
TABLE OF CONTENTS
PAGE
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PROSPECTUS SUMMARY 5
RISK FACTORS 6
FORWARD-LOOKING STATEMENTS 12
USE OF PROCEEDS 13
SELLING STOCKHOLDER 13
PLAN OF DISTRIBUTION 14
WHERE YOU CAN FIND MORE INFORMATION 15
LEGAL MATTERS 16
EXPERTS 16
4
PROSPECTUS SUMMARY
ABOUT SEALIFE CORPORATION
Our vision is to develop, market and supply eco-friendly products that can solve
complex environmental problems with simple natural solutions, establishing the
environmentally safe choice as the right choice for future generations.
Our goal is to establish the company as the global leader in "probiotic"
technologies. Probiotic technologies refer to technologies and products that
work in "partnership with nature" without harming the environment. We believe
that worldwide demand for development of products that are not only safe for the
environment but will also help clean the environmental damage caused by decades
of use and disposal of deadly toxins and the overuse of pesticides and
fertilizers, is growing, and will continue to grow. We believe that a
substantial percentage of the products in use today can and will be replaced by
effective, environmentally safe equivalents.
We have developed a line of products utilizing such "probiotic" technologies for
the marine, agricultural and remediation markets. We are now entering our last
stage as a development company and will begin substantial sales and marketing
efforts beginning in 2005. Recently, however, we began sales and marketing
efforts to launch our marine product, SeaLife 1000(TM) and our agricultural
products, NuLagoonTM and Soil ResQTM. In anticipation of our intended growth and
the introduction of additional products to the market in the near future, we
have implemented a corporate structure whereby each market is served by a
separately operated subsidiary or division. Our marine products business is
operated by our indirect wholly-owned subsidiary, SeaLife Marine Products, Inc.
Our agricultural products business is operated by our indirect wholly-owned
subsidiary, ProTerra Technologies, Inc. Our remediation product business is
operated as a division of the company. We also plan on establishing a research
and development division that will focus on the testing and development of
existing and new products for each of our subsidiaries and divisions. We have
structured our operations in this manner to accommodate the wide range of
products that have been and will be developed for unrelated markets.
CORPORATE INFORMATION
INCORPORATION
We were incorporated in Delaware in 1984 under the name Fraser Realty Group. We
operated as a real estate investment trust until 1990, when management was
unable to secure additional financing or find other means of obtaining needed
cash to permit us to meet our obligations. As a result, we ceased operations and
remained inactive until December 2002.
ACQUISITION OF NEVADA CORPORATION
On December 17, 2002, pursuant to an Exchange Agreement dated June 30, 2002, we
acquired all of the issued and outstanding shares of SeaLife Corp., a Nevada
Corporation ("SeaLife Nevada"), in exchange for a substantial majority of the
shares of our common stock (the "Acquisition"). Our stockholders retained their
274,554 shares of common stock which were issued and outstanding prior to the
consummation of the Acquisition. Concurrent with the Acquisition, we changed our
name from Integrated Enterprises, Inc. to SeaLife Corporation, our former
directors and officers resigned, and the directors and officers of SeaLife Corp.
became our directors and officers.
The Acquisition resulted in our change of control, with the former stockholders
of SeaLife Nevada acquiring a substantial majority of our common stock
immediately following the closing of the Acquisition. Therefore, the Acquisition
was accounted for as a reverse merger, pursuant to which the accounting basis of
SeaLife Nevada continued unchanged subsequent to the transaction date.
Accordingly, the pre-transaction financial statements of SeaLife Nevada are now
our historical financial statements.
5
Sealife Nevada was organized in April of 2002 to acquire, develop and market
certain proprietary products invented by Gael Himmah. At the time of the
Acquisition, Sealife Nevada owned all of the outstanding stock of Division G,
Inc. a California corporation ("Division G"), Sealife Marine Products, Inc., a
California corporation ("Sealife Marine"), and Proterra Technologies, Inc. a
California corporation ("Proterra"). As a result of the Acquisition, we became
the parent and sole shareholder of Sealife Nevada, and thereby the indirect
owner Division G, Sealife Marine and Proterra.
Our executive offices are located at 5601 W. Slauson Avenue, Culver City,
California, 90230, and our telephone number is (310) 338-9757.
ABOUT THE OFFERING
This prospectus may be used only in connection with the resale by the selling
stockholder of 110,000 shares of our common stock.
We will not receive any proceeds from the sale of the shares of common stock
offered by the selling stockholder using this prospectus. On October 25, 2004,
we had 15,009,043 shares of common stock outstanding.
The total number of securities registered under the Post-Effective Amendment No.
1 to the Registration Statement on Form S-8 of which this Reoffer Prospectus is
a part is 1,731,428 shares, all of which are common stock of the Registrant. The
Registrant is presently authorized to issue 100,000,000 shares of its Common
Stock. As of October 25, 2004, there were 15,009,043 outstanding and subscribed
for shares. The holders of common stock are entitled to one vote per share on
each matter submitted to a vote at any meeting of shareholders. Shareholders of
the Registrant have no preemptive rights to acquire additional shares of common
stock or other securities. The common stock is not subject to redemption and
carries no subscription or conversion rights. In the event of liquidation of the
Registrant, the shares of common stock are entitled to share equally in
corporate assets after satisfaction of all liabilities. The shares, when issued,
will be fully paid and non-assessable. A majority of all issued and outstanding
shares shall constitute a quorum for conducting business. The majority of shares
present, in any regular or special meeting where a quorum is present, may vote
in favor of or against any item of business or election, and shall constitute a
majority approval or disapproval of matters voted upon at any such meeting.
