As filed with the Securities and Exchange Commission on July 29, 2003
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NETWORK INSTALLATION CORPORATION
F/K/A FLEXXTECH CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 000-25499 88-0390360
--------------- -------------------- -------------------
(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
18 Technology Dr., Suite 140A
Irvine, CA 92618
Telephone: (949) 753-7551
Facsimile: (949)753-7499
---------------------------------------------------
(Address of principal executive offices) (Zip Code)
Directors' Agreements with Michael Novelli,
Michael Cummings, Douglas Leighton and Theodore Smith
-----------------------------------------------------
(Full title of the plan)
Michael Cummings
President
18 Technology Dr., Suite 140A
Irvine, CA 92618
Telephone: (949) 753-7551
Facsimile: (949)753-7499
---------------------------------------------------
(Name and Address of Agent for Service)(Zip Code)
NETWORK INSTALLATION CORPORATION
CALCULATION OF REGISTRATION FEE
Proposed
Maximum
Amount Proposed Maximum
To Be Offering Aggregate Amount of
Title of Securities. . . . . . . . . . . . . . . . . . . Registered Per Share Offering Registration
To Be Registered . . . . . . . . . . . . . . . . . . . . (1) (2) Price Fee
------------------------------------------------------- ------------- ---------- ------------- -------------
Common Stock, par value
..001 per share. . . . . . . . . . . . . . . . . . . . . 400,000 0.705 $ 282,000 $ 22.67
------------------------------------------------------- ------------- ---------- ------------- -------------
(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the Act"), this registration statement shall
be deemed to cover additional securities that may be offered or issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) on the
basis of the
average of the bid and ask prices of the common stock of the Registrant as traded in the over-the counter
market and
reported on the OTC Electronic Bulletin Board of the National Association of Securities Dealers on July 28,
2003.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Pursuant to the Note to Part I of the Form S-8, the information required by
Part I is not filed with the Securities and Exchange Commission.
ITEM 2. INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Registrant will provide without charge to each person to whom a copy of a
Section 10(a) Prospectus hereunder is delivered, upon the oral or written
request of such person, a copy of any document incorporated in this Registration
Statement by reference or any other document required to be delivered pursuant
to Rule 428(b). Requests for such information should be directed to Network
Installation Corporation, 18 Technology Dr., Suite 140A, Irvine, CA 92618, where
the telephone number is (949) 753-7551.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this registration
statement.
a) Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2002 filed pursuant to Section 13(c) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
b) All other reports filed by Registrant pursuant to Section 13(c) or
15(d) of the Exchange Act since the end of the fiscal year covered by the Form
10-KSB referred to in (a) above.
c) The description of the common stock, $.001 par value per share of
the Registrant is contained in the Registrant's registration statement on
Form 10-SB filed March 5, 1999, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Registrant pursuant to Section 13 (a), 13 (c),
14 and 15 (d) of the Exchange Act subsequent to the date of this registration
statement and prior to the filing of a post-effective amendment to this
registration statement which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated in this registration statement by reference and to be
a part hereof from the date of filing of such documents. Any statement
contained in this registration statement, in a supplement to this registration
statement or in a document 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 subsequently filed supplement
to this registration statement or in any document that is subsequently
incorporated by reference herein modifies or supersedes such statement. Any
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
Not applicable. The class of securities to be offered is registered under
Section 12 of the Exchange Act.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
No expert or counsel will receive a direct or indirect interest in the small
business issuer or was a promoter, underwriter, voting trustee, director or
officer or employee of registrant. Nor does any expert or counsel have any
contingent based agreement with us or any other interest in or connection to us.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling our Company pursuant
to the foregoing provisions, we have been informed that in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Article VIII of the Registrant's By-laws provides: Except as hereinafter stated
otherwise, the Corporation shall indemnify all of its officers and directors,
past, present and future, against any and all expenses incurred by them, and
each of them including but not limited to legal fees, judgments and penalties
which may be incurred, rendered or levied in any legal action brought against
any or all of them for or on account of any act or omission alleged to have been
committed while acting within the scope of their duties as officers or directors
of this Corporation.
