As filed with the Securities and Exchange Commission on January 21, 2003
File No. XXX-XXXXX
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WASATCH PHARMACEUTICAL, INC.
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(Exact name of registrant as specified in its charter)
UTAH 84-0854009
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2003 STOCK INCENTIVE PLAN
---------------------------
(Full title of the plan)
David K. Giles, 310 East 4500 South, Suite 450, Murray, UT 84107
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(Name and Address of Agent for Service)
(801) 263-3949
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(Telephone number including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount of Offering Aggregate Amount
Title of Securities Shares to be Price Per Offering of Reg.
Securities to be Registered Registered Share Price Fee
- --------------------------- ------------ ---------- ---------- --------
No par value Common Stock 500,000 $0.175(1) $87,500.00 $8.05
Totals 500,000 $0.175 $87,500.00 $8.05
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Total No. of pages: 25
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 as amended. The
calculation of the registration fee is based upon a per share price of $0.175
which was the average of the high ($0.20) and low ($0.15) sales prices of the
Registrant's common stock on January 16, 2003 as reported on the
Over-the-Counter Electronic Bulletin Board.
PROSPECTUS
WASATCH PHARMACEUTICAL, INC.
310 East 4500 South, Suite 450
Murray, UT 84107
(801) 263-3949
500,000 SHARES OF COMMON STOCK)
This Prospectus relates to the offer and sale by WASATCH
PHARMACEUTICAL, INC., ("WSHP"), a Utah corporation ("the Company") of shares of
its no par value common stock (the "Common Stock) pursuant to its 2003 Stock
Incentive Plan where by certain individuals receive stock options to stimulate
their involvement and continued involvement in the Company. The Company is
registering hereunder and then issuing upon receipt of adequate consideration
therefor to the Employee, Officer, Director or Consultant 500,000 shares of the
Common Stock in consideration for services rendered and/or to be rendered and
payments made under the 2003 Stock Incentive Plan.
The Common Stock is not subject to any restriction on transferability.
Recipients of shares other than persons who are affiliates of the Company within
the meaning of the Securities Act of 1933 (the Act) may sell all or part of the
shares in any way permitted by law including sales in the over-the-counter
market at prices prevailing at the time of such sale. Shares registered
hereunder are being sold to both affiliates and non-affiliates of the Company.
An affiliate is, summarily, any director, executive officer or controlling
shareholder of the Company. The affiliates of the Company may become subject to
Section 16(b) of the Securities Exchange Act of 1934 as amended (the Exchange
Act) which would limit their discretion in transferring the shares acquired in
the Company. If the individual who is not now an affiliate becomes an affiliate
of the Company in the future; he would then be subject to Section I(b) of the
Exchange Act (See General Information --- Restrictions on Resale).
The Common Stock is Listed on the OTC bulletin board under the symbol WSHP.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is January 16, 2003
This Prospectus is not part of any Registration Statement which was
filed and been effective under the Securities Act of 1933 as amended (the
Securities Act) and does not contain all of the information set forth in the
Registration Statement, certain portions of which have seen offered pursuant to
the rules and regulations promulgated by the U.S. Securities and Exchange
Commission (The Commission) under the Securities Act. The statements in this
Prospectus as to the contents of any contracts or other documents filed as an
exhibit to either the Registration Statement or other filings of the Company
with the Commission are qualified in their entirety by the reference thereto.
A copy of any document or part thereof incorporated by reference in
this Prospectus but not delivered herewith will be furnished without charge upon
written or oral request. Requests should be addressed to: WASATCH
PHARMACEUTICAL, INC., 310 East 4500 South, Suite 450, Murray, UT 84107
(801) 266-4668.
The Company is subject to the reporting requirements of the Exchange
Act and in accordance therewith files reports and other information with the
Commission. These reports as well as the proxy statements, information
statements and other information filed by the Company under the Exchange Act may
be reviewed and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street N.C. Washington D.C. 20549. Copies may be
obtained at the prescribed rates. In addition the Common Stock is presently
quoted on the automated quotation system maintained by the National Association
of Securities Dealers, Inc. (NASD) in the near future. Thus, copies of these
reports, proxy statements, information statements and other information may also
be examined at the offices of the NASD at 1735 K Street N.C. Washington, D.C.
