As filed with the Securities and Exchange Commission on January 30, 2006
Reg. No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
CYBERLUX CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 91-2048178
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
4625 CREEKSTONE DRIVE, SUITE 100
RESEARCH TRIANGLE PARK
DURHAM, NORTH CAROLINA 27703
(Address of principal executive offices) (Zip Code)
------------------------------------------------
2005 INCENTIVE STOCK OPTION PLAN,
2006 INCENTIVE STOCK OPTION PLAN
AND COMPENSATION AGREEMENT
(Full title of plan)
--------------------------------
DONALD F. EVANS, CHIEF EXECUTIVE OFFICER
CYBERLUX CORPORATION
4625 CREEKSTONE DRIVE, SUITE 100
RESEARCH TRIANGLE PARK
DURHAM, NORTH CAROLINA 27703
(Name and address of agent for service)
(919) 474-9700
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price Aggregate offering Amount of
to be registered Registered per share* Price Registration fee
----------------------- --------------------- -------------------- --------------------- ------------------
Common Stock 30,100,000 $0.10 $3,010,000 $322.07
($.001 par value)
----------------------- --------------------- -------------------- --------------------- ------------------
* 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 1933, based upon the average of the high and low
selling prices per share of Common Stock of Cyberlux Corporation on January 27,
2006.
Prospectus
CYBERLUX CORPORATION
30,100,000 SHARES OF COMMON STOCK
ISSUABLE PURSUANT TO THE
2005 INCENTIVE STOCK OPTION PLAN,
2006 INCENTIVE STOCK OPTION PLAN
AND COMPENSATION AGREEMENT
This prospectus relates to the sale of up to 30,100,000 shares of common
stock of Cyberlux Corporation offered by certain holders of our securities
acquired upon the exercise of options issued to such persons pursuant to our
2005 Incentive Stock Option Plan, 2006 Incentive Stock Option Plan or consulting
agreements. Of such shares, we are registering (i) 12,000,000 shares of common
stock that are issuable upon exercise of options pursuant to our 2005 Incentive
Stock Option Plan, (ii) 18,000,000 shares of common stock that are issuable upon
exercise of options pursuant to our 2006 Incentive Stock Option Plan, and (iii)
100,000 shares of common stock that are issuable pursuant to compensation
agreements. The shares may be offered by the selling stockholders from time to
time in regular brokerage transactions, in transactions directly with market
makers or in certain privately negotiated transactions. For additional
information on the methods of sale, you should refer to the section entitled
"Plan of Distribution." Unless the stock options are exercised on a cash basis,
we will not receive any of the proceeds from the sale of the shares by the
selling stockholders. Each of the selling stockholders may be deemed to be an
"underwriter," as such term is defined in the Securities Act of 1933.
Our common stock is approved for quotation on the Over the Counter
Bulletin Board under the symbol "CYBL." On January 27, 2006, the closing sale
price of the common stock was $0.10 per share. The securities offered hereby are
speculative and involve a high degree of risk and substantial dilution. Only
investors who can bear the risk of loss of their entire investment should
invest. See "Risk Factors" beginning on page 5.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is January 30, 2006.
2
TABLE OF CONTENTS
PAGE
----
Prospectus Summary 4
Risk Factors 5
Selling Stockholders 9
Plan of Distribution 11
Legal Matters 11
Experts 11
Incorporation of Certain Documents by Reference 12
Disclosure of Commission Position on Indemnification For Securities Act Liabilities 12
Available Information 13
3
PROSPECTUS SUMMARY
GENERAL OVERVIEW
We are in the development stage and our efforts have been principally
devoted to designing, developing and marketing advanced lighting systems that
utilize white (and other) light emitting diodes as illumination elements. We are
developing and marketing new product applications of diodal illumination(TM)
that demonstrate added value over traditional lighting systems. Using
proprietary technology, we are creating a family of products for emergency and
security lighting offer extended light life and greater cost effectiveness than
other existing forms of illumination. We are expanding our marketing activity
into channels of retail, commercial and institutional sales.
For the year ended December 31, 2004, we generated $23,803 in revenue and
a net loss of $6,025,848. For the nine months ended September 30, 2005, we
generated $26,202 in revenue and a net loss of $2,799,717. As a result of
recurring losses from operations and a net deficit in both working capital and
stockholders' equity, our auditors, in their report dated March 17, 2005, have
expressed substantial doubt about our ability to continue as going concern.
