Unassociated Document
As
filed
with the Securities and Exchange Commission on July 25, 2008
Reg.
No.
333-_________
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_________________________________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
___________________________________
Cyberlux
Corporation
(Exact
name of registrant as specified in its charter)
|
Nevada
|
91-2048978
|
|
(State
or other jurisdiction of
|
(I.R.S.
Employer
|
|
incorporation
or organization)
|
identification
No.)
|
4625
Creekstone Drive, Suite 130
Research
Triangle Park
Durham,
North Carolina 27703
(Address
of principal executive offices)
(Zip
Code)
________________________________________________
ADDENDUM
TO THE
2008 INCENTIVE STOCK OPTION PLAN,
_______________________________
Mark
D. Schmidt, Chief Executive Officer
Cyberlux
Corporation
4625
Creekstone Drive, Suite 130
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
|
Title
of securities
to
be registered
|
|
Amount
to be
Registered
|
|
Proposed
maximum
offering
price
per
share*
|
|
Proposed
maximum
Aggregate
offering
Price
|
|
Amount
of
Registration
fee
|
|
|
Common
Stock ($.001
par value)
|
|
|
15,562,500
|
|
$
|
0.00905
|
|
$
|
140,841
|
|
$
|
5.54
|
|
*
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 July 24
,
2008.
Prospectus
CYBERLUX
CORPORATION
15,562,500
SHARES OF COMMON STOCK
ISSUABLE
PURSUANT TO AN ADDENDUM TO THE
2008
INCENTIVE STOCK OPTION PLAN
This
prospectus relates to the sale of up to 15,562,500 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 an Addendum to our
2008 Incentive Stock Option Plan increasing the amount of shares from 50,000,000
shares of common stock to 60,000,000 shares of common stock. 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." The
shares are to be used to provide interim financing for the Corporation. 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 July 24, 2008, the closing sale price of the common
stock was $0.009 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 July 25, 2008.
TABLE
OF CONTENTS
| |
|
| |
Page
|
| |
|
|
Prospectus
Summary
|
4
|
|
Risk
Factors
|
5
|
|
Selling
Stockholders
|
8
|
|
Plan
of Distribution
|
9
|
|
Incorporation
of Certain Documents by Reference
|
10
|
|
Disclosure
of Commission Position on Indemnification For Securities Act
Liabilities
|
11
|
|
Available
Information
|
|
Prospectus
Summary
General
Overview
We
are
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 solid-state diodal
illumination (TM) that demonstrate added value over traditional lighting
systems. Using proprietary technology, we are creating a family of products
including portable illumination systems for military and Homeland Security,
retail products, commercial task and accent lighting, emergency and security
lighting. We believe our solid-state lighting technology offers extended light
life, greater energy efficiency and greater overall cost effectiveness than
other existing forms of illumination. Our business model is to address the
large
lighting industry market segments with solid-state lighting products and
technologies, including our proprietary hybrid lighting technology that includes
military and Homeland Security applications, direct and indirect task and accent
lighting applications, indoor/outdoor downlighting applications, commercial
and
residential lighting applications.
For
the
military and Homeland Security portable illumination products, our target
markets include all branches of the military and all government organizations
providing homeland security services, such as border control and airport
security. For our retail products, our target customers include the home
improvement and consumer goods retailers.
For
the
year ended December 31, 2007, we generated $721,148 in revenue and a net loss
of
$15,619,897. 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 28, 2008, have expressed substantial doubt about our ability to
continue as going concern.
Our
principal executive offices are located at 4625 Creekstone Drive, Suite 130,
Research Triangle Park, Durham, North Carolina 27703, and our telephone number
is (919) 474-9700. 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
|
606,806,183
|
|
Shares
offered in this prospectus
|
15,562,500
|
|
Total
shares outstanding after this offering
|
622,368,683
|
|
Use
of proceeds
|
The
shares are to be used to provide interim financing for the Corporation.
|
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 $15,619,897 for the year ended December 31, 2007 and
$6,775,400 for the year ended December 31, 2006. We cannot assure you that
we
can achieve or sustain profitability on an 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 $4 million
to
fund our continued operations for the next twelve months, depending on revenue
from operations. We need additional funding 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 28, 2008, our independent auditors stated that our financial
statements for the year ended December 31, 2007 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, 2007
and
2006 in the amounts of $15,619,897 and $6,775,400, 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 Schmidt and 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. Mark
D. Schmidt, our President and Chief Executive Officer and Mr. John Ringo, our
Secretary and Corporate Counsel. Loss of the services of Messrs. Schmidt and
Ringo could have a material adverse effect on our growth, revenues, and
prospective business. 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.
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.
On
October 10, 2007, we issued 3,650,000 shares of Series B Convertible Preferred
Stock to our officers and directors which are convertible into 36,500,000 shares
of common stock and, in the aggregate, have the right to cast 365,000,000
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 50.3% 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:
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 2006, we issued 14,063,216
shares of common stock in exchange for expenses and services rendered. 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:
| · |
that
a broker or dealer approve a person's account for transactions in
penny
stocks; and
|
| · |
the
broker or dealer receives 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:
| · |
obtain
financial information and investment experience objectives of the
person;
and
|
| · |
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:
| · |
sets
forth the basis on which the broker or dealer made the suitability
determination; and
|
| · |
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.
