U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Amendment
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SEAWRIGHT HOLDINGS, INC.
(Name of Small Business Issuer in its Charter)
Delaware 8111 541965220
(State or jurisdiction of (Primary Standard Industrial I.R.S. Employer
incorporation Classification Code Number) Identification No.)
or organization)
600 Cameron Street, Alexandria, Virginia 22134; (703) 340-1269
(Address and telephone number of Registrant's principal executive
offices and principal place of business)
Consulting Option Agreements
(Full title of the Plans)
James DeOlden, Esq., 15375 Barranca Parkway, Suite I-101, Irvine, CA 92618
(Name and address of agent for service)
(949) 450-9943
(Telephone number, including area code, of agent for service)
Part I
Information Required in the Section 10(a) Prospectus
Item 1.
The Form S-8 as originally filed on January 8, 2004, provided for the
exercise of eight hundred thirty-seven thousand, five hundred (837,500)
options to purchase eight hundred thirty-seven thousand, five hundred
(837,500) shares of common stock of Seawright Holdings, Inc., the
Registrant. This amendment to the Form S-8 provides that the David Levy
(Owner) of said options has exercised one hundred and sixty thousand
(160,000) options to purchase shares of common stock at an exercise
price of $0.5625 and has paid sixty-three thousand five hundred dollars
($63,500) in cash to the Registrant and has tendered all previously
issued Series A Preferred shares issued back to the Registrant at a
recognized price of twenty-six thousand five hundred dollars ($26,500),
for the total exercise price of ninety thousand dollars ($90,000).
The Registrant will continue to owe to David Levy one hundred thousand
(100,000) options to purchase one hundred thousand (100,000) pursuant to
the Form S-8 under the same terms and conditions as in the Form S-8, with
the remaining five hundred seventy-seven thousand five hundred shares
underlying said options being hereby deregistered.
SIGNATURES
Pursuant to 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 this Amendment to its filing on Form
S-8 and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorize, in the City of
Alexandria, Virginia, on January 25, 2005.
Seawright Holdings, Inc.
By: /s/ Joel Sens
Joel Sens, President, Treasurer and
Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
Signature Title Date
/s/ Joel Sens President, Treasurer and January 25, 2005
Joel Sens Director
Exhibit 99.1
Termination Agreement
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (the "Agreement") dated October 1, 2004, is
entered into by and among Seawright Holdings, Inc., (the "Company"), a
Delaware corporation having its principal place of business at 600
Cameron Street, Alexandria, Virginia 22314, and David Levy, an
individual (the "Consultant"), residing at 3800 Charles Avenue,
Alexandria, Virginia 22305.
WHEREAS, Consultant and the Company entered into that certain Consulting
Services Agreement (the "Consulting Services Agreement") on December 31,
2003; and
WHEREAS, as set forth in the Consulting Services Agreement, Consultant
has provided services to the Company as an independent contractor and
not as an employee; and
WHEREAS, the Company and Consultant have agreed to terminate the
Consulting Services Agreement; and
WHEREAS, the Company and Consultant desire to set forth the terms and
conditions governing termination of the Consulting Services Agreement,
as set forth below; and
WHEREAS, the Company and Consultant desire to enter into an agreement
which shall supercede all prior agreements between the parties, except
as otherwise expressly set forth herein;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the undersigned parties agree as
follows:
1. Termination of Consulting Services Agreement.
The Consulting Services Agreement shall terminate, and this
Agreement shall become effective, as of October 1, 2004 (the "Effective
Date"). Consultant waives compliance with Section 7(b) of the
Consulting Services Agreement.
2. Consideration.
In consideration for the termination of the Consulting
Services Agreement, the parties agree to the following:
(a) Consultant shall exercise a previously issued option to
purchase One-Hundred Sixty Thousand (160,000) shares of common stock in
the Company at the exercise price of $0.5625 per share. Such exercise
shall be effected in the following manner: (i) on the Effective Date
the Company shall redeem and then cancel all Series A Preferred Company
Stock previously issued to Consultant, plus all dividends accrued to
such Series A Preferred Company Stock; and (ii) Consultant shall deliver
to the Company a certified check, payable to the Company, in the amount
of Sixty-Three Thousand Five Hundred Dollars and No Cents ($63,500.00),
such certified check to be delivered to the Company by hand, or by
registered mail, postage prepaid or by overnight courier, no later than
close of business on or before the Effective Date. The consideration
set forth in subsections (i) and (ii) above are equal in value to the
total exercise price of $90,000.
(b) One (1) year from the Effective Date, Consultant shall
have the right to require the Company to purchase, in full or in part,
for the sum of One Dollar and Twenty-Five Cents ($1.25), the One-Hundred
Sixty Thousand (160,000) shares of common stock purchased by Consultant
pursuant to Section 2(a) of this Agreement. This right refers to the
specific shares referred to in Section 2(a), and the Company will not be
obligated to purchase any other shares tendered by the Consultant.
