As filed with the Securities and Exchange Commission on January 31, 2003.
Registration No. 333-__________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
NEW VISUAL CORPORATION
(Exact name of registrant as specified in its charter)
UTAH 95-4543704
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5920 FRIARS ROAD, SUITE 104
SAN DIEGO, CA 92108
(Address of Principal Executive Offices) (Zip Code)
_________________________
2003 Consultant Stock Plan
(Full title of the plan)
_________________________
BRAD KETCH COPY TO:
CHIEF EXECUTIVE OFFICER LAWRENCE B. MANDALA, ESQ.
NEW VISUAL CORPORATION BAKER & MCKENZIE
5920 FRIARS ROAD, SUITE 104 2300 TRAMMELL CROW CENTER
SAN DIEGO, CALIFORNIA 92108 2001 ROSS AVENUE
(Name and address of agent for service) DALLAS, TEXAS 75201
(214) 978-3000
(619) 692-0333
(Telephone number, including area code,
of agent for service)
_________________________
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED(1) AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED SHARE(2) PRICE(2) FEE
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Common Stock $.001 par value 6,000,000 $0.395 $2,370,000 $ 218
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Total 6,000,000 $0.395 $2,370,000 $ 218
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(1) Includes Preferred Share Purchase Rights (the "Rights"). The Rights
are associated and will trade with the shares of common stock of New Visual
Corporation (the "Common Stock"). No additional registration fee is required
with respect to the Rights. The securities to be registered represent 6,000,000
shares of Common Stock to be issued under the Company's 2003 Consultant Stock
Plan.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of
calculating the registration fee. The fee is calculated on the basis of the
average of the bid and ask prices per share of Common Stock on the OTC Bulletin
Board on January 29, 2003 ($0.395), in accordance with Rule 457(c).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities
Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
New Visual Corporation (the "Company") hereby incorporates by reference
in this Registration Statement the following documents previously filed or to be
filed with the Securities and Exchange Commission (the "Commission"):
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 2002;
(b) the description of the Company's Common Stock as contained in
the Company's Registration Statement on Form 10-SB, filed
with the Commission on November 22, 1996, including all
amendments and reports filed with the Commission, for the
purpose of updating such description; and
(c) the description of the Company's preferred share purchase
rights contained in the Company's Registration Statement on
Form 8-A, filed with the Commission on August 10, 2000,
including all amendments and reports filed with the Commission
for the purpose of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, 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 herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that the
statement contained herein or in any subsequently filed document that also is or
is deemed to be incorporated by reference herein, or in any document forming any
part of the Section 10(a) Prospectus to be delivered to participants in
connection herewith, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has authority under Articles 16-10a-901. ET. SEQ. of the
Utah Revised Business Corporation Act to indemnify its directors and officers to
the extent provided for in such statute. The Company's bylaws permit
indemnification of directors and officers to the fullest extent permitted by
law.
The Utah Revised Business Corporation Act provides, in part, that a
corporation may indemnify a director or officer or other person who was, is, or
is threatened to be made a named defendant or respondent in a proceeding because
the person is or was a director, officer, employee or agent of the corporation,
if it is determined that such person:
o conducted himself in good faith;
o reasonably believed that his conduct was in, or not opposed
to, the corporation's best interests; and
o in the case of any criminal proceeding, had no reasonable
cause to believe that his conduct was unlawful.
A corporation may indemnify a person under the Utah Revised Business
Corporation Act against judgments, penalties, including excise and similar
taxes, fines, settlement, and reasonable expenses actually incurred by the
person in connection with the proceeding. If the person is found liable to the
corporation or is found liable on the basis that personal benefit was improperly
received by the person, the indemnification is limited to reasonable expenses
actually incurred by the person in connection with the proceeding, and shall not
be made in respect of any proceeding in which the person shall have been found
liable for willful or intentional misconduct in the performance of his duty to
the corporation.
A corporation may also pay or reimburse expenses incurred by a person
in connection with his appearance as a witness or other participation in a
proceeding at a time when he is not a named defendant or respondent in the
proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Description
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5.1 Opinion of Baker & McKenzie
23.1 Consent of Baker & McKenzie (included in their opinion
filed as Exhibit 5.1)
23.2 Consent of Marcum & Kliegman LLP
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;
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(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that 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% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the
Plan of Distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, or Form S-8, and 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 Section 15(d) of the Exchange Act that are
incorporated by reference in the 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.
(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, 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 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, officer or controlling person of the Registrant
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 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 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, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all 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 January 31, 2003.
NEW VISUAL CORPORATION
By: /s/ Brad Ketch
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Brad Ketch
CHIEF EXECUTIVE OFFICER AND PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons and in the
capacities indicated on January 31, 2003.
SIGNATURE TITLE
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/s/ Brad Ketch Chief Executive Officer, President and Director
--------------------------- (PRINCIPAL EXECUTIVE OFFICER)
Brad Ketch
/s/ Thomas J. Sweeney Chief Financial Officer
--------------------------- (PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER)
Thomas J. Sweeney
/s/ Ray Willenberg, Jr. Chairman and Director
---------------------------
Ray Willenberg, Jr.
/s/ Ivan Berkowitz Director
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Ivan Berkowitz
/s/ Bruce Brown Director
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Bruce Brown
/s/ Thomas J. Cooper Director
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Thomas J. Cooper
/s/ John Howell Director
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John Howell
/s/ C. Rich Wilson III Vice President, Secretary and Director
---------------------------
C. Rich Wilson III
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EXHIBIT INDEX
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Exhibit Description
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5.1 Opinion of Baker & McKenzie
23.1 Consent of Baker & McKenzie (included in their opinion filed
as Exhibit 5.1)
23.2 Consent of Marcum & Kliegman LLP
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