As filed with the Securities and Exchange Commission on July __, 2005
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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WINMAX TRADING GROUP, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 65-0702554
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5920 Macleod Trail, Suite 800, Calgary, Alberta T2H 0K2
(Address of Principal Executive Offices) (Zip Code)
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------------------------
Year 2005 Stock Award Plan
2005 Non-Qualified Stock Award and Option Plan
(Full title of the plan)
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Gerald Sklar
President and Chief Executive Officer
Winmax Trading Group, Inc.
5920 Macleod Trail, Suite 800, Calgary, Alberta T2H 0K2
(Name and address of agent for service)
(877) 693-3130
(Telephone number, including area code, of agent for service)
A copy of all communications, including
communications sent to the agent for service
should be sent to:
Elliot H. Lutzker, Esq.
Robinson & Cole LLP
885 Third Avenue Suite 2800
New York, New York 10022-4834
(212) 451-2900
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount
to be to be Offering Price Aggregate of
Registered Registered (1) per Share(5) Offering Price(5) Fee
- --------------------------------------------------------------------------------------------------
Common Stock,
$0.001 par value: 3,500,000 (2)(4) $.40 1,400,000 164.78
Common Stock,
$0.001 par value: 3,000,000 (3)(4) $.40 1,200,000 141.24
TOTAL 6,500,000 $.40 306.02
1. Represents shares issuable pursuant to agreement(s) for services rendered
or to be rendered.
2. Represents shares which may be acquired under the Year 2005 Stock Award
Plan ("Stock Award Plan").
3. Consists of shares which may be acquired by upon exercise of Non-Qualified
options issuable to employees and consultants electing to participate in
the 2005 Non-Qualified Stock Award and Option Plan ("2005 Stock Option
Plan").
4. This Registration Statement shall also cover any additional shares of
Common Stock (the "Common Stock") which become issuable under (i) the
Winmax Trading Group Inc. 2005 Stock Option Plan (Exhibit 10.1); and (ii)
the Stock Award Plan (Exhibit 10.2) by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
outstanding shares of Common Stock of the Registrant.
5. This calculation is made solely for the purposes of determining the
registration fee pursuant to the provisions of Rule 457(c) under the
Securities Act of 1933, as amended, and is calculated on the basis of the
last sale reported as of July 1, 2005.
EXPLANATORY NOTE
This registration statement on Form S-8 is being filed by Winmax Trading
Group, Inc. ("Winmax") to register 3,500,000 shares of common stock of Winmax
under the Stock Award Plan and 3,000,000 shares of Common Stock of Winmax under
the 2005 Stock Option Plan. This registration statement includes a form of
prospectus, prepared in accordance with the requirements of Part I of Form S-3,
which, pursuant to General Instruction C of Form S-8, may be used by certain
persons, including officers and directors of Winmax who are deemed to be
affiliates of Winmax, as that term is defined in Rule 405 under the Securities
Act, as well as by non-affiliates, holding restricted securities, as that term
is defined in Rule 144 under the Securities Act, in connection with the reoffer
and resale of shares of common stock of Winmax received by such persons pursuant
to the exercise of options and other stock awards granted under the 2005 Stock
Option Plan and the Stock Award Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
We will send or give the documents containing the information specified in
Part I of Form S-8 to individuals who participate in our 2005 Stock Option Plan,
and who, in the case of an award of stock options, consent to and execute the
required form of Stock Option Agreement. A copy of the 2005 Non-Qualified Stock
Award and Option Plan is attached as exhibit 10.1 to this Form S-8; a copy of
the Year 2005 Stock Award Plan is attached as exhibit 10.2 to this Form S-8, and
the form of Option Agreement for use under the 2005 Non-Qualified Stock Award
and Option Plan is attached as exhibit 10.3 to this Form S-8.
This Registration Statement relates to a maximum of 3,500,000 shares of
Common Stock of the Registrant issuable directly under the Stock Award Plan or
pursuant to the exercise of options or other awards granted under the Stock
Award Plan and 3,000,000 shares of Common Stock of the Registrant under the 2005
Stock Option Plan.
