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As filed with the Securities and Exchange Commission on December 12, 2001
SEC File No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ENCORE WIRELESS, INC.
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(Exact name of registrant as specified in its charter)
NEVADA 87-0284731
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2900 Townsgate Road, Suite 200, Westlake Village, CA 91361
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(Address of Principal Executive Offices) (Zip Code)
ENCORE WIRELESS, INC.
2001 NON-QUALIFIED STOCK OPTION PLAN
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(Full title of the plan)
Kevin S. Hamilton, 2900 Townsgate Road, Suite 200, Westlake Village, CA 91361
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(Name, address, including zip code of agent for service)
Telephone number, including area code, of agent for service: 805-557-9906
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered (2) Share (1) Price Fee
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Common Stock,
$0.001 par
value 1,000,000 $0.465 $465,000 $112.00
(1) Bona fide estimate of maximum offering price solely for the purpose of
calculating the registration fee as determined under Regulation C, Rule 457(c)
and/or (g), of the Securities Act of 1933, based on the average of the bid and
ask price of the Registrant's common stock as reported on the NASD's OTC
Bulletin Board on December 7, 2001.
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ENCORE WIRELESS, INC.
PART I
Cross Reference Sheet Pursuant to Rule 404(a)
Cross-reference between items of part I of form S-8 and the section 10(a)
prospectus which will be delivered to each employee, director or consultant
who participates in the stock option plan.
Registration Statement Item Numbers and Headings Prospects Headings
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1) Plan Information Section 10(a) Prospectus
2) Registration Information and Employee
Plan Annual Information Section 10(a) Prospectus
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are hereby
incorporated by reference:
1) The Company's annual report on Form 10-KSB for the period ended December
31, 2000, dated June 25, 2001;
2) The Company's quarterly report on Form 10-QSB for the period ended
September 30, 2001, dated November 28, 2001; and
3) All additional reports filed by the Company with the Commission pursuant
to section 13(a) or 15(d) of the Exchange Act after September 30, 2001.
All reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 12, or 15(d) of the Exchange Act prior to the filing of
any post-effective amendment which indicates that all securities covered by
this Prospectus have been sold or which deregisters all such securities then
remaining unsold shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such reports and documents.
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ITEM 4. DESCRIPTION OF SECURITIES
General
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The Registrant is authorized to issue forty-five million (45,000,000) shares
of common stock, par value $0.001 per share (the "Common Stock")and five
million (5,000,000) shares of preferred stock, par value $0.001 per share (the
"Preferred Stock"). The Registrant has 5,860,383 shares of Common Stock and
785,875 shares of Preferred Stock issued and outstanding at November 18, 2001.
Although the Company's Board of Directors has no present intention to do so,
the Board of directors has authority, without action by or vote of the
Company's Shareholders, to issue all or part of the authorized but unissued
shares. In addition, the Company's Board of Directors has authority, without
action by or vote of the Company's Shareholders, to fix and determine the
rights, preferences, and privileges of the Preferred Stock, which may be given
voting rights superior to that of the Common Stock, which power may be used to
hinder or deter a takeover proposal, should any occur. Any issuance of
additional shares of Common Stock or Preferred Stock will dilute the
percentage ownership interest of Shareholders and may further dilute the book
value of the Company's shares.
Common Stock
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The holders of Common Stock are entitled to one vote per share on each matter
submitted to a vote at any meeting of shareholders. Shares of Common Stock do
not carry cumulative voting rights and, therefore, a majority of the shares of
outstanding Common Stock will be able to elect the entire board of directors
and, if they do so, minority shareholders would not be able to elect any
persons to the board of directors. The Registrant's bylaws provide that a
majority of the issued and outstanding shares of the Registrant constitutes a
quorum for shareholders' meetings, except with respect to certain matters for
which a greater percentage quorum is required by statute or the bylaws.
Shareholders of the Registrant have no preemptive rights to acquire additional
shares of Common Stock or other securities. The Common Stock is not subject to
redemption and carries no subscription or conversion rights. In the event of
liquidation of the Registrant, the shares of Common Stock are entitled to
share equally in corporate assets 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 for the
payment of dividends. The Registrant seeks growth and expansion of its
business through the reinvestment of profits, if any, and does not anticipate
that it will pay dividends in the foreseeable future.
Dividend Policy
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The Registrant has not declared or paid cash dividends or made distributions
on either its common or preferred shares in the past, and the Registrant does
not anticipate that it will pay cash dividends or make distributions in the
foreseeable future. The Registrant has not entered into any credit or other
agreements that would restrict its ability to pay dividends, however, the
Registrant currently intends to retain and reinvest future earnings, if any,
to finance its operations.