Shares of common stock do not carry cumulative voting rights. The Registrant
presently does not pay any dividends and has no foreseeable plan to pay
dividends. There are no special preemptive rights or rights upon liquidation,
other than the normal rights and priorities which would attach to shares in
liquidation pursuant to Delaware Law. The shares are not subject to call,
liability or assessment.
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS AND ALL OTHER
INFORMATION CONTAINED IN THIS REPORT BEFORE PURCHASING SHARES OF OUR COMMON
STOCK. INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. IF ANY OF
THE FOLLOWING EVENTS OR OUTCOMES ACTUALLY OCCURS, OUR BUSINESS, OPERATING
RESULTS AND FINANCIAL CONDITION WOULD LIKELY SUFFER. AS A RESULT, THE TRADING
PRICE OF OUR COMMON STOCK COULD DECLINE, AND YOU MAY LOSE ALL OR PART OF THE
MONEY YOU PAID TO PURCHASE OUR COMMON STOCK.
RISK RELATED TO OUR BUSINESS
OUR AUDITORS HAVE A GOING CONCERN QUALIFICATION IN THEIR OPINION CONTAINED
IN OUR AUDITED CONSOLIDATED FINANCIAL STATEMENTS WHICH RAISES SUBSTANTIAL
DOUBT ABOUT OUR ABILITY TO CONTINUE AS A GOING CONCERN.
As a result of our substantial historical operating losses, limited revenues and
working capital and our capital needs, our auditors have added a going concern
qualification (explanatory paragraph) in their report contained
6
in our audited consolidated financial statements for the year ended May 31, 2004
which raises substantial doubt about our ability to continue as a going concern.
While we have relied principally in the past on external financing to provide
liquidity and capital resources for our operations, we can provide no assurances
that cash generated from operations together with cash received in the future
from external financing, if any, will be sufficient to enable us to continue as
a going concern.
WE HAVE INCURRED SUBSTANTIAL LOSSES FROM INCEPTION WHILE REALIZING LIMITED
REVENUES AND WE MAY NEVER GENERATE SUBSTANTIAL REVENUES OR BE PROFITABLE IN
THE FUTURE.
For each fiscal year since our acquisition of SeaLife Nevada in 2002, we have
generated net losses and we have accumulated losses totaling approximately
$3,109,197 as of September 30, 2004. We have only recently emerged from our
development stage operations and have historically generated limited revenues.
We can provide no assurances that our operations will generate substantial
revenues or be profitable in the future. We have just recently introduced some
of our products into the market place have shipped small quantities to our
distributors.
OUR FUTURE REVENUES ARE UNPREDICTABLE AND OUT QUARTERLY OPERATING RESULTS
MAY FLUCTUATE SIGNIFICANTLY.
We have a very limited operating history, and have very little revenue to date.
We cannot forecast with any degree of certainty whether any of our products or
services will ever generate meaningful revenue or the amount of revenue to be
generated by any of our products or services. In addition, we cannot predict the
consistency of our quarterly operating results. Factors which may cause our
operating results to fluctuate significantly from quarter to quarter include:
- our ability to attract new and repeat customers;
- our ability to keep current with the evolving requirements of our
target market;
- our ability to protect our proprietary technology;
- the ability of our competitors to offer new or enhanced products or
services; and
- unanticipated delays or cost increases with respect to research and
development.
Because of these and other factors, we believe comparisons of our results of
operations for our fiscal years ending May 31, 2003 and May 31, 2004 are not
good indicators of our future performance. If our operating results fall below
the expectations of securities analysts and investors in some future periods,
then our stock price may decline.
WE WILL NEED TO RAISE ADDITIONAL CAPITAL AND IT MAY NOT BE AVAILABLE TO US
ON FAVORABLE TERMS OR AT ALL; INABILITY TO OBTAIN ANY NEEDED ADDITIONAL
CAPITAL ON FAVORABLE TERMS COULD ADVERSELY AFFECT OUR BUSINESS, RESULTS OF
OPERATIONS AND FINANCIAL CONDITION.
We estimate that our company may need to raise up to $2 million of additional
capital over the next 12 months to support our operations, meet competitive
pressures and/or respond to unanticipated requirements for a period of at least
12 to 15 months. While there are no definitive arrangements with respect to
sources of additional financing, management anticipates that these funds may be
raised through public and/or private offerings of our common stock.
We cannot assure you that additional financing will be completed on commercially
reasonable terms, if at all. The inability to obtain additional financing, when
needed or on favorable terms, could materially adversely affect our business,
results of operations and financial condition and could cause us to curtail or
cease operations.
7
OUR SUCCESS DEPENDS IN PART ON OUR SUCCESSFUL DEVELOPMENT AND SALE OF
PRODUCTS IN THE RESEARCH AND DEVELOPMENT STAGE.
Many of our product candidates are still in the research and development stage.
