SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
to
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
LUMALITE HOLDINGS, INC
(Exact Name of Registrant as Specified in Its Charter)
Nevada 82-0288840
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2810 Via Orange Way, Ste B, Spring Valley, CA 91978
(Address of Principal Executive Offices, Including Zip Code)
(619) 660-5410
Issuer's telephone number
LUMALITE HOLDINGS, Inc.
2002-2003 CONSULTANTS AND EMPLOYEES STOCK OPTION PLAN
(Full title of plan)
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities to be Registered Maximum Maximum Registration Fee
Registered Offering Price Aggregate
Per Share* Offering Price*
Common Stock 3,000,000 $0.095 $285,000 $82.65
($0.001 par value) shares**
* Estimated pursuant to rule 457(c)
** Includes awards that may be granted pursuant to the foregoing plans and an
indeterminate number of shares of Common Stock that may become issuable pursuant
to the antidilution provisions of such plan.
EXPLANATORY NOTE
Lumalite Holdings, Inc. ("LHI") has prepared this Registration Statement
in accordance with the requirements of Form S-8 under the Securities Act of
1933, as amended (the "1933 Act"), to register certain shares of common stock,
$.001 par value per share, to be issued to certain selling shareholders.
PART I
INFORMATION REQUIRED IN SECTION 10(a) OF PROSPECTUS
LHI will send or give the documents containing the information specified in Part
1 of Form S-8 to employees or consultants as specified by Securities and
Exchange Commission Rule 428 (b) (1) under the Securities Act of 1933, as
amended (the "1933 Act"). LHI does not need to file these documents with the
commission either as part of this Registration Statement or as prospectuses or
prospectus supplements under Rule 424 of the 1933 Act.
REOFFER PROSPECTUS
Lumalite Holdings, Inc.
3,000,000 SHARES OF COMMON STOCK
The shares of common stock, $0.001 par value per share, of Lumalite Holdings,
Inc. ("LHI" or the "Company") offered hereby (the "Shares") will be sold from
time to time by the individuals listed under the Selling Shareholders section of
this document (the "Selling Shareholders"). The Selling Shareholders acquired
the Shares pursuant to Consulting Agreements for consulting services rendered to
the Company.
The sales may occur in transactions on the over-the-counter market maintained by
Nasdaq at prevailing market prices or in negotiated transactions. LHI will not
receive proceeds from any of the sale the Shares. LHI is paying for the expenses
incurred in registering the Shares.
To the knowledge of the Company, the Selling Shareholders have no arrangement
with any brokerage firm for the sale of the Shares. The Selling Shareholders may
be deemed to be an "underwriter" within the meaning of the 1933 Act. Any
commissions received by a broker or dealer in connection with resales of the
Shares may be deemed to be underwriting commissions or discounts under the 1933
Act.
LHI's common stock is currently traded on the Over-the-Counter Bulletin Board.
This investment involves a high degree of risk.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED WHETHER
THIS REOFFER PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
October 29, 2002
TABLE OF CONTENTS
Where You Can Find More Information 2
Incorporated Documents 2
The Company 3
Risk Factors 11
Use of Proceeds 15
Selling Shareholders 16
Plan of Distribution 16
Legal Matters 17
Experts 17
You should only rely on the information incorporated by reference or provided in
this Reoffer Prospectus or any supplement. We have not authorized anyone else to
provide you with different information. The common stock is not being offered in
any state where the offer is not permitted. You should not assume that the
information in this Reoffer Prospectus or any supplement is accurate as of any
date other than the date on the front of this Reoffer Prospectus.
WHERE YOU CAN FIND MORE INFORMATION
LHI is required to file annual, quarterly and special reports, proxy statements
and other information with the Securities and Exchange Commission (the "SEC") as
required by the Securities Exchange Act of 1934, as amended (the "1934 Act").
You may read and copy any reports, statements or other information we file at
the SEC's Public Reference Rooms at:
450 Fifth Street, N.W., Washington, D.C. 20549;
Seven World Trade Center, 13th Floor, New York, N.Y. 10048
Please call the SEC at 1-800-SEC-0330 for further information on the Public
Reference Rooms. Our filings are also available to the public from commercial
document retrieval services and the SEC website (http://www.sec.gov).