Our principal executive offices are located at 4625 Creekstone Drive,
Suite 100, Research Triangle Park, Durham, North Carolina 27703, and our
telephone number is (919) 474-9000. We are a Nevada corporation. We maintain
websites at www.cyberlux.com and www.luxSel.com. The information contained on
those websites is not deemed to be a part of this prospectus.
THE OFFERING
Shares of common stock outstanding prior to this offering........ 78,608,334
Shares offered in this prospectus................................ 30,100,000
Total shares outstanding after this offering .................... 108,708,334
Use of proceeds................. We will not receive any proceeds from the
sale of the shares of common stock offered
in this prospectus; provided, however, we
may receive funds upon exercise of stock
options that will be utilized for working
capital.
4
RISK FACTORS
RISKS RELATING TO OUR BUSINESS:
WE HAVE A HISTORY OF LOSSES WHICH MAY CONTINUE, WHICH MAY NEGATIVELY IMPACT OUR
ABILITY TO ACHIEVE OUR BUSINESS OBJECTIVES.
We incurred net losses of $6,025,848 for the year ended December 31, 2004
and $1,494,556 for the year ended December 31, 2003. For the six months ended
June 30, 2005, we incurred a net loss of $1,357,255. As of June 30, 2005, we had
an accumulated deficit of $12,204,938. We cannot assure you that we can achieve
or sustain profitability on a quarterly or annual basis in the future. Our
operations are subject to the risks and competition inherent in the
establishment of a business enterprise. There can be no assurance that future
operations will be profitable. Revenues and profits, if any, will depend upon
various factors, including whether we will be able to continue expansion of our
revenue. We may not achieve our business objectives and the failure to achieve
such goals would have an adverse impact on us.
IF WE ARE UNABLE TO OBTAIN ADDITIONAL FUNDING OUR BUSINESS OPERATIONS WILL BE
HARMED AND IF WE DO OBTAIN ADDITIONAL FINANCING OUR THEN EXISTING SHAREHOLDERS
MAY SUFFER SUBSTANTIAL DILUTION.
We will require additional funds to sustain and expand our sales and
marketing activities. We anticipate that we will require up to approximately
$900,000 to fund our continued operations for the next twelve months, depending
on revenue from operations. We need additional funding for for research and
development, increasing inventory, marketing and general and administrative
expenses. Although this amount is less than our net losses in the past, we
expect to decrease our general and administrative expenses by eliminating most
of our consulting fees. In the event that we cannot significantly reduce our
consulting fees, we will need to raise additional funds to continue our
operations. Additional capital will be required to effectively support the
operations and to otherwise implement our overall business strategy. There can
be no assurance that financing will be available in amounts or on terms
acceptable to us, if at all. The inability to obtain additional capital will
restrict our ability to grow and may reduce our ability to continue to conduct
business operations. If we are unable to obtain additional financing, we will
likely be required to curtail our marketing and development plans and possibly
cease our operations. Any additional equity financing may involve substantial
dilution to our then existing shareholders.
OUR INDEPENDENT AUDITORS HAVE EXPRESSED SUBSTANTIAL DOUBT ABOUT OUR ABILITY TO
CONTINUE AS A GOING CONCERN, WHICH MAY HINDER OUR ABILITY TO OBTAIN FUTURE
FINANCING.
In their report dated March 17, 2005, our independent auditors stated that
our financial statements for the year ended December 31, 2003 were prepared
assuming that we would continue as a going concern. Our ability to continue as a
going concern is an issue raised as a result of losses for the years ended
December 31, 2004 and 2003 in the amounts of $6,025,848 and $1,494,556,
respectively. We continue to experience net operating losses. Our ability to
continue as a going concern is subject to our ability to generate a profit
and/or obtain necessary funding from outside sources, including obtaining
additional funding from the sale of our securities, increasing sales or
obtaining loans and grants from various financial institutions where possible.
Our continued net operating losses increase the difficulty in meeting such goals
and there can be no assurances that such methods will prove successful.
IF WE ARE UNABLE TO RETAIN THE SERVICES OF MESSRS. EVANS, SCHMIDT OR RINGO, OR
IF WE ARE UNABLE TO SUCCESSFULLY RECRUIT QUALIFIED MANAGERIAL AND SALES
PERSONNEL HAVING EXPERIENCE IN BUSINESS, WE MAY NOT BE ABLE TO CONTINUE OUR
OPERATIONS.
