-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IV7seKwR/Z42OZmM+9ude2tJyXbT+PiMUBsvW0eL4Yj/jpKjlkTBteskcnvi54NP fjKDoITzUFx692UWeVUblg== 0001163632-02-000059.txt : 20020415 0001163632-02-000059.hdr.sgml : 20020415 ACCESSION NUMBER: 0001163632-02-000059 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020405 EFFECTIVENESS DATE: 20020405 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VICTOR INDUSTRIES INC CENTRAL INDEX KEY: 0001056598 STANDARD INDUSTRIAL CLASSIFICATION: MINING, QUARRYING OF NONMETALLIC MINERALS (NO FUELS) [1400] IRS NUMBER: 910784114 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-85562 FILM NUMBER: 02602406 BUSINESS ADDRESS: STREET 1: 4810 NORTH WORNATH ROAD CITY: MISSOULA STATE: MT ZIP: 59804 BUSINESS PHONE: 4062518501 MAIL ADDRESS: STREET 1: 4810 NORTH WORNATH ROAD CITY: MISSOULA STATE: MT ZIP: 59804 S-8 1 doc1.txt As filed with the Securities and Exchange Commission on April ____ , 2002 Reg. No. 33 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 _________________________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ___________________________________ VICTOR INDUSTRIES, INC. (Exact name of registrant as specified in its charter) Idaho 91-0784114 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 4810 North Wornath Road, Missoula, Montana 59804 (406) 251-8501 (Address of principal executive offices) ________________________________________________ ADVISORY AND CONSULTING AGREEMENTS (Full title of plan) Barry Clark ________________________________ Penny Sperry CEO & Treasurer 4810 North Wornath Road Missoula, Montana 59804 (Name and address of agent for service) (406) 251-8501 (Telephone number, including area code of agent for service) Copy to: The Baum Law Firm Mark L. Baum, Esq. City National Bank Building 4275 Executive Square Second Floor, Suite 210 La Jolla, California 92037 (858) 638-7878
CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------------- --------- Common Stock (.05 par value). . . 5,700,000 $0.05 $285,000 $71.25 - ------------------------------------------------------------------------------------------------
(1) Represents 200,000 shares of Common Stock to be issued to an attorney with The Baum Law Firm as compensation for services rendered by The Baum Law Firm pursuant to a fee agreement, and 5,500,000 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. 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 Victor Industries, Inc. (the "Company") with the Securities and Exchange Commission (the "Commission") (SEC File Number 005-78148) are incorporated by reference herein, except to the extent that any statement or information therein is modified, superceded or replaced by a statement or information contained in any other subsequently filed document incorporated herein by reference: (a) the Company's annual report on Form 10K-SB for the fiscal year ended December 31, 2001 filed on April 4, 2001; (b) the Registrant's Form 10SB-12G filed on April 6, 2000 and 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 June 30, 2001 through the date hereof; (c) any document filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof, but prior to the filing of a post-effective amendment to this Registration Statement which indicates that all shares of Common Stock registered hereunder have been sold or that deregisters all such shares of Common Stock then remaining unsold, such documents being deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Mark L. Baum, Esq., does consulting work for Victor Industries Inc. from time to time and is being issued 200,000 shares of the Company's common stock as consideration for filing this Registration Statement. Item 6. Indemnification of Directors and Officers The Company's indemnification policy covering officers and directors, as contained in the by-laws, provides that the Company may indemnify at its officers or directors for costs reasonably incurred in connection with civil, criminal, administrative and investigative proceedings. The Company may purchase indemnification insurance for officers and directors. 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. Experts The consolidated financial statements of the Company appearing in the Company's Annual Report (Form 10-K) for the year ended December 31, 2001 have been audited by David I. Tow CPA, certified public accounts, as set forth in their report thereon included therein and incorporated herein by reference. Reference is made to said report, which includes explanatory paragraphs that describe the Company's ability to continue as a going concern, discussed in the notes to the Company's Consolidated Financial Statements. Such financial statements are incorporated herein in reliance upon the reports of David I. Tow CPA, pertaining to such financial statements (to the extent filed with the Commission) given upon the authority of such firm as experts in giving such reports. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits The Exhibits to this registration statement are listed in the index to Exhibits on page 7. 