As filed with the Securities and Exchange Commission on November 21, 2003
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under the Securities Act of 1933
USURF AMERICA, INC.
(Name of Registrant in its charter)
NEVADA 91-2117796
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6005 DELMONICO DRIVE, SUITE 140
COLORADO SPRINGS, COLORADO 80919
(719) 260-6455
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
SECOND AMENDED AND RESTATED 2002 STOCK OWNERSHIP PLAN
(Full Title of the Plan)
DOUGLAS O. MCKINNON, PRESIDENT
6005 DELMONICO DRIVE, SUITE 140
COLORADO SPRINGS, COLORADO 80919
(719) 260-6455
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
Clayton E. Parker, Esq.
Kirkpatrick & Lockhart LLP
201 South Biscayne Blvd., Suite 2000
Miami, FL 33131
(305) 539-3300
(305) 358-7095 Fax
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE (1) PRICE(1) FEE(1)
- --------------------------------------------------------------------------------
Common Stock 12,000,000 $0.17 $2,040,000 $165.04
- --------------------------------------------------------------------------------
Total 12,000,000 $0.17 $2,040,000 $165.04
- --------------------------------------------------------------------------------
(1) Pursuant to Rule 457(h)(1) of the Securities Exchange Act of 1934, the
proposed maximum offering price per share, proposed maximum aggregate
offering price and amount of registration fee were computed based upon the
average of the high and low prices of the shares of Common Stock on
November 10, 2003.
PART I
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information) will be sent or given to employees
as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Act"). Such documents need not be filed with the Securities and Exchange
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424. These documents, which include the
statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Act.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
are hereby incorporated by reference:
(a) The Annual Report of the Company on Form 10-K for the fiscal year
ended December 31, 2002.
(b) Form 10-QSB for the three-month period ending March 31, 2003.
(c) Form 10-QSB for the three-month period ending June 30, 2003.
(d) Form 8-K dated January 16, 2003 disclosing a change in certifying
accountant.
(e) Form 8-K dated March 10, 2003 announcing entering into a stock
purchase agreement.
(f) Form 8-K dated March 31, 2003 disclosing a change in the Company's
principal office and resignation of a director.
(g) Form 8-K dated August 26, 2003 disclosing an acquisition.
(h) Form 8-K dated September 22, 2003 disclosing the results of the
annual shareholders meeting.
(i) The description of the Company's Common Stock, par value $.0001 per
share (the "Common Stock"), which is contained in the Company's
Registration Statement on Form S-1 filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on October 11,
2002, including any amendment or report filed with the Commission
for the purpose of updating such description of Common Stock.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of 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 in this Registration Statement and to be a part
hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Nevada Revised Statutes 78.750, 751, and 752 have similar provisions that
provide for discretionary and mandatory indemnification of officers, directors,
employees, and agents of a corporation. Under these provisions, such persons may
be indemnified by a corporation against expenses, including attorney's fees,
judgment, fines and amounts paid in settlement, actually and reasonably incurred
by him in connection with the action, suit or proceeding, if he acted in good
faith and in a manner which he reasonably believed to be in or opposed to the
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best interests of the corporation and with respect to any criminal action or
proceeding, had no reasonable cause to any action, suit or proceeding, had no
reasonable cause to believe his conduct was unlawful.
To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding, or in defense of any claim, issue or matter, he must be indemnified
by a corporation against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the defense.
Any indemnification, unless ordered by a court or advanced by a
corporation, must be made only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances. The determination must be made:
o By the stockholders;
o By the board of directors by majority vote of a quorum consisting of
directors who were not parties to that act, suit or proceeding;
o If a majority vote of a quorum consisting of directors who were not
parties to the act, suit or proceeding cannot be obtained, by independent
legal counsel in a written opinion; or
o If a quorum consisting of directors who were not parties to the act,
suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion;
o Expenses of officers and directors incurred in defending a civil or
criminal action, suit or proceeding must be paid by the corporation as
they are incurred and in advance of the final disposition of the action,
suit or proceeding, upon receipt of an undertaking by the director or
officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be indemnified by a
corporation.
o To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections 1 and 2, or in
defense of any claim, issue or matter therein, a corporation shall
indemnify him against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense.
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SEC POSITION ON INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 U.S.
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
Exhibit
4.1 Second Amended and Restated 2002 Stock Ownership Plan (filed herewith)
5.1 Opinion of Kirkpatrick & Lockhart LLP re: Legality (filed herewith)
23.1 Consent of Hein + Associates LLP. (filed herewith)
23.2 Consent of Postlethwaite & Netterville (filed herewith)
23.3 Consent of Kirkpatrick & Lockhart LLP (included in Exhibit 5.1 opinion
letter)
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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 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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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 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
connected 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.
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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 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 State of Colorado, on November 20, 2003.
USURF AMERICA, INC.
By: /S/ DOUGLAS O. MCKINNON
----------------------------------------------
Douglas O. McKinnon, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-8 has been signed by the following persons
in the capacities and on the dates indicated below:
SIGNATURES TITLE DATE
- ---------- ----- ----
/s/ Douglas O. Mckinnon President and Chief November 21, 2003
- -------------------------- Executive Officer
Douglas O. McKinnon (Principal Executive
Officer) and Director
/s/ Christopher K. Brenner Chief Financial Officer November 21, 2003
------------------------- (Principal Accounting
Christopher K. Brenner Officer) and Director
/s/ Richard E. Wilson Director November 21, 2003
- --------------------------
Richard E. Wilson
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