AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 9, 2004
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NUWAY MEDICAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 65-0159115
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NUMBER)
23461 SOUTH POINT DRIVE, SUITE 200
LAGUNA HILLS, CALIFORNIA 92653
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
NUWAY MEDICAL, INC. 2004 EQUITY PLAN
(Full title of the plan)
DENNIS CALVERT
NUWAY MEDICAL, INC.
23461 SOUTH POINT DRIVE, SUITE 200
LAGUNA HILLS, CALIFORNIA 92653
(NAME AND ADDRESS OF AGENT FOR SERVICE OF PROCESS)
COPY TO:
JOHN R. BROWNING, ESQ.
ATTORNEY-AT-LAW
23461 SOUTH POINT DRIVE, SUITE 200
LAGUNA HILLS, CALIFORNIA 92653
(949) 770-8600
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of securities to Amount to be offering price aggregate offering registration
be registered registered(1)(2) per share(3) price(3) fee(3)
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Common Stock 20,000,000 shares $0.03 $600,000 $76.02
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(1) Represents the maximum number of shares of common stock of the registrant,
$0.00067 par value per share, issuable pursuant to the NuWay Medical, Inc.
2004 Equity Plan (the "Plan") being registered hereon.
(2) Pursuant to Rule 416(a) of the Securities Act of 1933, this Registration
Statement also covers such additional shares of common stock as may become
issuable under the Plan as a result of the anti-dilution adjustment
provisions of the Plan.
(3) The registration fee of $76.02 for the 20,000,000 shares of common stock
that are being registered pursuant to this Registration Statement was
calculated as follows: Under the Plan, because none of the shares that are
being registered hereunder are subject to outstanding options and the
offering price therefore is not known, the proposed maximum offering price
per share and maximum aggregate offering price were estimated in
accordance with Rule 457(c) and Rule 457(h) under the Securities Act of
1933 based upon a price of $0.03, which is the average of the bid and
asked prices of the common stock on March 8, 2004, a date within 5
business days prior to the filing of this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 of the General Rules and Regulations under the Securities Act of
1933 (the "Securities Act") and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by NuWay Medical, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and are
incorporated in this Registration Statement by reference:
1. The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 2002, including all material incorporated
by reference therein;
2. The Company's Quarterly Reports on Form 10-QSB for the
quarters ended March 31, 2003, June 30, 2003, and September
30, 2003, including all material incorporated by reference
therein; and
3. The Company's Current Reports on Form 8-K and Form 8-K/A filed
April 7, 2003, April 10, 2003, May 1, 2003, June 10, 2003,
October 31, 2003 and February 17, 2004, including all material
incorporated by reference therein.
In addition, 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
indicating that all securities offered pursuant to this Registration Statement
have been sold or deregistering all such securities then remaining unsold, shall
be 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. INTEREST OF NAMED EXPERTS AND COUNSEL.
John R. Browning, Esq. has provided legal services and advice to the
Company in connection with a variety of corporate and securities matters,
including the Registrant's compliance with the periodic reporting requirements
of the Securities Exchange Act of 1934, and general legal consulting and advice
on a variety of matters. Mr. Browning's opinion as to the validity of the
issuance of shares of Common Stock hereunder is attached hereto as Exhibit 5.1.
This Registration Statement and the Prospectus that is a part of this
Registration Statement registers 20,000,000 shares of our Common Stock, a
portion of which we expect to issue and deliver to Mr. Browning as partial
compensation for his services rendered before the date of this Registration
Statement. In addition, additional shares may in the future be issued to Mr.
Browning as compensation for services. Mr. Browning owned no shares of the
Company's Common Stock as of the date hereof.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law makes provision for
the indemnification of officers and directors of corporations in terms
sufficiently broad to indemnify our officers and directors under certain
circumstances from liabilities, including reimbursement of expenses incurred
arising under the Securities Act.
As permitted by Delaware law, our certificate of incorporation provides
that, to the fullest extent permitted by Delaware law, no director shall be
liable to us or to our stockholders for monetary damages for breach of his
fiduciary duty as a director. Delaware law does not permit the elimination of
liability (i) for any breach of the director's duty of loyalty to us or our
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases or (iv)
for any transaction from which the director derives an improper personal
benefit. The effect of this provision in our certificate of incorporation is to
eliminate the rights of the Company and its stockholders, through stockholders'
derivative suits on behalf of the Company, to recover monetary damages against a
director for breach of fiduciary duty as a director thereof, including breaches
resulting from negligent or grossly negligent behavior, except in the situations
described in clauses (i) - (iv), inclusive, above. These provisions will not
alter the liability of directors under federal securities laws.