Our success depends to a significant extent upon the continued service of
Mr. Donald F. Evans, our Chief Executive Officer, Mr. Mark D. Schmidt, our
President and Mr. John Ringo, our Secretary and Corporate Counsel. Loss of the
services of Messrs. Evans, Schmidt or Ringo could have a material adverse effect
on our growth, revenues, and prospective business. We do not maintain key-man
insurance on the life of Messrs. Evans or Ringo. In addition, in order to
successfully implement and manage our business plan, we will be dependent upon,
among other things, successfully recruiting qualified managerial and sales
personnel having experience in business. Competition for qualified individuals
is intense. There can be no assurance that we will be able to find, attract and
retain existing employees or that we will be able to find, attract and retain
qualified personnel on acceptable terms.
5
MANY OF OUR COMPETITORS ARE LARGER AND HAVE GREATER FINANCIAL AND OTHER
RESOURCES THAN WE DO AND THOSE ADVANTAGES COULD MAKE IT DIFFICULT FOR US TO
COMPETE WITH THEM.
The lighting and illumination industry is extremely competitive and
includes several companies that have achieved substantially greater market
shares than we have, and have longer operating histories, have larger customer
bases, and have substantially greater financial, development and marketing
resources than we do. If overall demand for our products should decrease it
could have a materially adverse affect on our operating results.
OUR TRADEMARK AND OTHER INTELLECTUAL PROPERTY RIGHTS MAY NOT BE ADEQUATELY
PROTECTED OUTSIDE THE UNITED STATES, RESULTING IN LOSS OF REVENUE.
We believe that our trademarks, whether licensed or owned by us, and other
proprietary rights are important to our success and our competitive position. In
the course of our international expansion, we may, however, experience conflict
with various third parties who acquire or claim ownership rights in certain
trademarks. We cannot assure that the actions we have taken to establish and
protect these trademarks and other proprietary rights will be adequate to
prevent imitation of our products by others or to prevent others from seeking to
block sales of our products as a violation of the trademarks and proprietary
rights of others. Also, we cannot assure you that others will not assert rights
in, or ownership of, trademarks and other proprietary rights of ours or that we
will be able to successfully resolve these types of conflicts to our
satisfaction. In addition, the laws of certain foreign countries may not protect
proprietary rights to the same extent, as do the laws of the United States.
OUR PRINCIPAL STOCKHOLDERS, OFFICERS AND DIRECTORS OWN A CONTROLLING INTEREST IN
OUR VOTING STOCK AND INVESTORS WILL NOT HAVE ANY VOICE IN OUR MANAGEMENT.
We have issued 800,000 shares of Series B Convertible Preferred Stock to
our officers and directors which are convertible into 8 million shares of common
stock and, in the aggregate, have the right to cast 80 million votes in any vote
by our shareholders. Combined with the number of shares of common stock held by
our officers and directors, they have the right to cast approximately 70% of all
votes by our shareholders. As a result, these stockholders, acting together,
will have the ability to control substantially all matters submitted to our
stockholders for approval, including:
o election of our board of directors;
o removal of any of our directors;
o amendment of our certificate of incorporation or bylaws; and
o adoption of measures that could delay or prevent a change in
control or impede a merger, takeover or other business
combination involving us.
As a result of their ownership and positions, our directors and executive
officers collectively are able to influence all matters requiring stockholder
approval, including the election of directors and approval of significant
corporate transactions. In addition, sales of significant amounts of shares held
by our directors and executive officers, or the prospect of these sales, could
adversely affect the market price of our common stock. Management's stock
ownership may discourage a potential acquirer from making a tender offer or
otherwise attempting to obtain control of us, which in turn could reduce our
stock price or prevent our stockholders from realizing a premium over our stock
price.
RISKS RELATING TO OUR COMMON STOCK:
THERE ARE A LARGE NUMBER OF SHARES UNDERLYING OUR SECURED CONVERTIBLE NOTES AND
WARRANTS THAT MAY BE AVAILABLE FOR FUTURE SALE AND THE SALE OF THESE SHARES MAY
DEPRESS THE MARKET PRICE OF OUR COMMON STOCK.
6
As of January 23, 2006, we had 78,608,334 shares of common stock issued
and outstanding, secured convertible notes outstanding pursuant to our
securities purchase agreements dated September 23, 2004 and April 22, 2005, that
may be converted into an estimated 68,796,605 shares of common stock at current
market prices and outstanding warrants pursuant to our securities purchase
agreements dated September 23, 2004 and April 22, 2005, to purchase 20,583,333
shares of common stock. In addition, the number of shares of common stock
issuable upon conversion of the outstanding secured convertible notes issued
pursuant to the securities purchase agreements dated September 23, 2004 and
April 22, 2005 may increase if the market price of our stock declines. All of
the shares, including all of the shares issuable upon conversion of the secured
convertible notes and upon exercise of our warrants, may be sold without
restriction. The sale of these shares may adversely affect the market price of
our common stock.
