As filed with the Securities and Exchange Commission on September 25, 2003
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MATERIAL TECHNOLOGIES, INC.
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(Exact name of Registrant as specified in its charter)
DELAWARE 95-4622822
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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(Address of principal executive offices)
2003 STOCK OPTION, SAR AND STOCK BONUS CONSULTANT PLAN
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(Full title of the Plan)
ROBERT M. BERNSTEIN, CHIEF EXECUTIVE OFFICER AND PRESIDENT
MATERIAL TECHNOLOGIES, INC.
11661 San Vincente Boulevard, Suite 707
Los Angeles, California 90049
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(Name and address of agent for service)
(310) 208-5589
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(Telephone number, including area code, of agent for service)
Copies to:
STEPHEN A. ZRENDA, JR., ESQ.
STEPHEN A. ZRENDA, JR., P.C.
100 NORTH BROADWAY
SUITE 2440
OKLAHOMA CITY, OKLAHOMA 73102
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CALCULATION OF REGISTRATION FEE
Title of Each Class Amount to be Proposed Maximum Proposed Maximum Amount of
of Securities to Registered(1) Offering Price per Share(2) Aggregate Offering Price Registration Fee
be Registered
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Common Stock,
$.001 par value 10,000,000 shares $1.76 $17,600,000 $1,423.84
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(1) Estimated pursuant to Rule 457(c) under the Securities Act, solely for the
purpose of calculating the registration fee, based on the average of the bid and
asked prices of the Company's common stock as reported within five business days
prior to the date of this filing.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
GENERAL. The Board of Directors of Material Technologies, Inc. (the
"Company") adopted the 2003 Stock Option, SAR and Stock Bonus Consultant Plan
(the "Plan") which authorized the Company through the Committee that administers
the Plan (the "Committee") to grant non-qualified stock options with or without
stock appreciation rights, SAR's and stock bonuses to consultants of the
Company. There are 10,000,000 shares (post-split) of Common Stock of the Company
Available for grant to participants designated by the Committee under the Plan.
A description of the Plan appears below. Directors, officers and employees of
the Company are not eligible to participate in this Plan
DESCRIPTION OF THE PLAN. The Board of Directors determined to adopt the
Plan to retain and compensate consultants and to provide additional incentive
for consultants. The Plan permits the Committee the right to grant non-qualified
stock options ("Stock Options") with or without stock appreciation rights
("SAR's"), and SAR stock bonuses. The Board believes that the best interest of
the Company will be served by the availability of both Stock Options and SAR's.
THE COMMITTEE. The Plan provides for the granting by the Committee of
Options (with or without SAR's) and stock bonuses to consultants of the Company.
The shares subject to the Plan will be registered at the Company's expense
pursuant to the Securities Act of 1933, as amended (the "Act"), and applicable
state securities acts, or will be issued by the Company pursuant to exemptions
from the registration requirements of the Act and applicable state securities
acts. The Plan is administered by the Committee composed of at least one member
of the Board of Directors. The Committee administers and interprets the Plan and
has authority to grant Options and stock bonuses to all eligible persons and
determines at the time the Option is granted the number of shares granted under
and the type of each Option or bonus, the purchase price, the option period and
whether SAR's granted thereunder or at the time of exercise of the Option. Mr.
Robert M. Bernstein, the Chief Executive Officer and President of the Copany,
has been appointed as the sole member of the Committee.
STOCK OPTIONS. The Plan provides for the issuance of non-qualified
Stock Options which may be with or without SAR's, to consultants of the Company
at any time on or after September 24, 2003, for the purchase of shares of the
Company's Common Stock from the 10,000,000 shares which have been set aside for
such purpose. The Committee may grant Stock Options with or without SAR's for
such number of shares to eligible participants as the Committee from time to
time shall determine and designate. Shares involved in the unexercised portion
of any terminated or expired Option may again be subjected to Options, provided
that to the extent any Option in whole or in part is surrendered as the result
of the exercise of a SAR, the shares subject to the surrendered portion of the
Option will no longer be available for use under the Plan.
The Committee is vested with discretion in determining the terms,
restrictions and conditions of each Option. The option price of the Common Stock
to be issued under the Plan will be determined by the Committee, provided such
price may not be less than 85% of the fair market value of the shares on the
date of grant unless approved by the Committee. The fair market value of a share
of the Company's Common Stock will be determined to be the closing price for
such share on the date of grant in the over-the-counter market (NASD Electronic
Bulletin Board) or the market upon which the Common Stock of the Company
actively trades.
Options granted under the Plan are exercisable in such amounts, at such
intervals and upon such terms as the Committee shall provide in such Option.
Upon the exercise of a Stock Option, the option price must be paid in full, in
cash or in Common Stock of the Company or a combination of cash and Common Stock
of the Company.