The successful development of new products is uncertain and subject to a number
of significant risks. Potential products that appear to be promising at early
states of development may not reach the market for a number of reasons,
including but not limited to, the cost and time of development. Potential
products may be found to be ineffective or cause harmful side effects, fail to
receive necessary regulatory approvals, be difficult to manufacture on a large
scale or be uneconomical or fail to achieve market acceptance. Our proprietary
products may not be commercially available for a number of years, if at all
There can be no assurance that any of our intended products will be successfully
developed or that we will achieve significant revenues from such products even
if they are successfully developed. Our success is dependent upon our ability to
develop and market our products on a timely basis. There can be no assurance
that we will be successful in developing or marketing such products taking
advantage of the perceived demand for such products. In addition, there can be
no assurance that products or technologies developed by others will not render
our products or technologies non-competitive or obsolete.
FAILURE TO ADEQUATELY EXPAND TO ADDRESS EXPANDING MARKET OPPORTUNITIES
COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR BUSINESS AND RESULTS OF
OPERATIONS.
We anticipate that a significant expansion of operations will be required to
address potential market opportunities. There can be no assurances that we will
expand our operations in a timely or sufficiently large manner to capitalize on
these market opportunities. The anticipated substantial growth is expected to
place a significant strain on our managerial, operational and financial
resources and systems. While management believes it must implement, improve and
effectively use our operational, management, research and development,
marketing, financial and employee training systems to manage anticipated
substantial growth, there can be no assurances that these practices will be
successful.
WE MAY NOT BE ABLE TO ADEQUATELY PROTECT OUR INTELLECTUAL PROPERTY RIGHTS,
AND MAY BE EXPOSED TO INFRINGEMENT CLAIMS FROM THIRD PARTIES.
Our success will depend in part on our ability to preserve our trade secrets and
to operate without infringing on the proprietary rights of third parties. There
can be no assurance that others will not independently develop similar
technologies, duplicate our technologies or design around our technologies.
We do not believe that our technology infringes on the patent rights of third
parties. However, there can be no assurance that certain aspects of our
technology will not be challenged by the holders of patents or that we will not
be required to license or otherwise acquire from third parties the right to use
additional technology. The failure to overcome such challenges or obtain such
licenses or rights on acceptable terms could have a material adverse affect on
us, our business, results of operations and financial condition.
The processes and know-how of importance to our technology are dependent upon
the skills, knowledge and experience of our technical personnel, consultants and
advisors and such skills, knowledge and experience are not patentable. To help
protect our rights, we require employees, significant consultants and advisors
with access to confidential information to enter into confidentiality and
proprietary rights agreements. There can be no assurance, however, that these
agreements will provide adequate protection for our trade secrets, know-how or
proprietary information in the event of any unauthorized use or disclosure.
WE MAY BECOME INVOLVED IN INTELLECTUAL PROPERTY LITIGATION, THE DEFENSE OF
WHICH COULD ADVERSELY IMPACT OUR BUSINESS OPERATIONS.
We may, from time to time, become involved in litigation regarding patent and
other intellectual property rights. From time to time, we may receive notices
from third parties of potential infringement and claims of
8
potential infringement. Defending these claims could be costly and time
consuming and would divert the attention of management and key personnel from
other business issues. The complexity of the technology involved and the
uncertainty of intellectual property litigation increase these risks. Claims of
intellectual property infringement also might require us to enter into costly
royalty or license agreements. However, we may be unable to obtain royalty or
license agreements on terms acceptable to us, or at all. In addition, third
parties may attempt to appropriate the confidential information and proprietary
technologies and processes used in our business, which we may be unable to
prevent and which would harm the businesses and our prospects.
WE FACE TECHNICAL RISKS ASSOCIATED WITH COMMERCIALIZING OUR TECHNOLOGY
WHICH COULD HAVE A MATERIAL ADVERSE IMPACT ON OUR BUSINESS RESULTS AND
OPERATIONS.
A key to our future success is the ability to produce our products at lower
costs than our competitors. Although we are currently utilizing proprietary
technology to produce such products at lower costs, our method for producing
such products on a commercial basis has only recently begun. Further, although
results from recent independent tests and our early production results have been
encouraging, the ability of our technology to commercially produce such products
at consistent levels is still being evaluated. There can be no assurance that we
will continue to produce such products at lower costs than our competitors, nor
that our technology will allow us to commercially produce such products at
consistent levels.
WE MAY BE UNABLE TO COMPETE EFFECTIVELY WITH COMPETITORS OF PERCEIVED
COMPETING TECHNOLOGIES OR DIRECT COMPETITORS THAT MAY ENTER OUR MARKET WITH
NEW TECHNOLOGIES.
The market for our products and services is relatively new. Our ability to
increase revenues and generate profitability is directly related to our ability
to maintain a competitive advantage because of our U.S. Environmental Protection
Agency regulatory registration of our leading product, SeaLife 1000tm. However,
we face potential direct competition from companies that may enter this market
with new competing technologies and with greater financial, marketing and
distribution resources than us. These greater resources could permit our
competitors to introduce new products and implement extensive advertising and
promotional programs, with which we may not be able to compete. As a result, we
can provide no assurances that we will be able to compete effectively in the
future.
OUR PRODUCTS MAY BE SUBJECT TO TECHNOLOGICAL OBSOLESCENCE.
