As filed with the Securities and Exchange Commission on March 29, 2002
Reg.No.__
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________________
ESYNCH CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 87-0461856
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
3511 W. Sunflower Ave. Suite 250
Santa Ana, California 90035
(Address of principal executive offices)
________________________________________________
ADVISORY AND CONSULTING AGREEMENT
(Full title of plan)
________________________________
Thomas Hemingway
Chief Executive Officer
3511 W. Sunflower Ave. Suite 250
Santa Ana, California 90035
(714) 258-1900
(Telephone number, including area code of agent for service)
Copy to:
NACCARATO & ASSOCIATES
Owen Naccarato, Esq.
19600 Fairchild, Suite 260
Irvine, CA 92612
(949) 851-9261
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities. Amount to be offering price Aggregate offering Amount of
to be registered . . Registered (1) per share (2) Price Registration fee
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Common Stock 4,160,000 $0 .05 $208,000 $19.14
(no par value)
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(1)Represents 160,000 shares of Common Stock to be issued to an attorney with
Naccarato & Associates as compensation for services rendered by Naccarato &
Associates pursuant to a fee agreement, and 4,000,000 shares underlying options
being granted to a consultant.
(2) 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 1993, based upon the average of the bid
and asked prices per share of the registrant's common stock reported by the OTC
Nasdaq Stock Market on March 28, 2002.
PART I
The document(s) containing the information specified in Part I will be sent
or given to employees as specified by Rule 428(b)(1) of the Securities Act of
1933, as amended (the "Securities Act"). Such documents are not being filed with
the Securities and Exchange Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of
the Securities Act. Such documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II hereof, taken
together, constitute a prospectus that meets the requirements of Section 10(a)of
the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by eSynch Corporation (the "Company")
with the Commission (File No. 0-26790) are incorporated in and made part of this
registration statement by reference, except to the extent that any statement or
information therein is modified, superseded or replaced by a statement or
information contained in any other subsequently filed document incorporated
herein by reference.
(1) The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2000.
(2) all other reports filed by the Company pursuant to Section 13(a) or
Section 15 (d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 2000 through the date hereof;
(3) the Registrant's Form SB-2A filed on January 18, 2000 pursuant to
Section 12 of the Exchange Act, in which there is described the terms, rights
and provisions applicable to the Registrant's outstanding Common Stock, and
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, subsequent to the filing
hereof and 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 and to be
a part hereof from the date of filing such documents.
For purposes of this registration statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated herein
by reference modifies or supersedes such document or such statement in such
document. Any statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this registration statement.
Subsequent to the 10QSB filed on November 20, 2001 the Company issued
1,600,000 shares of common stock to John Vasquez for consulting services, and
1,000,000 shares of common stock to David Lyons, the Company President as
compensation. Additionally, six shares of Series J Preferred stock were
converted to 3,254,876 shares of common stock and 17 shares of Series K
Preferred stock were converted to 9,000,000 shares of common stock. Also, a
settlement with B-Free Ltd. reduced the liability to $4,000, which had
previously been recorded as a $25,544 pre-acquisition liability. The Terry
Murphy litigation has ended and the Company has been found not liable. The
David P. Noyes claim of $96,572 was dismissed by the Labor Board, which
determined that the only amount due by the Company is for reimbursement of
expenses in the amount of $13,239.47(and the Company is filing a counter claim
against Mr. Noyes for $20,000 plus interest). The Bixby liability was increase
from $100,000 to $136,350.50 based upon a judgment against the Company. The
Company is currently in negotiations with Bixby to reduce this amount. The
Company relocated its offices to 3511 W. Sunflower Ave. Suite 250 Santa Ana,
California 92704. The lease term of the new facility is 15 months at $3,700
rent per month. The Company made a 14-C filing authorizing an increase in
assumable Common Stock from 50,000,000 shares to 250,000,000 shares on February
25, 2002.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSEL
Owen M. Naccarato, does consulting work for eSynch Corporation
from time to time and is being issued 160,000 shares of the Company's common
stock as consideration for filing this Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "Delaware
GCL") empowers a Delaware corporation, including the Company, to indemnify its
directors, officers, employees, and agents under certain circumstances. The
Company's Restated Certificate of Incorporation (the "Certificate") provides
that the Company shall indemnify current and former directors and officers of
the Company or persons who serve or have served, at the request of the Company,
as directors or officers of any other corporation in which the Company at such
time owns or owned shares of stock or is or was a creditor, to the full extent
authorized by the Delaware GCL as it may from time to time be amended. Moreover,
the Certificate provides that no director of the Company shall be personally
liable to the Company or its stockholders for monetary damages for any breach of
fiduciary duty as a director, except (i) for any breach of the duty of loyalty
to the Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii) for
liability under Section 174 of the Delaware GCL (involving certain unlawful
dividends or stock repurchases), or (iv) for any transaction from which the
director derived an improper personal benefit.
