U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
under the
Securities Act of 1933
AMERICAN FIRE RETARDANT CORP.
(Exact name of registrant as specified in its charter)
Texas 4899 76-0510754
(State or jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No)
1549 N. Leroy St., Suite D, Fenton, Michigan 48340; (810) 714-1011
(Address and telephone number of Registrant's principal executive offices and
principal place of business)
Employee Stock Incentive Plan for the Year 2003 No. 2
NonEmployee Directors and Consultant Retainer Stock Plan for the Year 2003 No. 2
(Full title of the Plans)
Robert Simpson, 1549 N. Leroy St., Suite D, Fenton, Michigan 48430
(Name and address of agent for service)
(810) 714-1011
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
- -------------- ----------- ---------- ------------------ -------------
Title of Amount Proposed Proposed maximum Amount
securities to to be offering aggregate offering of
be registered registered price per price registration
share (1) fee
- -------------- ----------- ---------- ------------------ -------------
- -------------- ----------- ---------- ------------------ -------------
Options to
Purchase
Common Stock,
Common Shares
Underlying
Options 20,860,000 $0.0072(2) $ 150,192 $ 13.82
- -------------- ----------- ---------- ------------------ -------------
- -------------- ----------- ---------- ------------------ -------------
Common Stock 8,940,000 $0.0072(3) $ 64,368 $ 5.92
- -------------- ----------- ---------- ------------------ -------------
- -------------- ----------- ---------- ------------------ -------------
Total 29,800,000 $ 214,560 $ 19.74
- -------------- ----------- ---------- ------------------ -------------
(1) The Offering Price is used solely for purposes of estimating the
registration fee pursuant to Rule 457(h) promulgated pursuant to the
Securities Act of 1933.
(2) This Offering Price per Share is established pursuant to the option
exercise price set forth in the Employee Stock Incentive Plan for the Year
2003 No. 2, set forth in Exhibit 4.1 to this Form S-8.
(3) This Offering Price per Share is established pursuant to the Non-Employee
Directors and Consultants Retainer Stock Plan for the Year 2003 No. 2 set
forth in Exhibit 4.2 to this Form S-8.
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Part I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.
See Item 2 below.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to each of the participants in accordance with Form S-8
and Rule 428 promulgated under the Securities Act of 1933. The participants
shall be provided a written statement notifying them that upon written or oral
request they will be provided, without charge, (i) the documents incorporated by
reference in Item 3 of Part II of the registration statement, and (ii) other
documents required to be delivered pursuant to Rule 428(b). The statement will
inform the participants that these documents are incorporated by reference in
the Section 10(a) prospectus, and shall include the address (giving title or
department) and telephone number to which the request is to be directed.
Part II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following are hereby incorporated by reference:
(a) The Registrant's latest annual report on Form 10-KSB for
the fiscal year ended December 31, 2002, filed on May 21, 2003.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 since the end of the fiscal year covered
by the Form 10-KSB referred to in (a) above.
(c) A description of the Registrant's securities contained in
the Registration Statement on Form 10-SB filed by the Registrant to register the
common stock under the Exchange Act, including all amendments filed for the
purpose of updating such common stock description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the registration statement and to be part
thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Other than as set forth below, no named expert or counsel was hired on
a contingent basis, will receive a direct or indirect interest in the small
business issuer, or was a promoter, underwriter, voting trustee, director,
officer, or employee of the Registrant.
Item 6. Indemnification of Directors and Officers.
Our bylaws do not contain a provision entitling any director or
executive officer to indemnification against its liability under the Securities
Act. The Texas Business Corporation Act allows a company to indemnify our
officers, directors, employees, and agents from any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative, except under certain circumstances. Indemnification may only
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occur if a determination has been made that the officer, director, employee, or
agent acted in good faith and in a manner, which such person believed to be in
the best interests of the Registrant. A determination may be made by the
stockholders; by a majority of the directors who were not parties to the action,
suit, or proceeding confirmed by opinion of independent legal counsel; or by
opinion of independent legal counsel in the event a quorum of directors who were
not a party to such action, suit, or proceeding does not exist.
Provided the terms and conditions of these provisions under Texas law
are met, officers, directors, employees, and agents of the Registrant may be
indemnified against any cost, loss, or expense arising out of any liability
under the Securities Act. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant, we have been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy and is, therefore, unenforceable.
Article 2.02-1 of the Texas Business Corporation Act, stated herein,
provides further for permissive indemnification of officers and directors as
follows:
"B. A corporation may indemnify a person who was, is, or is threatened
to be made a named defendant or respondent in a proceeding because the person is
or was a director only if it is determined in accordance with Section F of this
article that the person:
"(1) conducted himself in good faith;
"(2) reasonably believed:
"(a) in the case of conduct in his official capacity
as a director of the corporation, that his conduct was in the corporation's best
interests; and
"(b) in all other cases, that his conduct was at
least not opposed to the corporation's best interests; and
"(3) in the case of any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful.