INCORPORATED DOCUMENTS
The SEC allows LHI to "incorporate by reference" information into this Reoffer
Prospectus, which means that the Company can disclose important information to
you by referring you to another document filed separately with the SEC. The
information incorporated by reference is deemed to be part of this Reoffer
Prospectus, except for any information superseded by information in this Reoffer
Prospectus.
All documents filed or subsequently filed by the Company under Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act, before the termination of this offering,
are incorporated by reference.
The Company will provide without charge to each person to whom a copy of this
Reoffer Prospectus is delivered, upon oral or written request, a copy of any or
all documents incorporated by reference into this Reoffer Prospectus (excluding
exhibits unless the exhibits are specifically incorporated by reference into the
information the Reoffer Prospectus incorporates). Requests should be directed to
the Chief Financial Officer at LHI's executive offices, located at 2810 Via
Orange Way, Ste B, Spring Valley, CA 91978, (619) 660-5410 .
ITEM 1. PLAN INFORMATION
The documents containing the information required by Part I of Form S-8
will be sent or given to the subscriber 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 Commission 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.
Purposes
The Common Stock will be issued by the Company a contract approved by the
Board of Directors of the Company (the "Board of Directors"). The contract is
intended to provide a method whereby the Company will be able to use the
services of skilled professionals in connection with advice pertaining to the
Company's business affairs as the Company may, from time to time, reasonably
request. A copy of the contract has been filed as an exhibit to this
registration Statement.
COMMON STOCK
The Board has authorized the issuance of 3,000,000 shares of the Common
Stock to the Consultants upon effectiveness of this registration statement.
No Restrictions on Transfer
The selling shareholder will become the record and beneficial owner of
the shares of Common Stock upon issuance and delivery and is entitled to all of
the rights of ownership, including the right to vote any shares awarded and to
receive ordinary cash dividends on the Common Stock.
Tax Treatment
The Common Stock is not qualified under Section 401(a) of the Internal
Revenue Code. The Consultant, therefore, will be deemed for federal income tax
purposes to recognize ordinary income during the taxable year in which the first
of the following events occurs: (a) the shares become freely transferable, or
(b) the shares cease to be subject to a substantial risk of forfeiture.
Accordingly, the Consultant will receive compensation taxable at ordinary rates
equal to the fair market value of the shares on the date of receipt since there
will be no substantial risk of forfeiture or other restrictions on transfer.
Restrictions of Re-sales
In the event that an affiliate of the Company acquires shares of Common
Stock hereunder, the affiliate will be subject to Section 16(b) of the Exchange
Act. Further, in the event that any affiliate acquiring shares hereunder has
sold or sells any shares of Common Stock in the six months preceding or
following the receipt of shares hereunder, any so called "profit", as computed
under Section 16(b) of the Exchange Act, would be required to be disgorged from
the recipient to the Company. Services rendered have been recognized as valid
consideration for the "purchase" of shares in connection with the "profit"
computation under Section 16(b) of the Exchange Act. The Company has agreed that
for the purpose of any "profit" computation under 16(b) the price paid for the
common stock issued to affiliates is equal to the value of services rendered.
Shares of common Stock acquired hereunder by persons other than affiliates are
not subject to Section 16(b) of the Exchange Act.
Documents Incorporated By Reference and Additional Information
The Company hereby incorporates by reference (i) any and all Forms 10-QSB
filed under the Securities or Exchange Act as well as all other reports filed
under Section 13 of the Exchange Act, and (ii) its annual report, if any, to
shareholders delivered pursuant to Rule 14a-3 of the Exchange Act. In addition,
all further documents filed by the Company pursuant to Section 13, 14, or 15(d)
of the Exchange Act prior to the termination of this offering are deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing. All documents which when together, constitute this Prospectus,
will be sent or given to participants by the Registrant as specified by Rule
428(b)(1) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information
A copy of any document or part hereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus of any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Request should be
addressed to the Company.
Legal Opinions and Experts
Kennan E. Kaeder, Esq. has rendered an opinion on the validity of the
securities being registered. Mr. Kaeder is not an "affiliate" of the Company and
does not have a substantial interest in the registrant. (See PART II, ITEM
5--Interests of Named Experts and Counsel)
The financial statements of Lumalite Holdings, Inc. (incorporated by
reference in the Company's Form 10-KSB) for the year ended December 31, 2001
have been audited by Bierwolf, Wilson & Associates Certified Public Accountants,
independent auditors, as set forth in their report incorporated herein by
reference and are incorporated herein in reliance upon such report given upon
the authority of the firm as experts in auditing and accounting.