Considerable research is underway by competitors and potential future
competitors into the causes and solutions for marine, agricultural and
remediation environmental solutions. Discovery of new technologies could replace
or result in lower than anticipated demand for our products, which would
materially adversely effect our operations and could cause us to curtail or
cease operations.
WE HAVE LIMITED HUMAN RESOURCES.
Our growth to date has placed, and our anticipated further expansion of our
operations will continue to place, a significant strain on our management,
systems and resources. We will need to continue to develop and improve our
financial and management controls and our reporting systems and procedures. We
cannot assure you that we will be able to efficiently or effectively manage the
growth of our operations, and any failure to do so may limit our future growth
and materially and adversely affect our business, financial condition and
results of operations.
OUR FUTURE SUCCESS DEPENDS, IN PART, ON OUR KEY PERSONNEL, CONSULTANTS AND
PRINCIPAL MANAGEMENT'S CONTINUED PARTICIPATION.
Our ability to successfully develop our products, manage growth and maintain our
competitive position will depend, in a large part, on our ability to attract and
retain highly qualified management and technologists. The Company is dependent
upon its Chief Executive Officer and Chief Financial Officer, President of
SeaLife Marine, and Gael Himmah, an independent contractor that acts as our
Chief Consulting Scientist, and other
9
members of our management and consulting team. The Company does not maintain Key
Man life insurance on any of these employees or consultants. Competition for
such personnel is significant, and there can be no assurance that the Company
will be able to continue to attract and retain such personnel. Our consultants
may be affiliated or employed by others and some may have consulting or other
advisory arrangements with other entities that may conflict or compete with
their obligations to the Company. We address such potential conflicts by
requiring that our consultants and other independent contractors execute
confidentiality agreements upon commencement of relationships with the Company,
by closely monitoring the work of such persons and by requiring material
transfer and assignment agreements wherever possible and appropriate.
Gael Himmah, the individual responsible for the development of most of the
technology that forms the basis of the Company's products is currently party to
a consulting agreement with us. If Mr. Himmah terminates his relationship with
the Company, or otherwise is unable to provide services to the Company, it may
have a negative effect on the Company's ability to continue development of its
current and new product lines. The Company does not carry any key-man life
insurance on Mr. Himmah and does not have any plans to do so in the near future.
WE ARE HIGHLY DEPENDENT ON OUTSIDE CONSULTANTS.
If our consultants or collaborative partners do not perform, we may be unable to
develop and bring to market new products as anticipated.
We may in the future enter into consulting collaborative arrangements with third
parties to develop products. These arrangements may not produce successful
products. If we fail to establish these arrangements, the number of products
from which we could receive future revenues will be limited.
Our dependence on consulting or collaborative arrangements with third parties
subjects us to a number of risks. These arrangements may not be on terms
favorable to us. We cannot absolutely control the amount and timing of resources
our consultants or collaborative partners may devote to our products, and these
third parties may choose to pursue alternative products. These third parties
also may not perform their obligations as expected. Business combinations,
significant changes in their business strategy, or their access to financial
resources may adversely affect a consultant's or partner's willingness or
ability to complete its obligations under the arrangement. Moreover, we could
become involved in disputes with our consultants or partners, which could lead
to delays or termination of the arrangements and time-consuming and expensive
litigation or arbitration.
OUR INABILITY TO ACCESS, OR A CHANGE IN THE PRICES OF, RAW MATERIALS COULD
MATERIALLY ADVERSELY IMPACT OUR RESULTS OF OPERATIONS.
We purchase certain raw materials such as Cuprous Oxide and other biocides,
pesticides or toxins - under short- and long-term supply contracts. The purchase
prices are generally determined based on prevailing market conditions. If there
is a shortage in these raw materials, or if our suppliers otherwise increase the
costs of such materials, this could materially adversely impact our results of
operations.
WE EXPECT OUR BUSINESS TO BE SEASONAL WHICH MEANS THAT WE ANTICIPATE HAVING
LESS REVENUE DURING CERTAIN PORTIONS OF THE YEAR.
Management expects our business to be seasonal, with sales and earnings being
relatively higher during the outdoor season (such as spring and summer times)
and lower during the indoor season (such as fall and winter times). Accordingly,
we may show lower revenues during portions of the year which could
correspondingly adversely affect the price of our common stock.
10
RISKS RELATED TO OUR INDUSTRY
OUR INDUSTRY IS VERY COMPETITIVE, AND WE MAY BE UNABLE TO CONTINUE TO
COMPETE EFFECTIVELY IN THIS INDUSTRY IN THE FUTURE.
We are engaged in an industry that is highly competitive. We compete with many
other suppliers and new competitors continue to enter the markets. Many of our
competitors, both in the United States and elsewhere, are major chemical
companies, and many of them have substantially greater capital resources,
marketing experience, research and development staffs, and facilities than we
do. Any of these companies could succeed in developing products that are more
effective than the products that we have or may develop and may also be more
successful than us in producing and marketing their products. We expect this
competition to continue and intensify in the future. Competition in our markets
is primarily driven by:
- product performance, features and liability;
- price;
- timing of product introductions;
- ability to develop, maintain and protect proprietary products and
technologies;
- sales and distribution capabilities;
- technical support and service;
- brand loyalty;
- applications support; and
- breadth of product line.
If a competitor develops superior technology or cost-effective alternatives to
our products, our business, financial condition and results of operations could
be materially adversely affected.
