Unassociated Document
As filed
with the Securities and Exchange Commission on May 26, 2009
Reg. No.
333-_________
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Cyberlux
Corporation
(Exact name of registrant as
specified in its charter)
|
Nevada
|
91-2048978
|
|
(State
or other jurisdiction of
|
(I.R.S.
Employer
|
|
incorporation
or organization)
|
identification
No.)
|
4625
Creekstone Drive, Suite 130
Research
Triangle Park
Durham,
North Carolina 27703
(Address
of principal executive offices)
(Zip Code)
SPECIAL
2009 INCENTIVE STOCK OPTION PLAN,
Mark
D. Schmidt, Chief Executive Officer
Cyberlux
Corporation
4625
Creekstone Drive, Suite 130
Research
Triangle Park
Durham,
North Carolina 27703
(Name
and address of agent for service)
(919) 474-9700
(Telephone
number, including area code, of agent for service)
|
CALCULATION
OF REGISTRATION FEE
|
|
Title
of securities
to
be registered
|
Amount
to be
Registered
|
Proposed
maximum
offering
price
per
share*
|
Proposed
maximum
Aggregate
offering
Price
|
Amount
of
Registration
fee
|
|
Common
Stock
($.001
par value)
|
66,517,240
|
$0.0019
|
$126,382.76
|
$7.05
|
*
Estimated solely for the purpose of determining the amount of registration fee
and pursuant to Rules 457(c) and 457(h) of the General Rules and Regulations
under the Securities Act of 1933, based upon the average of the high and low
selling prices per share of Common Stock of Cyberlux Corporation on May 22,
2009.
Prospectus
CYBERLUX
CORPORATION
66,517,240 SHARES OF
COMMON STOCK
ISSUABLE
PURSUANT TO A SPECIAL
2009
INCENTIVE STOCK OPTION PLAN
This
prospectus relates to the sale of up to 66,517,240 shares of common stock of
Cyberlux Corporation offered by certain holders of our securities acquired upon
the exercise of options issued to such persons pursuant to a Special 2009
Incentive Stock Option Plan consisting of 100,000,000 shares of common
stock. The shares may be offered by the selling stockholders from
time to time in regular brokerage transactions, in transactions directly with
market makers or in certain privately negotiated transactions. For
additional information on the methods of sale, you should refer to the section
entitled "Plan of Distribution." The shares are to be used as
collateral to provide interim financing for the Corporation. Each of the selling
stockholders may be deemed to be an "underwriter," as such term is defined in
the Securities Act of 1933.
Our
common stock is approved for quotation on the Over the Counter Bulletin Board
under the symbol “CYBL.” On May 22, 2009, the closing sale price of
the common stock was $0.0019 per share. The securities offered hereby
are speculative and involve a high degree of risk and substantial
dilution. Only investors who can bear the risk of loss of their
entire investment should invest. See "Risk Factors" beginning on page
5.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a
criminal offense.
The date
of this prospectus is May 26, 2009.
TABLE
OF CONTENTS
| |
Page
|
| |
|
|
Prospectus
Summary
|
4
|
|
Risk
Factors
|
5
|
|
Selling
Stockholders
|
7
|
|
Plan
of Distribution
|
8
|
|
Incorporation
of Certain Documents by Reference
|
9
|
|
Disclosure
of Commission Position on Indemnification For Securities Act
Liabilities
|
9
|
|
Available
Information
|
10
|
Prospectus
Summary
General
Overview
We are
principally devoted to designing, developing and marketing advanced lighting
systems that utilize white (and other) light emitting diodes as illumination
elements.