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Item 2. Registrant Information and Employee Plan Annual Information.
We will provide, without charge, to each person to whom a copy of this
10(a) Prospectus is delivered, upon oral or written request, a copy of any or
all documents incorporated by reference in Item 3 of Part II of this
Registration Statement (which documents are incorporated by reference in the
10(a) Prospectus). Requests should be directed to the President, Gerald Sklar at
5920 Macleod Trail, Suite 800, Calgary, Alberta T2H 0K2. Our telephone number is
(877) 693-3130.
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TABLE OF CONTENTS
PAGE
Availability of Information ....................................................... 5
Forward-Looking Statements ........................................................ 5
Summary Information ............................................................... 6
Risk Factors ...................................................................... 7
Use of Proceeds ................................................................... 11
Selling Security Holders .......................................................... 11
Plan of Distribution .............................................................. 11
Disclosure of Commission Position on Indemnification for Securities Act Liabilities 12
Legal Matters ..................................................................... 12
Experts ........................................................................... 12
Change in Certifying Accountants .................................................. 12
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No person has been authorized to give any information or to make any
representations, other than those contained in this Prospectus, in connection
with the offering made hereby, and, if given or made, such information or
representations must not be relied upon. Neither the delivery of this Prospectus
nor any offer, solicitation or sale made hereunder shall, under any
circumstances, create an implication that there has been no change in the
affairs of the Company since the date hereof or that the information herein is
correct as of any time subsequent to its date. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any securities
in any jurisdiction to any person to whom it is unlawful to make any such offer
or solicitation.
This Prospectus constitutes a part of a Registration Statement on Form S-8
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act. This Prospectus omits certain of the information contained
in the Registration Statement in accordance with the rules and regulations of
the Commission. Reference is hereby made to the Registration Statement and
related exhibits for further information with respect to the Company and the
Shares. Statements contained herein concerning the provisions of any documents
are not necessarily complete and, in each instance, reference is made to the
copy of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
AVAILABILITY OF INFORMATION
The Registrant is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
including annual and quarterly reports on Form 10-KSB and 10-QSB (the '1934 Act
Filings') with the Securities and Exchange Commission (the 'Commission').
Reports and other information filed by the Registrant can be inspected and
copied at the public reference facilities maintained at the Commission at 100 F
Street, N.E., Washington, D.C. 20549. Copies of such material can be obtained
upon written request addressed to the Commission, Public Reference Section, 100
F Street, N.E., Washington, D.C. 20549, at prescribed rates. The Commission
maintains a web site on the Internet (http://www.sec.gov) that contains reports,
proxy and information statements and other information regarding issuers that
file electronically with the Commission through the Electronic Data Gathering,
Analysis and Retrieval System ('EDGAR').
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. In some cases, you
can identify these statements by forward-looking words such as "may," "might,"
"will," "should," "expect," "plan," "anticipated," "believe," "estimate,"
"predict," "potential" or "continue," the negative or plural of these words and
other comparable terminology. These forward-looking statements, which are
subject to risks, uncertainties and assumptions about us, may include, among
other things, projections of our future financial performance, our anticipated
growth strategies and anticipated trends in our business and the markets in
which we operate. These statements are only predictions, based on our current
expectations and projections about future events. Although we believe the
expectations reflected in the forward-looking statements are reasonable, we
cannot guarantee future results, levels of activity, performance or
achievements. Because these forward-looking statements involve risks and
uncertainties, there are important factors that could cause our actual results,
levels of activity, performance or achievements to differ materially from the
results, levels of activity, performance or achievements expressed or implied by
the forward-looking statements, including those factors discussed under the
caption entitled "Risk Factors." You should specifically consider the numerous
risks outlined under "Risk Factors."
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SUMMARY INFORMATION
The following summary is qualified in its entirety by reference to the
more detailed information appearing elsewhere in this prospectus or incorporated
herein by reference. Each prospective investor is urged to read this prospectus
and the documents incorporated herein by reference in their entirety. Investment
in the securities offered hereby involves a high degree of risk. See "Risk
Factors."