Indemnification of Officers and Directors
Insofar as indemnification of liabilities arising under the Securities
Act may be permitted to directors, officers, or persons controlling the company,
the company has been informed that in the opinion of the commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission by the
Company for purposes of the information reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") are incorporated herein by
reference:
1. The Company's Annual Report on Form 10-KSB for the year ended December 31,
2001;
3. The Company's Quarterly Report on Form 10-QSB for the months ended June 30,
2001;
4. The Company's Form 8-KA filed on May 20, 2002.
5. The Company's Form 8-K filed on August 19, 2002
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
herein by reference will be deemed to be modified or superseded for purposes
hereof to the extent that a 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 statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part thereof.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the Common Stock offered hereby
will be passed upon for the Company by Kennan E. Kaeder, counsel to the Company.
Mr. Kaeder has no beneficial interest in the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation of the Company provides that all
directors, officers, employees and agents of the Company shall be entitled to be
indemnified by the Company to the fullest extent permitted by law. The
Certificate of Incorporation also provides as follows:
The corporation shall, to the fullest extent permitted by the Act, as the
same may be amended and supplemented, indemnify all directors, officers,
employees, and agents of the corporation whom it shall have power to indemnify
thereunder from and against any and all of the expenses, liabilities, or other
matters referred to therein or covered thereby.
Such right to indemnification or advancement of expenses shall continue
as to a person who has ceased to be a director, officer, employee, or agent of
the corporation, and shall inure to the benefit of the heirs, executives, and
administrators of such persons. The indemnification and advancement of expenses
provided for herein shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement may be entitled under any bylaw,
agreement, vote of stockholders or of disinterested directors or otherwise. The
corporation shall have the right to purchase and maintain insurance on behalf of
its directors, officers, and employees or agents to the full extent permitted by
the Act, as the same may be amended or supplemented.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable. 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. CONSULTANTS AND ADVISORS
Not applicable.
ITEM 9. EXHIBITS
Exhibit No. Title
4.1 Consulting Agreement
5.1 Opinion of Kennan E. Kaeder, Esq.
23.1 Consent of
24.1 Power of Attorney
ITEM 10. 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 to;
(i) include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii) reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed t hat
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) 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, that paragraphs (a)(1)(i) and (a)(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 Section 13 or 15(d) or the
Securities Exchange Act of 1934 that are incorporated by reference 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 the rein, 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of t he Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Ex change 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 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, unenforceab1e. 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 act ion, 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 the City of San Diego, California on the October 29, 2002.
LHIHOLDINGS, INC.
/s/ Dale Rorabaugh
Dale Rorabaugh
Chief Executive Officer
Exhibit 4.1
LUMALITE HOLDINGS, INC.
2002-2003 CONSULTANTS AND EMPLOYEES STOCK OPTION PLAN
Section 1. General Purpose of Plan; Definitions.
The name of this plan is the Lumalite Holdings, Inc. 2002-2003 Consultants
And Employees Stock Option Plan (the "Plan"). The Plan was adopted by the Board
on October 10, 2002. The purpose of the Plan is to enable the company to attract
and retain highly qualified personnel who will contribute to the Company's
success by their ability, ingenuity and industry and to provide incentives to
the participating officers, employees, directors, and advisors that are linked
directly to increases in stockholder value and will therefore inure to the
benefit of all stockholders of the Company.
For purposes of the Plan, the following terms shall be defined as set forth
below:
"Act" means Securities Exchange Act of 1934, as amended.
"Administrator" means the Board, or if the Board does not administer the
Plan, the Committee in accordance with Section 2.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor thereto.
"Committee" means the Committee of the Board designated from time to
time by the Board to be the Administrator.
"Commission" means Securities and Exchange Commission.
"Company" means Lumalite Holdings, Inc., (or any successor corporation).
"Disability" means the inability of a Participant to perform
substantially his duties and responsibilities to the Company by reason of a
physical or mental disability or infirmity (i) for a continuous period of six
months, or (ii) at such earlier time as the Participant submits medical evidence
satisfactory to the Company that he has a physical or mental disability or
infirmity which will likely prevent him from returning to the performance of his
work duties for six months or longer. The date of such Disability shall be on
the last day of such six-month period or the day on which the Participant
submits such satisfactory medical evidence, as the case may be.