We are developing and marketing new
product applications of solid-state diodal illumination (TM) that demonstrate
added value over traditional lighting systems. Using proprietary technology, we
are creating a family of products including portable illumination systems for
military and Homeland Security, retail products, commercial task and accent
lighting, emergency and security lighting. We believe our solid-state lighting
technology offers extended light life, greater energy efficiency and greater
overall cost effectiveness than other existing forms of illumination. Our
business model is to address the large lighting industry market segments with
solid-state lighting products and technologies, including our proprietary hybrid
lighting technology that includes military and Homeland Security applications,
direct and indirect task and accent lighting applications, indoor/outdoor
down-lighting applications, commercial and residential lighting
applications.
For the military and Homeland Security
portable illumination products, our target markets include all branches of the
military and all government organizations providing homeland security services,
such as border control and airport security. For our retail products, our target
customers include the home improvement and consumer goods
retailers.
For the
year ended December 31, 2008, we generated $639,529 in revenue and a net loss of
$11,323,482. As a result of recurring losses from operations and a
net deficit in both working capital and stockholders’ equity, our auditors, in
their report dated May 15, 2009, have expressed substantial doubt about our
ability to continue as going concern.
Our
principal executive offices are located at 4625 Creekstone Drive, Suite 130,
Research Triangle Park, Durham, North Carolina 27703, and our telephone number
is (919) 474-9700. We are a Nevada corporation. We maintain websites at www.cyberlux.com
and www.luxSel.com. The information contained on those websites is not deemed to
be a part of this prospectus.
The
Offering
|
Shares
of common stock outstanding prior to this offering
|
1,075,955,532
|
|
| |
|
|
|
Shares
offered in this prospectus
|
66,517,240
|
|
| |
|
|
|
Total
shares outstanding after this offering
|
1,142,472,772
|
|
| |
|
|
|
Use
of proceeds
|
The
shares are to be used to provide collateral for interim financing for the
Corporation.
|
Risk
Factors
Risks Relating to Our
Business:
We
Have a History Of Losses Which May Continue, Which May Negatively Impact Our
Ability to Achieve Our Business Objectives.
We
incurred net losses of $11,323,482 for the year ended December 31, 2008 and
$15,619,897 for the year ended December 31, 2007. We
cannot assure you that we can achieve or sustain profitability on an annual
basis in the future. Our operations are subject to the risks and
competition inherent in the establishment of a business enterprise. There can be
no assurance that future operations will be profitable. Revenues and profits, if
any, will depend upon various factors, including whether we will be able to
continue expansion of our revenue. We may not achieve our business objectives
and the failure to achieve such goals would have an adverse impact on
us.
If
We Are Unable to Obtain Additional Funding Our Business Operations Will be
Harmed and If We Do Obtain Additional Financing Our Then Existing Shareholders
May Suffer Substantial Dilution.
We will
require additional funds to sustain and expand our sales and marketing
activities. We anticipate that we will require up to approximately $4
million to fund our continued operations for the next twelve months, depending
on revenue from operations. We need additional funding for research and
development, increasing inventory, marketing and general and administrative
expenses. Although this amount is less than our net losses in the past, we
expect to decrease our general and administrative expenses by eliminating most
of our consulting fees. In the event that we cannot significantly
reduce our consulting fees, we will need to raise additional funds to continue
our operations. Additional capital will be required to effectively support the
operations and to otherwise implement our overall business
strategy. There can be no assurance that financing will be available
in amounts or on terms acceptable to us, if at all. The inability to obtain
additional capital will restrict our ability to grow and may reduce our ability
to continue to conduct business operations. If we are unable to obtain
additional financing, we will likely be required to curtail our marketing and
development plans and possibly cease our operations. Any additional equity
financing may involve substantial dilution to our then existing
shareholders.
Our
Independent Auditors Have Expressed Substantial Doubt About Our Ability to
Continue As a Going Concern, Which May Hinder Our Ability to Obtain Future
Financing.
