SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
THE CATTLESALE COMPANY
(Exact name of registrant as specified in its charter)
Delaware 74-1605174
-------- ----------
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification No.)
9901 IH10 West
San Antonio, Texas 78230-2292
------------------ ----------
(Address of principal executive offices) (Zip Code)
2004 Consultant Stock Plan
--------------------------
(Full title of the plan)
David S. Geiman
9901 IH10 West
San Antonio, Texas, 78230-2292
(Name and address of agent for service)
(210) 558-2898
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Amount to be offering price per aggregate offering Amount of
Title of Securities registered (1) share (2) price (2) registration fee
to be registered
----------------------- --------------------- -------------------- --------------------- --------------------
Common Stock 1,500,000 $0.10 $150,000 $19.01
----------------------- --------------------- -------------------- --------------------- --------------------
(1) Includes an indeterminate number of additional shares that may be issued to
adjust the number of shares issued pursuant to the stock plan described herein
as the result of any future stock split, stock dividend or similar adjustment of
the registrant's outstanding common stock.
(2) Estimated pursuant to Rule 457(h) solely for purposes of calculating amount
of registration fee, based upon the average of the high and low prices reported
on April 8, 2004, as reported on the OTC Electronic Bulletin Board.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference into this
registration statement:
(a) The Annual Report for the fiscal year ended December 31, 2003, filed by
the registrant with the Securities and Exchange Commission (the "Commission") on
Form 10K on April 14, 2004, which contains audited consolidated financial
statements for the most recent fiscal year for which such statements have been
filed.
(b) The quarterly report for the quarter ended March 31, 2003, filed by the
registrant with the Commission on Form 10Q on May 20, 2003.
(c) The quarterly report for the quarter ended June 30, 2003, filed by the
registrant with the Commission on Form 10Q on August 14, 2003.
(d) The quarterly report for the quarter ended September 30, 2003, filed by
the registrant with the Commission on Form 10Q on November 14, 2003.
(e) The amendment to the quarterly report for the quarter ended September
30, 2003, filed by the registrant with the Commission on Form 10Q on December 3,
2003.
(f) The quarterly report for the quarter ended March 31, 2004, filed by the
registrant with the Commission on Form 10QSB on May 17, 2004.
(g) In addition, all documents subsequently filed by the registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities 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.
Item 4. Description of Securities.
Not applicable. The class of securities to be offered is registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Richardson & Patel LLP has given an opinion on the validity of the
securities being registered hereunder. Erick Richardson and Nimish Patel,
partners of the law firm, are eligible to receive shares of the Company's common
stock pursuant to this Form S-8 registration statement.
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Item 6. Indemnification of Directors and Officers.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law,
our Certificate of Incorporation includes a provision that eliminates the
personal liability of each of our directors for monetary damages for breach of
such director's fiduciary duty as a director, except for liability: (i) for any
breach of the director's duty of loyalty to us or our stockholders; (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of the law; (iii) under Section 174 of the Delaware General
Corporation Law; or (iv) for any transaction from which the director derived an
improper personal benefit.
In addition, our Certificate of Incorporation and our Bylaws provide that
we must, to the fullest extent permitted by Section 145 of the Delaware General
Corporation Law, indemnify our directors, officers and employees, and persons
serving, at our request, in such capacities in other business enterprises
including, for example, our subsidiaries, including those circumstances in which
indemnification would otherwise be discretionary.
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 Securities Act
of 1933 and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5. Opinion regarding legality
23.1 Consent of Marks Paneth & Shron LLP
23.2 Consent of Richardson & Patel LLP (included in Exhibit 5)
99.1 2004 Consultant Stock Plan
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes to file, during any period
in which offers or sales are being made, a post-effective amendment to this
registration statement (1) 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)
that, for the purpose of determining any liability under the Securities Act of
1933, 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; and (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.
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(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 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 of 1933 (the "Act") 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in San Antonio, Texas, on this 19th day of May, 2004.