"Effective Date" shall mean the date provided pursuant to Section 9.
"Eligible Employee" means an employee or consultant of the Company
eligible to participate in the Plan pursuant to Section 4.
"Fair Market Value" means, as of any given date, with respect to any
awards granted hereunder, at the discretion of the Administrator and subject to
such limitations as the Administrator may impose, (A) if the Stock is publicly
traded, the closing sale price of the Stock on such date as reported in the Wall
Street Journal, or the average of the closing price of the Stock on each day on
which the Stock was traded over a period-of up to twenty trading days
immediately prior to such date, (B) the fair market value of the Stock as
determined in accordance with a method prescribed in the agreement evidencing
any award hereunder, or (C) the fair market value of the Stock as otherwise
determined by the Administrator in the good faith exercise of its discretion.
"Incentive Stock Option" or "ISO" means any Stock Option intended to be
designated as an "incentive stock option" within the meaning of Section 422 of
the Code (and any successor provision of the Code having a similar intent).
"Non-Qualified Stock Option" or "NQSO" means any Stock Option that is
not an Incentive Stock Option, including any Stock Option that provides (as of
the time such option is granted) that it will not be treated as an Incentive
Stock Option.
"Parent Corporation" means any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company, if each of the
corporations in the chain (other than the Company) owns stock possessing 50% or
more of the combined voting power of all classes of stock in one of the other
corporations in the chain.
"Participant" means any Eligible Employee, consultant or advisor to the
Company selected by the Administrator, pursuant to the Administrator's authority
in Section 2 below, to receive grants of Stock Options.
"Stock" means the Common Stock, $0.001 par value, of the Company.
"Stock Option" means any option to purchase shares of Stock granted
pursuant to Section 5.
"Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company, if each of the
corporations (other than the last corporation) in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in the chain.
Section 2. Administration
The Plan shall be administered by the Board or by the Committee which
shall be appointed by the Board and which shall serve at the pleasure of the
Board.
The Administrator shall have the power and authority to grant Stock
Options to Eligible Employees, consultants and advisors to the Company, pursuant
to the terms of the Plan.
In particular, the Administrator shall have the authority:
(a) to select those persons who shall be Eligible Employees;
(b) to determine whether and to what extent Stock Options are to be
granted hereunder to Eligible Employees, consultants and advisors to the
Company;
(c) to determine the number of shares to be covered by each Stock Option
granted hereunder;
(d) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any Stock Option granted hereunder; and
(e) to determine the terms and conditions, not inconsistent with the
terms of the Plan, which shall govern all written instruments evidencing the
Stock Options.
The Administrator shall have the authority, in its discretion, to adopt,
alter and repeal such administrative rules, guidelines and practices governing
the Plan as it shall from time to time deem advisable; to interpret the terms
and provisions of the Plan and any award issued under the Plan (and any
agreements relating thereto); and to otherwise supervise the administration of
the Plan.
All decisions made by the Administrator pursuant to the provisions of the
Plan shall be final and binding on all persons, including the Company and the
Participants.
Section 3. Stock Subject to Plan.
The total number of shares of Stock reserved and available for issuance
under the Plan (and the total number of shares that may be granted as ISO's)
shall be 3,000,000 shares of Stock. Such shares may consist, in whole or in
part, of authorized and unissued shares or treasury shares. To the extent that a
Stock Option expires or is otherwise terminated without being exercised, such
shares shall again be available for issuance in connection with future awards
under the Plan. If any shares of Stock have been pledged as collateral for
indebtedness incurred by a Participant in connection with the exercise of a
Stock Option and such shares are returned to the Company in satisfaction of such
indebtedness, such shares shall again be available for issuance in connection
with future awards under the Plan. To the extent that a Participant is eligible
to use, and uses, shares of Stock to exercise a Stock Option, the number of
Shares of Stock so used shall be available for issuance in connection with
future awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend or other change in corporate structure
affecting the Stock, an appropriate substitution or adjustment shall be made in
the aggregate number of shares reserved for issuance under the Plan as may be
determined by the Administrator, in its sole discretion. Any other substitutions
or adjustments shall be made as may be determined by the Administrator, in its
sole discretion. In connection with any event described in this paragraph, the
Administrator may provide, in its discretion, for the cancellation of any
outstanding awards and payment in cash or other property therefor.