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.
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. The shares
are to be used as collateral to provide interim financing for the Corporation.
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
Prior
to the Offering
|
|
|
|
Shares
Beneficially Owned
After
the Offering
|
|
|
Name
|
|
Number
|
|
Percent
|
|
Total
Shares
Offered
|
|
Number
|
|
Percent
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
Mark
D. Schmidt
|
|
|
35,108,478
(1
|
)
|
|
5.79
|
%
|
|
3,750,000
|
|
|
31,358,478
|
|
|
5.17
|
%
|
|
Alan
H. Ninneman
|
|
|
14,837,493
(2
|
)
|
|
2.45
|
%
|
|
2,619,000
|
|
|
12,218,445
|
|
|
2.01
|
%
|
|
John
W. Ringo
|
|
|
15,697,583
(3
|
)
|
|
2.59
|
%
|
|
2,812,500
|
|
|
12,885,083
|
|
|
2.12
|
%
|
|
Richard
P. Brown
|
|
|
12,628,980
(4
|
)
|
|
2.08
|
%
|
|
2,816,480
|
|
|
9,816,480
|
|
|
1.62
|
%
|
|
Larson
J. Isely
|
|
|
15,090,000(5
|
)
|
|
2.
49
|
%
|
|
2,812,500
|
|
|
12,277,500
|
|
|
2.02
|
%
|
|
John
S. Evans
|
|
|
5,250,000
(6
|
)
|
|
*
|
|
|
750,000
|
|
|
4,500,000
|
|
|
*
|
|
*
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 606,806,183shares of common stock outstanding
prior to the offering and 622,368,683 shares of common stock outstanding after
the offering.
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 130, Research Triangle Park, Durham, North Carolina
27703.
(1)
Includes 27,980,198shares issuable upon conversion of outstanding
options.
(2)
Includes 11,944,597shares issuable upon conversion of outstanding
options.
(3)
Includes 12,944,597 shares issuable upon conversion of outstanding
options.
(4)
Includes 9,000,000 shares issuable upon conversion of outstanding
options.
(5)
Includes 11,840,000 shares issuable upon conversion of outstanding
options.
(6)
Includes 3,500.000 shares issuable upon conversion of outstanding
options.
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
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:
| · |
Reference
is made to the Registrant’s annual report on Form 10-KSB, as filed with
the SEC on March 28, 2008, which is hereby incorporated by
reference.
|
| · |
Reference
is made to the Registrant’s quarterly report on Form 10-Q, as filed with
the SEC on May 15, 2008, 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 130, Research Triangle Park, Durham, North Carolina 27703.
Disclosure
Of Commission Position On Indemnification For Securities Act
Liabilities
Our
Articles of Incorporation and By-laws, 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.
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
_______________
July
25,
2008
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 2008 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, 2008 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 2008 Incentive
Stock
Option Plan are available without charge by contacting:
Mark
D.
Schmidt, Chief Executive Officer
Cyberlux
Corporation
4625
Creekstone Drive, Suite 130
Research
Triangle Park
Durham,
North Carolina 27703
(919)
474-9700
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:
| · |
Reference
is made to the Registrant’s annual report on Form 10-KSB, as filed with
the SEC on March 28, 2008, which is hereby incorporated by
reference.
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| · |
Reference
is made to the Registrant’s quarterly report on Form 10-Q, as filed with
the SEC on May 15, 2008, which is hereby incorporated by
reference.
|
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 John W. Ringo, Attorney at Law, Marietta, Georgia.
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.
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EXHIBIT
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NUMBER
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EXHIBIT
|
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5.1
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Opinion
of John W. Ringo
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23.1
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Consent
of Turner, Jones & Associates, LLP
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23.2
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Consent
of John W. Ringo is contained in Exhibit 5.1.
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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;
(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.
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 July 25, 2008.
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CYBERLUX
CORPORATION |
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By: |
/s/ MARK
D. SCHMIDT |
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Mark
D. Schmidt, Chief Executive Officer and Principal Executive
Officer |
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By: |
/s/
DAVID D. DOWNING
|
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David
D. Downing, Chief Financial Officer, Principal Financial Officer and
Principal Accounting Officer |
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|
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/
MARK D. SCHMIDT
|
|
Chief
Executive Officer (Principal
|
July
25. 2008
|
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Mark
D. Schmidt
|
|
Executive
Officer) and President
|
|
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|
|
|
|
/s/
DAVID D. DOWNING
|
|
Chief
Financial Officer (Principal
|
July
25. 2008
|
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David
D. Downing
|
|
Financial
Officer and Principal Accounting Officer)
|
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|
|
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/s/
JOHN W. RINGO
|
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Secretary,
Corporate Counsel
|
July
25. 2008
|
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John
W. Ringo
|
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and
Chairman of the Board of Directors |
|
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/s/
ALAN H. NINNEMAN
|
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Senior
Vice President and Director
|
July
25. 2008
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Alan
H. Ninneman
|
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