THE CATTLESALE COMPANY
A Delaware Corporation
/s/ David S. Geiman
-------------------
By: David S. Geiman
Its: Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this Form S-8
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Dated: May 19, 2004
/s/ David S. Geiman
--------------------------------------------
David S. Geiman, Chairman and Chief Executive
Officer
Dated: May 19, 2004
/s/ Phillip P. Krumb
--------------------------------------------
Phillip P. Krumb, Vice President, Chief
Financial Officer and Director
Dated: May 19, 2004
/s/ David W. Pequet
--------------------------------------------
David W. Pequet, Director
Dated: May 19, 2004
/s/ Gerald N. Agranoff
--------------------------------------------
Gerald N. Agranoff, Director
Dated: May 19, 2004
/s/ Mark A. Marguson
--------------------------------------------
Mark A. Marguson, Director
Dated: May 19, 2004
/s/ Edward L. McMillan
--------------------------------------------
Edward L. McMillan, Director
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INDEX TO EXHIBITS
Exhibit Number Description
5. Opinion regarding legality
23.1 Consent of Marks Paneth & Shron LLP
23.2 Consent of Richardson & Patel LLP (included in Exhibit 5
99.1 2003 Consultant Stock Plan
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Exhibit 5.
Exhibit 23.2
RICHARDSON & PATEL LLP
10900 Wilshire Boulevard
Suite 500
Los Angeles, California 90024
Telephone (310) 208-1182
Facsimile (310) 208-1154
May 19, 2004
Board of Directors
The CattleSale Company
9901 IH10 West, Suite 800
San Antonio, Texas 78230
Re: 2004 Consultant Stock Plan (the "Plan")
Gentlemen:
We have acted as counsel to The CattleSale Company, a Delaware corporation,
(the "Company") in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933 of the
Company's Registration Statement on Form S-8 relating to 1,500,000 shares of the
Company's common stock, no par value (the "Shares").
In connection with that registration, we have reviewed the proceedings of
the Board of Directors of the Company relating to the registration and proposed
issuance of the Shares, the Certificate of Incorporation of the Company and all
amendments thereto, the Bylaws of the Company and all amendments thereto, and
such other documents and matters as we have deemed necessary to the rendering of
the following opinion.
Based upon that review, it is our opinion that the Shares, when issued in
conformance with the terms and conditions of the Plan, will be legally issued,
fully paid, and non-assessable. We do not find it necessary for the purposes of
this opinion to cover, and accordingly we express no opinion as to, the
application of the securities or blue-sky laws of the various states as to the
issuance and sale of the Shares.
We consent to the use of this opinion in the registration statement filed
with the Securities and Exchange Commission in connection with the registration
of the Shares and to the reference to our firm under the heading "Interests of
Named Experts and Counsel" in the registration statement.
/s/ RICHARDSON & PATEL LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED ACCOUNTANTS
We hereby consent to the use in this Form S-8 Registration Statement of The
CattleSale Company of our report dated April 6, 2004 (except for notes 10 and 16
as to which the date is April 9, 2004), relating to the financial statements of
The CattleSale Company as of and for the years ended December 31, 2003 and 2002,
which is incorporated by reference into such Form S-8.
/s/ Marks Paneth & Shron LLP
Certified Public Accountants
New York, New York
May 19, 2004
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Exhibit 99.1
THE CATTLESALE COMPANY
2004 CONSULTANT STOCK PLAN
PURPOSE OF PLAN
WHEREAS, the purpose of this 2004 Consultant Stock Plan is to advance the
interests of the Company by helping the Company obtain and retain the services
of persons providing consulting services upon whose judgment, initiative,
efforts and/or services the Company is substantially dependent, by offering to
or providing those persons with incentives or inducements affording such persons
an opportunity to become owners of capital stock of the Company.
TERMS AND CONDITIONS OF PLAN
1. DEFINITIONS.
Set forth below are definitions of capitalized terms that are generally
used throughout this Plan, or references to provisions containing such
definitions (capitalized terms whose use is limited to specific provisions are
not referenced in this Section):
(a) Affiliate - The term "Affiliate" is defined as any person controlling
the Company, controlled by the Company, or under common control with the
Company.
(b) Award - The term "Award" is collectively and severally defined as any
Award Shares granted under this Plan.