Section 4. Eligibility.
Officers (including officers who are directors of the Company),
directors, employees of the Company, and advisors to the Company who are
responsible for or contribute to the management, growth and/or profitability of
the business of the Company shall be eligible to be granted Stock Options. The
Participants under the Plan shall be selected from time to time by the
Administrator, in its sole discretion, from among the Eligible Employees,
consultants and advisors to the Company recommended by the senior management of
the Company, and the Administrator shall determine, in its sole discretion, the
number of shares covered by each award.
Section 5. Stock Options.
Any Stock Option granted under the Plan shall be in such form as the
Administrator may from time to time approve, and the provisions of Stock Option
awards need not be the same with respect to each optionee. Recipients of Stock
Options shall enter into a subscription and/or award agreement with the Company,
in such form as the Administrator shall determine which agreement shall set
forth, among other things, the exercise price of the option, the term of the
option and provisions regarding exercisability of the option granted thereunder.
The Stock Options granted under the Plan may be of two types: (i)
Incentive Stock Options and (ii) Non-Qualified Stock Options.
The Administrator shall have the authority to grant any Eligible Employee
Incentive Stock Options, Non-Qualified Stock Options, or both types of Stock
Options. Consultants and advisors may only be granted Non-Qualified Stock
Options. To the extent that any Stock Option does not qualify as an Incentive
Stock Option, it shall constitute a separate Non-Qualified Stock Option. More
than one option may be granted to the same optionee and be outstanding
concurrently hereunder.
Stock Options granted under the Plan shall be subject to the following
terms and conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Administrator shall deem
desirable:
(1) Option Price. The option price per share of Stock purchasable under a
Stock Option shall be determined by the Administrator in its sole discretion at
the time of grant but shall not, (i) in the case of Non-Qualified Stock Options,
be less than 75% of the Fair Market Value of the Stock on such date, and (ii) in
any event, be less than the par value of the Stock. If an employee owns or is
deemed to own (by reason of the attribution rules applicable under Section
425(d) of the Code) more than 10% of the combined voting power of all classes of
stock of the Company or any Parent Corporation and an Incentive Stock Option is
granted to such employee, the option price of such Incentive Stock Option (to
the extent required by the Code at the time of grant) shall be no less than 110%
of the Fair Market Value of the Stock on the date such Incentive Stock Option is
granted.
(2) Option Term. The term of each Stock Option shall be fixed by the
Administrator, but no Stock Option shall be exercisable more than ten years
after the date such Stock Option is granted; provided, however that if an
employee owns or is deemed to own (by reason of the attribution rules of Section
425(d) of the Code) more than 10% of the combined voting power of all classes of
stock of the Company or any Parent Corporation and an Incentive Stock Option is
granted to such employee, the term of such Incentive Stock Option (to the extent
required by the Code at the time of grant) shall be no more than five years from
the date of grant.
(3) Exercisability. Stock Options shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by the
Administrator at or after grant. The Administrator may provide, in its
discretion, that any Stock Option shall be exercisable only in installments, and
the Administrator may waive such installment exercise provisions at any time in
whole or in part based on such factors as the Administrator may determine, in
its sole discretion.
(4) Method of Exercise. Subject to Section 5(3) above, Stock Options may
be exercised in whole or in part at any time during the option period, by giving
written notice of exercise to the Company specifying the number of shares to be
purchased, accompanied by payment in full of the purchase price in cash or in
such other form of consideration as is set forth in the related Stock Option
agreement as determined by the Administrator. As determined by the
Administrator, in its sole discretion, payment in whole or in part may also be
made in the form of unrestricted Stock already owned by the optionee; provided,
however, that the right to make payment in the form of already own ed shares may
be authorized only at the time of grant. An optionee shall generally have the
rights to dividends and any other rights of a stockholder with respect to the
Stock subject to the option only after the optionee has given written notice of
exercise, has paid in full for such shares, and, if requested, has given the
representation described in paragraph (1) of Section 10.