In their
report dated May 15, 2009, our independent auditors stated that our financial
statements for the year ended December 31, 2008 were prepared assuming that we
would continue as a going concern. Our ability to continue as a going concern is
an issue raised as a result of losses for the years ended December 31, 2008 and
2007 in the amounts of $11,323,482 and $15,619,897, respectively. We continue to
experience net operating losses. Our ability to continue as a going concern is
subject to our ability to generate a profit and/or obtain necessary funding from
outside sources, including obtaining additional funding from the sale of our
securities, increasing sales or obtaining loans and grants from various
financial institutions where possible. Our continued net operating losses
increase the difficulty in meeting such goals and there can be no assurances
that such methods will prove successful.
Many
Of Our Competitors Are Larger and Have Greater Financial and Other Resources
Than We Do and Those Advantages Could Make It Difficult For Us to Compete With
Them.
The lighting and illumination industry
is extremely competitive and includes several companies that have achieved
substantially greater market shares than we have, and have longer operating
histories, have larger customer bases, and have substantially greater financial,
development and marketing resources than we do. If overall demand for our
products should decrease it could have a materially adverse affect on our
operating results.
Our
Trademark and Other Intellectual Property Rights May Not be Adequately Protected
Outside the United States, Resulting in Loss of Revenue.
We believe that our trademarks, whether
licensed or owned by us, and other proprietary rights are important to our
success and our competitive position. In the course of our international
expansion, we may, however, experience conflict with various third parties who
acquire or claim ownership rights in certain trademarks. We cannot assure that
the actions we have taken to establish and protect these trademarks and other
proprietary rights will be adequate to prevent imitation of our products by
others or to prevent others from seeking to block sales of our products as a
violation of the trademarks and proprietary rights of others. Also, we cannot
assure you that others will not assert rights in, or ownership of, trademarks
and other proprietary rights of ours or that we will be able to successfully
resolve these types of conflicts to our satisfaction. In addition, the laws of
certain foreign countries may not protect proprietary rights to the same extent,
as do the laws of the United States.
Risks Relating to Our Common
Stock:
We
Have Issued a Large Amount of Stock in Lieu of Cash for Payment of Expenses and
Expect to Continue this Practice in the Future. Such Issuances of
Stock Will Cause Dilution to Our Existing Stockholders.
Due to our limited economic resources,
we try to issue stock in lieu of cash for payment of expenses and services
provided for us. In 2008, we issued 12,500,000 shares of common stock in
exchange for expenses and services rendered. We anticipate issuing shares of
common stock whenever possible in lieu of cash to conserve our financial
position. The number of shares of common stock issued is directly related to our
stock price at the time of issuance. In the event that our stock price drops, we
will be required to issue larger amounts of shares for expenses and services
rendered, if the other party is willing to accept stock at all. The issuance of
shares of common stock will have the effect of diluting the proportionate equity
interest and voting power of holders of our common stock, including investors in
this offering.
If We Fail to Remain Current on Our
Reporting Requirements, We Could be Removed From the OTC Bulletin Board Which
Would Limit the Ability of Broker-Dealers to Sell Our Securities and the Ability
of Stockholders to Sell Their Securities in the Secondary Market.
Companies
trading on the OTC Bulletin Board, such as us, must be reporting issuers under
Section 12 of the Securities Exchange Act of 1934, as amended, and must be
current in their reports under Section 13, in order to maintain price quotation
privileges on the OTC Bulletin Board. If we fail to remain current on our
reporting requirements, we could be removed from the OTC Bulletin Board. As a
result, the market liquidity for our securities could be severely adversely
affected by limiting the ability of broker-dealers to sell our securities and
the ability of stockholders to sell their securities in the secondary
market.
Our
Common Stock is Subject to the "Penny Stock" Rules of the SEC and the Trading
Market in Our Securities is Limited, Which Makes Transactions in Our Stock
Cumbersome and May Reduce the Value of an Investment in Our Stock.