(c) Award Shares - The term "Award Shares" is defined as shares of Common
Stock granted by the Executive Committee in accordance with Section 5 of this
Plan.
(d) Board - The term "Board" is defined as the Board of Directors of the
Company, as such body may be reconstituted from time to time.
(e) Common Stock - The term "Common Stock" is defined as the Company's
common stock, no par value.
(f) Company - The term "Company" is defined as The CattleSale Company, a
Delaware corporation.
(g) Disposed - The term "Disposed" (or the equivalent terms "Disposition"
or "Dispose") is defined as any transfer or alienation of an Award which would
directly or indirectly change the legal or beneficial ownership thereof, whether
voluntary or by operation of law, or with or without the payment or provision of
consideration, including, by way of example and not limitation: (i) the sale,
assignment, bequest or gift of the Award; (ii) any transaction that creates or
grants a right to obtain an interest in the Award; (iii) any transaction that
creates a form of joint ownership in the Award between the Recipient and one or
more other Persons; (iv) any Disposition of the Award to a creditor of the
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Recipient, including the hypothecation, encumbrance or pledge of the Award or
any interest therein, or the attachment or imposition of a lien by a creditor of
the Recipient of the Award or any interest therein which is not released within
thirty (30) days after the imposition thereof; (v) any distribution by a
Recipient which is an entity to its stockholders, partners, co-venturers or
members, as the case may be, or (vi) any distribution by a Recipient which is a
fiduciary such as a trustee or custodian to its settlors or beneficiaries.
(h) Eligible Person - The term "Eligible Person" means any Person who, at a
particular time, is a consultant to the Company or an Affiliate who provides
bona fide consulting services to the Company or the Affiliate, provided,
however, no Award hereunder may be granted to any Person in connection with the
provision of any services incident to the raising of capital or promotion or
maintenance of a market for the Company's securities.
(i) Fair Market Value - The term "Fair Market Value" means the fair market
value as of the applicable valuation date of the Award Shares, or other shares
of Common Stock, as the case may be (the "Subject Shares"), to be valued as
determined by the Executive Committee in its good faith judgment, but in no
event shall the Fair Market Value be less than the par value of the Subject
Shares.
(j) Person - The term "Person" is defined, in its broadest sense, as any
individual, entity or fiduciary such as, by way of example and not limitation,
individual or natural persons, corporations, partnerships (limited or general),
joint-ventures, associations, limited liability companies/partnerships, or
fiduciary arrangements, such as trusts.
(k) Plan - The term "Plan" is defined as this 2004 Consultant Stock Plan.
(l) Executive Committee - The term "Executive Committee" is defined as that
Committee appointed by the Board to administer and interpret this Plan as more
particularly described in Section 3 of the Plan; provided, however, that the
term Executive Committee will refer to the Board during such times as no
Executive Committee is appointed by the Board.
(m) Recipient - The term "Recipient" is defined as any Eligible Person who,
at a particular time, receives the grant of an Award.
(n) Securities Act - The term "Securities Act" is defined as the Securities
Act of 1933, as amended (references herein to Sections of the Securities Act are
intended to refer to Sections of the Securities Act as enacted at the time of
the adoption of this Plan by the Board and as subsequently amended, or to any
substantially similar successor provisions of the Securities Act resulting from
recodification, renumbering or otherwise).
2. TERM OF PLAN.
This Plan shall be effective as of such time and date as this Plan is
adopted by the Board, and this Plan shall terminate on the first business day
prior to the ten (10) year anniversary of the date this Plan became effective.
All Awards granted pursuant to this Plan prior to the effective date of this
Plan shall not be affected by the termination of this Plan and all other
provisions of this Plan shall remain in effect until the terms of all
outstanding Awards have been satisfied or terminated in accordance with this
Plan and the terms of such Awards.
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3. PLAN ADMINISTRATION.
(a) Executive Committee.