20549.
No person has been authorized to give any information or to make any
representation, other than those contained in this Prospectus, and if given or
made, such other information or representation must not be relied upon as having
been authorized by the Company. This Prospectus does not constitute an offer or
a solicitation by anyone in any state in which such is not authorized or in
which the person making such is not qualified or to anyone to whom it is
unlawful to make an offer or solicitation
Neither the delivery of this Prospectus nor any sale made hereunder
shall under any circumstances create any implication that there has not been a
change in the affairs of the Company since the date hereof.
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS 7
ITEM 1. PLAN GENERAL INFORMATION 7
The Company 7
Purpose 7
Common Stock 7
The Company Stock Incentive Plan 7
No Restrictions on Transfer 7
Tax Treatment of the Individual 7
Tax Treatment to the Company 8
Restrictions on Resales 8
DOCUMENTS INCORPORATED BY REFERENCE & ADDITIONAL INFORMATION 8
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Legal Opinion and Experts 9
Indemnification of Officers and Directors 9
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT 9
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE 9
ITEM 4. DESCRIPTION OF SECURITIES 9
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL 10
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS 10
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED 10
ITEM 8. EXHIBITS 10
ITEM 9. UNDERTAKINGS 11
EXHIBIT INDEX 14
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
GENERAL INFORMATION
The Company
The Company has its principal offices at 310 East 4500 South, Suite
450, Murray, UT 84107, telephone (801) 263-3949.
Purposes
The Common Stock will be issued by the Company pursuant to its Stock
Incentive Plan which has been approved by the Board of Directors of the Company
(the "Board of Directors"). The Stock Incentive Plan is hoped to provide a
method whereby the Company's current employees, officers, directors and non
employees may be stimulated and allow the Company to secure and retain highly
qualified employees, non employees, officers and directors, thereby advancing
the interests of the Company, and all of its shareholders. A copy of the Stock
Incentive Plan has been filed as an exhibit to this Registration Statement.
Common Stock
The Board has authorized the issuance of up to 500,000 shares of the
Common stock to the Company's Stock Incentive Plan upon effectiveness of this
registration Statement.
The Company Stock Incentive Plan
The Company has established a Stock Incentive Plan which awards stock
options in an effort to further compensate its existing employees, officers,
directors and certain non employees, secure their continued employment, and
attract highly qualified employees as they are needed.
No Restrictions on Transfer
Upon exercise of an option that individual will become the record and
beneficial owners of the shares of Common Stock upon issuance and delivery and
are entitled to all of the rights of ownership, including the right to vote any
shares awarded and to receive ordinary cash dividends on the Common Stock.
Tax Treatment to the Individual
The individuals receiving shares of common stock pursuant to the
exercise of an option or options at an exercise price below the fair market
value of the shares on the date of exercise, the difference between the exercise
price and the fair market value of the stock on the date of exercise may be
deemed ordinary income for federal tax purposes. The recipient is urged to
consult his tax advisor on this matter. Further, if any recipient is an
"affiliate", Section 16(b) of the Exchange Act is applicable and will affect the
issue of taxation.
Tax Treatment to the Company
The amount of income recognized by any recipient hereunder in
accordance with the foregoing discussion will be an expense deductible by the
Company for federal income tax purposes of the taxable year of the Company
during which the recipient recognizes income.
Restrictions of Resales
In the event that an affiliate of the Company acquires shares of Common
Stock hereunder, the affiliate will be subject to Section 16(b) of the Exchange
Act. Further, in the event that any affiliate acquiring shares hereunder has
sold or sells any shares of Common Stock in the six months preceding or
following the receipt of shares hereunder, any so called "profit", as computed
under Section 16(b) of the Exchange Act, would be required to be disgorged from
the recipient to the Company. Services rendered have been recognized as valid
consideration for the "purchase" of shares in connection with the "profit"
computation under Section 16(b) of the exchange Act. The Company has agreed that
for the purpose of any "profit" computation under 16(b) the price paid for the
common stock issued to affiliates is equal to the value of services rendered.