Stock Options granted under the Plan may not be exercised until six
months after the date of the grant and rights under an SAR may not be exercised
until six months after SAR's are attached to an Option if not attached at the
time of the grant, except in the event of death or disability of the
participant. Options are exercisable only by participants while actively
employed as a consultant by the Company or a subsidiary except in the case of
death or disability. In the case of disability and to the extent otherwise
exercisable, Options may be exercised at any time within one year after the
occurrence of disability. The personal representative of a deceased participant
shall have one year from the date of death (but not beyond the expiration date
of the Option) to exercise the exercisable portion of such Option to the extent
that it has accrued on the date of death. If a Participant's employment as a
consultant by the Company or its subsidiary terminates for any reason other than
death or disability, any Option granted to such participant shall immediately
terminate. However, a disabled participant or any other participant upon the
occurrence of other special circumstances may, with the consent of the
Committee, exercise an Option if the disability or other event causing
termination of employment as consultant occurred on or after the six-month
period following the date of grant, notwithstanding the fact that all
installments with respect to such Option had not accrued at such date. If a
participant dies or terminates as a consultant with the Company or its
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subsidiary by disability within the aforesaid six-month waiting period, the
Committee may permit the personal representative of such deceased participant or
the disabled participant to exercise any portion of an Option previously granted
to such deceased or disabled participant. No Option may be exercisable after
September 24, 2006. Subject to such conditions, Options will become exercisable
by the participants in such amounts and at such times as shall be determined by
the Committee in each individual grant. Options are not transferable except by
will or by the laws of descent and distribution.
STOCK APPRECIATION RIGHTS. Except in the case of death or disability, a
SAR may not be exercised until six months after the date of grant but thereafter
may be exercised and will terminate at such time as the Committee determines.
SAR's are exercisable only upon surrender of part or all of the related Option
to which they are attached. SAR's also terminate upon termination of the related
Option. They may be exercised only by participants while employed as a
consultant by the Company or its subsidiary, under the same terms and conditions
as the Stock Options and like such Options, death or disability provide
exceptions. See "Stock Options " above. A participant who terminates employment
as a consultant by reason of disability or death within the six-month period
following the date of grant of a SAR will automatically lose the SAR as well as
the related Stock Option. However, a disabled participant, or any other
participant upon the occurrence of other special circumstances, may, with the
consent of the Committee, exercise a SAR if the disability or other event
causing termination of employment as a consultant occurred on or after the
six-month period following the date of grant notwithstanding the fact that all
installments with respect to such SAR had not accrued as of such date. If a
participant dies or becomes disabled which causes termination of employment as a
consultant within the aforesaid six-month waiting period, the Committee may
permit the personal representative of such deceased participant or the disabled
participant to exercise any portion of a SAR previously granted to such deceased
or disabled participant. Upon the exercise of a SAR, the holder is entitled
(subject to the Committee's approval) to receive the excess of the fair market
value of the shares for which the right is exercised over the option price under
the related Option.
The Committee has the authority to determine whether the value of the
SAR is paid in cash or shares of Common Stock or both and whether or not the SAR
may be exercised by the participant. The Committee may deny the exercise of the
SAR, if in the Committee's opinion, the performance by the participant is
unsatisfactory or the conduct of the participant has been detrimental to the
Company or one of its subsidiaries. The Committee has no authority to deny the
exercise of the underlying Stock Option pursuant to the terms of the grant.
The utilization of SAR's will require a charge to the Company's
operations for each year for the appreciation of the rights which are
anticipated will be exercised. The amount of a charge is dependent upon whether
and the extent to which such rights are granted, and the amount, if any, by
which the fair market value of the Company's Common Stock exceeds the option
price provided for in the related Stock Option. A similar charge will be made
for Stock Options without SAR's.
ADJUSTMENTS. The total number of shares of the Company's Common Stock
which may be purchased through all classes of Options under the Plan and the
number of shares subject to outstanding Options and the related option prices
will be adjusted in the cases of changes in capital structure resulting from a
stock dividend, recapitalization, stock split, consolidation, reorganization,
combination, liquidation, stock dividend or similar transaction, except a
dissolution or liquidation of the Company or a merger or consolidation in which
the Company is not the surviving or the resulting corporation (except a
reorganization which has the effect of changing the Company's place of
organization) will cause the Plan and any Option or SAR granted thereunder to
terminate upon the effective date of such dissolution, liquidation, merger or
consolidation.
TERMINATION AND AMENDMENT. The Plan terminates as of midnight on
September 23, 2006, but prior thereto may be altered, changed, modified, amended
or terminated by written amendment approved by the Board of Directors. Provided,
that no action of the Committee may, without the approval of Board of Directors,
increase the total amount of Common Stock which may be purchased under Options
granted under the Plan; withdraw the administration of the Plan from the
Committee; amend or alter the option price of Common Stock under the Plan; or
change the manner of computing the spread payable by the Company to a
participant upon the exercise of a SAR. No amendment, modification or
termination of the Plan shall in any manner adversely affect any Option
theretofore granted under the Plan without the consent of the optionee except as
described under "Adjustments" above.
