1
As filed with the Securities and Exchange Commission on August 5, 2002
SEC File No. _______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AMERITYRE CORPORATION
-----------------------------
(Exact name of registrant as specified in its charter)
NEVADA 87-0535207
------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
705 Yucca Street, Boulder City, Nevada 89005
---------------------------------------------------- ------------
(Address of Principal Executive Offices) (Zip Code)
AMERITYRE 2002 STOCK OPTION AND AWARD PLAN
--------------------------------------------
(Full title of the plan)
David Griffiths, 705 Yucca Street, Boulder City, Nevada 89005
------------------------------------------------------------------------------
(Name, address, including zip code of agent for service)
Telephone number, including area code, of agent for service: (702) 293-1930
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered (2) Share (1) Price Fee
---------- ---------- ---------- ---------- ------------
Common Stock,
$0.001 par
value 2,000,000 $ 2.80 $5,600,000 $ 515.20
(1) Bona fide estimate of maximum offering price solely for the purpose of
calculating the registration fee as determined under Regulation C, Rule 457(c)
and/or (g), of the Securities Act of 1933, based on the average of the bid and
ask price of the Registrant's common stock as reported on the NASD's OTC
Bulletin Board on August 5, 2002.
2
PART I
AMERITYRE CORPORATION
Cross Reference Sheet Pursuant to Rule 404(a)
Cross-reference between items of part I of form S-8 and the section 10(a)
prospectus which will be delivered to each employee, director or consultant
who participates in the stock option plans.
Registration Statement Item Numbers and Headings Prospects Headings
------------------------------------------------ ------------------
1) Plan Information Section 10(a) Prospectus
2) Registration Information and Employee
Plan Annual Information Section 10(a) Prospectus
3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are hereby
incorporated by reference:
1) The Company's annual report on Form 10-KSB for the period ended
June 30, 2001, as amended, dated October 9, 2001;
2) The Company's quarterly report on Form 10-QSB for the period ended
September 30, 2001, dated November 14, 2001; and
3) The Company's quarterly report on Form 10-QSB for the period ended
December 31, 2001, dated February 14, 2002; and
4) The Company's quarterly report on Form 10-QSB for the period ended
March 31, 2002, dated May 15, 2002; and
5) All additional reports filed by the Company with the Commission
pursuant to section 13(a) or 15(d) of the Exchange Act after March 31, 2002.
All reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 12, or 15(d) of the Exchange Act prior to the filing of
any post-effective amendment which indicates that all securities covered by
this Prospectus have been sold or which deregisters all such securities then
remaining unsold shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such reports and documents.
4
ITEM 4. DESCRIPTION OF SECURITIES
Common Stock
The Company is authorized to issue 25,000,000 shares of common stock, par
value $0.001 per share (the "Common Stock"). The holders of the Common Stock
are entitled to one vote per share on each matter submitted to a vote at any
meeting of shareholders. Shares of Common Stock do not carry cumulative
voting rights and, therefore, a majority of the shares of outstanding Common
Stock will be able to elect the entire board of directors and, if they do so,
minority shareholders would not be able to elect any persons to the board of
directors. The Company's articles of incorporation and bylaws provide that a
majority of the issued and outstanding shares of the Company shall constitute
a quorum for shareholders' meetings, except with respect to certain matters
for which a different percentage quorum is required by statute.
Shareholders of the Company 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 Company, the shares of Common Stock are
entitled to share equally in corporate assets after satisfaction of all
liabilities and payment of any preferences on preferred stock.
Holders of Common Stock are entitled to receive such dividends as the
board of directors may from time to time declare out of funds legally
available for the payment of dividends.
The board of directors has the authority to issue the authorized but
unissued shares of Common Stock without action by the shareholders. The
issuance of such shares would reduce the percentage ownership held by persons
purchasing Common Stock in this offering and may dilute the book value of the
then existing shareholders.
Preferred Stock
The Company's Articles of Incorporation authorize 5,000,000 shares of
Preferred Stock, par value $0.001 per share (the "Preferred Stock"). Preferred
Stock may be issued in one or more series or classes, with each series or
class having the rights and privileges respecting voting rights, preferences
as to dividends and liquidation, conversion rights, and other rights of such
series as determined by the board of directors at the time of issuance.
Currently there are no shares of Preferred Stock outstanding nor have any such
shares been designated for issuance.
Registrar and Transfer Agent
The registrar and transfer agent of the Company's securities is Interwest
Transfer Company, 1981 East Murray-Holladay Road, Holladay, Utah 84117, (801)
272-9294.