Shares of common Stock acquired hereunder by persons other than affiliates are
not subject to Section 16(b) of the Exchange Act.
DOCUMENTS INCORPORATED BY REFERENCE AND ADDITIONAL INFORMATION
The Company hereby incorporates by reference (i) its initial report of
Form 10-SB filed pursuant to Section 12(g) of the Exchange Act, (ii) any and all
Forms 10-Q (10-QSB) filed under the Securities or Exchange Act subsequent to any
filed form 10-K (or 10-KSB), as well as all other reports filed under Section 13
of the Exchange Act, and (iii) its annual report, if any, to shareholders
delivered pursuant to Rule 14a-3 of the Exchange Act. In addition, all further
documents filed by the Company pursuant to Section 13, 4, or 15(d) of the
Exchange Act prior to the termination of this offering are deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing. All documents which when together, constitute this Prospectus,
will be sent or given to participants by the Registrant as specified by Rule
428(b)(1) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information
A copy of any document or part hereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus or any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Requests should be
addressed to: WASATCH PHARMACEUTICAL, INC., 310 East 4500 South, Suite 450,
Murray, UT 84107, telephone (801) 263-3949.
Legal Opinions and Experts
Warren J. Soloski has rendered an opinion on the validity of the
securities being registered. Mr. Soloski is not an "affiliate" of the Company
and does not have any present interest in the registrant.
The financial statements of WASATCH PHARMACEUTICAL, INC., incorporated
by reference in the Company's Annual Report (Form 10-KSB) for the period ended
December 31, 2001, dated April 11, 2002 have been audited by Thomas Leger & Co.,
LLP, Certified Public Accountants, independent auditors, as set forth in their
report incorporated herein by reference and are incorporated herein in reliance
upon such report given upon the authority of the firm as experts in auditing and
accounting.
Indemnification of Officers and Directors
Insofar as indemnification of liabilities arising under the Securities
Act may be permitted to directors, officers, or persons controlling the company,
the company has 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
[PG NUMBER]
Registrant hereby states that (i) all documents set forth in (a)
through (c), below, are incorporated by reference in this registration
statement, and (ii) all documents subsequently filed by registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, 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 be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
(a) Registrant's latest Annual Report, whether filed pursuant
to Section 13(a) or 15(d) of the Exchange Act;
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
annual report referred to in (a), above; and
(c) The latest prospectus filed pursuant to Rule 424(b) under
the Securities Act.
Item 4. Description of Securities
No description of the class of securities (No-Par value Common Stock)
is required under this item because the common Stock is registered under Section
12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Mr. Soloski, whose firm is rendering the legal opinion for this
registration, will benefit from the registration of 15,000 shares under the
terms of the Stock Incentive Plan.
Item 6. Indemnification of Directors and Officers
Insofar as indemnification of liabilities arising under the
Securities Act may be permitted to directors, officers, or persons controlling
the company, the company has been informed that in the opinion of the commission
such indemnification is against public policy as expressed in the Securities Act
and, therefore, unenforceable.
The following is a brief summary of certain indemnification provisions
of Wasatch's Articles of Incorporation and the Utah Revised Business Corporation
Act. This summary is qualified in its entirety by reference to the text thereof.
Section 16-10a-901 through 909 of the Utah Revised Business Corporation
Act, as amended (the "Corporation Act"), permits a Utah corporation to indemnify
its directors and officers for certain of their acts. More specifically,
Sections 16-10a-902 and 16-10a-907 of the Corporation Act grant authority to any
corporation to indemnify directors and officers against any judgments, fines,
amounts paid in settlement and reasonable expenses, including attorney's fees,
by reason of his or her having been a corporate director or officer. Such
provision is limited to instances where the director or officer 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, or, in criminal proceedings, he or she
had no reasonable cause to believe his or her conduct was unlawful. Such
sections confer on the director or officer an absolute right to indemnification
for expenses, including attorneys' fees, actually and reasonably incurred by him
or her to the extent he or she is successful on the merits or otherwise defense
of any claim, issue, or matter. The corporation may not indemnify a director if
the director is adjudged liable to the corporation or deemed to have derived an
improper personal benefit in an action in which the director is adjudged liable.