The Company was incorporated in the State of Florida on September 26,
1996, to engage in Commodities futures trading. From approximately November 1996
until October 2000, Winmax managed a commodities futures investment fund, the
Winmax Alpha Fund Limited Partnership, of which the Company was the general
partner. From October 2000 to May 2001, the Company had no significant
operations or business plan. In June of 2001, the sole officer and director,
Ralph Pistor, sold 100,000 shares of the Company's common stock held by him,
which represented a majority of the then outstanding common stock, to Gerald
Sklar, the Company's current President, Chief Executive Officer and Director. In
connection with the purchase of the 100,000 shares of the common stock by Gerald
Sklar, the following occurred:
a) Ralph Pistor resigned as sole Officer and Director;
b) Gerald Sklar became President, Chief Executive Officer and Director;
c) Current management was appointed to fill vacancies on the Board of Directors;
and
d) Winmax adopted a new corporate strategy, which is described below.
Corporate Strategy
In June 2001, the Company's corporate strategy was to:
(a) establish a web development, design, web casting, Internet solutions and
e-commerce business;
(b) acquire raw gemstone materials and/or minerals and to arrange for the
finishing and marketing of the gemstone and/or mineral material and then retail
the finished product through its Internet website www.thegemstore.com, and
(c) advance money to prospect and possibly produce gemstone material.
In 2001, the Company acquired an inventory of gemstones and pieces of
finished jewelry.
In 2003, management elected to abandon any interests in or financing of
prospecting possible gemstone or mineral material.
In 2003 and 2004, management recognized the need to grow sales in the
gemstone marketing division and added the opening of Retail Merchandising Units
("RMU's") to it's corporate strategy and RMU's were opened in key locations to
test markets. During 2003 and 2004, management recognized the need to grow sales
in the gemstone marketing division and opened certain RMU's in key locations as
test markets. In 2004, management assessed the viability of the RMU locations
and subsequently closed all "kiosk" style RMU's.
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In 2005, Management's proposed strategy was to open a number of stores
specializing in predominantly jewelry sales and Kiosk style RMU's specializing
in mineral sales. In addition, Management is proposing to commence negotiations
respecting the purchase of a European jewelry chain in order to provide the
Company's "gemstore brand" with a wider audience as well as to return monies on
investment.
In this prospectus we refer to Winmax Trading Group, Inc. as "Winmax",
"we", "us" or "our".
RISK FACTORS
An investment in the securities offered hereby is highly speculative and
involves a high degree of risk and should be made only by investors who can
afford to lose their entire investment. Prospective purchasers, prior to making
any investment decision shall carefully consider along with other matters
referred to herein the following risk factors.
Risks Relating to Our Financial Condition
Need for additional proceeds.
We require additional funds to fully implement our general business plan.
Management can give no assurance the funds so obtained will be sufficient
to fully implement the business plan, or that a full implementation of
such business plan will result in Winmax's profitability. If we are unable
to obtain financing, we may have to curtail or suspend our operations, and
you could lose your entire investment in the company.
If Winmax continues to incur negative cash flow from its operations, it
may exhaust its capital resources.
No net positive cash flow has been generated from Winmax's operations
since its inception. Winmax has been primarily a development stage company
to date and has invested the majority of its resources in the
establishment of its multi-media component of business and the carrying
out of test markets in its retail business with minimal investment for the
commercialization of its product. Winmax had a net loss of $3,608,391 on
net sales of $355,820 for the year ended December 31, 2004; a net loss of
$895,520 on net sales of $582,377 for the year ended December 31, 2003; a
net loss of $6,992,661 on net sales of $224,838 for the year ended
December 31, 2002, and a cumulative loss from inception through December
31, 2004, of $16,005,933.
Winmax has funded its activities primarily through the contribution of its
President, Gerald E. Sklar, of approximately $4,067,873 as of December 31,
2004. Winmax anticipates negative cash flow from operations to continue
for some time. We do not anticipate that this form of shareholder and
executive officer funding will continue for an indefinite period.