5
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Except as otherwise disclosed herein, no other expert or counsel for the
Company named in this registration statement as having prepared or certified
any part hereof, or as giving an opinion as to the validity of the securities
being registered was employed on a contingency basis, or has or is to receive,
in connection with the offering, a substantial interest in the Company or its
subsidiaries. In addition no such expert or counsel is connected with the
Company or its subsidiaries as a promoter, managing underwriter, voting
trustee, director, officer, or employee.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The following is a brief summary of certain indemnification provisions of the
Company's certificate of incorporation and the Nevada Revised Statutes. This
summary is qualified in its entirety by reference to the text thereof.
Section 78.751 of the Nevada Revised Statutes confers on a director or officer
an absolute right to indemnification for expenses, including attorneys' fees,
actually and reasonably incurred by him to the extent he is successful on the
merits or otherwise in defense of any action, suit, or proceeding. This
section also entitles a director or officer to partial indemnification against
expenses to the extent that he has been successful in defending any claim,
issue, or matter asserted in such proceeding. The Nevada Revised Statutes
indemnification section further permits the corporation to indemnify officers
and directors in circumstances where indemnification is not mandated by the
statute and certain statutory standards are satisfied.
The Nevada Revised Statutes expressly make indemnification contingent upon a
determination that indemnification is proper in the circumstances. Such
determination must be made by the board of directors, the shareholders, or
independent legal counsel. The Nevada Revised Statutes also permit a
corporation, in its articles of incorporation, bylaws, or an agreement, to pay
attorneys' fees and other litigation expenses on behalf of a corporate
official in advance of the final disposition of the action upon receipt of an
undertaking by or on behalf of the corporate official to repay such expenses
to the corporation if it is ultimately determined that he is not entitled to
be indemnified by the corporation. The corporation may also purchase and
maintain insurance to provide indemnification.
The Nevada Revised Statutes also provide that indemnification authorized by
the statute is not exclusive of, but is in addition to, indemnification rights
granted under a corporation's articles of incorporation, an agreement, or
pursuant to a vote of shareholders or disinterested directors.
The foregoing discussion of indemnification merely summarizes certain aspects
of indemnification provisions and is limited by reference to Section 78.751 of
the Nevada Revised Statues.
6
The Company's articles of incorporation and bylaws do not contain specific
provisions relating to indemnification of directors, officers, employees,
and/or agents of the Company. However, it is anticipated that the Company will
indemnify its officers and directors to the full extent permitted by the above
referenced statute. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers, and controlling
persons of the small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer 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. In
the event that a claim for indemnification against such liabilities (other
than the payment by the small business issuer of expenses incurred or paid by
a director, officer or controlling person in connection with the securities
being registered), the small business issuer 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
the Company is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
7
ITEM 8. EXHIBITS
Exhibits.
---------
Copies of the following documents are included as exhibits to this
registration statement pursuant to Item 601 of Regulation S-K.
SEC
Exhibit Reference
No. No. Description Location
------- --------- ----------- --------
4.01 4 Amerityre 2002 Stock Option
and Award Plan This filing
5.01 5 & 23 Letter opinion, including consent
of John C. Thompson & Associates, LLC
regarding legality of Common Stock
to be issued pursuant to options
granted under the Plans. This Filing
23.01 23 Consent of HJ & Associates, LLC
Certified Public Accountants This Filing
25.01 25 Powers of Attorney See Signature
Page
8
ITEM 9. UNDERTAKINGS
REGULATION S-K
Post-Effective Amendments-Item 512(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 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, 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.
Filings Incorporating Subsequent Exchange Act Documents by Reference-Item
512(b)
-------------------------------------------------------------------------
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, as amended , each filing of
the Registrant's annual report pursuant to section 13(a) or 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(a) 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.
Filing of Registration Statement on Form S-8 - Item 512(h)
----------------------------------------------------------
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 Commission such indemnification is
against public policy as expressed in the Securities 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.
9
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
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Boulder City, state of Nevada, this
5th day of August 2002.
AMERITYRE CORPORATION
By /S/ Richard A. Steinke, President
(Principal Executive Officer)
By /S/ David K. Griffiths, Treasurer
(Principal Accounting Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Richard A. Steinke, with power of substitution, as
his attorney-in-fact for him, in all capacities, to sign any amendments to
this registration statement and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact or
his substitutes may 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 by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/S/ Richard A. Steinke Director August 5, 2002
/S/ Louis M. Haynie Director August 5, 2002
/S/ William K. Watkins Director August 5, 2002
/S/ Gene Stipe Director August 5, 2002
/S/ Henry Moyle Director August 5, 2002