"C. Except to the extent permitted by Section E of this article, a
director may not be indemnified under Section B of this article in respect of a
proceeding:
"(1) in which the person is found liable on the basis that
personal benefit was improperly received by him, whether or not the benefit
resulted from an action taken in the person's official capacity; or
"(2) in which the person is found liable to the corporation.
"D. The termination of a proceeding by judgment, order, settlement, or
conviction, or on a plea of nolo contendere or its equivalent is not of itself
determinative that the person did not meet the requirements set forth in Section
B of this article. A person shall be deemed to have been found liable in respect
of any claim, issue or matter only after the person shall have been so adjudged
by a court of competent jurisdiction after exhaustion of all appeals therefrom.
"E. A person may be indemnified under Section B of this article against
judgments, penalties (including excise and similar taxes), fines, settlements,
and reasonable expenses actually incurred by the person in connection with the
proceeding; but if the person is found liable to the corporation or is found
liable on the basis that personal benefit was improperly received by the person,
the indemnification (1) is limited to reasonable expenses actually incurred by
the person in connection with the proceeding and (2) shall not be made in
respect of any proceeding in which the person shall have been found liable for
willful or intentional misconduct in the performance of his duty to the
corporation.
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"F. A determination of indemnification under Section B of this article
must be made:
"(1) by a majority vote of a quorum consisting of directors
who at the time of the vote are not named defendants or respondents in the
proceeding;
"(2) if such a quorum cannot be obtained, by a majority vote
of a committee of the board of directors, designated to act in the matter by a
majority vote of all directors, consisting solely of two or more directors who
at the time of the vote are not named defendants or respondents in the
proceeding;
"(3) by special legal counsel selected by the board of
directors or a committee of the board by vote as set forth in Subsection (1) or
(2) of this section, or, if such a quorum cannot be obtained and such a
committee cannot be established, by a majority vote of all directors; or
"(4) by the shareholders in a vote that excludes the shares
held by directors who are named defendants or respondents in the proceeding.
"G. Authorization of indemnification and determination as to
reasonableness of expenses must be made in the same manner as the determination
that indemnification is permissible, except that if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of expenses must be
made in the manner specified by Subsection (3) of Section F of this article for
the selection of special legal counsel. A provision contained in the articles of
incorporation, the bylaws, a resolution of shareholders or directors, or an
agreement that makes mandatory the indemnification permitted under Section B of
this article shall be deemed to constitute authorization of indemnification in
the manner required by this section even though such provision may not have been
adopted or authorized in the same manner as the determination that
indemnification is permissible.
"H. A corporation shall indemnify a director against reasonable
expenses incurred by him in connection with a proceeding in which he is a named
defendant or respondent because he is or was a director if he has been wholly
successful, on the merits or otherwise, in the defense of the proceeding.
"I. If, in a suit for the indemnification required by Section H of this
article, a court of competent jurisdiction determines that the director is
entitled to indemnification under that section, the court shall order
indemnification and shall award to the director the expenses incurred in
securing the indemnification.
"J. If, upon application of a director, a court of competent
jurisdiction determines, after giving any notice the court considers necessary,
that the director is fairly and reasonably entitled to indemnification in view
of all the relevant circumstances, whether or not he has met the requirements
set forth in Section B of this article or has been found liable in the
circumstances described by Section C of this article, the court may order the
indemnification that the court determines is proper and equitable; but if the
person is found liable to the corporation or is found liable on the basis that
personal benefit was improperly received by the person, the indemnification
shall be limited to reasonable expenses actually incurred by the person in
connection with the proceeding.
"K. Reasonable expenses incurred by a director who was, is, or is
threatened to be made a named defendant or respondent in a proceeding may be
paid or reimbursed by the corporation, in advance of the final disposition of
the proceeding and without the determination specified in Section F of this
article or the authorization or determination specified in Section G of this
article, after the corporation receives a written affirmation by the director of
his good faith belief that he has met the standard of conduct necessary for
indemnification under this article and a written undertaking by or on behalf of
the director to repay the amount paid or reimbursed if it is ultimately
determined that he has not met that standard or if it is ultimately determined
that indemnification of the director against expenses incurred by him in
connection with that proceeding is prohibited by Section E of this article. A
provision contained in the articles of incorporation, the bylaws, a resolution
of shareholders or directors, or an agreement that makes mandatory the payment
or reimbursement permitted under this section shall be deemed to constitute
authorization of that payment or reimbursement.
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"L. The written undertaking required by Section K of this article must
be an unlimited general obligation of the director but need not be secured. It
may be accepted without reference to financial ability to make repayment.
"M. A provision for a corporation to indemnify or to advance expenses
to a director who was, is, or is threatened to be made a named defendant or
respondent in a proceeding, whether contained in the articles of incorporation,
the bylaws, a resolution of shareholders or directors, an agreement, or
otherwise, except in accordance with Section R of this article, is valid only to
the extent it is consistent with this article as limited by the articles of
incorporation, if such a limitation exists.