WE HAVE ISSUED A LARGE AMOUNT OF STOCK IN LIEU OF CASH FOR PAYMENT OF EXPENSES
AND EXPECT TO CONTINUE THIS PRACTICE IN THE FUTURE. SUCH ISSUANCES OF STOCK WILL
CAUSE DILUTION TO OUR EXISTING STOCKHOLDERS.
Due to our limited economic resources, we try to issue stock in lieu of
cash for payment of expenses and services provided for us. In 2004, we issued
6,335,000 shares of common stock in exchange for expenses and services rendered,
and we issued 800,000 shares of series B convertible preferred stock to officers
and directors in exchange for the retirement of debt owed to them. We anticipate
issuing shares of common stock whenever possible in lieu of cash to conserve our
financial position. The number of shares of common stock issued is directly
related to our stock price at the time of issuance. In the event that our stock
price drops, we will be required to issue larger amounts of shares for expenses
and services rendered, if the other party is willing to accept stock at all. The
issuance of shares of common stock will have the effect of diluting the
proportionate equity interest and voting power of holders of our common stock,
including investors in this offering.
IF WE FAIL TO REMAIN CURRENT ON OUR REPORTING REQUIREMENTS, WE COULD BE REMOVED
FROM THE OTC BULLETIN BOARD WHICH WOULD LIMIT THE ABILITY OF BROKER-DEALERS TO
SELL OUR SECURITIES AND THE ABILITY OF STOCKHOLDERS TO SELL THEIR SECURITIES IN
THE SECONDARY MARKET.
Companies trading on the OTC Bulletin Board, such as us, must be reporting
issuers under Section 12 of the Securities Exchange Act of 1934, as amended, and
must be current in their reports under Section 13, in order to maintain price
quotation privileges on the OTC Bulletin Board. If we fail to remain current on
our reporting requirements, we could be removed from the OTC Bulletin Board. As
a result, the market liquidity for our securities could be severely adversely
affected by limiting the ability of broker-dealers to sell our securities and
the ability of stockholders to sell their securities in the secondary market.
OUR COMMON STOCK IS SUBJECT TO THE "PENNY STOCK" RULES OF THE SEC AND THE
TRADING MARKET IN OUR SECURITIES IS LIMITED, WHICH MAKES TRANSACTIONS IN OUR
STOCK CUMBERSOME AND MAY REDUCE THE VALUE OF AN INVESTMENT IN OUR STOCK.
The Securities and Exchange Commission has adopted Rule 15g-9 which
establishes the definition of a "penny stock," for the purposes relevant to us,
as any equity security that has a market price of less than $5.00 per share or
with an exercise price of less than $5.00 per share, subject to certain
exceptions. For any transaction involving a penny stock, unless exempt, the
rules require:
o that a broker or dealer approve a person's account for
transactions in penny stocks; and
o the broker or dealer receive from the investor a written
agreement to the transaction, setting forth the identity and
quantity of the penny stock to be purchased.
In order to approve a person's account for transactions in penny stocks, the
broker or dealer must:
o obtain financial information and investment experience
objectives of the person; and
o make a reasonable determination that the transactions in penny
stocks are suitable for that person and the person has
sufficient knowledge and experience in financial matters to be
capable of evaluating the risks of transactions in penny
stocks.
The broker or dealer must also deliver, prior to any transaction in a penny
stock, a disclosure schedule prescribed by the Commission relating to the penny
stock market, which, in highlight form:
o sets forth the basis on which the broker or dealer made the
suitability determination; and
o that the broker or dealer received a signed, written agreement
from the investor prior to the transaction.
Generally, brokers may be less willing to execute transactions in securities
subject to the "penny stock" rules. This may make it more difficult for
investors to dispose of our common stock and cause a decline in the market value
of our stock.
7
Disclosure also has to be made about the risks of investing in penny
stocks in both public offerings and in secondary trading and about the
commissions payable to both the broker-dealer and the registered representative,
current quotations for the securities and the rights and remedies available to
an investor in cases of fraud in penny stock transactions. Finally, monthly
statements have to be sent disclosing recent price information for the penny
stock held in the account and information on the limited market in penny stocks.