The Administrator may require the voluntary surrender of all or a portion
of any Stock Option granted under the Plan as a condition precedent to the grant
of a new Stock Option. Subject to the provisions of the Plan, such new Stock
Option shall be exercisable at the price, during such period and on such other
terms and conditions as are specified by the Administrator at the time the new
Stock Option is granted. Upon their surrender, Stock Options shall be canceled
and the shares previously subject to such canceled Stock Options shall again be
available for grants of Stock Options and other awards hereunder.
(5) Loans. The Company may make loans available to Stock Option holders
in connection with the exercise of outstanding options granted under the Plan,
as the Administrator, in its discretion, may determine; provided, however, that
the right to make payment in the form of loans may be authorized only at the
time of grant and the terms of such loans shall be specified in the related
Stock Option agreement. Such loans shall (i) be evidenced by promissory notes
entered into by the Stock Option holders in favor of the Company, (ii) be
subject to the terms and conditions set forth in this Section 5(5) and such
other terms and conditions, not inconsistent with the Plan, as the Administrator
shall determine, (iii) bear interest, if any, at such rate as the Administrator
shall determine, and (iv) be subject to Board approval (or to approval by the
Administrator to the extent the Board may delegate such authority). In no event
may the principal amount of any such loan exceed the sum of (x) the exercise
price less the-par value of the shares of Stock covered by the option, or
portion thereof, exercised by the holder, and (y) any federal, state, and local
income tax attributable to such exercise. The initial term of the loan, the
schedule of payments of principal and interest (if any) under the loan, the
extent to which the loan is to be with or without recourse against the holder
with respect to principal or interest and the conditions upon which the loan
will become payable in the event of the holder's termination of employment shall
be determined by the Administrator. Unless the Administrator determines
otherwise, when a loan is made, shares of Stock having a Fair Market Value at
least equal to the principal amount of the loan shall be pledged by the holder
to the Company as security for payment of the unpaid balance of the loan, and
such pledge shall be evidenced by a pledge agreement, the terms of which shall
be determined by the Administrator, in its discretion; provided, however, that
each loan shall comply with all applicable laws, regulations and rules of the
Board of Governors of the Federal Reserve System and any other governmental
agency having jurisdiction.
(6) Non-Transferability of Options. Unless otherwise determined by the
Administrator, no Stock Option shall be transferable by the optionee, and all
Stock Options shall be exercisable, during the optionee's lifetime only by the
optionee.
(7) Termination of Employment or Service. If an optionee' s employment
with or service as a director of or consultant or advisor to the Company
terminates by reason of death, Disability or for any other reason, the Stock
Option may thereafter be exercised to the extent provided in the applicable
subscription or award agreement, or as otherwise determined by the
Administrator.
(8) Annual Limit on Incentive Stock Options. To the extent that the
aggregate Fair Market Value (determined as of the date the Incentive Stock
Option is granted) of shares of Stock with respect to which Incentive Stock
Options granted to an Optionee under this Plan and all other option plans of the
Company or its Parent Corporation become exercisable for the first time by the
Optionee during any calendar year exceeds $200,000, such Stock Options shall be
treated as Non-Qualified Stock Options.
Section 6. Amendment and Termination.
The Board may amend, alter or discontinue the Plan, but no amendment,
alteration, or discontinuation shall be made that would impair the rights of a
Participant under any award theretofore granted without such Participant's
consent.
The Administrator may amend the terms of any award theretofore granted,
prospectively or retroactively, but, subject to Section 3 above, no such
amendment shall impair the rights of any holder without his or her consent.
Section 7. Unfunded Status of Plan.
The Plan is intended to constitute an "unfunded" plan for incentive
compensation. With respect to any payments not yet made to a Participant by the
Company, nothing contained herein shall give any such Participant any rights
that are greater than those of a general creditor of the Company.
Section 8. General Provisions.
(1) The Administrator may require each person purchasing shares pursuant
to a Stock Option to represent to and agree with the Company in writing that
such person is acquiring the shares without a view to distribution thereof. The
certificates for such shares may include any legend which the Administrator
deems appropriate to reflect any restrictions on transfer.
All certificates for shares of Stock delivered under the Plan shall be
subject to such stock-transfer orders and other restrictions as the
Administrator may deem advisable under the rules, regulations, and other
requirements of the Commission, any stock exchange upon which the Stock is then
listed, and any applicable federal or state securities law, and the
Administrator may cause a legend or legends to be placed on any such
certificates to make appropriate reference to such restrictions.
