As filed with the Securities and Exchange Commission on April 26, 2004
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VISIJET, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0838660
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
192 TECHNOLOGY DRIVE, SUITE Q
IRVINE, CALIFORNIA 92618
(Address of Principal Executive Office) (Zip Code)
CONSULTING AGREEMENT
(Full title of the plan)
RANDAL A. BAILEY
192 Technology Drive, Suite Q
IRVINE, CA 92618
(Name and address of agent for service)
(949) 450-1660
(Telephone number, including area code, of agent for service)
COPY TO:
ROBERT J. ZEPFEL, ESQ.
HADDAN & ZEPFEL LLP
500 NEWPORT CENTER DRIVE, SUITE 580
NEWPORT BEACH, CA 92660
(949) 706-6000
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to Be Registered Be Registered Offering Price Per Share (1) Aggregate Offering Price (1) Registration Fee
---------------- ------------- ---------------------------- ---------------------------- ----------------
Common Stock,
without par value 2,400,000 $ .97 $ 2,328,000 $ 294.96
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457, based on the closing price of the Common
Stock, as reported by the OTC Bulletin Board, on April 23, 2004.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following document filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act") by VisiJet, Inc. (the "Company") is hereby
incorporated by reference in this Registration Statement except as superseded or
modified herein: the Annual Report on Form 10-KSB for the year ended December
31, 2003, including any amendment or reports filed for the purpose of updating
such description. All documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of this Registration Statement and prior to the time a post- effective
amendment which indicates that the securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in any
document incorporated or deemed to be incorporated by reference herein 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 modified or superseded, to constitute
a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The certificate of incorporation and the by-laws of the registrant
provide that the registrant shall indemnify its officers, directors and certain
others to the maximum extent permitted by the General Corporation Law of the
State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware
provides in relevant part as follows:
(a) A corporation shall have power to 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, whether civil,
criminal, administrative or investigative) other than an action by or
in the right of the corporation) by reason of the fact that the 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), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such
action, suit or proceeding if the person acted in good faith and in a
manner the 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 the person's
conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which the 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 reasonable cause to believe that the person's
conduct was unlawful.
(b) A corporation shall have power to 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 the 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 the
person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interest 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 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 Court of Chancery or such other court shall
deem proper.
The General Corporation Law does not allow for the elimination
or limitation of liability of a director: (i) for any breach of a director's
duty of loyalty to the corporation or its stockholders; (ii) acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) arising under Section 174 thereof; or (iv) for any transaction
from which the director derived an improper personal benefit. The General
Corporation Law provides further that the indemnification permitted thereunder
shall not be deemed exclusive of any rights to which the directors and officers
may be entitled under the corporation's bylaws, any agreement, a vote of
stockholders or otherwise.
In addition, pursuant to the certificate of incorporation and
by-laws of the registrant, it is to indemnify its directors and officers against
expenses (including judgments or amounts paid in settlement) incurred in any
action, civil or criminal, to which any such person is a party by reason of any
alleged act or failure to act in his capacity as such, except as to a matter as
to which such director or officer shall have been finally adjudged not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the corporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
5.1 Opinion of Haddan & Zepfel LLP
23.1 Consent of Peterson & Company, LLC
23.2 Consent of Haddan & Zepfel LLP (included in Exhibit 5.1)
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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act");
(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,
represents a fundamental change in the information set forth in the 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.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
(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 Securities and Exchange
Commission such indemnification is against pubic 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 Securities 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 Irvine, State of California, on April 26, 2004.
VISIJET, INC.
By /s/ Randal A. Bailey
--------------------------------
Randal A. Bailey, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Randal A. Bailey his true and lawful
attorney-in-fact, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities to sign any and all
amendments (including post- effective amendments) to this registration statement
and to sign a registration statement pursuant to Section 462(b) of the
Securities Act of 1933, 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, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
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/ Randal A. Bailey President and a Director April 26, 2004
------------------------- (Principal Executive Officer)
Randal A. Bailey
/s/ Laurence M. Schreiber Vice President, CFO and a Director April 26, 2004
------------------------- (Principal Financial and
Laurence M. Schreiber Accounting Officer)
Directors:
Chairman of the Board of Directors April , 2004
-------------------------
Richard H. Keates
Director April , 2004
-------------------------
Adam Krupp
/s/ Norman Schwartz Director April 26, 2004
-------------------------
Norman Schwartz
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
5.1 Opinion of Haddan & Zepfel LLP
23.1 Consent of Peterson & Co., LLC
23.2 Consent of Haddan & Zepfel LLP (included in Exhibit 5.1)