Our Amended and Restated Bylaws provide that we shall indemnify any
person 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, other than an action by or in the
right of the Company by reason of the fact that such person is or was a
director, officer, employee or agent of the Company or is or was serving at our
request as a director, officer, employee or agent of another corporation or
enterprise, against expenses, including attorneys' fees, judgments, decrees,
fines, penalties and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to our best interests, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. Our bylaws further provide that we will be required to indemnify our
officers or directors in connection with an action, suit or proceeding initiated
by such person only if such action, suit or proceeding was authorized by the
Board of Directors.
Our bylaws also provide that we may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
contemplated action or suit by or in the right of the Company to procure a
judgment in our favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses, including attorneys' fees,
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to our best
interests, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been finally adjudged to be
liable to us for gross negligence or willful conduct in the performance of such
person's duty to us, and only to the extent that the presiding court shall
determine upon application that despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as such court shall deem proper.
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Our bylaws further provide that to the extent that one of our
directors, officers, employees or agents has been successful in the defense of
any action, suit or proceeding referred to in the previous paragraphs or in the
defense of any claim, issue, or matter therein, such person shall be indemnified
against expenses, including attorneys' fees, actually and reasonably incurred by
such person in connection therewith; that indemnification provided for in our
certificate of incorporation and bylaws shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that we may
purchase and maintain insurance on behalf of any of our directors, officers,
employees or agents against any liability asserted against any such person
incurred by such person in any such capacity or arising out of such person's
status as such whether or not we would have the power to indemnify such person
against such liabilities under the provisions of Section 145 of the Delaware
General Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Exhibit Description
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4.1 Certificate of Amendment of Certificate
of Incorporation (filed as Exhibit 3.1
to the Registrant's Annual Report on
Form 10-KSB for the year ended December 31,
2002, and incorporated herein by reference).
4.2 Certificate of Amendment of Certificate
of Incorporation (filed as Exhibit 3.2
to the Registrant's Annual Report on
Form 10-KSB for the year ended December 31,
2002, and incorporated herein by reference).
4.3 Certificate of Incorporation (filed as
Exhibit 3.1 to the Registrant's Annual
Report on Form 10-KSB for the year ended
December 31, 2001, and incorporated
herein by reference).
4.4 Certificate of Merger merging
Repossession Auction, Inc. (Florida
corporation) and Repossession, Inc.
(Delaware corporation) (filed as Exhibit
3.2 to the Registrant's Annual Report on
Form 10-KSB for the year ended December 31,
2001, and incorporated herein by reference).
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4.5 Bylaws, as amended and restated (filed
as Exhibit 3.5 to the Registrant's
Annual Report on Form 10-KSB for the
year ended December 31, 2002, and
incorporated herein by reference).
4.6 NuWay Medical, Inc. 2004 Equity Plan.
5.1 Opinion of John R. Browning, Esq.,
Attorney-At-Law.
23.1 Consent of John R. Browning, Esq.,
Attorney-At-Law (contained in Exhibit 5.1).
23.2 Consent of Haskell & White LLP
23.3 Consent of Shubitz Rosenbloom & Co.,
P.A.
24.1 Power of attorney (contained on the
signature page hereto).
ITEM 9. UNDERTAKINGS.
1. The Company 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;
(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 paragraphs (1)(i) and (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 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, 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.
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(3) To remove from registration by means of a post-effective amendment any
of the securities being registered hereunder which remain unsold at the
termination of the offering.
2. 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 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 this
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.
3. 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Laguna Hills, California, on this 9th day of March,
2004.
NUWAY MEDICAL, INC.
By: /s/ Dennis Calvert
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Dennis Calvert
President, Chief Executive Officer
and Interim Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Dennis Calvert such person's true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, to sign on such
person's behalf, individually and in each capacity stated below, all amendments
and post-effective amendments to this Registration Statement on Form S-8 and to
file the same, with all exhibits thereto and any other documents in connection
therewith, with the Commission under the Securities Act, granting unto said
attorney-in-fact and agent 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 and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming each act that said attorney-in-fact and
agent may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
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/s/ Dennis Calvert
--------------------------------------- President, Chief Executive Officer, Interim March 9, 2004
Dennis Calvert Chief Financial Officer and Director
/s/ Joseph L. Provenzano
--------------------------------------- Director March 9, 2004
Joseph L. Provenzano
/s/ Steven V. Harrison II
--------------------------------------- Director March 9, 2004
Steven V. Harrison II
/s/ Gary Cox
--------------------------------------- Director March 9, 2004
Gary Cox
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EXHIBIT INDEX
Exhibit No. Exhibit Description
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4.6 NuWay Medical, Inc. 2004 Equity Plan.
5.1 Opinion of John R. Browning, Esq., Attorney-At-Law.
23.1 Consent of John R. Browning, Esq., Attorney-At-Law (contained in
Exhibit 5.1).
23.2 Consent of Haskell & White LLP
23.3 Consent of Shubitz Rosenbloom & Co., P.A.
24.1 Power of attorney (contained on the signature page hereto).
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