After receiving notice of Consultant's intention to exercise his put
option pursuant to this Section 2(b), the Company shall have thirty (30)
days to effect such redemption and make the required payment upon tender
by Consultant of certificates evidencing the shares to be redeemed.
Such payment may be in cash or by non-certified check.
(c) Pursuant to Section 2 of the Consulting Services
Agreement, the Company granted Consultant an option to purchase Eight-
Hundred Thirty-Seven Thousand Five Hundred (837,500) shares of common
stock in the Company (the "Options"). As of the Effective Date,
Consultant shall retain Options to purchase One-Hundred Thousand
(100,000) shares of common stock (the "Retained Options"), and all
remaining Options shall be cancelled. The expiration date of the
Retained Options shall be as set forth for the Options granted in
Section 2 of the Consulting Services Agreement, provided, however, that
Consultant shall be permitted to exercise the Retained Options to
purchase no more than Ten Thousand (10,000) shares of common stock in
any thirty (30) day period, provided, further that the Company may
permit Consultant to exercise Retained Options for greater than 10,000
shares in any given month solely at the discretion of the Company.
3. Confidentiality; Non-Disparagement.
(a) Consultant shall not disclose to others, or use, any of
the Company's financial information, marketing plans, secret or
confidential information, knowledge or data (oral, written, or in
machine-readable form) that Consultant may obtain or has obtained at any
time during the course of or in connection with Consultant's contractual
relationship with the Company, whether prior to the execution of this
Agreement or otherwise, including such intellectual property,
inventions, discoveries, information, knowledge, know-how or data
relating to machines, equipment, products, systems, software, research
or development, designs, compositions, formulae, processes, procedures
or business methods, whether or not developed by Consultant, by
individuals in the Company, or obtained by the Company from third
parties, and irrespective of whether or not such inventions,
discoveries, information, knowledge or data have been identified by the
Company as secret or confidential, unless and until, and then to the
extent and only to the extent that, such inventions, discoveries,
information, knowledge or data become available to the public otherwise
than by Consultant's act or omission.
(b) Consultant agrees to keep the provisions of this
Agreement confidential; provided, however, that Consultant may disclose
the contents of the Agreement to Consultant's personal financial and
legal advisers, and to enforce Consultant's rights hereunder.
Similarly, the Company agrees to maintain the confidentiality of this
Agreement, provided, however, that the Company may disclose the contents
of the Agreement to its Board of Directors and senior Officers, to its
financial and legal advisors, as required by IRS regulations (i.e., Form
990), and to enforce its rights hereunder.
(c) Each party further agrees that neither party nor anyone
acting on such party's behalf will make any intentionally derogatory,
defamatory or disparaging statements regarding the other party,
including the Company's affiliated entities or its employees, in the
context of their business and professional activities. Each party
further covenants and agrees that such party will not encourage anyone,
including such party's officers, directors, employees, agents,
representatives, relatives, friends or associates to take any action of
the foregoing nature.
4. Restrictive Covenants.
(a) For a period of twelve (12) months after the Effective
Date Consultant shall not (i) solicit business from any person, firm or
entity that was a customer of the Company at any time within the twelve
(12) months preceding the Effective Date, (ii) induce or attempt to
induce any such customer to reduce its business with the Company or
(iii) solicit business from any prospective customer of the Company.
For purposes of this Section 4(a), "prospective customer" shall mean
potential customers that the Company has solicited, or with which the
Company has had active discussions concerning potential business, with
or without the assistance of the Consultant, at any time during the
twelve (12) months preceding the Effective Date.
(b) For a period of twelve (12) months after the Effective
Date Consultant shall not solicit or attempt to solicit, for employment
or provision of services as an independent contractor, any person who is
a member of the Board of Directors, an Officer or an employee of the
Company.
5. Return of Property.
Consultant expressly acknowledges that Consultant has returned
to the Company the originals and all copies (in any medium) of any
business records and property of the Company that are or were subject to
his custody or control, regardless of the sources from which such
records were obtained, and Consultant hereby certifies that this has
been done after diligent search and inquiry to the best of his knowledge
and belief.
