Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan — Form S-8 Filing Table of Contents
Document/ExhibitDescriptionPagesSize 1: S-8 Registration of Securities to be Offered to HTML 58K Employees Pursuant to an Employee Benefit Plan
2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 58K
3: EX-5.1 Opinion re: Legality HTML 10K
4: EX-23.1 Consent of Experts or Counsel HTML 7K
S-8 — Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan
Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”“accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
Pursuant
to Rule 416 of the Securities Act of 1933 (the “Securities Act”), there
are also registered hereunder such indeterminate number of additional
securities as may become available for issuance pursuant to the Company’s
2010 Stock Incentive Plan as a result of the anti-dilution provisions
contained therein.
(2)
Consists
of 7,600,001 shares that have been granted by the Company under the 2010
Stock Incentive Plan, but have not yet vested, and 200,000 shares
available for issuance under the 2010 Stock Incentive
Plan.
(3)
Estimated
solely for the purpose of determining the registration fee pursuant to
Rule 457(h)(1) and based upon the average of the high and low sale prices
of the Registrant’s Common Stock on January 26, 2011, as reported on the
OTC Bulletin Board.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in Part I will be sent or given
to participants in the Plan as specified by Rule 428(b)(1) of the Securities Act
of 1933, as amended (the “Securities Act”). In accordance with the
instructions of Part I of Form S-8, these documents will not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424 of the
Securities Act. These documents and the documents incorporated by
reference pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute the prospectus as required by Section 10(a) of the
Securities Act.
2
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
(d) The
description of capital stock as set forth on Form 8-A filed on March 18,
1986.
All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 this Registration Statement and to be
a part hereof from the date of filing of such documents.
In
accordance with the laws of Colorado, in general, an incorporated corporation,
such as the Company, 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,
suit or proceeding (other than a derivative 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, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
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 the case of a derivative action, a Colorado corporation may
indemnify any such person 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, except that no indemnification will be made in
respect of any claim, issue or matter as to which such person will have been
adjudged to be liable to the corporation unless and only to the extent that the
State of Colorado or any other court in which such action was brought determines
such person is fairly and reasonably entitled to indemnity for such
expenses.
(a) The
undersigned small business issuer hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and prices represent no more
than a 20 percent change in the maximum aggregate offering price set forth in
the “Calculation of Registration Fee” table in the effective registration
statement; and
(iii) 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;
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned registrant hereby undertakes that, for the 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 this 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.
(h) 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 SEC 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.
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 and the State of New York, on the 27th day of January, 2011.
Each
person whose signature to this Registration Statement appears below hereby
constitutes and appoints Alfred A. Rapetti as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his or
her behalf individually and in the capacity stated below and to perform any acts
necessary to be done in order to file all amendments to this Registration
Statement and any and all instruments or documents filed as part of or in
connection with this Registration Statement or the amendments thereto and each
of the undersigned does hereby ratify and confirm all that said attorney-in-fact
and agent, or his substitutes, shall do or cause to be done by virtue
hereof.
The
undersigned also grants to said attorney-in-fact, full power and authority to do
and perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted. This Power of Attorney shall
remain in effect until revoked in writing by the undersigned.
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:
