SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Omni Medical Holdings, Inc.
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(Exact Name of Registrant as Specified in its Charter)
UTAH 87-0425275
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(State or Other Jurisdiction (IRS Employer ID No.)
of incorporation or organization)
1107 Mt. Rushmore Road, Suite #2
Rapid City, South Dakota 57701
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(Address of Principal Executive Offices)
(605) 718-0380
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(Issuer's Telephone Number, including Area Code)
Consulting Agreement
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(Full Title of the Plan)
Arthur D. Lyons
1107 Mt. Rushmore Road, Suite #2
Rapid City, South Dakota 57701
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(Name and Address of Agent for Service)
(605)718-0380
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(Telephone Number, Including Area Code, of Agent for Service)
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR
INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX: [ ]
CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Proposed
Class of Maximum Maximum Amount of
Securities to Amount to Price per Aggregate Registration
be Registered be Registered Unit/Share Offering Price Fee*
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$0.001 par 293,104 $0.03 $8,793.12 $
value common
voting stock
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* Calculated according to Rule 230.457(h) of the Securities and
Exchange Commission (the "Commission").
PART I
Item 1. Plan Information.
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Plan.
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A copy of the Compensation Agreement is attached hereto and
incorporated herein by reference.
Item 2. Registrant Information and Employee Plan Annual Information.
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Available Information.
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Copies of the Plan, 10-KSB Annual Report of the Registrant for the
year ended December 31, 2002, all 10-QSB Quarterly Reports and any Current
Reports filed with the Commission during the past twelve months have been
provided to the Plan participant.
The Registrant also undertakes to furnish, without charge, to such
participant or person purchasing any of the securities registered hereby,
copies of all of such documentation. Requests should be directed to Arthur D.
Lyons, President, at the address and telephone appearing on the Cover
Page of this Registration Statement.
Additional information regarding the Registrant may be reviewed at
the Commission's web site, www.sec.gov, in the Edgar Archives.
PART II
Information Required in the Registration Statement
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Item 3. Incorporation of Documents by Reference.
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The following documents are incorporated by reference into this
Registration Statement and made a part hereof, to wit:
(a) The Registrant's 10-KSB Annual Report for the calendar year
ended December 31, 2002, filed with the Commission on or about
March 26, 2003;
(b) All other reports filed pursuant to Sections 13(a) or 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act")
for the past twelve months;
(c) The Registrant is authorized to issue one class of stock
$0.001 par value common voting stock.
The holders of the $0.001 par value common stock of the
Registrant have traditional rights as to voting, dividends and
liquidation. All shares of common stock are entitled to one
vote on all matters; there are no pre-emptive rights and
cumulative voting is not allowed. The common stock is not
subject to redemption and carries no subscription or conversion
rights. In the event of liquidation of the Registrant, the
holders of common stock are entitled to share equally in
corporate assets after satisfaction of all liabilities.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall
also be deemed to be incorporated by reference into this Registration
Statement and made a part hereof from the date of the filing of such
documents.
Item 4. Description of Securities.
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Not applicable; however, see Item 3(c) above.
Item 5. Interest of Named Experts and Counsel.
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Branden T. Burningham, Esq., who has prepared this Registration
Statement, the Plan and an Opinion regarding the authorization, issuance and
fully-paid and non-assessable status of the securities covered by this
Registration Statement, presently owns no shares of common stock of the
Registrant and is not deemed to be an affiliate of the Registrant or a person
associated with an affiliate of the Registrant; however, Mr. Burningham shares
a legal practice of law with his father, Leonard W. Burningham, Esq., who will
be a recipient of 25,000 of these shares of common stock of the Registrant
being registered hereby.
Item 6. Indemnification of Directors and Executive Officers.
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Section 16-10a-902(1) of the Utah Revised Business Corporation
Act authorizes a Utah corporation to indemnify any director against
liability incurred in any proceeding if he or she acted in good faith and in
a manner he or she 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 his or her conduct was
unlawful.