6. Release.
Consultant, on behalf of himself, his family members and his
and their heirs and successors, assigns, affiliates, attorneys and
agents (other than the Company) (collectively, "Successors"), fully
waives and releases and forever discharges the Company and anyone
connected with it, including, if any, its subsidiaries, parents,
affiliates, officers, directors, shareholders, employees, contractors,
consultants, agents, partners and associates, as well as the heirs,
executors, administrators, attorneys, insurers, predecessors, successors
and assigns of each of the foregoing (collectively, the "Company
Releasees") from any and all claims, demands, complaints, obligations,
promises, agreements, controversies, costs, contracts, causes of action,
lawsuits, rights, charges, damages, actions, and liabilities of every
kind, whether in law or in equity, known or unknown, suspected or
unsuspected (collectively, "Claims"), which he ever had or now has
against one of more of the Company Releasees of any type, nature, and
description from the beginning of time through and including the
Effective Date (the "Release"). Without in any way limiting the
foregoing, this Release includes claims arising out of the execution of
this Agreement or the negotiation of this Agreement, or any purported
representations or omissions leading to this Agreement and any claims
arising from or related to Consultant's contractual relationship with
the Company or the termination thereof, including any express or implied
contract of employment claims, any tort claims, claims under Title VII
of the Civil Rights Act of 1964, as amended, Section 1981 of the Civil
Rights Act of 1866, the Age Discrimination in Employment Act of 1967, as
amended, the Older Workers Benefit Protection Act of 1974, as amended,
Titles 40.1, 51.1, 51.5 and 65.2 of the Annotated Code of Virginia,
1950, as amended, the Americans with Disabilities Act of 1989, the
Family and Medical Leave Act of 1993, and the Employee Retirement Income
Security Act of 1974, as amended, claims arising out of any federal,
state or local laws, executive orders, rules or regulations prohibiting
discrimination or harassment based on any protected status including
race, national origin, age, gender, marital status, disability, veteran
status or sexual orientation, all claims under related common law,
statutes and executive orders at the federal, state or local levels of
government, claims under any legal restriction on an employer's freedom
to terminate any of its employees, and any claim to any benefit from any
relationship with the Company or any other Company Releasee. Nothing
contained in this Agreement is intended to waive or release, and the
Company expressly acknowledges, Consultant's right to enforce the terms
of this Agreement.
7. Right to Review; Consultation with Counsel.
(a) Consultant may have up to twenty-one (21) days from the
date of receipt of this Agreement to review and sign this Agreement.
Consultant may waive this 21-day period. Furthermore, Consultant has
seven (7) days following signature of this Agreement to revoke it, and
this Agreement shall not become effective or enforceable until the
revocation period has expired. If Consultant decides to revoke this
Agreement within the revocation period, Consultant shall send written
notification to the Company's President by 5:00 p.m. on or before the
seventh (7th) calendar day after Consultant signs this Agreement.
(b) Consultant acknowledges that he has had an opportunity to
consult with an attorney of his choice prior to signing this Agreement,
and that he signed this Agreement knowingly, voluntarily and freely, and
after consultation with such counsel (if any) as he deemed appropriate.
8. Recitals Incorporated.
All recitals are incorporated herein as material provisions of
this Agreement.
9. Notice.
Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, or sent
by registered mail, postage prepaid or by overnight courier. Any such
notice shall be deemed given when so delivered personally, or, if
mailed, five (5) days after the date of deposit in the United States
mail, or, if delivered by overnight courier, the day after such sending,
to the appropriate address first set forth above, provided, however,
that a copy of any notice sent to the Company shall be sent (without
constituting notice) to Williams & Connolly LLP, 725 Twelfth Street, NW,
Washington, DC 20005, Attn: Michael O'Connor, Esq. Any party may by
notice given in accordance with this Section 9 to the other party,
designate another address or person for receipt of notices hereunder.
10. Modifications; Waiver.
No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in
writing and signed by Consultant and a duly authorized officer of the
Company. No waiver by either party hereto at any time of any breach by
the other party hereto of, or compliance with, any condition or
provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions of this Agreement at the same or any
prior or subsequent time.
11. Successors; Binding Agreement.
The Company may require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company or any
division of the Company to expressly assume and agree in writing to
perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had
taken place. This Agreement shall inure to the benefit of and be
enforceable by Consultant's personal or legal representatives,
executors, estate, trustees, administrators, successors, heirs,
distributees, devisees and legatees. This Agreement is personal to
Consultant and neither this Agreement nor any rights hereunder may be
assigned by Consultant.
12. Severability.
The Company and Consultant agree that the agreements and
provisions contained in this Agreement are severable and divisible, that
each such agreement and provision does not depend upon any other
provision or agreement for its enforceability, and that each such
agreement and provision set forth herein constitutes an enforceable
obligation between the parties hereto. Consequently, the parties hereto
agree that neither the invalidity nor the unenforceability of any
provision of this Agreement shall affect the other provisions, and this
Agreement shall remain in full force and effect and be construed in all
respects as if such invalid or unenforceable provision were omitted.