The
Securities and Exchange Commission has adopted Rule 15g-9 which establishes the
definition of a "penny stock," for the purposes relevant to us, as any equity
security that has a market price of less than $5.00 per share or with an
exercise price of less than $5.00 per share, subject to certain exceptions. For
any transaction involving a penny stock, unless exempt, the rules
require:
|
|
·
|
that
a broker or dealer approve a person's account for transactions in penny
stocks; and
|
|
|
·
|
the
broker or dealer receives from the investor a written agreement to the
transaction, setting forth the identity and quantity of the penny stock to
be purchased.
|
In order
to approve a person's account for transactions in penny stocks, the broker or
dealer must:
|
|
·
|
obtain
financial information and investment experience objectives of the person;
and
|
|
|
·
|
make
a reasonable determination that the transactions in penny stocks are
suitable for that person and the person has sufficient knowledge and
experience in financial matters to be capable of evaluating the risks of
transactions in penny stocks.
|
The
broker or dealer must also deliver, prior to any transaction in a penny stock, a
disclosure schedule prescribed by the Commission relating to the penny stock
market, which, in highlight form:
|
|
·
|
sets
forth the basis on which the broker or dealer made the suitability
determination; and
|
|
|
·
|
that
the broker or dealer received a signed, written agreement from the
investor prior to the transaction.
|
Generally,
brokers may be less willing to execute transactions in securities subject to the
"penny stock" rules. This may make it more difficult for investors to dispose of
our common stock and cause a decline in the market value of our
stock.
Disclosure
also has to be made about the risks of investing in penny stocks in both public
offerings and in secondary trading and about the commissions payable to both the
broker-dealer and the registered representative, current quotations for the
securities and the rights and remedies available to an investor in cases of
fraud in penny stock transactions. Finally, monthly statements have to be sent
disclosing recent price information for the penny stock held in the account and
information on the limited market in penny stocks.
Selling
Stockholders
The table
below sets forth information concerning the resale of the shares of common stock
by the selling stockholders upon exercise of stock options, if any. The shares
are to be used as collateral to provide interim financing for the
Corporation.
The
following table also sets forth the name of each person who is offering the
resale of shares of common stock by this prospectus, the number of shares of
common stock beneficially owned by each person, the number of shares of common
stock that may be sold in this offering and the number of shares of common stock
each person will own after the offering, assuming they sell all of the shares
offered.
|
|
Shares
Beneficially Owned
|
|
Shares
Beneficially Owned
|
|
|
Prior
to the Offering
|
|
After
the Offering
|
|
|
|
|
|
|
|
|
Name
|
Number
|
Percent
|
Total Shares
Offered
|
Number
|
Percent
|
|
|
|
|
|
|
|
|
Mark
D. Schmidt
|
60,108,478(1)
|
5.59%
|
16,379,310
|
43,729,168
|
3.83%
|
|
|
|
|
|
|
|
|
Alan
H. Ninneman
|
33,087,583(2)
|
3.08%
|
9,827,586
|
23,259,997
|
2.04%
|
|
|
|
|
|
|
|
|
John
W. Ringo
|
33,947,583(3)
|
3.16%
|
9,827,586
|
24,119,997
|
2.11%
|
|
|
|
|
|
|
|
|
Richard
P. Brown
|
35,628,980(4)
|
3.31%
|
11,465,517
|
24,163,463
|
2.12%
|
|
|
|
|
|
|
|
|
Larson
J. Isely
|
38,090,000(5)
|
3.54
%
|
9,827,586
|
28,262,414
|
2.47%
|
|
|
|
|
|
|
|
|
David
D. Downing
|
26,450,000(6)
|
2.46
%
|
9,189,655
|
17,260,345
|
1.51%
|
* Less
than one percent.
The
number and percentage of shares beneficially owned is determined in accordance
with Rule 13d-3 of the Securities Exchange Act of 1934, and the information
is not necessarily indicative of beneficial ownership for any other
purpose. Under such rule, beneficial ownership includes any shares as to
which the selling stockholder has sole or shared voting power or investment
power and also any shares which the selling stockholder has the right to acquire
within 60 days. Shares owned prior to the offering include the shares
issuable upon exercise of the options set forth in the “Total Shares Offered”
column. The above percentages are based on 949,955,532 shares of common stock
outstanding.
