SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ELEMENT 21 GOLF COMPANY
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(Exact name of registrant as specified in its charter)
Delaware 88-0218411
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(State or other jurisdiction of (I. R. S. Employment Number)
incorporation or organization)
264 Queens Quay W # 303
Toronto, Ontario, Canada M5J 2L4
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(Address of Principal Executive Offices)
(800) 710-2021
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(Issuer's Telephone Number, including Area Code)
2005 CONSULTANT STOCK COMPENSATION PLAN
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(Full title of the Plan)
Jim Morin
196 Technology Dr. Suite C
Irvine, CA 92618
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(Name and Address of Agent for Service)
(949) 340-3861
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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(1) Unit/Share Offering Price Fee(2)
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$0.01 par
value common
voting stock 13,346,688 $0.06 $800,801 $94.25
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(1) Pursuant to Consulting Agreements for services rendered. None of the
Consultants is believed presently to be an "affiliate" of the Registrant;
however, if any becomes an "affiliate" at any time that he or she owns
securities that are registered hereunder, resale by that person must also be
made in compliance with applicable provisions of Rule 144.
(2) Calculated according to Rule 230.457(h) of the Securities and Exchange
Commission, based upon the exercise price of the options covering the underlying
common stock to be issued under the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
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A copy of our ("Element 21 Golf Company," or the "Company," "we," "our"
and "us" or words of similar import) proforma written Consulting agreement (the"
Consulting Agreements") is attached hereto and incorporated herein by reference.
(See the Exhibit Index)
Item 2. Registrant Information and Employee Plan Annual Information.
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Not Applicable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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We are subject to the information requirements of the Securities Exchange
Act of 1934 (the "Exchange Act") and, in accordance with the Exchange Act, we
file reports with the Securities and Exchange Commission. The documents listed
below are hereby incorporated by reference into this Registration Statement on
Form S-8; and all documents subsequently filed by us 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 registered and
offered hereby have been sold or which de-registers all securities remaining
unsold, shall be deemed to be incorporated herein by reference in this
Registration Statement, and shall be a part hereof from the date of the filings
of such documents.
(a) Element 21's Current Report on Form 8-K, filed on January 7, 2005.
(b) Our Annual Report on Form 10-KSB for the fiscal year ended June
30,2004, filed December 21,2004; and
(c) Element's Quarterly Report on Form 10-Q for the quarter ended March
31, 2005, filed on May 13, 2005.
(d) All other reports filed by Element 21 pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 2004.
(e) We are authorized to issue two class of securities, that are comprised
of $0.01 par value common voting stock, and a class of preferred stock
with a $0.10 par value, of which no shares are issued or outstanding. The
holders of our $0.01 par value common stock 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 our
liquidation, the holders of our common stock are entitled to share equally
in corporate assets after satisfaction of all liabilities.
All documents subsequently filed by Element 21 with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment to this Registration Statement 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 made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by Element 21 pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act in each year during which the offering
made by this Registration Statement is in effect prior to the filing with the
Commission of the Company's Annual Report on Form 10-K covering such year shall
not be Incorporated Documents or be incorporated by reference in this
Registration Statement or be a part hereof from and after the filing of such
Annual Report on Form 10-K.
Any statement contained in this Registration Statement, in an amendment
hereto or in an Incorporated Document 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 amendment to this
Registration Statement or in any subsequent Incorporated Document 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.
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Not applicable; however, see Item 3(c) above.
Item 5. Interest of Named Experts and Counsel.
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The validity of the authorization and issuance of the common stock being
registered hereby will be passed upon by William Yarno, P.C.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law (DGCL) permits us to
indemnify our directors, officers, employees and agents against actual and
reasonable expenses (including attorneys' fees) incurred by them in connection
with any action, suit or proceeding brought against them by reason of their
status or service as a director, officer, employee or agent by or on our behalf
and against expenses (including attorneys' fees), judgments, fines and
settlements actually and reasonably incurred by him or her in connection with
any such action, suit or proceeding, if:
o 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 Element 21
and
o in the case of a criminal proceeding, he or she had no reasonable
cause to believe his or her conduct was unlawful.
Except as ordered by a court, no indemnification shall be made in
connection with any proceeding brought by or in the right of the corporation
where the person involved is adjudged to be liable to us.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit
Number
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1. Opinion and Consent of William Yarno, P.C. re the legality of the securities
registered.
2. Consent of William Yarno, P.C., to use the opinion with respect to the
legality of the securities being registered is contained in Exhibit 5 above.
4. Consent of Lazar, Levine & Felix LLP, Independent Registered Public
Accounting Firm
5. Form of Consulting Agreement
6. Power of Attorney
Item 9. Undertakings.
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We hereby undertake:
(a) (1) To file, during any period in which offers or sales 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 Securities and Exchange 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 1933 Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section15(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 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 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 Section 13 or 15(d) of the Exchange Act of
1934, 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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, on the date set forth below.
Element 21 Golf Company
Date: July 15, 2005 By: /s/Nataliya Hearn, Ph.D.
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Nataliya Hearn, President
Pursuant to the requirements of the Securities Act, the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated have signed this registration statement below.
Date: July 15, 2005 By: /s/
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Nataliya Hearn, President
and Director
Date: July 15, 2005 By: /s/
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Gerald Enloe, Director
Date: July 15, 2005 By: /s/
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Jim Morin, Treasurer
and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Nataliya Hearn, Gerald Enloe and Jim Morin his or
her true and lawful attorney-in-fact and agent with full power of substitution
and re-substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including pre-effective and
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Name Title Date
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/s/ Nataliya Hearn President, Chief Executive July 15, 2005
------------------- Officer and Director
Nataliya Hearn
/s/ Gerald Enloe Director July 15, 2005
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Gerald Enloe
/s/ Jim Morin Secretary and Director July 15, 2005
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Jim Morin
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ELEMENT 21 GOLF COMPANY
EXHIBIT INDEX
Exhibit
Number
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1. Opinion and Consent of William Yarno, P.C. re the legality of the securities
registered.
2. Consent of William Yarno, P.C., to use the opinion with respect to the
legality of the securities being registered is contained in Exhibit 1 above.
3. Consent of Lazar, Levine & Felix LLP, Independent Registered Public
Accounting Firm.
4. Power of Attorney
5. Form of Consulting Agreement