8
SELLING STOCKHOLDERS
The table below sets forth information concerning the resale of the shares
of common stock by the selling stockholders upon exercise of stock options, if
any. We will not receive any proceeds from the resale of the common stock by the
selling stockholders; provided, however, we may receive funds if the stock
options are exercised on a cash basis, which such funds, if any, will be
utilized for working capital.
The following table also sets forth the name of each person who is
offering the resale of shares of common stock by this prospectus, the number of
shares of common stock beneficially owned by each person, the number of shares
of common stock that may be sold in this offering and the number of shares of
common stock each person will own after the offering, assuming they sell all of
the shares offered.
SHARES BENEFICIALLY OWNED SHARES BENEFICIALLY OWNED
PRIOR TO THE OFFERING AFTER THE OFFERING
------------------------------------- ----------------------------
TOTAL
NAME NUMBER PERCENT SHARES OFFERED NUMBER PERCENT
---------------------------------------- ---------------- --------------- ----------------- --------------- ---------
Donald F. Evans 12,456,030 (1) 13.90% 8,250,000 4,206,030 (7) 3.77%
Mark D. Schmidt 8,630,000 (2) 9.92% 7,420,000 1,210,000 (8) 1.10%
Alan H. Ninneman 3,956,520 (3) 4.83% 1,500,000 2,456,520 (9) 2.22%
John W. Ringo 4,119,150 (4) 5.01% 2,000,000 2,119,150 (10) 1.92%
William P. Walker 400,000 (5) * 400,000 0 *
Michael A. Bailey 270,000 (5) * 270,000 0 *
John S. Evans 500,000 (5) * 500,000 0 *
Patricia A. Ryan 360,000 (5) * 360,000 0 *
Emily K. Farlow 300,000 (5) * 300,000 0 *
Larson J. Isely 1,500,000 (5) 1.87% 1,500,000 0 *
David D. Downing 1,763,300 (6) 2.21% 500,000 1,263,300 (11) 1.15%
Jeffrey A. Hatley 500,000 (5) * 500,000 0 *
Michael H. Roth 500,000 (5) * 500,000 0 *
Gregory Sichenzia 100,000 (5) * 100,000 0 *
Sichenzia Ross Friedman Ference LLP
1065 Avenue of the Americas
21st Floor
New York, New York 10018
* Less than one percent.
The number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Securities Exchange Act of 1934, and the
information is not necessarily indicative of beneficial ownership for any other
purpose. Under such rule, beneficial ownership includes any shares as to which
the selling stockholder has sole or shared voting power or investment power and
also any shares which the selling stockholder has the right to acquire within 60
days. Shares owned prior to the offering include the shares issuable upon
exercise of the options set forth in the "Total Shares Offered" column. The
above percentages are based on 78,608,334 shares of common stock outstanding
prior to the offering and 108,708,334 shares of common stock outstanding after
the offering.
9
Beneficial ownership is determined in accordance with the rules of the
Commission and generally includes voting or investment power with respect to the
shares shown. Except where indicated by footnote and subject to community
property laws where applicable, the persons named in the table have sole voting
and investment power with respect to all shares of voting securities shown as
beneficially owned by them. Percentages are based upon the assumption that each
shareholder has exercised all of the currently exercisable options he or she
owns which are currently exercisable or exercisable within 60 days and that no
other shareholder has exercised any options he or she owns. Except as noted, the
address of each of the above selling shareholders is c/o Cyberlux Corporation,
4625 Creekstone Drive, Suite 100, Research Triangle Park, Durham, North Carolina
27703.
(1) Includes 275,103 shares of Series B convertible preferred stock convertible
into 2,751,030 shares of common stock and 8,250,000 shares issuable upon
conversion of outstanding options. Each share of Series B convertible preferred
stock is entitled to voting rights equal to ten times the number of shares of
common stock such holder of Series B convertible preferred stock would receive
upon conversion of such holder's shares of Series B convertible preferred stock.
(2) Includes 101,000 shares of Series B convertible preferred stock convertible
into 1,010,000 shares of common stock and 7,420,000 shares issuable upon
conversion of outstanding options. Each share of Series B convertible preferred
stock is entitled to voting rights equal to ten times the number of shares of
common stock such holder of Series B convertible preferred stock would receive
upon conversion of such holder's shares of Series B convertible preferred stock.