WE ARE SUBJECT TO A WIDE VARIETY OF LOCAL, STATE AND FEDERAL RULES AND
REGULATIONS, WHICH COULD RESULT IN UNINTENTIONAL VIOLATIONS OF SUCH LAWS.
ALSO, CHANGES IN SUCH LAWS COULD RESULT IN LOSS OF REVENUES.
As a chemical manufacturer, we are subject to a wide variety of local, state and
federal rules and regulations. While we believe that our operations are in
compliance with all applicable rules and regulations, we can provide no
assurances that from time to time unintentional violations of such rules and
regulations will not occur. Certain of our products are regulated by the U. S.
Environmental Protection Agency and the individual states where marketed.
Government regulation results in added costs for compliance activities and
increases the risk of losing revenues should regulations change. Also, from time
to time we must expend resources to comply with newly adopted regulations, as
well as changes in existing regulations. If we fail to comply with these
regulations, we could be subject to disciplinary actions or administrative
enforcement actions. These actions could result in penalties, including fines.
RISKS ASSOCIATED WITH OUR COMMON STOCK
WE HAVE A LIMITED TRADING VOLUME AND SHARES ELIGIBLE FOR FUTURE SALE BY OUR
CURRENT STOCKHOLDERS MAY ADVERSELY AFFECT OUR STOCK PRICE.
To date, we have had a very limited trading volume in our common stock. As long
as this condition continues, the sale of a significant number of shares of
common stock at any particular time could be difficult to achieve at the market
prices prevailing immediately before such shares are offered. In addition, sales
of substantial amounts of common stock, including shares issued upon the
exercise of outstanding options and warrants, under Rule 144 or otherwise could
adversely affect the prevailing market price of our common stock and could
impair our ability to raise capital at that time through the sale of our
securities. As a result of our limited cash, a number of our employees and
consultants have elected to accept a portion of their compensation in shares of
our common stock and a portion of these shares have been registered for resale
to the public.
11
OUR COMMON STOCK PRICE IS HIGHLY VOLATILE.
The market price of our common stock is likely to be highly volatile as the
stock market in general, and the market for technology companies in particular,
has been highly volatile. Over the course of the quarter ended August 31, 2004,
the market price of our common stock has been as high as $0.93, and as low as
$0.60. Additionally, over the course of the year ended May 31, 2004, the market
price of our common stock has been as high as $1.60, and as low as $0.16.
Factors that could cause such volatility in our common stock may include, among
other things:
- actual or anticipated fluctuations in our quarterly operating results;
- announcements of technological innovations;
- changes in financial estimates by securities analysts;
- conditions or trends in our industry; and
- changes in the market valuations of other comparable companies.
OUR COMMON STOCK IS A "PENNY STOCK"
Section 15(g) of the Securities Exchange Act of 1934, as amended, and Rule 15g-2
promulgated thereunder by the Securities and Exchange Commission require broker
dealers dealing in penny stocks to provide potential investors with a document
disclosing the risks of penny stocks and to obtain a manually signed and dated
written receipt of the document before effecting any transaction in a penny
stock for the investor's account.
Potential investors in our common stock are urged to obtain and read such
disclosure carefully before purchasing any shares that are deemed to be "penny
stock." Moreover, Rule 15g-9 requires broker-dealers in penny stocks to approve
the account of any investor for transactions in such stocks before selling any
penny stock to that investor. This procedure requires the broker-dealer to
(i)obtain from the investor information concerning his or her financial
situation, investment experience and investment objectives; (ii) reasonably
determine, based on that information, that transactions in penny stocks are
suitable for the investor and that the investor has sufficient knowledge and
experience as to be reasonably capable of evaluating the risks of penny stock
transactions; (iii) provide the investor with a written statement setting forth
the basis on which the broker-dealer made the determination in (ii) above; and
(iv) receive a signed and dated copy of such statement from the investor,
confirming that it accurately reflects the investor's financial situation,
investment experience and investment objectives. Compliance with these
requirements may make it more difficult for holders of our common stock to
resell their shares to third parties or to otherwise dispose of them in the
market or otherwise.
FORWARD-LOOKING STATEMENTS
This reoffer prospectus contains statements that constitute forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Exchange Act of 1934, both as amended. These forward-looking
statements are subject to various risks and uncertainties. The forward-looking
statements include, without limitation, statements regarding our future business
plans and strategies and our future financial position or results of operations,
as well as other statements that are not historical. You can find many of these
statements by looking for words like "will", "may", "believes", "expects",
"anticipates", "plans" and "estimates" and for similar expressions. Because
forward-looking statements involve risks and uncertainties, there are many
factors that could cause the actual results to differ materially from those
expressed or implied. These include, but are not limited to, economic
conditions. Any forward-looking statements are not guarantees of future
performance and involve risks and uncertainties. Actual results may differ
materially from those projected in this prospectus, for the reasons, among
others, described in the Risk Factors section beginning on page 6. You should
read the Risk Factors section carefully, and should not place undue reliance on
any forward-looking statements, which speak only as of the date of this
prospectus. We undertake no obligation to release publicly any updated
information about forward-looking statements to reflect events or circumstances
occurring after the date of this prospectus or to reflect the occurrence of
unanticipated events.
12
USE OF PROCEEDS
The proceeds from the sales of the selling stockholder's common stock will
belong to the selling stockholder. We will not receive any proceeds from such
sales.
