As filed with the Securities and Exchange Commission on May 21, 2003.
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------------------------------
FORM S-8
Registration Statement under The Securities Act of 1933
USURF America, Inc.
----------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
NEVADA 91-2117796
- ------------------------------- ---------------------------------
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
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 Office)
Agreement for Consulting and Legal Services
----------------------------------------------------------------
(Full title of the plan)
Douglas O. McKinnon, President and CEO
USURF America, Inc., 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)
Copies to: Eric Newlan, Esq.
NEWLAN & NEWLAN
819 Office Park Circle
Lewisville, Texas 75057
972-353-3880
==============================================================================================
CALCULATION OF REGISTRATION FEE
==============================================================================================
Title of each class Amount to Proposed Proposed Amount of
of securities be registered maximum maximum registration fee
to be registered offering price per aggregate
unit offering price
- -------------------- ---------------- ------------------- --------------- ----------------
Common Stock, $.0001 3,500,000 issued $.09(1) $315,000 $25.48
par value shares
---------------- ------------------- --------------- ----------------
Total 3,500,000 shares $315,000 $25.48
- -------------------- ----------------
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee on the basis of the closing price
reported on the American Stock Exchange on May 19, 2003, $.09 per
share.
PROSPECTUS
USURF America, Inc.
3,500,000 Shares of Common Stock
($.0001 par value per share)
Issued Pursuant to an Agreement for Consulting and Legal Services
This prospectus is part of a registration statement which registers 3,500,000
shares of common stock, $.0001 par value per share, of USURF America, Inc.,
which have been issued, as described herein, to Newlan & Newlan, Attorneys at
Law, consultants and legal counsel to our company, pursuant to an agreement for
consulting and legal services. Newlan & Newlan has been issued a total of
3,500,000 shares of our common stock pursuant to its agreement. Newlan & Newlan
is a selling shareholder under this prospectus. The shares were issued to Newlan
& Newlan pursuant to a compensation contract which provides for the issuance of
the common stock to Newlan & Newlan. This selling shareholder has advised us
that it may sell all or a portion of its shares of common stock from time to
time in the market in negotiated transactions, directly through brokers, or
otherwise, and that these shares will be sold at market prices prevailing at the
time of any sales or at negotiated prices.
No person has been authorized by us to give any information or to make any
representation other than as contained in this prospectus, and, if given or
made, this information or representation must not be relied upon as having been
authorized by us. Nothing contained herein shall, under any circumstance, create
any implication that there has been no change in the affairs of USURF America
since the date of this prospectus.
Neither the Securities and Exchange Commission nor any state securities
regulator has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This prospectus does not constitute an offer to sell securities in any state to
any person to whom it is unlawful to make such offer in such state.
The date of this prospectus is May 20, 2003.
----------------------------------------------------------------------
WHERE YOU CAN FIND MORE INFORMATION
----------------------------------------------------------------------
We have filed a registration statement on Form S-8 with the SEC under the
Securities Act with respect to our common stock to be sold in this offering.
This prospectus, which is part of the registration statement, does not contain
all of the information included in the registration statement. Certain
information is omitted and you should refer to the registration statement and
its exhibits. With respect to references made in this prospectus to any
contract, agreement or other document of USURF America, such references are not
necessarily complete and you should refer to the exhibits attached to the
registration statement for copies of the actual contract, agreement or other
document. You may review a copy of the registration statement, including
exhibits, at the SEC's public reference room at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the regional offices of the
SEC located at Seven World Trade Center, Suite 1300, New York, New York 10048,
or at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Please call 1-800-SEC-0330 for further information about the operation of
the public reference rooms. The registration statement and our other SEC filings
can also be reviewed by accessing the SEC's Internet site at http://www.sec.gov,
which contains reports, proxy and information statements and other information
regarding registrants that file electronically with the SEC.
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any reports, statements or other
information on file at the public reference rooms. You can also request copies
of these documents, for a copying fee, by writing to the SEC.