(i) The Plan shall be administered and interpreted by a committee
consisting of two (2) or more members of the Board; provided,
however, no member of the Board who may serve as a member of the
Executive Committee if such person serves or served as a member
of the Executive Committee with respect to any plan (other than
this Plan) of the Company or its Affiliates which plan was or is
established to comply with the provisions of Rule 16b-3(c)(2)(i)
to the Securities and Exchange Act of 1934, as amended (i.e.,
pertaining to the establishment of so-called "Section 16b-3
Plans"), and, by reason of such person's proposed service as a
member of the Executive Committee, such person would not be
considered a "disinterested" person within the meaning of said
Rule with respect to such other plan.
(ii) Members of the Executive Committee may resign at any time by
delivering written notice to the Board. Vacancies in the
Executive Committee shall be filled by the Board. The Executive
Committee shall act by a majority of its members in office. The
Executive Committee may act either by vote at a meeting or by a
memorandum or other written instrument signed by a majority of
the Executive Committee.
(iii)If the Board, in its discretion, does not appoint a Executive
Committee, the Board itself will administer and interpret the
Plan and take such other actions as the Executive Committee is
authorized to take hereunder; provided that the Board may take
such actions hereunder in the same manner as the Board may take
other actions under the Certificate of Incorporation and bylaws
of the Company generally.
(b) Eligibility of Executive Committee Members to Receive Awards. While
serving on the Executive Committee, such members shall not be eligible for
selection as Eligible Persons to whom an Award may be granted under the Plan.
(c) Power to Make Awards. The Executive Committee shall have the full and
final authority in its sole discretion, at any time and from time-to-time,
subject only to the express terms, conditions and other provisions of the
Certificate of Incorporation of the Company and this Plan, and the specific
limitations on such discretion set forth herein, to:
(i) Designate the Eligible Persons or classes of Eligible Persons
eligible to receive Awards from among the Eligible Persons;
(ii) Grant Awards to such selected Eligible Persons or classes of
Eligible Persons in such form and amount (subject to the terms of
the Plan) as the Executive Committee shall determine;
(iii)Interpret the Plan, adopt, amend and rescind rules and
regulations relating to the Plan, and make all other
determinations and take all other action necessary or advisable
for the implementation and administration of the Plan; and
(iiii) Delegate all or a portion of its authority under subsections
(i) and (ii) of this Section 3(c) to one or more directors of the
Company who are executive officers of the Company, subject to
such restrictions and limitations (such as the aggregate number
of shares of Common Stock that may be awarded) as the Executive
Committee may decide to impose on such delegate directors.
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In determining the recipient, form and amount of Awards, the Executive
Committee shall consider any factors deemed relevant, including the recipient's
functions, responsibilities, value of services to the Company and past and
potential contributions to the Company's profitability and sound growth.
(d) Interpretation Of Plan. The Executive Committee shall, in its sole and
absolute discretion, interpret and determine the effect of all matters and
questions relating to this Plan. The interpretations and determinations of the
Executive Committee under the Plan (including without limitation determinations
pertaining to the eligibility of Persons to receive Awards, the form, amount and
timing of Awards, the methods of payment for Awards, and the other terms and
provisions of Awards and the certificates or agreements evidencing same) need
not be uniform and may be made by the Executive Committee selectively among
Persons who receive, or are eligible to receive, Awards under the Plan, whether
or not such Persons are similarly situated. All actions taken and all
interpretations and determinations made under this Plan in good faith by the
Executive Committee shall be final and binding upon the Recipient, the Company,
and all other interested Persons. No member of the Executive Committee shall be
personally liable for any action taken or decision made in good faith relating
to this Plan, and all members of the Executive Committee shall be fully
protected and indemnified to the fullest extent permitted under applicable law
by the Company in respect to any such action, determination, or interpretation.
(e) Compensation; Advisors. Members of the Executive Committee shall
receive such compensation for their services as members as may be determined by
the Board. All expenses and liabilities incurred by members of the Executive
Committee in connection with the administration of the Plan shall be borne by
the Company. The Executive Committee may, with the approval of the Board, employ
attorneys, consultants, accountants, appraisers, brokers, or other Persons, at
the cost of the Company. The Executive Committee, the Company and its officers
and directors shall be entitled to rely upon the advice, opinions, or valuations
of any such Persons.