"N. Notwithstanding any other provision of this article, a corporation
may pay or reimburse expenses incurred by a director in connection with his
appearance as a witness or other participation in a proceeding at a time when he
is not a named defendant or respondent in the proceeding.
"O. An officer of the corporation shall be indemnified as, and to the
same extent, provided by Sections H, I, and J of this article for a director and
is entitled to seek indemnification under those sections to the same extent as a
director. A corporation may indemnify and advance expenses to an officer,
employee, or agent of the corporation to the same extent that it may indemnify
and advance expenses to directors under this article.
"P. A corporation may indemnify and advance expenses to persons who are
not or were not officers, employees, or agents of the corporation but who are or
were serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, employee benefit plan, other
enterprise, or other entity to the same extent that it may indemnify and advance
expenses to directors under this article.
"Q. A corporation may indemnify and advance expenses to an officer,
employee, agent, or person identified in Section P of this article and who is
not a director to such further extent, consistent with law, as may be provided
by its articles of incorporation, bylaws, general or specific action of its
board of directors, or contract or as permitted or required by common law.
"R. A corporation may purchase and maintain insurance or another
arrangement on behalf of any person who is or was a director, officer, employee,
or agent of the corporation or who is or was serving at the request of the
corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another foreign or domestic
corporation, employee benefit plan, other enterprise, or other entity, against
any liability asserted against him and incurred by him in such a capacity or
arising out of his status as such a person, whether or not the corporation would
have the power to indemnify him against that liability under this article. If
the insurance or other arrangement is with a person or entity that is not
regularly engaged in the business of providing insurance coverage, the insurance
or arrangement may provide for payment of a liability with respect to which the
corporation would not have the power to indemnify the person only if including
coverage for the additional liability has been approved by the shareholders of
the corporation. Without limiting the power of the corporation to procure or
maintain any kind of insurance or other arrangement, a corporation may, for the
benefit of persons indemnified by the corporation, (1) create a trust fund; (2)
establish any form of self-insurance; (3) secure its indemnity obligation by
grant of a security interest or other lien on the assets of the corporation; or
(4) establish a letter of credit, guaranty, or surety arrangement. The insurance
or other arrangement may be procured, maintained, or established within the
corporation or with any insurer or other person deemed appropriate by the board
of directors regardless of whether all or part of the stock or other securities
of the insurer or other person are owned in whole or part by the corporation. In
the absence of fraud, the judgment of the board of directors as to the terms and
conditions of the insurance or other arrangement and the identity of the insurer
or other person participating in an arrangement shall be conclusive and the
insurance or arrangement shall not be voidable and shall not subject the
directors approving the insurance or arrangement to liability, on any ground,
regardless of whether directors participating in the approval are beneficiaries
of the insurance or arrangement.
"S. Any indemnification of or advance of expenses to a director in
accordance with this article shall be reported in writing to the shareholders
with or before the notice or waiver of notice of the next shareholders' meeting
or with or before the next submission to shareholders of a consent to action
without a meeting pursuant to Section A, Article 9.10, of this Act and, in any
case, within the 12-month period immediately following the date of the
indemnification or advance.
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"T. For purposes of this article, the corporation is deemed to have
requested a director to serve as a trustee, employee, agent, or similar
functionary of an employee benefit plan whenever the performance by him of his
duties to the corporation also imposes duties on or otherwise involves services
by him to the plan or participants or beneficiaries of the plan. Excise taxes
assessed on a director with respect to an employee benefit plan pursuant to
applicable law are deemed fines. Action taken or omitted by a director with
respect to an employee benefit plan in the performance of his duties for a
purpose reasonably believed by him to be in the interest of the participants and
beneficiaries of the plan is deemed to be for a purpose which is not opposed to
the best interests of the corporation.
"U. The articles of incorporation of a corporation may restrict the
circumstances under which the corporation is required or permitted to indemnify
a person under Section H, I, J, O, P, or Q of this article."
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits required by Item 601 of Regulation S-B, and an index
thereto, are attached.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration statement:
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(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) 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.
(c) To deliver or cause to be delivered with the prospectus,
to each person to whom the prospectus is sent or given, the latest annual report
to security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information
(d) That 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
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for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fenton, Michigan, on August 28, 2003.
ATNG, INC.
By /s/ Robert Simpson
-------------------------
Robert Simpson, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Robert Simpson President, Chief Financial Officer, August 28, 2003
------------------ Secretary and Director
Robert Simpson
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EXHIBIT INDEX
Exhibit No. Description
4.1 Employee Stock Incentive Plan for the Year 2003 No. 2
4.2 Non-Employee Directors and Consultants Retainer Stock
Plan for the Year 2003 No. 2
5 Opinion Re: Legality
23.1 Consent of Accountants
23.2 Consent of Counsel
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