Under the Delaware GCL, to the extent that an officer or director of a
corporation is successful on the merits in the defense of an action, the
corporation must indemnify such person for his or her actual and reasonable
expenses incurred in connection with such defense. The Certificate provides that
the Company shall indemnify officers and directors against any and all expenses,
including amounts paid on judgment, counsel fees, and amounts paid in settlement
(before or after suit is commenced) by such persons in connection with the
defense or settlement of any claim, action, suit or proceeding in which they, or
any of them, are made parties, to the full extent permitted by the Delaware GCL.
Under its Bylaws, the Company may indemnify its directors, officers,
employees and agents and the directors, officers, employees or agents of any
other corporation if the person was serving at the request of the Company. The
indemnification is required if the person is successful on the merits or
otherwise in defending the claim and is permitted in other circumstances, if
indemnification is authorized in the specific instance by the Company or by a
majority vote of the Company's stockholders. Indemnification is permitted only
if the person was acting in good faith in a manner reasonably believed to be in
or not opposed to the best interests of the Company. If the person is judged to
be liable to the Company in any action brought in the Company's name,
indemnification is only permitted if the court acting in the matter specifically
allows it. The Company is authorized to advance expenses to a director or
officer upon that person's agreement to repay the Company if such person
ultimately is not entitled to indemnification.
The Company is also empowered under its Bylaws to purchase insurance on
behalf of any person whom the Company is required or permitted to indemnify. The
Company has entered into agreements with its directors and executive officers,
which require the Company to indemnify such persons to the fullest extent
permitted by law against certain losses that they may incur in legal proceedings
arising in connection with their services to the Company and to advance expenses
upon their agreement to repay the Company if such person is ultimately not
entitled to indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes to file, during any period in which
offers or sales are being made of the securities registered hereby, 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 this 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 (a)(i) and (a)(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 by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, that are
incorporated by reference in the registration statement.
(b) The Company hereby agrees that, for the purposes 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;
(c) The Company hereby undertakes 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;
(d) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit 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; and
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company 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
Pursuant to the requirements of the Securities Act, the Company
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 the City of Santa Ana, State of California on March 29, 2002.
eSYNCH CORPORATION
By: /s/ THOMAS HEMINGWAY
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Thomas Hemingway, Chief Executive Officer
By: /s/ Mark Utzinger
------------------------------------
Mark Utzinger, Vice president - Finance.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Mark L. Baum, each of them acting individually as
his attorney-in-fact, each with full power of substitution and re-substitution,
for him in any and all capacities, to sign any and all 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,
granting unto said attorney-in-fact full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith as fully to al intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact, or their
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:
/s/ Thomas Hemingway Chairman, March 29, 2002
--------------------------- Chief Executive Officer
Thomas Hemingway and Director
/s/ Mark Utzinger Vice President Finance March 29, 2002
---------------------------
Mark Utzinger
INDEX TO EXHIBITS
EXHIBIT SEQUENTIALLY
NO. DESCRIPTION NUMBERED PAGES
--- ----------- ---------------
4.1 Consulting Agreement: David Mun Gavin
4.2 Consulting Agreement: Owen Naccarato
5.1 Opinion of Counsel, regarding the legality of the securities registered
hereunder.
23.1 Consent of Hansen, Barnett & Maxwell, CPA
23.2 Consent of Counsel (included as part of Exhibit 5.1)
24 Power of Attorney (Contained within Signature Page)