AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 6, 2004.
REGISTRATION 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
PURE CYCLE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 84-0705083
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8451 DELAWARE STREET, THORNTON, COLORADO 80260
(Address of Principal Executive Offices) (Zip Code)
EQUITY INCENTIVE PLAN
OPTION AGREEMENT, NON-STATUTORY STOCK OPTION
2004 EQUITY INCENTIVE PLAN
(Full title of the plan)
MARK W. HARDING WITH A COPY TO:
PRESIDENT AND CHIEF FINANCIAL OFFICER WANDA J. ABEL
8451 DELAWARE STREET DAVIS GRAHAM & STUBBS LLP
THORNTON, COLORADO 80260 1550 17TH STREET, SUITE 500
DENVER, COLORADO 80202
(Name and address of agent for service)
(303) 292-3456 (303) 892-9400
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE PRICE FEE
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Common Stock (1/3 of $.01 par value) 2,600,000 (1) $ 1.80 (2) $ 4,680,000 (2) $ 592.96
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Common Stock (1/3 of $.01 par value) 1,600,000 (3) $ 8.75 (4) $ 14,000,000 (4) $ 1,773.80
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Total $ 18,680,000 $ 2,366.76
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NOTES:
(1) Amount to be registered consists of Common Stock to be issued pursuant to
the Equity Incentive Plan and the Option Agreement, Non-Statutory Option.
(2) Pursuant to Rule 457(h)(1), the price per share and aggregate offering
price are based upon the exercise price of the options granted pursuant to
the Equity Incentive Plan and the Option Agreement, Non-Statutory Option.
(3) Amount to be registered consists of Common Stock to be issued pursuant to
the 2004 Equity Incentive Plan.
(4) Pursuant to Rule 457(c), the price per share and aggregate offering price
are based upon the average of the high and low prices of the Registrant's
Common Stock on May 3, 2004 as quoted on the OTCBB.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Pure Cycle Corporation, a Delaware corporation (the "Company" or "Pure
Cycle"), hereby states that the following documents filed with the Securities
and Exchange Commission (the "Commission") are hereby incorporated or deemed to
be incorporated in this Registration Statement by reference as of their date of
filing with the Commission:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
August 31, 2003;
(b) The Company's Quarterly Reports on Form 10-QSB for the quarters ended
November 30, 2003 and February 29, 2004;
(c) The Company's Current Reports on Form 8-K filed on November 6, 2003
and April 19, 2004;
(d) The Company's Definitive Proxy Statement filed on March 25, 2004; and
(d) The Company's Registration Statement on Form 8-A declared effective
March 31, 1982, which contains a description of the Company's capital stock.
All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment to this Registration Statement indicating that all
securities offered under the Registration Statement have been sold, or
deregistering all securities then remaining unsold, are also incorporated herein
by reference and shall be a part hereof from the date of the filing of such
documents.
Any statement contained in a document incorporated by, 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 a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein 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.
None.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation, as amended (the "Certificate of
Incorporation") provide that Pure Cycle shall, to the full extent permitted by
the General Corporation Law of the State of Delaware, as amended from time to
time, indemnify all directors and officers of Pure Cycle. Section 145 of the
Delaware General Corporation Law provides in part that a corporation shall have
the power to 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
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of
another corporation or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he 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 conduct was unlawful.
Similar indemnity is authorized for such persons against expenses (including
attorneys' fees) actually and reasonably incurred in defense or settlement of
any threatened, pending or completed action or suit by or in the right of the
corporation, if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and
provided further that (unless a court of competent jurisdiction otherwise
provides) such person shall not have been adjudged liable to the corporation.
Any such indemnification may be made only as authorized in each specific case
upon a determination by the disinterested directors, independent legal counsel,
or the stockholders that indemnification is proper because the indemnitee has
met the applicable standard of conduct. Insofar as indemnification for
liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is
against public policy as expressed in the 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 Act and
will be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
Exhibit No. Description
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4.4 Equity Incentive Plan, incorporated by reference from Proxy Statement for
Annual Meeting held April 2, 1993 filed March 15, 1993.
4.5 Option Agreement, Non-Statutory Stock Option, incorporated by reference to
Registration Statement No. 333-114568.
4.6 2004 Equity Incentive Plan, incorporated by reference to Registration
Statement No. 333-114568.
5.1 Opinion of Davis Graham & Stubbs LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Davis Graham & Stubbs LLP (included 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 of 1933 (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) that, individually or in the aggregate,
represent a fundamental change in the information set
forth in this 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 (a)(1)(i) and (a)(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 Section 13 or Section 15(d) of the
Exchange Act of 1934 (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 post-effective amendment shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such
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securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that 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 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
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 Thornton, State of Colorado, on the 4th day of May,
2004.
PURE CYCLE CORPORATION
By: /s/ Thomas P. Clark
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Thomas P. Clark
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities indicated on May 4, 2004.
Signature Title
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/s/ Harrison H. Augur Chairman, Director
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Harrison H. Augur
/s/ Margaret S. Hansson Vice President, Director
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Margaret S. Hansson
/s/ Thomas P. Clark CEO, Director
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Thomas P. Clark
/s/ Mark W. Harding President, CFO, Director
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Mark W. Harding
/s/ Richard L. Guido Director
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Richard L. Guido
/s/ George M. Middlemas Director
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George M. Middlemas
EXHIBIT INDEX
Exhibit No. Description
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5.1 Opinion of Davis Graham & Stubbs LLP.
23.1 Consent of KPMG LLP.