----------------------------------------------------------------------
INFORMATION OF CERTAIN DOCUMENTS BY REFERENCE
----------------------------------------------------------------------
The following documents filed by us with the SEC are incorporated by reference
and made a part hereof:
1. Annual Report on Form 10-KSB/A for the year ended December 31, 2002;
2. Quarterly Report on Form 10-QSB for the quarter ended March 31, 2003;
3. Current Report on Form 8-K, date of event: January 16, 2003;
4. Current Report on Form 8-K, date of event: March 10, 2003; and
5. Current Report on Form 8-K, date of event: March 31, 2003.
All reports and documents filed by us pursuant to Section 13, 14 or 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment which
de-registers all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the respective
date of filing of each such document. Any statement incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
prospectus 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 modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute part of this prospectus.
USURF America hereby undertakes to provide, without charge, to each person,
including any beneficial owner, to whom a copy of this prospectus has been
delivered, on the written request of any such person, a copy of any or all of
the documents referred to above which have been or may be incorporated by
reference in this prospectus, other than exhibits to such documents. Written
requests for copies should be directed to: Corporate Secretary, USURF America,
Inc., 6005 Delmonico Drive, Suite 140, Colorado Springs, Colorado 80919;
telephone (719) 260-6455.
----------------------------------------------------------------------
THE COMPANY
----------------------------------------------------------------------
We offer voice (telephone), video (cable television) and data (Internet)
services to our customers. We also market and sell telecommunications-related
hardware and software. As we develop our business plan, our mode of choice for
providing voice, video and data services will be through leading-edge technology
over Internet Protocol (IP) networks. We have determined that distribution of
these services in this manner will be more cost effective and will complement
our developing IP telephony services.
We currently provide local telephone and dial-up Internet access to customers in
Arizona; we provide cable television service to customers in Denver, Colorado;
we provide high-speed wireless Internet access service to customers in Denver
and Colorado Springs, Colorado; and we market and sell
telecommunications-related hardware and software throughout the United States.
----------------------------------------------------------------------
AGREEMENT FOR CONSULTING AND LEGAL SERVICES
AND ISSUANCE OF COMMON STOCK
----------------------------------------------------------------------
At the end of 2002, we entered into an agreement for consulting and legal
services with Newlan & Newlan, Attorneys at Law. Pursuant to that agreement, we
have issued Newlan & Newlan a total of 3,500,000 shares of our common stock.
Under the terms of this agreement, Newlan & Newlan has agreed to provide its
usual consulting services with respect to legal and other business issues for
the calendar year 2003. None of the shares of common stock to which this
prospectus relates is issued pursuant to any program or plan and are not being
administered by either the board of directors or any committee thereof.
The sale of any shares of common stock issued under the agreement with Newlan &
Newlan must be made in compliance with federal and state securities laws.
Officers, directors and 10%-or-greater shareholders, as well as certain other
persons who may be deemed to be "affiliates" of our company under Federal
securities laws, should be aware that resales by affiliates can only be made
pursuant to an effective registration statement, Rule 144 or other applicable
exemption.
----------------------------------------------------------------------
SALES BY SELLING SHAREHOLDER
----------------------------------------------------------------------
The following table sets forth the name of the selling shareholder, the number
of shares of common stock held, directly or indirectly, the amount of common
stock to be owned by the selling shareholder following the sale of the shares of
common stock hereunder and the percentage of shares of our common stock to be
owned by the selling shareholder following completion of this offering.
Name of Selling Shareholder Number of Shares to Shares to be Owned % to be Owned
Shares Owned be Offered After Offering After Offering
- --------------------------- ----------- ---------- ------------------ ----------------
Newlan & Newlan (1) 3,500,000 3,500,000 -0- 0%
- ---------------------------
(1) The partners of Newlan & Newlan own, indirectly, 500,000 shares of our
common stock.