4. STOCK POOL.
(a) Maximum Number of Shares Authorized Under Plan. Shares of stock which
may be issued or granted under the Plan shall be authorized and unissued or
treasury shares of Common Stock. The aggregate maximum number of shares of
Common Stock which may be issued as a grant of Award Shares shall not exceed
1,500,000 shares of Common Stock (the "Stock Pool").
(b) Date of Award. The date an Award is granted shall mean the date
selected by the Executive Committee as of which the Executive Committee allots a
specific number of shares to a Recipient with respect to such Award pursuant to
the Plan.
5. AWARD SHARES.
(a) Grant. The Executive Committee may from time to time, and subject to
the provisions of the Plan and such other terms and conditions as the Executive
Committee may prescribe, grant to any Eligible Person one or more shares of
Common Stock ("Award Shares") allotted by the Executive Committee. The grant of
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Award Shares or grant of the right to receive Award Shares shall be evidenced by
either a written consulting agreement or a separate written agreement confirming
such grant, executed by the Company and the Recipient, stating the number of
Award Shares granted and stating all terms and conditions of such grant.
(b) Purchase Price and Manner of Payment. The Executive Committee, in its
sole discretion, may grant Award Shares in any of the following instances:
(i) as a "bonus" or "reward" for services previously rendered and
compensated, in which case the recipient of the Award Shares
shall not be required to pay any consideration for such Award
Shares, and the value of such Award Shares shall be the Fair
Market Value of such Award Shares on the date of grant; or
(ii) as "compensation" for the previous performance or future
performance of services or attainment of goals, in which case the
recipient of the Award Shares shall not be required to pay any
consideration for such Award Shares (other than the performance
of his services), and the value of such Award Shares received
(together with the value of such services or attainment of goals
attained by the Recipient), may not be less than one hundred
percent (100%) of the Fair Market Value of such Award Shares on
the date of grant; or
6. ADJUSTMENTS.
(a) Subdivision or Stock Dividend. If (i) outstanding shares of Common
Stock shall be subdivided into a greater number of shares by reason of
recapitalization or reclassification, the number of shares of Common Stock, if
any, available for issuance in the Stock Pool shall, simultaneously with the
effectiveness of such subdivision or immediately after the record date of such
dividend, be proportionately increased, and (ii) conversely, if the outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
number of shares of Common Stock, if any, available for issuance in the Stock
Pool shall, simultaneously with the effectiveness of such combination, be
proportionately increased.
(b) Adjustments Determined in Sole Discretion of Board. To the extent that
the foregoing adjustments relate to stock or securities of the Company, such
adjustments shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive.
(c) No Other Rights to Recipient. Except as expressly provided in this
Section 6, (i) the Recipient shall have no rights by reason of any subdivision
or consolidation of shares of stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of stock of
any class, and (ii) the dissolution, liquidation, merger, consolidation or
divisive reorganization or sale of assets or stock to another corporation, or
any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number of
shares. The grant of an Award pursuant to this Plan shall not affect in any way
the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge,
consolidate, dissolve or liquidate, or to sell or transfer all or any part of
its business or assets.
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7. EMPLOYMENT STATUS.
In no event shall the granting of an Award be construed as granting a
continued right of employment to a Recipient if such Person is employed by the
Company, nor effect any right which the Company may have to terminate the
employment of such Person, at any time, with or without cause, except to the
extent that such Person and the Company have agreed otherwise in writing.
8. AMENDMENT AND DISCONTINUATION OF PLAN; MODIFICATION OF AWARDS.
(b) Amendment, Modification or Termination of Plan. The Board may amend the
Plan or suspend or discontinue the Plan at any time or from time-to-time;
provided, however no such action may adversely alter or impair any Award
previously granted under this Plan without the consent of each Recipient
affected thereby.
(b) Compliance with Laws. The Executive Committee may at any time or from
time-to-time, without receiving further consideration from any Person who may
become entitled to receive or who has received the grant of an Award hereunder,
modify or amend Awards granted under this Plan as required to: (i) comply with
changes in securities, tax or other laws or rules, regulations or regulatory
interpretations thereof applicable to this Plan or Awards thereunder or to
comply with stock exchange rules or requirements.
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