(2) Nothing contained in the Plan shall prevent the Board from adopting
other or additional compensation arrangements, subject to stockholder approval
if such approval is required; and such arrangements may be either generally
applicable or applicable only in specific cases. The adoption of the Plan shall
not confer upon any employee, director, consultant or advisor of the Company any
right to continued employment or service with the Company, as the case may be,
nor shall it interfere in any way with the right of the Company to terminate the
employment or service of any of its employees, directors, consultants or
advisors at any time.
(3) Each Participant shall, no later than the date as of which the value
of an award first becomes includible in the gross income of the Participant for
federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Administrator regarding payment of, any federa1, state, or
local taxes of any kind required by law to be withheld with respect to the
award. The obligations of the Company under the Plan shall be conditional on the
making of such payments or arrangements, and the Company shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment of
any kind otherwise due to the Participant.
(4) No member of the Board or the Administrator, nor any officer or
employee of the Company acting on behalf of the Board or the Administrator,
shall be personally liable for any action, determination, or interpretation
taken or made in good faith with respect to the Plan, and all members of the
Board or the Administrator and each and any officer or employee of the Company
acting on their behalf shall, to the extent permitted by law, be fully
indemnified and protected by the Company in respect of any such action,
determination or interpretation.
Section 9. Effective Date of Plan.
The Plan became effective (the "Effective Date") on October 10, 2002;
provided that, the Plan shall become effective with respect to Incentive Stock
Options on the date the Company's stockholders formally approve the Plan.
Section 10. Term of P1an.
No Stock Option shall be granted pursuant to the Plan on or after the
tenth anniversary of the Effective Date, but awards theretofore granted may
extend beyond that date.
Exhibit 5.1
Exhibit 23.2
Opinion of Kennan E. Kaeder, Esq.
October 28, 2002
Lumalite Holdings, Inc.
2810 Via Orange Way, Ste B, Spring Valley, CA 91978
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
I have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission in connection with the registration
under the Securities Act of 1933, as amended, of shares of your Common Stock
(the "Shares") issued or issuable upon the exercise of options granted under the
Lumalite Holdings, Inc. RIG Consulting Agreement (the "Plan") referred to
therein. As your counsel in connection with this transaction, I have examined
the proceedings taken and proposed to be taken by you in connection with the
issuance of the Shares.
It is my opinion that the Shares, when issued and paid for in accordance
with the terms of the Plan, will be legally and validly issued, fully paid, and
nonassessable.
I further consent to the use of this opinion as an exhibit to the
Registration Statement, including the prospectus constituting a part thereof,
and any amendment thereto.
Very truly yours,
/s/Kennan E. Kaeder
------------------------------
Kennan E. Kaeder, Esq.
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
Lumalite Holdings, Inc. on Form S-8, of our report dated April 22, 2002,
relating to the balance sheet of ConSil Corp., as of December 31, 2001, and the
related statements of income, retained earnings, and cash flows for the year
then ended. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audit. The financial statements of ConSil Corp., as of
December 31, 2000, were audited by other auditors whose report dated February
16, 2002, expressed an unqualified opinion on those statements.
/s/ Bierwolf, Nilson & Associates
Bierwolf, Nilson & Associates
Dated: October 28, 2002
Exhibit 24.1
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Hank Schumer, singly, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities (including his or her capacity as a director or officer of
Lumalite Holdings, Inc.) to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his or her substitute
or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ Dale Rorabaugh October 29,2002
Dale Rorabaugh Date
Chief Executive Officer and Director
/s/ Hank Schumer October 29,2002
Hank Schumer Date
Chief Financial Officer
October 29, 2002
VIA EDGAR
Securities and Exchange Commission 450 5th Street N.W.
Washington, D.C. 20549
Re: Lumalite Holdings, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
On behalf of Lumalite Holdings, Inc. (the "Registrant"), I hereby attach
(via EDGAR) for filing under the Securities Act of 1933, as amended (the "Act"),
the above-described Registration Statement. The filing fee in the amount of
$82.65 has been paid.
The Registrant understands that, pursuant to Rule 456 under the Act, the
Registration Statement will become effective automatically upon filing.
Should you have any questions with regard to the above, please call the
undersigned at (619) 232-6545.
Sincerely,
/s/Kennan E. Kaeder
----------------------------
Kennan E. Kaeder
Attorney at Law