Section 16-10a-902(4) prohibits a Utah corporation from indemnifying
a director in a proceeding by or in the right of the corporation in which
the director was adjudged liable to the corporation or in a proceeding in
which the director was adjudged liable on the basis that he or she improperly
received a personal benefit. Otherwise, Section 16-10a-902(5) allows
indemnification for reasonable expenses incurred in connection with a
proceeding by or in the right of a corporation.
Unless limited by the Articles of Incorporation, Section
16-10a-905 authorizes a director to apply for indemnification to the court
conducting the proceeding or another court of competent jurisdiction.
Section 16-10a-907(1) extends this right to officers of a corporation as
well.
Unless limited by the Articles of Incorporation, Section
16-10a-903 requires that a corporation indemnify a director who was
successful, on the merits or otherwise, in defending any proceeding to which
he or she was a party against reasonable expenses incurred in
connection therewith. Section 16-10a-907(1) extends this protection to
officers of a corporation as well.
Pursuant to Section 16-10a-904(1), the corporation may advance a
director's expenses incurred in defending any proceeding upon receipt of an
undertaking and a written affirmation of his or her good faith belief that he
or she has met the standard of conduct specified in Section 16-10a-902.
Unless limited by the Articles of Incorporation, Section 16- 10a-907(2)
extends this protection to officers, employees, fiduciaries and agents of a
corporation as well.
Regardless of whether a director, officer, employee, fiduciary or agent
has the right to indemnity under the Utah Revised Business Corporation Act,
Section 16-10a-908 allows the corporation to purchase and maintain insurance
on his or her behalf against liability resulting from his or her corporate
role.
Item 7. Exemption from Registration Claimed.
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None.
Item 8. Exhibits.
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Exhibit
Number
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5 Opinion regarding Legality
23.1 Consent of Branden T. Burningham, Esq.
23.2 Consent of Mantyla McReynolds, LLC
Certified Public Accountants
99.1.1 Participant Letter
99.1.2 Memorandum
99.2 Consulting Agreement
Exhibit A - Lock-Up/Leak-Out Agreement
99.3.1 Response Letter of Kathleen L. Morrison
99.3.2 Response Letter of Thomas Howells
99.3.3 Response Letter of Travis T. Jenson
99.3.4 Response Letter of Jeffrey D. Jenson
99.3.5 Response Letter of Duane S. Jenson
99.3.6 Response Letter of Leonard W. Burningham, Esq.
Item 9. Undertakings.
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The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales of any
of the registered securities 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, represent a
fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any additional or changed 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, only to the extent required
by the general rules and regulations of the
Commission.
(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) 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, as amended, may be permitted to directors,
executive officers and controlling persons of the Registrant as
outlined above 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, executive officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, executive 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 of
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 Rapid City, State of South Dakota on
February 10, 2004.
REGISTRANT:
By /s/ Arthur D. Lyons
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Arthur D. Lyons, President
and Director
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 date indicated.
Date: 2/10/04 /s/ Arthur D. Lyons
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Arthur D. Lyons, President
and Director
Date: 2/9/04 /s/ Lance Weaver
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Lance Weaver, Director
Securities and Exchange Commission File No. 000-26177
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
OMNI MEDICAL HOLDINGS, INC.
EXHIBIT INDEX
Exhibit
Number
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5 Opinion regarding Legality
23.1 Consent of Branden T. Burningham, Esq.
23.2 Consent of Mantyla McReynolds, LLC
Certified Public Accountants
99.1.1 Participant Letter
99.1.2 Memorandum
99.2 Consulting Agreement
Exhibit A - Lock-Up/Leak-Out Agreement
99.3.1 Response Letter of Kathleen L. Morrison
99.3.2 Response Letter of Thomas Howells
99.3.3 Response Letter of Travis T. Jenson
99.3.4 Response Letter of Jeffrey D. Jenson
99.3.5 Response Letter of Duane S. Jenson
99.3.6 Response Letter of Leonard W. Burningham, Esq.