(3) Includes 180,652 shares of Series B convertible preferred stock convertible
into 1,806,520 shares of common stock and 1,500,000 shares issuable upon
conversion of outstanding options. Each share of Series B convertible preferred
stock is entitled to voting rights equal to ten times the number of shares of
common stock such holder of Series B convertible preferred stock would receive
upon conversion of such holder's shares of Series B convertible preferred stock.
(4) Includes 166,915 shares of Series B convertible preferred stock convertible
into 1,669,150 shares of common stock and 2,000,000 shares issuable upon
conversion of outstanding options. Each share of Series B convertible preferred
stock is entitled to voting rights equal to ten times the number of shares of
common stock such holder of Series B convertible preferred stock would receive
upon conversion of such holder's shares of Series B convertible preferred stock.
(5) Represents shares issuable upon conversion of outstanding options.
(6) Includes 76,330 shares of Series B convertible preferred stock convertible
into 763,300 shares of common stock and 500,000 shares issuable upon conversion
of outstanding options. Each share of Series B convertible preferred stock is
entitled to voting rights equal to ten times the number of shares of common
stock such holder of Series B convertible preferred stock would receive upon
conversion of such holder's shares of Series B convertible preferred stock.
(7) Includes 275,103 shares of Series B convertible preferred stock convertible
into 2,751,030 shares of common stock. Each share of Series B convertible
preferred stock is entitled to voting rights equal to ten times the number of
shares of common stock such holder of Series B convertible preferred stock would
receive upon conversion of such holder's shares of Series B convertible
preferred stock.
(8) Includes 101,000 shares of Series B convertible preferred stock convertible
into 1,010,000 shares of common stock. Each share of Series B convertible
preferred stock is entitled to voting rights equal to ten times the number of
shares of common stock such holder of Series B convertible preferred stock would
receive upon conversion of such holder's shares of Series B convertible
preferred stock.
(9) Includes 180,652 shares of Series B convertible preferred stock convertible
into 1,806,520 shares of common stock. Each share of Series B convertible
preferred stock is entitled to voting rights equal to ten times the number of
shares of common stock such holder of Series B convertible preferred stock would
receive upon conversion of such holder's shares of Series B convertible
preferred stock.
(10) Includes 166,915 shares of Series B convertible preferred stock convertible
into 1,669,150 shares of common stock. Each share of Series B convertible
preferred stock is entitled to voting rights equal to ten times the number of
shares of common stock such holder of Series B convertible preferred stock would
receive upon conversion of such holder's shares of Series B convertible
preferred stock.
(11) Includes 76,330 shares of Series B convertible preferred stock convertible
into 763,300 shares of common stock. Each share of Series B convertible
preferred stock is entitled to voting rights equal to ten times the number of
shares of common stock such holder of Series B convertible preferred stock would
receive upon conversion of such holder's shares of Series B convertible
preferred stock.
10
PLAN OF DISTRIBUTION
Sales of the shares may be effected by or for the account of the selling
stockholders from time to time in transactions (which may include block
transactions) on the Over the Counter Bulletin Board, in negotiated
transactions, through a combination of such methods of sale, or otherwise, at
fixed prices that may be changed, at market prices prevailing at the time of
sale or at negotiated prices. The selling stockholders may effect such
transactions by selling the shares directly to purchasers, through
broker-dealers acting as agents of the selling stockholders, or to
broker-dealers acting as agents for the selling stockholders, or to
broker-dealers who may purchase shares as principals and thereafter sell the
shares from time to time in transactions (which may include block transactions)
on the Over the Counter Bulletin Board, in negotiated transactions, through a
combination of such methods of sale, or otherwise. In effecting sales,
broker-dealers engaged by a selling stockholder may arrange for other
broker-dealers to participate. Such broker-dealers, if any, may receive
compensation in the form of discounts, concessions or commissions from the
selling stockholders and/or the purchasers of the shares for whom such
broker-dealers may act as agents or to whom they may sell as principals, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions).
The selling stockholders and any broker-dealers or agents that participate
with the selling stockholders in the distribution of the shares may be deemed to
be "underwriters" within the meaning of the Securities Act of 1933. Any
commissions paid or any discounts or concessions allowed to any such persons,
and any profits received on the resale of the shares purchased by them may be
deemed to be underwriting commissions or discounts under the Securities Act of
1933.
We have agreed to bear all expenses of registration of the shares other
than legal fees and expenses, if any, of counsel or other advisors of the
selling stockholders. The selling stockholders will bear any commissions,
discounts, concessions or other fees, if any, payable to broker-dealers in
connection with any sale of their shares.