13. Construction.
No provision of this Agreement shall be interpreted or
construed against any party because that party or its legal
representative drafted that provision. The captions and headings of the
Sections of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement. Unless the context
of this Agreement clearly requires otherwise: (a) references to the
plural include the singular, the singular the plural, and the part the
whole, (b) references to one gender include all genders, (c) "or" has
the inclusive meaning frequently identified with the phrase "and/or,"
(d) "including" has the inclusive meaning frequently identified with the
phrase "including but not limited to" or "including without limitation,"
(e) references to "hereunder," "herein" or "hereof" relate to this
Agreement as a whole, and (f) the terms "dollars" and "$" refer to
United States dollars. Section, subsection, exhibit and schedule
references are to this Agreement as originally executed unless otherwise
specified. Any reference herein to any statute, rule, regulation or
agreement, including this Agreement, shall be deemed to include such
statute, rule, regulation or agreement as it may be modified, varied,
amended or supplemented from time to time. Any reference herein to any
person shall be deemed to include the heirs, personal representatives,
successors and permitted assigns of such person.
14. Entire Agreement.
The foregoing contains the entire agreement between the
parties relating to the subject matter of this Agreement, and supersedes
all prior discussions, agreements or understandings with respect
thereto, provided, however, that as set forth herein, certain provisions
of the Consulting Services Agreement shall survive the execution of this
Agreement and shall remain in full force and effect.
15. Governing Law.
This Agreement shall be governed by the laws of the
Commonwealth of Virginia, without giving effect to any principles of
conflict of law or choice of law rules (whether of the Commonwealth of
Virginia or of any other jurisdiction) that would result in the
application of the substantive or procedural laws or rules of any other
jurisdiction
16. Counterparts.
This Agreement may be executed in several counterparts
(including via facsimile), each of which shall be deemed to be an
original but all of which together will constitute one and the same
instrument.
17. Securities Transactions.
Consultant understands that this Agreement contemplates
transactions in securities and agrees to comply with all obligations
under applicable federal and state securities laws. Consultant may be
asked to fill out documentation in order to permit the Company to comply
with such securities laws. Failure to cooperate with the Company with
respect to the foregoing shall relieve the Company of any obligation to
effect any of the transactions contemplated herein. In addition to the
foregoing, Consultant hereby represents, warrants and covenants, as
applicable that as of today and as of the Effective Date, Consultant:
(a) has the requisite competence, power and authority to
execute and deliver this Agreement, to perform his obligations
hereunder, and to the consummate the transactions contemplated hereby;
(b) has duly executed and delivered this Agreement which is
enforceable against him in accordance with its terms;
(c) has had an opportunity to review all documents and
information provided by the Company that such Consultant has requested
and considers material to his decision to enter into this Agreement;
(d) is a sophisticated investor with such knowledge and
experience in financial business matters and investments in securities
that the Consultant is capable of evaluating the merits and risks of
acquiring the shares of Company common stock to be issued to the
Consultant and is an accredited investor as such term is defined in Rule
501 of Regulation D promulgated under the Securities Act by virtue of
his net worth being in excess of $1,000,000;
(e) is aware that acquiring shares of the Company common
stock is a speculative investment, is able to bear the economic risk of
this investment, is able to hold the shares of Company common stock
indefinitely and understands that he may lose his entire investment;
(f) acknowledges that, except as set forth in Company's
periodic reporting as filed with the SEC, neither the Company nor any
officer, director, employee, agent or representative of the Company has
made any representations or warranties of any kind to the Consultant
with respect to his investment in the Company common stock and/or
redemption of Company preferred stock;
(g) understands that the share of Company common stock to be
issued to Consultant in connection with this Agreement will not have
been registered under the Securities Act, or any other applicable state
or federal securities laws;
(h) has no present intention of reselling, directly or
indirectly participating in any distribution of, or otherwise disposing
of such shares of Company common stock in violation of applicable
securities laws;
(i) understands that the shares of Company common stock to be
issued to Consultant may not be offered for sale, sold or transferred
except pursuant to an effective registration statement under the
Securities Act or an exemption from such registration requirement;
(j) acknowledges that a legend substantially as follows will
be placed on the certificates representing the shares of Company common
stock issued to the Consultant in connection with this Agreement, along
with any additional legend required by federal or state law or required
pursuant to any shareholder or similar agreement:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). THESE SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT;
(k) understands that the shares of Company common stock to be
issued to the Consultant are being transferred in reliance upon the
validity and accuracy of the representations, warranties and covenants
of Consultant set forth herein, and Consultant shall indemnify and hold
the Company harmless from damage, claim or loss (including attorneys'
fees) resulting from the breach or inaccuracy of any such
representation, warranty or covenant set forth herein.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the Effective Date.
SEAWRIGHT HOLDINGS, INC.
By: /s/Joel Sens
President
/s/DAVID LEVY