Beneficial
ownership is determined in accordance with the rules of the Commission and
generally includes voting or investment power with respect to the shares shown.
Except where indicated by footnote and subject to community property laws where
applicable, the persons named in the table have sole voting and investment power
with respect to all shares of voting securities shown as beneficially owned by
them. Percentages are based upon the assumption that each shareholder has
exercised all of the currently exercisable options he or she owns which are
currently exercisable or exercisable within 60 days and that no other
shareholder has exercised any options he or she owns. Except as noted, the
address of each of the above selling shareholders is c/o Cyberlux Corporation,
4625 Creekstone Drive, Suite 130, Research Triangle Park, Durham, North Carolina
27703.
(1)
Includes 53,980,198 shares issuable upon conversion of outstanding
options.
(2)
Includes 28,194,597 shares issuable upon conversion of outstanding
options.
(3)
Includes 29,194,597shares issuable upon conversion of outstanding
options.
(4)
Includes 24,000,000 shares issuable upon conversion of outstanding
options.
(5)
Includes 29,840,000 shares issuable upon conversion of outstanding
options.
(6)
Includes 17,950,000 shares issuable upon conversion of outstanding
options.
Plan
of Distribution
Sales of
the shares may be effected by or for the account of the selling stockholders
from time to time in transactions (which may include block transactions) on the
Over the Counter Bulletin Board, in negotiated transactions, through a
combination of such methods of sale, or otherwise, at fixed prices that may be
changed, at market prices prevailing at the time of sale or at negotiated
prices. The selling stockholders may effect such transactions by
selling the shares directly to purchasers, through broker-dealers acting as
agents of the selling stockholders, or to broker-dealers acting as agents for
the selling stockholders, or to broker-dealers who may purchase shares as
principals and thereafter sell the shares from time to time in transactions
(which may include block transactions) on the Over the Counter Bulletin Board,
in negotiated transactions, through a combination of such methods of sale, or
otherwise. In effecting sales, broker-dealers engaged by a selling
stockholder may arrange for other broker-dealers to participate. Such
broker-dealers, if any, may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders and/or the purchasers
of the shares for whom such broker-dealers may act as agents or to whom they may
sell as principals, or both (which compensation as to a particular broker-dealer
might be in excess of customary commissions).
The
selling stockholders and any broker-dealers or agents that participate with the
selling stockholders in the distribution of the shares may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933. Any
commissions paid or any discounts or concessions allowed to any such persons,
and any profits received on the resale of the shares purchased by them may be
deemed to be underwriting commissions or discounts under the Securities Act of
1933.
We have
agreed to bear all expenses of registration of the shares other than legal fees
and expenses, if any, of counsel or other advisors of the selling
stockholders. The selling stockholders will bear any commissions,
discounts, concessions or other fees, if any, payable to broker-dealers in
connection with any sale of their shares.
We have
agreed to indemnify the selling stockholders, or their transferees or assignees,
against certain liabilities, including liabilities under the Securities Act of
1933 or to contribute to payments the selling stockholders or their respective
pledgees, donees, transferees or other successors in interest, may be required
to make in respect thereof.
Information
Incorporated by Reference
The
Securities and Exchange Commission allows us to incorporate by reference certain
of our publicly-filed documents into this prospectus, which means that such
information is considered part of this prospectus. Information that
we file with the SEC subsequent to the date of this prospectus will
automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under all documents subsequently filed by us pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 until the selling
stockholders have sold all of the shares offered hereby or such shares have been
deregistered.
The
following documents filed with the SEC are incorporated herein by
reference:
Reference
is made to the Registrant’s annual report on Form 10-K, as filed with the SEC on
May 15, 2009, which is hereby incorporated by reference.
Reference
is made to the Registrant’s quarterly report on Form 10-Q, as filed with the SEC
on May 20, 2009, which is hereby incorporated by reference.