We have agreed to indemnify the selling stockholders, or their transferees
or assignees, against certain liabilities, including liabilities under the
Securities Act of 1933 or to contribute to payments the selling stockholders or
their respective pledgees, donees, transferees or other successors in interest,
may be required to make in respect thereof.
LEGAL MATTERS
Sichenzia Ross Friedman Ference LLP, New York, New York will issue an
opinion with respect to the validity of the shares of common stock being offered
hereby.
EXPERTS
The financial statements of Cyberlux Corporation as of December 31, 2004
and 2003, and for each of the years then ended, have been incorporated by
reference herein and in the registration statement in reliance on the reports of
Russell Bedford Stefanou Mirchandani LLP, independent registered public
accounting firm, incorporated by reference herein, and upon authority of said
firm as experts in accounting and auditing.
11
INFORMATION INCORPORATED BY REFERENCE
The Securities and Exchange Commission allows us to incorporate by
reference certain of our publicly-filed documents into this prospectus, which
means that such information is considered part of this prospectus. Information
that we file with the SEC subsequent to the date of this prospectus will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the SEC under all
documents subsequently filed by us pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 until the selling stockholders have sold
all of the shares offered hereby or such shares have been deregistered.
The following documents filed with the SEC are incorporated herein by reference:
o Reference is made to the Registrant's annual report on Form
10-KSB, as filed with the SEC on April 15, 2005, which is
hereby incorporated by reference.
o Reference is made to the Registrant's current report on Form
8-K, as filed with the SEC on April 28, 2005, which is hereby
incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB, as filed with the SEC on May 18, 2005, which is hereby
incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB/A, as filed with the SEC on May 19, 2005, which is
hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB, as filed with the SEC on August 18, 2005, which is
hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB, as filed with the SEC on November 16, 2005, which is
hereby incorporated by reference.
We will provide without charge to each person to whom a copy of this
prospectus has been delivered, on written or oral request a copy of any or all
of the documents incorporated by reference in this prospectus, other than
exhibits to such documents. Written or oral requests for such copies should be
directed to Don Evans, Chief Executive Officer, Cyberlux Corporation, 4625
Creekstone Drive, Suite 100, Research Triangle Park, Durham, North Carolina
27703.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
Our Articles of Incorporation and By-l;aws, as amended, provide to the
fullest extent permitted by Nevada law, a director or officer of our company
shall not be personally liable to us or our shareholders for damages for breach
of such director's or officer's fiduciary duty. The effect of these provision of
our Articles of Incorporation and By-Laws, as amended, is to eliminate the right
of our company and our shareholders (through shareholders' derivative suits on
behalf of our company) to recover damages against a director or officer for
breach of the fiduciary duty of care as a director or officer (including
breaches resulting from negligent or grossly negligent behavior), except under
certain situations defined by statute. We believe that the indemnification
provisions in our Articles of Incorporation and By-Laws, as amended, are
necessary to attract and retain qualified persons as directors and officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to its directors, officers and controlling persons pursuant
to the foregoing provisions or otherwise, we have been advised that in the
opinion of the SEC, such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
12
ADDITIONAL INFORMATION AVAILABLE TO YOU
This prospectus is part of a Registration Statement on Form S-8 that we
filed with the SEC. Certain information in the Registration Statement has been
omitted from this prospectus in accordance with the rules of the SEC. We file
annual, quarterly and special reports, proxy statements and other information
with the SEC. You can inspect and copy the Registration Statement as well as
reports, proxy statements and other information we have filed with the SEC at
the public reference room maintained by the SEC at 100 F. Street, N.E.,
Washington, D.C. 20549. You can obtain copies from the public reference room of
the SEC at 100 F. Street, N.E., Washington, D.C. 20549, upon payment of certain
fees. We are also required to file electronic versions of these documents with
the SEC, which may be accessed through the SEC's World Wide Web site at
http://www.sec.gov. Our common stock is quoted on the Over the Counter Bulletin
Board.
No dealer, salesperson or other person is authorized to give any
information or to make any representations other than those contained in this
prospectus, and, if given or made, such information or representations must not
be relied upon as having been authorized by us. This prospectus does not
constitute an offer to buy any security other than the securities offered by
this prospectus, or an offer to sell or a solicitation of an offer to buy any
securities by any person in any jurisdiction where such offer or solicitation is
not authorized or is unlawful. Neither delivery of this prospectus nor any sale
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of our company since the date hereof.