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 of 1933: (ii) To reflect in the prospectus any facts or events arising after the effective date of this 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: (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraph (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraph is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15 (d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendments 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 mean of a post-effective amendment any of the securities being registered hereunder that remain unsold at the termination of the offering. (b) The undersigned Company hereby undertakes that for purposes of determining any liability under the Securities Act of 1933, each filing of the company's annual report pursuant to Section 13 (a) or Section 15 (d) of the Securities and 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 and 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 may be permitted to directors, officers and controlling persons of the Company pursuant to the above-described 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 of 1933 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 of 1933 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 a 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, State of California on April 2, 2002. VICTOR INDUSTRIES, INC. By /s/ Penny Sperry Penny Sperry, CEO & Treasurer 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 of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title Date - --------- ----- ---- /s/ Penny Sperry CEO & Treasurer April 2, 2002 - ------------------ Penny Sperry INDEX TO EXHIBITS Exhibit Sequentially NO. Description Numbered Pages - --- ----------- --------------- 4.1 Advisory and Consulting Agreement 5.1 Opinion of Counsel, regarding the legality of the securities registered hereunder 23.1 Consent of David I. Tow CPA 23.2 Consent of Counsel (included as part of Exhibit 5.1) 24 Power of Attorney (Contained within Signature Page) EX-4.1 3 doc2.txt Exhibit 4.1 Advisory and Consulting Agreements Number of Shares and Options -------------------------------- 4.1 Barry R. Clark 5,500,000 Mark L. Baum 200,000 --------- 5,700,000 4.1 CONSULTING AGREEMENT -------------------- This Consulting Agreement ("Agreement") is to be effective as of the 2nd day of April 2002, by and between Victor Industries, Inc., ("Company"), with offices located at 4810 North Wornath Road, Missoula, Montana 59804, and Barry R. Clark ("Consultant"), an individual, having his principal address at 375 Walnut Avenue, Suite G, Carlsbad, CA 92008. For the purposes of this Agreement, either of the above shall be referred to as a "Party" and collectively as the "Parties". The Parties hereby agree as follows: 1. APPOINTMENT OF BARRY R. CLARK. Company hereby appoints Consultant and Consultant hereby agrees to render services to Company as a Marketing and Sales Representative. 2. SERVICES. During the term of this Agreement, Consultant shall provide advice to undertake for and consult with the Company concerning management of sales and marketing resources, consulting, strategic planning, corporate organization and structure, financial matters in connection with the operation of the businesses of the Company, expansion of services, acquisitions and business opportunities, and shall review and advise the Company regarding its and his overall progress, needs, and condition. Consultant agrees to provide on a timely basis the following enumerated services plus any additional services contemplated thereby: (a) The implementation of short-range and long-term strategic planning to fully develop and enhance the Company's assets, resources, products, and services; (b) The implementation of a marketing program to enable the Company to broaden the markets for its services and promote the image of the Company and its products and services; (c) Advise the Company relative to the recruitment and employment of key executives consistent with the expansion of operations of the Company; and (d) The identification, evaluation, structuring, negotiating, and closing of joint ventures, and strategic alliances. 2.5 TERM. The term ("Term") of this Consulting Agreement shall be for a period of four (4) months commencing on the date hereof. The contract will automatically be extended for an additional three (3) months. Either party hereto shall have the right to terminate this Agreement upon thirty (30) days prior written notice to the other party after the first three (3) months. 3. COMPENSATION. See Attachment "A". 4. CONFIDENTIALITY. Consultant will not disclose to any other person, firm or corporation, nor use for its own benefit, during or after the Term of this Consulting Agreement, any trade secrets or other information designated as confidential by Company which is acquired by Consultant in the course of performing services hereunder. Any financial advice rendered by Consultant pursuant to this Consulting Agreement may not be disclosed in any manner without the prior written approval of Company. 