We will provide without charge to each
person to whom a copy of this prospectus has been delivered, on written or oral
request a copy of any or all of the documents incorporated by reference in this
prospectus, other than exhibits to such documents. Written or oral
requests for such copies should be directed to Mark D. Schmidt, Chief Executive
Officer, Cyberlux Corporation, 4625 Creekstone Drive, Suite 130, Research
Triangle Park, Durham, North Carolina 27703.
Disclosure
Of Commission Position On Indemnification For Securities Act
Liabilities
Our
Articles of Incorporation and By-laws, as amended, provide to the fullest extent
permitted by Nevada law, a director or officer of our company shall not be
personally liable to us or our shareholders for damages for breach of such
director's or officer's fiduciary duty. The effect of these provision of our
Articles of Incorporation and By-Laws, as amended, is to eliminate the right of
our company and our shareholders (through shareholders' derivative suits on
behalf of our company) to recover damages against a director or officer for
breach of the fiduciary duty of care as a director or officer (including
breaches resulting from negligent or grossly negligent behavior), except under
certain situations defined by statute. We believe that the indemnification
provisions in our Articles of Incorporation and By-Laws, as amended, are
necessary to attract and retain qualified persons as directors and
officers.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to its directors, officers and controlling persons pursuant to the
foregoing provisions or otherwise, we have been advised that in the opinion of
the SEC, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
Additional
Information Available to You
This
prospectus is part of a Registration Statement on Form S-8 that we filed with
the SEC. Certain information in the Registration Statement has been
omitted from this prospectus in accordance with the rules of the
SEC. We file annual, quarterly and special reports, proxy statements
and other information with the SEC. You can inspect and copy the
Registration Statement as well as reports, proxy statements and other
information we have filed with the SEC at the public reference room maintained
by the SEC at 100 F. Street, N.E., Washington, D.C. 20549. You can
obtain copies from the public reference room of the SEC at 100 F. Street, N.E.,
Washington, D.C. 20549, upon payment of certain fees. We are also
required to file electronic versions of these documents with the SEC, which may
be accessed through the SEC's World Wide Web site at
http://www.sec.gov. Our common stock is quoted on the Over the
Counter Bulletin Board.
No
dealer, salesperson or other person is authorized to give any information or to
make any representations other than those contained in this prospectus, and, if
given or made, such information or representations must not be relied upon as
having been authorized by us. This prospectus does not constitute an
offer to buy any security other than the securities offered by this prospectus,
or an offer to sell or a solicitation of an offer to buy any securities by any
person in any jurisdiction where such offer or solicitation is not authorized or
is unlawful. Neither delivery of this prospectus nor any sale
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of our company since the date hereof.
SHARES OF
COMMON STOCK
PROSPECTUS
May 26,
2009
PART
I
Item
1. Plan Information.
The
documents containing the information specified in Item 1 will be sent or given
to participants in the Registrant’s 2009 Incentive Stock Option Plan as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
“Securities Act”). Such documents are not required to be and are not filed with
the Securities and Exchange Commission (the “SEC”) either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Item
2. Registrant Information, 2009 Incentive Stock Option Plan
Information.
Upon
written or oral request, any of the documents incorporated by reference in Item
3 of Part II of this Registration Statement (which documents are incorporated by
reference in this Section 10(a) Prospectus), other documents required to be
delivered to eligible employees, non-employee directors and consultants,
pursuant to Rule 428(b) or additional information about the 2009 Incentive Stock
Option Plan are available without charge by contacting:
Mark D.
Schmidt, Chief Executive Officer
Cyberlux
Corporation
4625
Creekstone Drive, Suite 130
Research
Triangle Park
Durham,
North Carolina 27703
(919)
474-9700
PART
II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
Registrant hereby incorporates by reference into this Registration Statement the
documents listed below. In addition, all documents subsequently filed pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
(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 be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents:
Reference
is made to the Registrant’s annual report on Form 10-K, as filed with the SEC on
May 15, 2009, which is hereby incorporated by reference.