------------------------
SHARES OF COMMON STOCK
------------------------
PROSPECTUS
---------------
January 30, 2006
13
PART I
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in Item 1 will be sent
or given to participants in the Registrant's 2005 Incentive Stock Option Plan
and 2006 Incentive Stock Option Plan 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 Securities and Exchange Commission
(the "SEC") 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.
ITEM 2. REGISTRANT INFORMATION, 2005 INCENTIVE STOCK OPTION PLAN AND 2006
INCENTIVE STOCK OPTION PLAN INFORMATION.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees, non-employee directors and
consultants, pursuant to Rule 428(b) or additional information about the 2005
Incentive Stock Option Plan and 2006 Incentive Stock Option Plan are available
without charge by contacting:
Donald F. Evans, Chief Executive Officer
Cyberlux Corporation
4625 Creekstone Drive, Suite 100
Research Triangle Park
Durham, North Carolina 27703
(919) 474-9000
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed below. In addition, all documents subsequently
filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 (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 be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents:
o Reference is made to the Registrant's annual report on Form
10-KSB, as filed with the SEC on April 15, 2005, which is
hereby incorporated by reference.
o Reference is made to the Registrant's current report on Form
8-K, as filed with the SEC on April 28, 2005, which is hereby
incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB, as filed with the SEC on May 18, 2005, which is hereby
incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB/A, as filed with the SEC on May 19, 2005, which is
hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB, as filed with the SEC on August 18, 2005, which is
hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB, as filed with the SEC on November 16, 2005, which is
hereby incorporated by reference.
14
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with this registration statement will
be passed upon for the Registrant by Sichenzia Ross Friedman Ference LLP, New
York, New York. Certain members or employees of Sichenzia Ross Friedman Ference
LLP will receive 100,000 shares of common stock of the Registrant under this
registration statement to be issued as compensation for legal services performed
on behalf of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer 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, unenforceable. The Company's Articles
of Incorporation provides that no director of the Company shall be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director except as limited by Nevada law. The Company's
Bylaws provide that the Company shall indemnify to the full extent authorized by
law each of its directors and officers against expenses incurred in connection
with any proceeding arising by reason of the fact that such person is or was an
agent of the corporation.
Insofar as indemnification for liabilities may be invoked to disclaim
liability for damages arising under the Securities Act of 1933, as amended, or
the Securities Act of 1934, (collectively, the "Acts") as amended, it is the
position of the Securities and Exchange Commission that such indemnification is
against public policy as expressed in the Acts and are therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER EXHIBIT
4.1 2005 Incentive Stock Option Plan
4.2 2006 Incentive Stock Option Plan
5.1 Opinion of Sichenzia Ross Friedman Ference LLP
10.1 Compensation Agreement with Gregory Sichenzia
23.1 Consent of Russell Bedford Stefanou Mirchandani LLP
23.2 Consent of Sichenzia Ross Friedman Ference LLP is contained in
Exhibit 5.1.
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;
15
(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 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 (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 registrant pursuant to Sections 13 or 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
Provided further, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in 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, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of 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 provisions summarized in Item 6 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, 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.
16
SIGNATURES
In accordance with 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, in the City of Durham,
State of North Carolina, on January 30, 2006.
CYBERLUX CORPORATION
BY: /S/ DONALD F. EVANS
---------------------------------------
DONALD F. EVANS, CHIEF EXECUTIVE OFFICER, PRINCIPAL
EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD OF DIRECTORS
BY: /S/ DAVID D. DOWNING
---------------------------------------
DAVID D. DOWNING, CHIEF FINANCIAL OFFICER, PRINCIPAL
FINANCIAL OFFICER AND PRINCIPAL ACCOUNTING OFFICER
In accordance with the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates stated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ DONALD F. EVANS Chief Executive Officer (Principal January 30, 2006
-------------------------------- Executive Officer) and Chairman of
Donald F. Evans the Board of Directors
/s/ DAVID D. DOWNING Chief Financial Officer (Principal January 30, 2006
-------------------------------- Financial Officer and Principal
David D. Downing Accounting Officer)
/s/ MARK D. SCHMIDT President, Chief Operating Officer January 30, 2006
-------------------------------- and Director
Mark D. Schmidt
/s/ JOHN W. RINGO Secretary, Corporate Counsel January 30, 2006
-------------------------------- and Director
John W. Ringo
/s/ ALAN H. NINNEMAN Senior Vice President and Director January 30, 2006
--------------------------------
Alan H. Ninneman
17