SELLING STOCKHOLDER
EXECUTIVE EMPLOYMENT AGREEMENT
On June 14, 2004, we entered into an Executive Employment Agreement with Barre
Rorabaugh pursuant to which Mr. Rorabaugh was appointed the President of our
indirect wholly-owned subsidiary, SeaLife Marine Products, Inc., the subsidiary
that operates our marine products business. Mr. Rorabaugh is responsible for all
business activities involving SeaLife Marine Products, Inc. and may be deemed an
"affiliate" of us under Rule 405, promulgated under the Securities Act of 1933,
as amended. Pursuant to his agreement, Mr. Rorabaugh receives an annual base
salary of $150,000 (the "Base Salary"), which the Board may increase at the end
of each year of his employment. Mr. Rorabaugh's Base Salary is payable in
installments throughout the year in the same manner and at the same times that
we pay base salaries to other executive officers, however, until such time that
we complete a debt or equity financing in the gross amount of $2,000,000, the
Base Salary is payable as follows: (i) payment monthly, at our option, of either
(a) a cash amount equal to two hundred percent (200%) of the applicable minimum
wage amount then in effect in the State of California for a month of work based
on forty hours of work per week (calculated to be $2,340.00 in the aggregate for
a month of work), or (b) a number of shares of our common stock, having a value
at the time of issuance, based on the volume weighted average trading price of
Common Stock, as quoted on the Over-The-Counter Bulletin Board, for the twenty
(20) consecutive trading days immediately preceding the date of issuance of such
shares of common stock, equal to the forgoing cash amount; plus (ii) issuance
monthly of a number of shares of common stock having a value at the time of
issuance, based on the volume weighted average trading price of Common Stock, as
quoted on the Over-The-Counter Bulletin Board, for the twenty (20) consecutive
trading days immediately preceding the date of issuance of such shares of Common
Stock, of not less than $10,160.
The securities offered for resale pursuant to this reoffer prospectus are the
securities issued to Mr. Rorabaugh pursuant to the agreement. In accordance with
the provisions of the agreement, we were permitted to issue the securities
payable to Mr. Rorabaugh periodically, as payments became due, or as an
aggregate sum. We and Mr. Rorabaugh agreed to issue the securities two
installments, representing the aggregate number of securities issuable to Mr.
Rorabaugh under the agreement based on the date the securities were issued, and
therefore, Mr. Rorabaugh's ability to resell any portion of the securities is
subject to the provisions of the agreement, which requires that Mr. Rorabaugh
only resell such portion of the securities as is sufficient to compensate him
for any periodic payments then due by us under the agreement.
Mr. Rorabaugh is also eligible to receive an annual bonus under our management
incentive plan to be agreed upon between Mr. Rorabaugh and the Board on an
annual basis. The management incentive plan will provide for the payment of
certain percentage bonuses based on Mr. Rorabaugh's then-current base salary,
and the issuance of options to purchase our common stock, upon achieving
specified target objectives set forth in the plan. The agreement terminates on
December 31, 2008. In the event that Mr. Rorabaugh's employment is terminated
without cause during the term of the agreement, we are obligated to continue to
pay Mr. Rorabaugh's then-current base salary for varying periods of time up to
twelve (12) months following the effective date of such termination, depending
upon when, after the effective date of the agreement, Mr. Rorabaugh was
terminated.
Other than the transactions described above, we had no material relationship
with the selling stockholder during the three years preceding the date of this
prospectus.
13
SELLING STOCKHOLDER TABLE
This reoffer prospectus relates to shares of Common Stock that are being
registered for reoffers and resale by the selling stockholder who has acquired
such shares pursuant to an executive employment agreement, and who may be deemed
an "affiliate" of us. An "affiliate" is defined under the Securities Act of
1933, as amended, as "a person that directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control with"
us. Subject to any limitations required by Form S-8, the selling stockholder may
resell any or all of the shares of Common Stock at any time while this reoffer
prospectus is current. The inclusion of the shares of Common Stock in the table
below does not constitute a commitment to sell any shares.
The following table sets forth: (1) the name of the selling stockholder; (2) the
position the selling stockholder holds with us; (3) the number of shares of our
common stock beneficially owned by such selling stockholder prior to this
offering; (4) the number of shares of our common stock offered by such selling
stockholder pursuant to this prospectus; and (5) the number of shares, and (if
one percent or more) the percentage of the total of the outstanding shares, of
our common stock to be beneficially owned by such selling stockholder after this
offering, assuming that all of the shares of our common stock beneficially owned
by such selling stockholder and offered pursuant to this reoffer prospectus are
sold and that the selling stockholder acquires no additional shares of our
common stock prior to the completion of this offering. Such data is based upon
information provided by the selling stockholder.
PERCENTAGE OF
COMMON STOCK COMMON STOCK COMMON STOCK
COMMON STOCK BEING OFFERED OWNED UPON OWNED UPON
OWNED PRIOR TO PURSUANT TO THIS COMPLETION OF COMPLETION OF
NAME POSITION THE OFFERING PROSPECTUS THIS OFFERING THIS OFFERING
---- -------- ------------ ---------- ------------- -------------
President of
Barre Rorabaugh Subsidiary 110,000 110,000 0 --
PLAN OF DISTRIBUTION
The shares of our common stock offered pursuant to this prospectus may
be offered and sold from time to time by the selling stockholder listed in the
preceding section, or his donees, transferees, pledgees or other successors in
interest that receive such shares as a gift or other non-sale related transfer.