----------------------------------------------------------------------
DESCRIPTION OF COMMON STOCK
----------------------------------------------------------------------
Common Stock
- --------------------------------------------
Each share of common stock is entitled to one vote at all meetings of
shareholders. All shares of common stock are equal to each other with respect to
liquidation rights and dividend rights. There are no preemptive rights to
purchase any additional shares of common stock, nor are there any subscription,
conversion or redemption rights applicable to the common stock. Our Articles of
Incorporation, as amended, prohibit cumulative voting in the election of
directors. The absence of cumulative voting means that holders of more than 50%
of the shares voting for the election of directors can elect all directors if
they choose to do so. In such event, the holders of the remaining shares of
common stock will not be entitled to elect any director. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a quorum
at a meeting of shareholders. In the event of liquidation, dissolution or
winding up, holders of shares of common stock will be entitled to receive, on a
pro rata basis, all assets remaining after satisfaction of all liabilities.
Holders of common stock are entitled to receive such dividends as the board of
directors may from time to time declare out of funds legally available therefor.
The board of directors has the authority to issue the authorized but unissued
shares without action by the shareholders, subject to the rules of the American
Stock Exchange.
Transfer Agent and Registrar
- --------------------------------------------
Securities Transfer Corporation, Frisco, Texas, is the transfer agent and
registrar for our common stock.
----------------------------------------------------------------------
INDEMNIFICATION
----------------------------------------------------------------------
Article X of the Articles of Incorporation of USURF America provides that no
director or officer shall be personally liable to USURF America or its
shareholders for damages for breach of fiduciary duty as a director or officer;
provided, however, that such provision shall not eliminate or limit the
liability of a director or officer for (1) acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law or (2) the payment
of dividends in violation of law. Any repeal or modification of Article X shall
be prospective only and shall not adversely affect any right or protection of a
director or officer of USURF America existing at the time of such repeal or
modification for any breach covered by Article X which occurred prior to any
such repeal or modification. The effect of Article X is that directors and
officers will experience no monetary loss for damages arising out of actions
taken (or not taken) in such capacities, except for damages arising out of
intentional misconduct, fraud or a knowing violation of law, or the payment of
dividends in violation of law.
As permitted by Nevada law, our bylaws provide that we will indemnify our
directors and officers against expense and liabilities they incur to defend,
settle or satisfy any civil, including any action alleging negligence, or
criminal action brought against them on account of their being or having been
directors or officers unless, in any such action, they are judged to have acted
with gross negligence or willful misconduct. Insofar as indemnification for
liabilities arising under the Securities Act of 1933, as amended, may be
permitted to directors, officers or control persons pursuant to the foregoing
provisions, we have been informed that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable.
----------------------------------------------------------------------
LEGAL MATTERS
----------------------------------------------------------------------
The law firm of Newlan & Newlan, Lewisville, Texas, has acted as our legal
counsel in connection with the registration statement of which this prospectus
forms a part and related matters. The firm of Newlan & Newlan owns 3,500,000
shares of our common stock and the partners of Newlan & Newlan own, indirectly,
500,000 shares of our common stock.
----------------------------------------------------------------------
EXPERTS
----------------------------------------------------------------------
Our consolidated financial statements for the year ended December 31, 2002,
included in our Annual Report on Form 10-KSB/A and incorporated by reference in
this Prospectus, have been incorporated herein in reliance on the report of Hein
+ Associates LLP, independent certified public accountants, given on the
authority of that firm as experts in auditing and accounting. In addition, our
consolidated financial statements for the year ended December 31, 2001, included
in our Annual Report on Form 10-KSB/A and incorporated by reference in this
Prospectus, have been incorporated herein in reliance on the report of
Postlethwaite & Netterville, independent certified public accountants, given on
the authority of that firm as experts in auditing and accounting.
================================================================================
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
================================================================================
Item 3. Incorporation of Documents by Reference.
- -----------------------------------------------------------------------
The documents listed in (1) and (5) below are incorporated by reference in this
registration statement. All documents subsequently filed by USURF America
pursuant to Section 13(a), 13(c), 14 and 14(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment which de-registers all
securities then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be part thereof from the date of
filing of such documents.
1. Annual Report on Form 10-KSB/A for the year ended December 31, 2002;
2. Quarterly Report on Form 10-QSB for the quarter ended March 31, 2003;
3. Current Report on Form 8-K, date of event: January 16, 2003;
4. Current Report on Form 8-K, date of event: March 10, 2003; and
5. Current Report on Form 8-K, date of event: March 31, 2003.
Item 4. Description of Securities.
