SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Two Moons Kachinas Corp.
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(Exact Name of Registrant as Specified in its Charter)
NEVADA 87-0656515
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(State or Other Jurisdiction (IRS Employer ID No.)
of incorporation or organization)
9005 Cobble Canyon Lane
Sandy, Utah 84093
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(Address of Principal Executive Offices)
(801) 942-0555
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(Issuer's Telephone Number, including Area Code)
Two Written Compensation Agreements
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(Full Title of the Plan)
David C. Merrell
9005 Cobble Canyon lane
Sandy, Utah 84093
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(Name and Address of Agent for Service)
801-942-0005
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(Telephone Number, Including Area Code, of Agent for Service)
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR
INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX: [ ]
CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Proposed
Class of Maximum Maximum Amount of
Securities to Amount to Price per Aggregate Registration
be Registered be Registered Unit/Share Offering Price Fee*
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$0.001 par 80,500 $0.25 $0.25 $
value common
voting stock
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* Calculated according to Rule 230.457(h) of the Securities and
Exchange Commission (the "Commission").
PART I
Item 1. Plan Information.
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Plan.
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A copy of the written Consulting Agreements (the "Plans") are
attached hereto and incorporated herein by reference.
Item 2. Registrant Information and Employee Plan Annual Information.
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Available Information.
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Copies of the Plans, 10-KSB Annual Report of the Registrant for the
year ended December 31, 2002, all 10-QSB Quarterly Reports and any Current
Reports filed with the Commission during the past twelve months have been
provided to the Plans participants.
The Registrant also undertakes to furnish, without charge, to such
participants or persons purchasing any of the securities registered hereby,
copies of all of such documentation. Requests should be directed to David C.
Merrell, President, at the address and telephone appearing on the Cover
Page of this Registration Statement.
Additional information regarding the Registrant may be reviewed at
the Commission's web site, www.sec.gov, in the Edgar Archives.
PART II
Information Required in the Registration Statement
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Item 3. Incorporation of Documents by Reference.
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The following documents are incorporated by reference into this
Registration Statement and made a part hereof, to wit:
(a) The Registrant's 10-KSB Annual Report for the calendar year
ended December 31, 2002, filed with the Commission on or about
March 26, 2003;
(b) All other reports filed pursuant to Sections 13(a) or 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act")
for the past twelve months;
(c) The Registrant is authorized to issue one class of stock,
comprised of 50,000,000 shares of $0.001 par value common
voting stock.
The holders of the $0.001 par value common stock of the
Registrant have traditional rights as to voting, dividends and
liquidation. All shares of common stock are entitled to one
vote on all matters; there are no pre-emptive rights and
cumulative voting is not allowed. The common stock is not
subject to redemption and carries no subscription or conversion
rights. In the event of liquidation of the Registrant, the
holders of common stock are entitled to share equally in
corporate assets after satisfaction of all liabilities.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall
also be deemed to be incorporated by reference into this Registration
Statement and made a part hereof from the date of the filing of such
documents.
Item 4. Description of Securities.
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Not applicable; however, see Item 3(c) above.
Item 5. Interest of Named Experts and Counsel.
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Branden T. Burningham, Esq., who has prepared this Registration
Statement, the Plans and an Opinion regarding the authorization, issuance and
fully-paid and non-assessable status of the securities covered by this
Registration Statement, presently owns no shares of common stock of the
Registrant and is not deemed to be an affiliate of the Registrant or a person
associated with an affiliate of the Registrant; however, he will receive
10,000 shares of the common stock registered hereby for non-capital raising
services rendered. See Exhibit 99.2.1 hereof, in Item 8.
Item 6. Indemnification of Directors and Executive Officers.
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Section 78.7502(1) of the Nevada Revised Statutes ("NRS") authorizes
a Nevada corporation to indemnify any director, officer, employee, or
corporate agent "who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, except an action by or in
the right of the corporation" due to his or her corporate role. Section
78.7502(1) extends this protection "against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with the action, suit or proceeding if he
or she acted in good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful."
Section 78.7502(2) of the NRS also authorizes indemnification of
the reasonable defense or settlement expenses of a corporate director,
officer, employee or agent who is sued, or is threatened with a suit, by or in
the right of the corporation. The party must have been acting in good faith
and with the reasonable belief that his or her actions were not opposed to the
corporation's best interests. Unless the court rules that the party is
reasonably entitled to indemnification, the party seeking indemnification must
not have been found liable to the corporation.
To the extent that a corporate director, officer, employee, or agent
is successful on the merits or otherwise in defending any action or proceeding
referred to in Section 78.7502(1) or 78.7502(2), Section 78.7502(3) of the NRS
requires that he or she be indemnified "against expenses, including attorneys'
fees, actually and reasonably incurred by him in connection with
the defense."
Section 78.751(1) of the NRS limits indemnification under Sections
78.7502(1) and 78.7502(2) to situations in which either (1) the stockholders,
(2)the majority of a disinterested quorum of directors, or (3) independent
legal counsel determine that indemnification is proper under the
circumstances.
Pursuant to Section 78.751(2) of the NRS, a corporation may advance
an officer's or director's expenses incurred in defending any action
or proceeding upon receipt of an undertaking. Section 78.751(3)(a) provides
that the rights to indemnification and advancement of expenses shall not be
deemed exclusive of any other rights under any bylaw, agreement, stockholder
vote or vote of disinterested directors. Section 78.751(3)(b) extends the
rights to indemnification and advancement of expenses to former directors,
officers, employees and agents, as well as their heirs, executors, and
administrators.
Regardless of whether a director, officer, employee or agent has the
right to indemnity, Section 78.752 allows the corporation to purchase and
maintain insurance on his or her behalf against liability resulting from his
or her corporate role.
Item 7. Exemption from Registration Claimed.
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None.
Item 8. Exhibits.
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Exhibit
Number
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5 Opinion regarding Legality
23.1 Consent of Branden T. Burningham, Esq.
23.2 Consent of Pritchett Siler & Hardy, P.C.
99.1 Participants' Letter
Memorandum
99.2.1 Compensation Agreement
99.2.2 Compensation Agreement
99.2.3 Participant's Response Letter
99.2.4 Participant's Response Letter
Item 9. Undertakings.
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The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales of any
of the registered securities 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 (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any 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, only to the extent required
by the general rules and regulations of the
Commission.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) That for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act, as amended, may be permitted to directors,
executive officers and controlling persons of the Registrant as
outlined above or otherwise, the Registrant has been advised
that in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a
director, executive officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, executive 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 of
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 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, on the date or dates appearing opposite the respective signatures
hereto.
REGISTRANT:
Date: 9/22/03 By /s/ David C. Merrell
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President and Director
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons (who
constitute all of the members of the Board of Directors of the Registrant) in
the capacities and on the date indicated.
Date: 9/22/03 By /s/ David C. Merrell
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President and Director
Securities and Exchange Commission File No. 333-60906
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
TWO MOONS KACHINAS, CORP.
EXHIBIT INDEX
Exhibit
Number
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5 Opinion regarding Legality
23.1 Consent of Branden T. Burningham, Esq.
23.2 Consent of Pritchett Siler & Hardy, P.C.
99.1 Participant's Letter
Memorandum
99.2.1 Compensation Agreement
99.2.2 Compensation Agreement
99.2.3 Participant's Response Letter
99.2.4 Participant's Response Letter