The selling stockholder will act independently of us in making decisions with
respect to the timing, manner and size of each sale.
The selling stockholder and any of his respective pledgees, assignees
and successors-in-interest may, from time to time, sell any or all of their
shares of common stock on any stock exchange, market or trading facility on
which the shares are traded or in private transactions. These sales may be at
fixed or negotiated prices. The selling stockholder may use any one or more of
the following methods when selling shares:
o Ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o Block trades in which the broker-dealer will attempt to sell
the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
o Purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
14
o An exchange distribution in accordance with the rules of the
applicable exchange;
o Privately negotiated transactions;
o Settlement of short sales;
o Broker-dealers may agree with the selling stockholder to sell
a specified number of such shares at a stipulated price per
share;
o A combination of any such methods of sale; and
o Any other method permitted pursuant to applicable law.
The selling stockholder may also sell shares under Rule 144 under the
Securities Act of 1933, if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholder may arrange for other
broker-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling stockholder (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling stockholder does not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling stockholder may from time to time pledge or grant a
security interest in some or all of the shares of common stock owned by him and,
if he defaults in the performance of his secured obligations, the pledgees or
secured parties may offer and sell the shares of common stock from time to time
under this prospectus, or under an amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act of 1933 amending
the list of selling stockholders to include the pledgee, transferee or other
successors in interest as a selling stockholder under this prospectus.
The selling stockholder and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933 in connection with such sales. In such
event, any commissions received by such broker-dealers or agents and any profit
on the resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act of 1933. The selling
stockholder has informed us that he does not have any agreement or
understanding, directly or indirectly, with any person to distribute the common
stock.
We are required to pay all fees and expenses incident to the
registration of the shares.
The foregoing plan of distribution shall at all times be subject to any
limitations on resale set forth in Form S-8.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a post-effective amendment to a registration statement on
Form S-8 with the SEC with respect to the common stock offered by this reoffer
prospectus. This reoffer prospectus, which constitutes a part of the
post-effective amendment to the registration statement, does not contain all of
the information set forth in the registration statement or the exhibits and
schedules that are part of the registration statement. You may read and copy any
document we file at the SEC's public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. We refer you to the registration statement and the
exhibits and schedules thereto for further information with respect to us and
our common stock. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference room. Our SEC filings are also available to the public
from the SEC's website at www.sec.gov.
15
We are subject to the information and periodic reporting requirements
of the Securities Exchange Act of 1934 and, in accordance with those
requirements, will continue to file periodic reports, proxy statements and other
information with the SEC. These periodic reports, proxy statements and other
information will be available for inspection and copying at the SEC's public
reference rooms and the SEC's website referred to above.
The SEC allows us to "incorporate by reference" the information we file
with the SEC, which means that we can disclose important information to you by
referring to those documents. We incorporate by reference the documents listed
below and any additional documents filed by us with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until this offering of
securities is terminated. The information we incorporate by reference is an
important part of this prospectus, and any information that we file later with
the SEC will automatically update and supersede this information.
The documents we incorporate by reference are:
1. Our Annual Report on Form 10-KSB for the year ended May 31,
2004 (File No. 000-13895);
2. Our Registration Statement on Form S-8, filed with the
Securities and Exchange Commission on August 6, 2004 (File No.
333-118018);
3. All other reports filed by us pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date of this reoffer prospectus and prior to
the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference and to be a part hereof
from the date of filing of such documents.
You may request a copy of these filings, at no cost, by writing or
calling us at SeaLife Corporation, 5601 W. Slauson Avenue, Culver City,
California, 90230, (310) 338-9757, Attention: Secretary.
You should rely only on the information contained in this reoffer
prospectus or any supplement and in the documents incorporated by reference
above. We have not authorized anyone else to provide you with different
information. You should not assume that the information in this prospectus or
any supplement or in the documents incorporated by reference is accurate on any
date other than the date on the front of those documents.
LEGAL MATTERS
Stubbs Alderton & Markiles, LLP, Encino, California, has rendered to
SeaLife Corporation a legal opinion as to the validity and due issuance of the
shares of the Registrant's Common Stock covered by this reoffer prospectus.
EXPERTS
The financial statements incorporated in this reoffer prospectus by
reference to the Annual Report on Form 10-KSB for the year ended May 31, 2004
have been so incorporated in reliance on the report of Pollard-Kelley Auditing
Services, Inc., independent accountants, given on the authority of said firm as
experts in auditing and accounting.
16
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by the Registrant with the
Securities and Exchange Commission are incorporated in this Registration
Statement by reference:
(a) The Registrant's Annual Report on Form 10-KSB for the year
ended May 31, 2004 (File No. 000-13895);
(b) The Registrant's Quarterly Report on Form 10-QSB for the
quarter ended September 30, 2004 (File No. 000-13895);
(c) The Registrant's Registration Statement on Form S-8, filed
with the Securities and Exchange Commission on August 6, 2004
(File No. 333-118018);
(d) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference and to be a part
hereof from the date of filing of such documents.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (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 hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference and to be a part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The total number of securities registered hereunder is 1,616,119
shares, all of which are common stock of the Registrant. The Registrant is
presently authorized to issue 100,000,000 shares of its Common Stock. As of
October 25, 2004, there were 15,009,043 outstanding and subscribed for shares.
