SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Klever Marketing, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 36-3688583
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
350 West 300 South, Suite 201, Salt Lake City, Utah 84101
(Address of principal executive offices)
Amended Stock Incentive Plan of Klever Marketing, Inc.
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(Full title of the plan)
Richard J. Trout, 350 West 300 South, Suite 201, Salt Lake City, Utah 84101
(Name, address, including zip code, of agent for service)
Telephone number for Issuer: (801) 322-1221
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Amounts to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Per Aggregate Offering Price Registration Fee
Share(1)
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Common Stock, 0.001 par value 20,000,000 $0.05 $1,000,000 $80.90
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(1) Bona Fide estimate of maximum offering price solely for
calculating the registration fee pursuant to Rule 457(h) of
the Securities Act of 1933, based on the average bid and asked
price of the registrant's common stock as of August 11, 2003 a
date within five business days prior to the date of filing of
this registration statement.
In addition, pursuant to Rule 416(c) under the Securities Act
of 1933, this Registration Statement also covers an
indeterminate amount of interests to be offered or sold
pursuant to the Plan described herein.
Amended Stock Incentive Plan of Klever Marketing, Inc.
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 that will be delivered to each employee, consultant, or
director who participates in the Plan.
Registration Statement Item Numbers and Headings Prospectus Heading
1. Plan Information Section 10(a) Prospectus
2. Registrant Information and Section 10(a) Prospectus
Employee Plan Annual Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Klever Marketing, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2002.
2. All reports filed by the Company with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year ended December 31, 2002.
Prior to the filing, if any, of a post-effective amendment that
indicates that all securities covered by this Registration Statement have been
sold or that de-registers all such securities then remaining unsold, all reports
and other documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act 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.
Item 4. Description of Securities
The common stock of the Company being registered pursuant to this
Registration Statement is part of a class of securities registered under Section
12 of the Exchange Act. The Company is presently authorized to issue 20,000,000
shares of $0.01 par value Common Stock. The Company presently has 13,570,578
shares issued and outstanding. The holders of common stock, including the shares
offered hereby, and those issuable upon exercise of any Warrants or Options, are
entitled to equal dividends and distributions, per share, with respect to the
common stock when, as and if declared by the Board of Directors from funds
legally available therefor. No holder of any shares of common stock has a
pre-emptive right to subscribe for any securities of the Company nor are any
common shares subject to redemption or convertible into other securities of the
Company. Upon liquidation, dissolution or winding up of the Company, and after
payment of creditors and preferred stockholders, if any, the assets will be
divided pro-rata on a share-for-share basis among the holders of the shares of
common stock. All shares of common stock now outstanding are fully paid, validly
issued and non-assessable. Each share of common stock is entitled to one vote
with respect to the election of any director or any other matter upon which
shareholders are required or permitted to vote. Holders of the Company's common
stock do not have cumulative voting rights, so that the holders of more than 50%
of the combined shares voting for the election of directors may elect all of the
directors, if they choose to do so and, in that event, the holders of the
remaining shares will not be able to elect any members to the Board of
Directors.
Item 5. Interests of Named Experts and Counsel
No expert is named as preparing or certifying all or part of the
registration statement to which this prospectus pertains, and no counsel for the
Company who is named in this prospectus as having given an opinion on the
validity of the securities being offered hereby was hired on a contingent basis
or has or is to receive, in connection with this offering, a substantial
interest, direct or indirect, in the Company having a value in excess of
$50,000.
Item 6. Indemnification of Directors and Officers
Deleware Corporation Law Section 145 provides that a corporation may limit or
eliminate officers' and directors' personal liability for good faith acts
believed to be in the best interests of the Corporation and with respect to
criminal acts where the director had no reasonable cause to believe his actions
were unlawful. The Company's By Laws, specifically Article Seven, Section Seven
provides: "the Corporation shall indemnify its officers, directors, employees
and agents to the extent permitted by the General Corporation Law of Delaware.
