UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SECOND AMENDED
FORM S-8
000-30237
(Commission File Number)
REGISTRATION STATEMENT FILED PURSUANT TO THE SECURITIES ACT OF 1933
Date of Report: December 3, 2004
VICTOR INUDSTRIES, INC.
(Exact name of registrant as specified in its charter)
|
Idaho |
91-0784114 |
|
(State or other jurisdiction of
incorporation or organization) |
(IRS Employer
Identification Number) |
FIRST AMENDED 2004 CONSULTING & LEGAL SERVICES PLAN
(Full Title of Plan)
180 Southwest Higgins Ave
Missoula, MT 59803
(Address of principal executive offices including zip code)
(406) 549-2261
(Registrant’s telephone number, including area code)
n/a
(Former Name or Former Address, if Changed Since Last Report)
with a copy to:
Mark L. Baum
The Baum Law Firm
580 Second Street, Suite 102
Encinitas, CA 92024
(760) 230-2300
|
Title of securities
to be registered |
Amount to be
Registered |
Proposed maximum
offering price
per share (1) |
Proposed maximum Aggregate offering Price for this amended Form S-8 filing |
Amount of
Registration fee(2) |
|
Common Stock
($.0001 par value) |
20,000,000 |
$.01 |
$200,000 |
$25.34 |
|
(1) |
Bona fide estimate of maximum offering price solely for calculating the registration fee pursuant to Rule 457(h) of the Securities Act of 1933, based on the closing price of the registrant's common stock as of November 26, 2004, a date within five business days prior to the date of filing of this registration statement. |
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(2) |
There is no fee due and owing as part of this Second Amended S-8 as this filing is being made only to correct a clerical mistake as detailed below. The fee associated with the registration of the additional 20,000,000 shares was calculated and paid as part of the First Amended S-8 filed by the Registrant on December 2, 2004. |
EXPLANATORY NOTE
This Second Amended S-8 is being filed solely to correct certain clerical errors inadvertently made in the reproduction of the Consent provided by the Registrant’s auditors, Wong Johnson &Associates, APC, to the Registrant for purposes of filing the First Amended S-8. Otherwise, the content of this Second Amended S-8 is identical to the Fist Amended S-8 filed by the Registrant on December 2, 2004.
The only Exhibit filed herewith is the Auditors Consent. All other Exhibits filed as part of the First Amended S-8 are incorporated by reference herein.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(A) PROSPECTUS
Item 1. Plan Information
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 and the Note to Part I of Form S-8.
Item 2. Registration Information and Employee Plan Annual Information
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 and the Note to Part I of Form S-8.
Item 3. Incorporation of Documents by Reference
(a) the S-8 Registration Statement filed on January 20, 2004, Accession Number 0001158957-04-000013, together with any and all attachments thereto.
Any statement contained in a document incorporated or deemed incorporated by reference in this registration statement shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities
Securities are registered under Section 12(g) of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers:
Our Bylaws contain an indemnification provision that limits the officers and directors' personal liability to us or any of our stockholders for monetary damage for any breach or alleged breach of fiduciary or professional duty by such person acting in such capacity. A person specifically covered by the indemnification provision in our Bylaws shall still be liable to the extent provided by applicable law for acts or omissions which involve intentional misconduct, fraud, or a knowing violation of law. We anticipate that we will enter into indemnification agreements with each of our directors and executive officers pursuant to which we agree to indemnify each such director and executive officer for all expenses and liabilities, including criminal monetary judgments, penalties and fines, incurred by such director and officer in connection with any criminal or civil action brought or threatened against such director or officer by reason of such person being or having been an officer or director of ours. In order to be entitled to indemnification by us, such person must have acted honestly, in good faith, and in a manner such officer or director believed to be in our best interests. With respect to criminal actions, our officers and directors are entitled to indemnification if they had no reasonable grounds to believe their conduct was unlawful. We shall also indemnify our officers and directors in such other circumstances as permitted or required under Idaho law. IN THE OPINION OF THE SECURITIES AND EXCHANGE COMMISSION, INDEMNIFICATION FOR LIABILITIES ARISING PURSUANT TO THE SECURITIES ACT OF 1933 IS CONTRARY TO PUBLIC POLICY AND, THEREFORE, UNENFORCEABLE.
Item 7. Exemption From Registration Claimed
Not Applicable.
Item 8. Exhibits
The following is a list of exhibits filed as part of this Registration Statement:
4.1 First Amended 2004 Stock Option Plan
5.1 Opinion of The Baum Law Firm
23.1 Consent of Wong Johnson & Associates, APC
23.2 Consent of The Baum Law Firm (included in Exhibit 5.1)
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:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the 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 the 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price 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. |
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(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; provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. |
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(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. |
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(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 purposes of determining a 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) |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf of the undersigned, thereunto duly authorized, in the City of Missoula, Montana, on November 22, 2004.
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Victor Industries, Inc. |
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By: /s/ Lana Pope |
|
CEO, Chairman & CFO |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature |
Title |
Date |
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/s/ Lana Pope |
Chairman of the Board, Chief Executive Officer (Principal Financial and Accounting Officer) |
December 3, 2004 |