The holders of common stock are entitled to one vote per share on each matter
submitted to a vote at any meeting of shareholders. Shareholders of the
Registrant have no preemptive rights to acquire additional shares of common
stock or other securities. The common stock is not subject to redemption and
carries no subscription or conversion rights. In the event of liquidation of the
Registrant, the shares of common stock are entitled to share equally in
corporate assets after satisfaction of all liabilities. The shares, when issued,
will be fully paid and non-assessable. A majority of all issued and outstanding
shares shall constitute a quorum for conducting business. The majority of shares
present, in any regular or special meeting where a quorum is present, may vote
in favor of or against any item of business or election, and shall constitute a
majority approval or disapproval of matters voted upon at any such meeting.
Shares of common stock do not carry cumulative voting rights. The Registrant
presently does not pay any dividends and has no foreseeable plan to pay
dividends. There are no special preemptive rights or rights upon liquidation,
other than the normal rights and priorities which would attach to shares in
liquidation pursuant to Delaware Law. The shares are not subject to call,
liability or assessment.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Stubbs Alderton & Markiles, LLP ("SAM LLP"), has provided legal
services to the Registrant in connection with its preparation of this
Registration Statement. In addition, SAM LLP has rendered a legal
17
opinion, attached hereto as Exhibit 5.1, as to the validity and due issuance of
the shares of the Registrant's Common Stock to be issued and registered hereby.
Individual partners of SAM LLP will be issued Common Stock registered by this
Registration Statement in payment of fees due SAM LLP for legal services
rendered pursuant to the terms of that certain Engagement Letter dated May 17,
2004, as amended, between the Registrant and SAM LLP. Neither SAM LLP, nor any
individual partner therof, has been employed on a contingent basis. Neither SAM
LLP, nor any individual partner therof, is connected with Registrant other than
in their role as outside legal counsel for the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides in
relevant part that a corporation may indemnify any person who was or is a party
to or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the 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 such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person 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 such person's conduct was
unlawful.
In addition, Section 145 provides that 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 such
person 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) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper. Delaware law further provides that nothing
in the above-described provisions shall be deemed exclusive of any other rights
to indemnification or advancement of expenses to which any person may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
Article XI of the Registrant's Bylaws provides for the indemnification
of officers, directors and third parties acting on behalf of the Registrant to
the fullest extent permissible under Delaware law.
Insofar as indemnification for liabilities arising under the Securities
Act 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 Securities Act
and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
THE FOLLOWING EXHIBITS ARE FILED AS PART OF THIS REGISTRATION
STATEMENT:
18
4.1 Restated Certificate of Incorporation of the Registrant (1).
4.2 Bylaws of the Registrant (1).
4.3 2004 Stock Award Plan
5.1 Opinion of Stubbs Alderton & Markiles, LLP.
10.1 Executive Employment Agreement dated June 14, 2004, between
the Registrant and Barre Rorabaugh.
23.1 Consent of Pollard-Kelley Auditing Services, Inc.
23.2 Consent of Stubbs Alderton & Markiles, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included as part of the Signature Page of
this Registration Statement).
----------
(1) Filed previously as an exhibit to the Registrant's Annual Report
on Form 10-KSB for the year ended May 31, 2003 (File No.
000-13895), and incorporated herein by this reference.
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
to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information 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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or 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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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
Post-Effective Amendment No. 1 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Los
Angeles, State of California, on this 15th day of November, 2004.
SEALIFE CORPORATION
(Registrant)
By: /s/ Robert McCaslin
-------------------------------------------
Robert McCaslin
President
(Principal Executive Officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints each
of Robert McCaslin and J P Heyes as his true and lawful attorney-in-fact and
agent with full power of substitution and resubstitution, for him and his name,
place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this Post-Effective Amendment No. 1 to
Registration Statement or to the Original Registration Statement and to file a
new registration statement under Rule 461 or Instruction E of Form S-8 of the
Securities Act of 1933, as amended, 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, and each
of them, 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, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the date indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Robert McCaslin Chief Executive Officer, November 15, 2004
- --------------------------- Chief Financial Officer
Robert McCaslin and Director (Principal
Executive Officer, and
Principal Financial and
Accounting Officer)
/s/ J P Heyes Secretary and Director November 15, 2004
- ---------------------------
J P Heyes
20
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT DESCRIPTION
4.1 Restated Certificate of Incorporation of the Registrant (1).
4.2 Bylaws of the Registrant (1).
4.3 2004 Stock Award Plan
5.1 Opinion of Stubbs Alderton & Markiles, LLP.
10.1 Executive Employment Agreement dated June 14, 2004, between the
Registrant and Barre Rorabaugh.
23.1 Consent of Pollard-Kelley Auditing Services, Inc.
23.2 Consent of Stubbs Alderton & Markiles, LLP (included in Exhibit
5.1).
24.1 Power of Attorney (included as part of the Signature Page of this
Registration Statement).
- ----------
(1) Filed previously as an exhibit to the Registrant's Annual Report
on Form 10-KSB for the year ended May 31, 2003 (File No.
000-13895), and incorporated herein by this reference.