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Transfer Agent
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The transfer agent for the Registrant's common stock is Colonial Stock
Transfer, 455 East 400 South, Suite 100, Salt Lake City, Utah 84111
Tel: (801) 355-5740 Fax: (801) 355-6505
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
No expert or counsel for the Company named in this registration statement as
having prepared or certified any part hereof, or as giving an opinion as to
the validity of the securities being registered was employed on a contingency
basis, or has or is to receive, in connection with the offering, a substantial
interest in the Company or its subsidiaries. In addition no such expert or
counsel is connected with the Company or its subsidiaries as a promoter,
managing underwriter, voting trustee, director, officer, or employee.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The following is a brief summary of certain indemnification provisions of the
Company's certificate of incorporation and the Nevada Revised Statutes. This
summary is qualified in its entirety by reference to the text thereof.
Section 78.751 of the Nevada Revised Statutes confers on a director or officer
an absolute right to indemnification for expenses, including attorneys' fees,
actually and reasonably incurred by him to the extent he is successful on the
merits or otherwise in defense of any action, suit, or proceeding. This
section also entitles a director or officer to partial indemnification against
expenses to the extent that he has been successful in defending any claim,
issue, or matter asserted in such proceeding. The Nevada Revised Statutes
indemnification section further permits the corporation to indemnify officers
and directors in circumstances where indemnification is not mandated by the
statute and certain statutory standards are satisfied.
The Nevada Revised Statutes expressly make indemnification contingent upon a
determination that indemnification is proper in the circumstances. Such
determination must be made by the board of directors, the shareholders, or
independent legal counsel. The Nevada Revised Statutes also permit a
corporation, in its articles of incorporation, bylaws, or an agreement, to pay
attorneys' fees and other litigation expenses on behalf of a corporate
official in advance of the final disposition of the action upon receipt of an
undertaking by or on behalf of the corporate official to repay such expenses
to the corporation if it is ultimately determined that he is not entitled to
be indemnified by the corporation. The corporation may also purchase and
maintain insurance to provide indemnification.
The Nevada Revised Statutes also provide that indemnification authorized by
the statute is not exclusive of, but is in addition to, indemnification rights
granted under a corporation's articles of incorporation, an agreement, or
pursuant to a vote of shareholders or disinterested directors.
The foregoing discussion of indemnification merely summarizes certain aspects
of indemnification provisions and is limited by reference to Section 78.751 of
the Nevada Revised Statues.
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The Company's articles of incorporation and bylaws do not contain specific
provisions relating to indemnification of directors, officers, employees,
and/or agents of the Company. However, it is anticipated that the Company will
indemnify its officers and directors to the full extent permitted by the above
referenced statute. Insofar as indemnification for liabilities arising under
the Securities 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 Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the small business issuer of expenses incurred or paid by
a director, officer or controlling person in connection with the securities
being registered), the small business issuer 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
the Company is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
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ITEM 8. EXHIBITS
Exhibits.
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Copies of the following documents are included as exhibits to this
registration statement pursuant to Item 601 of Regulation S-K.
SEC
Exhibit Reference
No. No. Description Location
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4.01 4 2001 Non-qualified Stock Option Plan This Filing
5.01 5 & 23 Letter opinion, including consent
of Taylor and Associates, Inc.
Attorneys and Counselors at Law,
regarding legality of Common Stock
to be issued pursuant to options
granted under the Plans. This Filing
23.01 23 Consent of Grant Thornton LLP
Certified Public Accountants This Filing
25.01 25 Powers of Attorney See Signature
Page
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ITEM 9. UNDERTAKINGS
REGULATION S-K
Post-Effective Amendments, Item 512(a)
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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, 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.
Filings Incorporating Subsequent Exchange Act Documents by Reference, Item
512(b)
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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 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(a) 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.
Filing of Registration Statement on Form S-8, Item 512(h)
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Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction, the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Westlake Village, state of
California, this 10th day of December, 2001.
ENCORE WIRELESS, INC.
By /S/ Kevin S. Hamilton,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Kevin S. Hamilton, with power of substitution, as his
attorney-in-fact for him, in all capacities, to sign any amendments to
this registration statement and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact or
his substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/S/ Philip R. Lacerte Director December 10, 2001
/S/ Robert M. Proznik Director December 10, 2001
/S/ Kevin S. Hamilton Director December 10, 2001
/S/ Tod M. Turley Director December 10, 2001