Article VIII of the Registrant's Articles of Incorporation states that: The
Corporation shall, to the fullest extent permitted by the General Corporation
Law of the State of Nevada, as the same may be amended and supplemented,
indemnify any and all persons whom it shall have power to indemnify under said
Law from and against any and all of the expenses, liabilities, or other matters
referred to in or covered by said Law, and the indemnification provided for
herein shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee,
or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Under the foregoing provisions of the Registrant's Certificate of Incorporation
and By-Laws, each person who is or was a director or officer shall be
indemnified by the Registrant to the full extent permitted or authorized by the
General Corporation Law of Nevada. Under such law, to the extent that such
person is successful on the merits of defense of a suit or proceeding brought
against such person by reason of the fact that such person is a director or
officer of Network Installation, such person shall be indemnified against
expenses, including attorneys' fees, reasonably incurred in connection with such
action. If unsuccessful in defense of a third-party civil suit or a criminal
suit or if such a suit is settled, such a person shall be indemnified under such
law against both (1) expenses (including attorneys' fees) and (2) judgments,
fines and amounts paid in settlement if such person acted in good faith and in a
manner such person reasonably believed to be in, or not opposed to, our best
interests, and with respect to any criminal action, had no reasonable cause to
believe such person's conduct was unlawful.
If unsuccessful in defense of a suit brought by or under the right of Network
Installation, or if such suit is settled, such a person shall be indemnified
under such law only against expenses (including attorneys' fees) incurred in the
defense or settlement of such suit if such person acted in good faith and in a
manner such person reasonably believed to be in, or not opposed to, our best
interests, except that if such a person is adjudicated to be liable in such suit
for negligence or misconduct in the performance of such person's duty to us,
such person cannot be made whole even for expenses unless the court determines
that such person is fairly and reasonably entitled to be indemnified for such
expenses.
We entered into a Consulting Agreement with Dutchess Advisors on April 1, 2003.
Two of the Registrant's directors, Michael Novielli and Douglas Leighton, are
principals of Dutchess Advisors. This Agreement provides that we will indemnify
Dutchess Advisors for all actions, causes of action, suits, claims, losses,
costs, penalties, fees, liabilities and damages, and expenses in connection
therewith, including reasonable attorneys' fees and disbursements, incurred by
Dutchess Advisors as a result of (i) any misrepresentation or breach of any
representation or warranty made by the Registrant in the Agreement or any other
certificate, instrument or document, (ii) any breach of any covenant, agreement
or obligation of the Registrant contained in this Agreement or any other
certificate, instrument or document, (iii) any cause of action, suit or claim
brought or made against Dutchess Advisors by a third party and arising out of
the execution, delivery, performance or enforcement of this Agreement or any
other certificate, instrument or document, except insofar as any such
misrepresentation, breach or any untrue statement, alleged untrue statement,
omission or alleged omission is made in reliance upon and in conformity with
written information furnished to Dutchess Advisors by the Registrant.
We entered into an Investment Agreement with Dutchess Private Equities Fund LP
on April 2, 2003. Two of the Registrant's directors, Michael Novielli and
Douglas Leighton, are principals of Dutchess Private Equities Fund. The
Investment Agreement provides that the Registrant shall defend, protect,
indemnify and hold harmless Dutchess Private Equities Fund from and against any
and all actions, causes of action, suits, claims, losses, costs, penalties,
fees, liabilities and damages, and expenses in connection therewith, and
including reasonable attorneys' fees and disbursements, incurred by Dutchess
Private Equities Fund as a result of (i) any misrepresentation or breach of any
representation or warranty made by the Registrant in the Investment Agreement
documents or any other certificate, instrument or document, (ii) any breach of
any covenant, agreement or obligation of the Registrant contained in the
Investment Agreement documents or any other certificate, instrument or document,
(iii) any cause of action, suit or claim brought or made against Dutchess
Private Equities Fund by a third party and arising out of or resulting from the
execution, delivery, performance or enforcement of the Investment Agreement
documents or any other certificate, instrument or document, (iv) any transaction
financed or to be financed with the proceeds of the issuance of the securities
or (v) the status of Dutchess Private Equities Fund as a holder of the
securities as an investor in the Registrant, except insofar as any such
misrepresentation, breach or any untrue statement, alleged untrue statement,
omission or alleged omission is made in reliance upon and in conformity with
written information furnished to the Registrant by Dutchess Private Equities
Fund which is specifically intended by Dutchess Private Equities Fund for use in
the preparation of any such Registration Statement, preliminary prospectus or
prospectus or based on illegal or alleged illegal trading of the shares by
Dutchess Private Equities Fund.