In actions, proceedings and suits involving an officer or director because of
their being or having been an officer or director, other than actions by or in
the right of the corporation, Deleware Corporation Laws Section 145 (the
"Delaware Statute") permits a corporation to indemnify directors or officers
against actual and reasonable expenses, including attorney fees, judgments,
fines and amounts paid in settlement. The Delaware Statute applies to actions,
proceedings or suits whether civil, criminal, administrative or arbitrative in
nature. However, unless a court directs otherwise, indemnification is
permissible only if the officer or director meets the applicable standard of
conduct and indemnification is proper under the circumstances. In civil cases,
the standard of conduct requires the officer or director to act in good faith
and in a manner he or she reasonably believes to be in or not opposed to the
best interests of the Company. In criminal cases, an officer or director meets
the standard of conduct if they had no reasonable cause to believe his or her
conduct was unlawful. The board of directors acting through a quorum of
disinterested directors, independent legal counsel designated by the board of
directors, or the shareholders shall determine whether indemnification is proper
under the circumstances. Termination of proceedings by judgment, order,
settlement, conviction or plea of no contest or its equivalent, does not of
itself establish a presumption that the officer or director did not meet the
applicable standard of conduct. In actions by or in the right of the Company,
the Company may indemnify an officer or director against expenses provided he or
she satisfies the applicable standard of conduct. However, the Company cannot
indemnify an officer or director adjudged liable to the corporation on any
claim, issue or matter unless, and to the extent, the court determines that
despite the adjudication of liability, and in light of all the circumstances,
the officer or director is fairly and reasonably entitled to indemnity for
expenses. In all proceedings, whether by or in the right of the Company or
otherwise, the Delaware Statute requires indemnification to the extent the
officer or director is successful on the merits or otherwise in defense of the
proceeding or in defense of any claim, issue or matter therein. A Delaware
corporation may provide, either in its articles, bylaws or agreements, that the
corporation shall pay the expenses on behalf of a director or officer prior to
the final disposition of the action upon receipt of an undertaking by or on
behalf of the director or officer to repay those advancements if it is
ultimately determined that the officer or director is not entitled to
indemnification. The Delaware Statute does not exclude other indemnification
rights to which a director or officer may be entitled under the articles of
incorporation, the bylaws, an agreement, a vote of shareholders or disinterested
directors, or otherwise; provided that those rights would not indemnify an
officer or director against a judgment or other final adjudication adverse to
the officer or director that establishes the officer's or director's acts or
omissions involved intentional misconduct, fraud or known violation of the law
and were material to the cause of action. The foregoing discussion of
indemnification merely summarizes certain aspects of indemnification provisions
and is limited by reference to Deleware Corporation Laws Section 145, and
Article VII of the Company's Bylaws.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceedings) is asserted by such
director, officer, or controlling person in connection with any securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to 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 issues.
Item 7. Exemption from Registration Claimed
No restricted securities are being re-offered or resold pursuant to this
registration statement.
Item 8. Exhibits.
The exhibits attached to this Registration Statement are listed in the
Exhibit Index, which is found on page 8.
Item 9. Undertakings
(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) To treat, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment as 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 of 1933, each filing of the
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 this
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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 public 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 Act and will be governed by the final adjudication of
such issue.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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, on August 13, 2003.
Klever Marketing, Inc.
By: /s/Richard J. Trout
Richard J. Trout,
as President and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following person in the capacities
and on the date indicated.
Signature Title Date
/s/ Richard J. Trout President and Director August 13, 2002
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Richard J. Trout
/s/ D. Paul Smith Director August 15, 2002
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D. Paul Smith
/s/ Michael L. Mills Director August 13, 2002
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Michael L. Mills
C. Terry Warner Director August 15, 2002
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C. Terry Warner
/s/ William C. Bailey Director August 18, 2002
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William C. Bailey
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Klever Marketing, Inc.
(a Delaware corporation)
INDEX TO EXHIBITS
Page
Exhibits SEC Ref. No. Description of Exhibit
A 4 Amended Stock Incentive Plan of the Company 9
B 23(a) Consent of Accountant 17
C 5, 23(b) Opinion and consent of Counsel with respect to the 18
legality of the issuance of securities being issued