- -----------------------------------------------------------------------
USURF America is authorized to issue up to 100,000,000 shares of common stock,
$.0001 par value per share. Each share of common stock is entitled to one vote
at all meetings of shareholders. All shares of common stock are equal to each
other with respect to liquidation rights and dividend rights. There are no
preemptive rights to purchase any additional shares of common stock, nor are
there any subscription, conversion or redemption rights applicable to the common
stock. The Articles of Incorporation, as amended, prohibit cumulative voting in
the election of directors. The absence of cumulative voting means that holders
of more than 50% of the shares voting for the election of directors can elect
all directors if they choose to do so. In such event, the holders of the
remaining shares of common stock will not be entitled to elect any director. A
majority of the shares entitled to vote, represented in person or by proxy,
constitutes a quorum at a meeting of shareholders. In the event of liquidation,
dissolution or winding up, holders of shares of common stock will be entitled to
receive, on a pro rata basis, all assets remaining after satisfaction of all
liabilities. Holders of common stock are entitled to receive such dividends as
the board of directors may from time to time declare out of funds legally
available therefor. The board of directors has the authority to issue the
authorized but unissued shares without action by the shareholders, subject to
the rules of the American Stock Exchange.
Item 5. Interests of Named Experts and Counsel.
- -----------------------------------------------------------------------
The selling shareholder is legal counsel to the USURF America, Inc.
Item 6. Indemnification of Directors and Officers.
- -----------------------------------------------------------------------
Nevada Revised Statutes 78.037 is incorporated herein by this reference.
Insofar as indemnification for liabilities arising under the Securities Act of
1933, as amended, may be permitted to directors, officers or control persons
pursuant to the foregoing provisions, we have been informed that, in the opinion
of the SEC, such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
- -----------------------------------------------------------------------
Inasmuch as the consultant who received shares of common stock is knowledgeable,
sophisticated and had access to comprehensive information relevant to USURF
America, such transaction was undertaken in reliance upon the exemption from
provided by Section 4(2) of the Securities Act of 1933, as amended. As a
condition precedent to such issuance, the consultant was required to express an
investment intent and consent to the imprinting of a restrictive legend on each
stock certificate to be received from USURF America, in the absence of sale
pursuant an effective registration statement.
Item 8. Exhibits.
- -----------------------------------------------------------------------
Exhibit No. Description
----------- -----------------------------------------------------------
5.1 Opinion of Newlan & Newlan, Attorneys at Law, re: Legality.
10.1 Agreement for Consulting and Legal Services between USURF
America, Inc. and Newlan & Newlan, Attorneys at Law.
23.1 Consent of Hein + Associates LLP, independent auditors.
23.2 Consent of Postlethwaite & Netterville, independent
auditors.
23.3 Consent of Newlan & Newlan, Attorneys at Law.
Item 9. Undertakings.
- -----------------------------------------------------------------------
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offerings 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;
(b) That, for purposes of determining any liability under the
Securities Act of 1933, as amended, 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; and
(c) 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.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as
amended, 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.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors,
officers or control persons pursuant to the foregoing provisions, we
have been informed that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by 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, 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 of 1933, as amended, and will be governed by the
final adjudication of such issue.
================================================================================
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, on the 19th day of May, 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 included:
/s/ DOUGLAS O. MCKINNON May 19, 2003
- --------------------------
Douglas O. McKinnon President and Chief Executive
Officer (Principal Executive Officer)
and Director
/s/ DAVID M. LOFLIN May 19, 2003
- --------------------------
David M. Loflin Chairman of the Board
/s/ ROSS S. BRAVATA May 19, 2003
- --------------------------
Ross S. Bravata Director
May __, 2003
- --------------------------
Richard E. Wilson Director
/s/ CHRISTOPHER K. BRENNER May 19, 2003
- --------------------------
Christopher K. Brenner Vice President of Administration and
Finance, Chief Financial Officer
(Principal Accounting Officer) and
Secretary