As filed with the Securities and Exchange Commission on January 7, 2005
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.)
390 Interlocken Crescent, Suite 900
Broomfield, Colorado 80021
(719) 260-6455 (Address,
including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
2005 EMPLOYEE STOCK OWNERSHIP PLAN
(Full Title of the Plan)
Douglas O. McKinnon, President
390 Interlocken Crescent, Suite 900
Broomfield, Colorado 80021
(719) 260-6455
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
Christopher K. Brenner
Christopher K. Brenner, P.C.
130 E. Kiowa St., Suite 600
Colorado Springs, CO 80903
(719) 471-7026
(719) 471-7036 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 20,000,000 $0.08 $1,600,000 $188.32
- ------------------------------------------------------------------------------------------------------------------------
Total 20,000,000 $0.08 $1,600,000 $188.32
- ------------------------------------------------------------------------------------------------------------------------
(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
January 3, 2005.
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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-KSB for the fiscal year
ended December 31, 2003;
(b) Form 8-K, dated February 6, 2004, disclosing the pending acquisition
of business assets;
(c) Form 8-K, dated March 10, 2004, disclosing the de-listing of the
Company's stock by the American Stock Exchange;
(d) Form 8-K, dated March 23, 2004, disclosing that the Company's stock
was quoted on the OTC Bulletin Board, effective March 22, 2004;
(e) Form 8-KA, dated April 21, 2004, disclosing the pending acquisition
of a business and that financial statements would be filed upon
closing the transaction;
(f) Form 8-K, dated May 5, 2004 disclosing the pending acquisition of
business assets;
(g) The Quarterly Report of the Company on Form 10-QSB for the three
months ended March 31,2004;
(h) Form 8-KA, dated July 6, 2004 disclosing the financial statements
related to the acquisition of business assets;
(i) Form 8-K, dated July 20, 2004 disclosing the termination of the
agreement to acquire business assets;
(j) The Quarterly Report of the Company on Form 10-QSB for the six
months ended June 30,2004;
(k) Form 8-K, dated November 5, 2004 disclosing the private placement of
convertible preferred stock;
(l) Form 8-K, dated December 9, 2004 disclosing the election of two
Directors and appointment of Vice President;
(m) The Quarterly Report of the Company on Form 10-QSB for the nine
months ended September 30,2004;
(n) Form 8-K, dated December 21, 2004 disclosing the election of a
Director and resignation of a Director;
(o) Registration Statement on Form SB-2, dated December 27, 2004
registering shares of common stock to be sold by selling
shareholders; and
(p) 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.
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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
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.
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.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
Exhibit
4.1 2005 Employee Stock Ownership Plan
5.1 Opinion of Christopher K. Brenner, P.C. re: Legality (filed herewith)
23.1 Consent of Hein & Associates LLP. (filed herewith)
23.2 Consent of Christopher K. Brenner, P.C. (included in Exhibit 5.1 opinion
letter)
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 January 7, 2005.
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
- ---------- ----- ----
President and Chief Executive Officer January 7, 2005
/s/ Douglas O. McKinnon (Principal Executive Officer) and Director
- -----------------------------
Douglas O. McKinnon
/s/ Ronald Bass Principal Accounting Officer January 7, 2005
- -----------------------------
Ronald Bass
/s/ David A. Weisman Director and Chairman of the Board January 7, 2005
- -----------------------------
David A.Weisman
/s/ Richard E. Wilson Director January 7, 2005
- -----------------------------
Richard E. Wilson
/s/ Byron Young Director January 7, 2005
- -----------------------------
Byron Young
/s/ Ed Garneau Director January 7, 2005
- -----------------------------
Ed Garneau
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