Section 16 10a-906 of the Corporation Act expressly makes indemnification
contingent upon a determination that indemnification is proper in the
circumstances. Such determination must be made by the board of directors acting
through a quorum of disinterested directors, or by the board of directors acting
on the advice of independent legal counsel, or by the shareholders. Further,
Section 16-10a 904 of the Corporation Act permits a corporation to pay
attorney's fees and other litigation expenses on behalf of a director or office
in advance of the final disposition of the action upon receipt of an undertaking
by or on behalf of such director or officer to repay such expenses to the
corporation if its is ultimately determined that he or she is not entitled to be
indemnified by the corporation or to the extent the expenses so advanced by the
corporation exceed the indemnification to which he or she is entitled. Such
indemnification provisions do not exclude other indemnification rights to which
a director or officer may be entitled under the corporation's certificate or
articles of incorporation, bylaws, an agreement, a vote of shareholders, or
otherwise. The corporation may also purchase and maintain insurance to provide
indemnification.
The foregoing discussion of indemnification merely summarizes certain
aspects of the indemnification provisions of the Corporation Act and is limited
by reference to the discussed section of the Corporation Act. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to members of the board of directors, officers, employees, or persons
controlling WASATCH pursuant to the foregoing provisions, WASATCH has been
informed 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.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
(a) The following exhibits are filed as part of this S-8 registration
statement pursuant to Item 601 of Regulation S-B and are specifically
incorporated herein by this reference:
Exhibit No. Title
4. Not Applicable
5. Opinion of Warren J. Soloski regarding the legality of the
securities registered.
10. 2003 Stock Incentive Plan
15. Not Required
23.1 Consent of Warren J. Soloski, special counsel to the
registrant, to the use of his opinion with respect to the
legality of the securities being registered hereby and to the
references to him in the Prospectus filed as a part hereof.
23.2 Consent of Thomas Leger Co., Certified Public Accountants
27. Not Required
28. Not Required
29. Not Required
Item 9. Undertakings
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. If 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.
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:
(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 (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;
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, paragraphs (i) and (ii) shall not apply if
the information required to be included in a post-effective
amendment by those paragraphs is incorporated by reference
from periodic reports filed by the registrant small business
issuer under the Exchange Act.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to 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.
(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.
(4) To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the
latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus
is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to
provide such interim financial information.
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) of the Securities 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.
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 hereunto duly authorized
in the City of Murray, Utah on the 21st day of January 2003
WASATCH PHARMACEUTICAL, INC.
(Registrant)
By: /s/ Gary Heesch
- -------------------------------
Gary Heesch, Chief Executive Officer
By: /s/ David Giles
- ------------------------------------
David Giles, Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gary V. Heesch, with power of
substitution, as his attorney-in-fact for him, in all capacities, to sign any
amendments to this registration statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorney-in-fact or his substitutes may do or cause to be done by virtue hereof.
Signature Title Date
- --------- ----- ----
/s/ Gary V. Heesch Chairman of the Board, Jan. 21, 2003
- --------------------------- Director and President
Gary V. Heesch
/s/ Craig Heesch Director Jan. 21, 2003
- ---------------------------
Craig Heesch
/s/ Robert Arbon Director Jan. 21, 2003
- ---------------------------
Robert Arbon
/s/ David K. Giles CFO Jan. 21, 2003
- ---------------------------
David K. Giles
FORM S-8 REGISTRATION STATEMENT
EXHIBIT INDEX
The following Exhibits are filed as part of this registration statement
pursuant to Item 601 of Regulation S-B and are specifically incorporated herein
by this reference:
Exhibit Number
In Registration
Statement Descriptions
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5. Opinion of Counsel
10. 2003 Stock Incentive Plan
23.1 Consent of Warren J. Soloski
23.2 Consent of Thomas Leger & Co., Certified
Public Accountants.