Reference
is made to the Registrant’s quarterly report on Form 10-Q, as filed with the SEC
on May 20, 2009, which is hereby incorporated by reference.
Item
4. Description of Securities.
Not
Applicable.
Item
5. Interests of Named Experts and Counsel.
Certain
legal matters in connection with this registration statement will be passed upon
for the Registrant by John W. Ringo, Attorney at Law, Marietta,
Georgia.
Item
6. Indemnification of Directors and Officers.
Insofar as indemnification for
liabilities arising under the Securities Act of 1933 (the “Act”) may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to the foregoing provisions, or otherwise, the small business
issuer 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. The Company's Articles of
Incorporation provides that no director of the Company shall be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director except as limited by Nevada law. The Company's
Bylaws provide that the Company shall indemnify to the full extent authorized by
law each of its directors and officers against expenses incurred in connection
with any proceeding arising by reason of the fact that such person is or was an
agent of the corporation.
Insofar
as indemnification for liabilities may be invoked
to disclaim liability for damages arising under the
Securities Act of 1933, as amended, or the Securities Act
of 1934, (collectively, the “Acts”) as amended, it is the
position of the Securities and Exchange Commission that
such indemnification is against public policy as expressed in the
Acts and are therefore, unenforceable.
Item
7. Exemption from Registration Claimed.
None.
Item
8. Exhibits.
|
EXHIBIT
NUMBER
|
EXHIBIT
|
|
|
|
|
5.1
|
Opinion
of John W. Ringo
|
|
|
|
|
23.1
|
Consent
of Turner, Jones & Associates, LLP
|
|
|
|
|
23.2
|
Consent
of John W. Ringo is contained in Exhibit
5.1.
|
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:
(i)
To include any prospectus required by Section 10(a)(3) of 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 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, that paragraphs (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Sections 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
Provided
further, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to
the Commission by the registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(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) The
undersigned registrant hereby undertakes 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.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions summarized in Item 6 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, 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 Securities Act and will be governed by the final
adjudication of such issue.
Signatures
In
accordance with 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, in the City of Durham,
State of North Carolina, on May 26, 2009.
CYBERLUX
CORPORATION
| |
|
|
|
|
|
By:
|
/s/ MARK D.
SCHMIDT |
|
| |
|
Mark D. Schmidt, Chief
Executive Officer and Principal Executive Officer |
|
| |
|
|
|
| |
|
|
|
| |
|
|
|
|
|
By:
|
/s/ DAVID D.
DOWNING |
|
| |
|
David D. Downing, Chief
Financial Officer, Principal Financial Officer and Principal Accounting
Officer |
|
| |
|
|
|
| |
|
|
|
In
accordance with the requirement of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates stated:
|
SIGNATURE
|
|
TITLE
|
|
DATE
|
|
|
|
|
|
|
|
/s/
MARK D. SCHMIDT
|
|
Chief
Executive Officer (Principal Executive
Officer)
|
|
May
26, 2009
|
|
Mark
D. Schmidt
|
|
and President
|
|
|
|
|
|
|
|
|
|
/s/
DAVID D. DOWNING
|
|
Chief
Financial Officer (Principal Financial
Officer
|
|
May
26, 2009
|
|
David
D. Downing
|
|
and Principal Accounting Officer)
|
|
|
|
|
|
|
|
|
|
/s/
JOHN W. RINGO
|
|
Secretary,
Corporate Counsel
|
|
May
26, 2009
|
|
John
W. Ringo
|
|
and Chairman of the Board of
Directors
|
|
|
|
|
|
|
|
|
|
/s/
ALAN H. NINNEMAN
|
|
Senior
Vice President and Director
|
|
May
26, 2009
|
|
Alan
H. Ninneman
|
|
|
|
|