5. INDEMNIFCATION. Company, its agents or assigns hereby agree to indemnify and hold Consultant harmless from and against all losses, claims, damages, liabilities, costs or expenses (including reasonable attorney's fees, collectively the "Liabilities"), joint and several, arising from the performance of this Consulting Agreement, whether or not Consultant is party to such dispute. This indemnity shall not apply, however, and Consultant shall indemnify and hold Company, its affiliates, control persons, officers, employees and agents harmless from and against all liabilities, where a court of competent jurisdiction has made a final determination that Consultant engaged in gross recklessness and willful misconduct in the performance of its services hereunder. 6. INDEPENDENT CONTRACTOR. Consultant and Company hereby acknowledge that Consultant is an independent contractor. Consultant shall not hold itself out as, nor shall it take any action from which others might infer that it is an agent of or a joint venture of Company. 7. MISCELLANEOUS. This Consulting Agreement sets forth the entire understanding of the Parties relating to the subject matter hereof, and supersedes and cancels any prior communications, understandings and agreements between the Parties. This Consulting Agreement is non-exclusive and cannot be modified or changed, nor can any of its provisions be waived, except by written agreement signed by all Parties. This Consulting Agreement shall be governed by the laws of the State of California without reference to the conflict of law principles thereof. In the event of any dispute as to the Terms of this Consulting Agreement, the prevailing Party in any litigation shall be entitled to reasonable attorney's fees. 8. NOTICES. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall be deemed effectively given upon personal delivery or seven business days after deposit in the United States Postal Service, by (a) advance copy by fax, (b) mailing by express courier or registered or certified mail with postage and fees prepaid, addressed to each of the other Parties thereunto entitled at the following addresses, or at such other addresses as a Party may designate by ten days advance written notice to each of the other Parties at the addresses above and to the attention of the persons that have signed below. Please confirm that the foregoing sets forth our understanding by signing the enclosed copy of this Consulting Agreement where provided and returning it to me at your earliest convenience. All Parties signing below do so with full authority: PARTY RECEIVING SERVICES: PARTY PROVIDING SERVICES: VICTOR INDUSTRIES, INC BARRY R. CLARK, AN INDIVIDUAL /s/ Penny Sperry /s/ Barry Clark - ------------------ ----------------- Penny Sperry Barry R. Clark, an individual ATTACHMENT "A" -------------- PAYMENT FOR SERVICES: A. For the services rendered and performed by Barry R. Clark during the term of this Agreement, Company shall, upon acceptance of this Agreement: Pay to Barry R. Clark five million five hundred thousand (5,500,000) free-trading shares of VICI stock for four (4) months of service. Accepted with full authority: Victor Industries, Inc. By: /s/ Penny Sperry ------------------ Penny Sperry EX-5.1 4 doc3.txt The Baum Law Firm PC Mark L. Baum Attorney at Law City National Bank Building 4275 Executive Square Second Floor, Suite 210 La Jolla, California 92037 Office: (858) 638-7878 Fax: (858) 638-7888 April 2, 2002 Victor Industries, Inc. Re: Opinion of Counsel - Registration Statement on Form S-8 Gentleman: I have acted as counsel for Victor Industries (the "Company"), in connection with the preparation and filing of the Company's Registration statement on Form S-8 under the Securities Act of 1933, as amended, (the "Registration Statement"), relating to 5,700,000 shares of the Company's common stock, $.05 par value, (the "common stock"), issuable pursuant to the Company's Advisory and Consultants Agreements, (the "Plan"). I have examined the Certificate of Incorporation, as amended, and the By-Laws of the company and all amendments thereto, the Registration Statement and originals, or copies certified to my satisfaction, of such records and meetings, written actions in lieu of meetings, or resolutions adopted at meetings, of the directors of the Company, and such other documents and instruments as in my judgement are necessary or appropriate to enable me to render the opinions expressed below. Based on the foregoing examination, I am of the opinion that the shares of Common Stock issuable with the Plan are duly authorized and, when issued in accordance with the Plan, will be validly issued, fully paid and nonassessable. Further, I consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Mark L. Baum - ------------------- Mark L. Baum, Esq. EX-23.1 5 doc4.txt Exhibit 23.1 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS To the Board of Directors Victor Industries, Inc. As independent certified public accountants, we hereby consent to the use of our report dated April 4, 2002 with respect to the financial statements of Victor Industries, Inc. included in their annual report on Form 10-KSB filed on April 4, 2002 with the Securities Exchange Commission, and incorporated by reference into this Registrations Statement on Form S-8. /s/David I. Tow CPA - ---------------------- David I. Tow CPA -----END PRIVACY-ENHANCED MESSAGE-----