FEDERAL INCOME TAX CONSEQUENCES. A participant receiving a Stock Option
under the Plan will not be in receipt of income under the Code and the
applicable Treasury Regulations thereunder, upon the grant of the Option.
However, he will realize income at the time the Option is exercised in an amount
equal to the excess of the fair market value of the Common Stock acquired on the
date of exercise. The amount of income realized by a participant will be treated
as ordinary income, and the Company will be entitled to deduct that same amount.
The tax basis of any Common Stock received by a participant will be its fair
market value on the exercise date.
The granting of Stock Options with SAR's will not produce income under
the Code and the applicable Treasury Regulations to the participant or and will
not result in a tax deduction to the Company. Upon exercise of such rights, any
cash a participant receives and the fair market value on the exercise date of
any Common Stock received will be taxable to the participant as ordinary income.
The amount of income recognized by a participant will be deductible by the
Company. The tax basis of any Common Stock received by a participant will be its
fair market value on the exercise date.
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ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933 (the "Securities Act"). Such document(s) are not
being filed with the Commission, but constitute (along with the documents
incorporated by reference into the Registration Statement pursuant to Item 3 of
Part II hereof) a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously or concurrently filed by the Company
with the Commission are hereby incorporated by reference into this Registration
Statement:
(a) The Form 10-KSB annual report of the Company for its fiscal
year ended December 31, 2002, and the Form 10-QSB quarterly
reports of the Company filed subsequent thereto, and all other
reports to be filed pursuant to Section 13(a) or 15(d) of the
Exchange Act thereafter.
All of the above documents and documents subsequently filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Form S-8 Registration Statement and to be a part thereof from the date
of the filing of such documents. Any statement contained in the documents
incorporated, or deemed to be incorporated, by reference herein or therein shall
be deemed to be modified or superseded for purposes of this Form S-8
Registration Statement and the prospectus which is a part hereof (the
"Prospectus") to the extent that a statement contained herein or therein or in
any other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein 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 Form S-8
Registration Statement and the Prospectus.
All documents incorporated by reference herein will be made available to
all participants without charge, upon written or oral request. Other documents
required to be delivered to participants pursuant to Rule 428(b)(1) under the
Securities Act of 1933 are also available without charge, upon written or oral
request. All requests for documents shall be directed to:
ROBERT M. BERNSTEIN, CHIEF EXECUTIVE OFFICER AND PRESIDENT
MATERIAL TECHNOLOGIES, INC.
11661 San Vincente Boulevard, Suite 707
Los Angeles, California 90049
(310) 208-5589
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 Company is a Delaware corporation. Section 145 of the General
Corporation Law of the State of Delaware (the "GCL") provides authority for
broad indemnification of officers, directors, employees and agents of a
corporation, with certain specified exceptions.
Article Eighth of the Company's Articles of Incorporation provides that
the Company shall have the power to indemnify its directors, officers, employees
and agents to the fullest extent allowed by the GCL.
At the present time, the Company does not have any officer-director
liability insurance although permitted by Section 145(g)of the GCL, nor does
the Company have indemnification agreements with any of its directors, officers,
employees or agents.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
See the Exhibit Index following the signature page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to the
Registration Statement to: (i) include any prospectus
required by Section 10(a)(3) of the Securities Act;
(ii) reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement; and
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 selected in the form of a
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" table in the
effective registration statement; and (iii) 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 provisions (i) and (ii) of this
undertaking are inapplicable if the information to be
filed thereunder is contained in periodic reports
filed by the Company pursuant to the Exchange Act
that are incorporated by reference into 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; and
(1) To remove from registration by means of
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 director, officer or controlling person 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 Company 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.
(c) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 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 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.
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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 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 Vancouver, Canada, on September 25, 2003.
MATERIAL TECHNOLOGIES, INC.
By: /s/ Robert M. Bernstein
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Robert M. Bernstein
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on September 25, 2003. Each person whose signature to the
Registration Statement appears below hereby appoints Robert M. Bernstein as such
person's attorney-in-fact with full power to act alone, with full power of
substitution or re-substitution, for such person and in such person's name,
place and stead, in any and all capacities to sign on such person's behalf,
individually and in the capacities stated below, and to file any and all
amendments and post-effective amendments to this Registration Statement, which
amendment or amendments may make such changes and additions as such
attorney-in-fact may deem necessary or appropriate.
/s/ Robert M. Bernstein /s/ Joel R. Freedman
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Robert M. Bernstein, Chief Exeuctive Joel R. Freedman, Director
Officer and President Director, and
Principal Financial and Accounting Officer
/s/ Dr. John W. Goodman
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Dr. John W. Goodman, Director
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MATERIAL TECHNOLOGIES, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
EXHIBIT NO. DESCRIPTION
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5.1 Opinion of Stephen A. Zrenda, Jr., P.C.
10.1 2003 Stock Option, SAR and Stock Bonus Consultant Plan
23.1 Consent of Stephen A. Zrenda, Jr., P.C.
24.1 Power of Attorney (included on Signature Page to the
Registration Statement)
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