On April 7, 2003, the Registrant entered into a Registration Rights Agreement
with Dutchess Private Equities Fund which provides that the Registrant will
indemnify and defend Dutchess Private Equities Fund against any losses, claims,
damages, liabilities, judgments, fines, penalties, charges, costs, attorneys'
fees, amounts paid in settlement or expenses, incurred in investigating,
preparing or defending any action, claim, suit, inquiry, proceeding,
investigation or appeal taken from the foregoing by or before any court or
governmental, administrative or other regulatory agency, body or the SEC,
whether pending or threatened, that arise out of or are based upon: (i) any
untrue statement or alleged untrue statement of a material fact in a
Registration Statement or any post-effective amendment thereto or in any filing
made in connection with the qualification of the offering under the securities
or other "blue sky" laws of any jurisdiction in which Registrable Securities are
offered, or the omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which the statements therein were made, not misleading,
(ii) any untrue statement or alleged untrue statement of a material fact
contained in the final prospectus or the omission or alleged omission to state
therein any material fact necessary to make the statements made therein, in
light of the circumstances under which the statements therein were made, not
misleading, or (iii) any violation or alleged violation by the Registrant of the
1933 Act, the 1934 Act or any other law relating to the offer or sale of the
Registrable Securities pursuant to a Registration Statement. The Registrant
shall reimburse the Dutchess Private Equities Fund promptly as reasonable
expenses. The indemnification(i) shall not apply to a claim arising out of or
based upon a violation which is due to the inclusion in the Registration
Statement of the information furnished in writing to the Registrant by Dutchess
Private Equities Fund expressly for use in connection with the preparation of
the Registration Statement or any such amendment thereof or supplement thereto;
(ii) shall not be available to the extent such claim is based on (a) a failure
of the Registrant to deliver or to cause to be delivered the prospectus made
available by the Registrant or (b) the Dutchess Private Equities Fund's use of
an incorrect prospectus despite being promptly advised in advance by the
Registrant in writing not to use such incorrect prospectus; (iii) any claims
based on the manner of sale of the securities by Dutchess Private Equities Fund;
(iv) any omission of Dutchess Private Equities Fund to notify the Registrant of
any material fact that should be stated in the Registration Statement or
prospectus relating to Dutchess Private Equities Fund or the manner of sale; or
(v) shall not apply to amounts paid in settlement of any claim if such
settlement is effected without the prior written consent of the Registrant.
On April 8, 2003, the Registrant entered into a Subscription Agreement with
Dutchess Private Equities Fund which provides that the Registrant shall defend,
protect, indemnify and hold harmless Dutchess Private Equities Fund from and
against any and all actions, causes of action, suits, claims, losses, costs,
penalties, fees, liabilities and damages, and expenses in connection therewith,
and including reasonable attorneys' fees and disbursements incurred by Dutchess
Private Equities Fund as a result of (i) any misrepresentation or breach of any
representation or warranty made by the Registrant (ii) any breach of any
covenant, agreement or obligation of the Registrant (iii) any cause of action,
suit or claim brought or made against Dutchess Private Equities Fund by a third
party and arising out of the execution, delivery, performance or enforcement of
the document contemplated in the Agreement, (iv) any transaction financed or to
be financed with the proceeds of the issuance of the Debentures or (v) the
status of Dutchess Private Equities Fund as an investor in the Registrant,
except insofar as any untrue statement or omission is made in reliance upon and
in conformity with written information furnished to the Registrant by Dutchess
Private Equities Fund. If Dutchess Private Equities Fund, other than by reason
of its gross negligence or willful misconduct, becomes involved in any capacity
in any action, proceeding or investigation brought by any shareholder in
connection with transactions contemplated by transactions between the Registrant
and Dutchess Private Equities Fund, the Registrant will reimburse Dutchess
Private Equities Fund for its reasonable legal and other expenses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
Exhibit No. Description
- ------------ -----------
5.1 Opinion of Weed & Co. LLP
23.1 Consent of Counsel (included in Exhibit 5 hereto).
23.2 Consent of Independent Auditors, Kabani & Company, Inc.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
1. To file, during any period in which it offers or sales are being made,
a post-effective amendment to this registration statement to:
(i) 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 of 1933, each such post-effective amendment shall be deemed
to be a new registration statement of the securities offered therein, and the
offering of such securities at that time shall be the initial bona fide
offering thereof.
3. To remove from registration by means of a post-effective amendment f
the any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of 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.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of registrant
pursuant to the foregoing provisions, or otherwise, registrant 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 registrant of expenses
incurred or paid by a director, officer or controlling person of 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, 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 is against public policy
as expressed in the Act and will be governed by the final adjudication of such
issue.
For purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant under Rule 424(b)(1), or (4) or 497(h) under
the Securities Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
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 the 29rd day of July
2003.
NETWORK INSTALLATION CORPORATION
By: /s/ Michael Cummings
--------------------
Michael Cummings
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicates and on the dates indicated.
TITLE DATE
----- ----
/s/ Michael A. Novielli Chairman of the Board July 29, 2003
- ----------------------- Director
Michael A. Novielli
/s/ Michael Cummings Chief Executive Officer July 29, 2003
----------------------- Chief Financial Officer
Michael Cummings (Principal Accounting Officer),
President
Director
/s/ Douglas H. Leighton Director July 29, 2003
- -----------------------
Douglas H. Leighton
/s/ Theodore J. Smith Director July 29, 2003
- -----------------------
Theodore J. Smith