Accordingly, we can give no assurance that we will be able to operate
profitably or be able to produce positive cash flow from operations in the
future. Our efforts to operate profitably and obtain positive cash flow
from operations will depend on, among other things:
a) Developing the Winmax brand, marketing and other promotional
activities, for the retail and internet sale of jewelry and
minerals;
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b) Expanding general and administrative functions to support growth
that may occur; and
c) Acquire new diverse clients to support our multi-media divisions.
If we fail to establish the Winmax or the gemstore brand or to attract new
and repeat customers, Winmax may not be able to increase its revenues
sufficiently to fund its operations.
We must develop, establish and strengthen the Winmax and/or the gemstore
brand for the sale of gemstones, jewelry and minerals. If we fail to
establish the brand, we will be at a competitive disadvantage and may lose
the opportunity to obtain, and thereafter maintain, a sufficient number of
customers. The development of the brand will depend largely on the success
of our marketing efforts and our ability to acquire and maintain
sufficient retail units in North America and through our ability to expand
our operations to Europe and Asia. We cannot be certain that our brand
promotion activities will be successful, or will result in increased
revenues or that our proposed European and Asian expansion will occur. If
increased revenues are achieved, there can be no assurance that these
revenues will be sufficient to offset the expenditures incurred in
establishing the brand.
Winmax is obligated to comply with government regulation and its failure
to do so could result in significant liability and curtailment or
suspension of operations.
The Company's business is governed by the laws of the jurisdictions in
which it operates which includes The United States, Canada and Thailand.
If the Company's expansion efforts are successful it will also be subject
to the laws of Europe and China. Failure to comply with all laws in any
jurisdiction will accrue significant liability and/or curtailment or
suspension of operations.
We lack business diversification.
As a result of our limited resources, the prospects for our initial
success will be entirely dependent upon the future performance of our core
business, the retail sale of jewelry, gemstones and minerals. Although our
multi media revenues are hoped to increase our long term viability as a
company is closely related to how well we will perform in the highly
competitive business of jewelry, gemstone and mineral retail sales. We do
not have the resources to diversify our operations or benefit from the
possible spreading of risks or offsetting of losses through various
business segments.
We have a limited operating history upon which you can base an investment
decision.
We were organized on September 26, 1996 and re-organized our operations
with a complete change of focus in June, 2001. We have only a limited
operating history upon which you can make an investment decision, or upon
which we can accurately forecast future sales. You should, therefore,
consider us subject to all of the business risks associated with a new
business. The likelihood of our success must be considered in light of the
expenses, difficulties and delays frequently encountered in connection
with the formation and initial operations of a new and unproven business.
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Discretion in use of funds.
Winmax anticipates applying the net proceeds of this Offering, from the
exercise of options which may be granted, to the items described under the
heading "Use of Proceeds". However, as of the date hereof, other than to
fund retail sales, general, corporate and administrative expenses we have
no material restrictions on our use of the proceeds. As such, management
of Winmax shall have broad discretion, subject to their fiduciary duties,
in the application of the proceeds, if any, from the exercise of options.
See "Use of Proceeds."
SECURITIES RISKS
Winmax's CEO, President and Directors may have the ability to control
almost all matters of the Company.
The officers and directors of Winmax and their affiliates, beneficially
own approximately 62.23% of the issued and outstanding shares of common
stock of Winmax prior to this Offering. Therefore, Management will have
significant influence over the election of Winmax`s directors and to
control the outcome of other issues submitted to stockholders of Winmax.
This includes their ability to amend the Certificate of Incorporation,
approve a merger or consolidation of Winmax with another company or
approve the sale of all or substantially all of the assets of Winmax
without the agreement of the shareholders who purchase Units offered
hereby.
If we do not keep this registration statement current, you may not be able
to sell your stock.
We must keep a registration statement effective with the SEC. We may not
be able to maintain a registration statement in effect. Maintaining an
effective registration statement requires substantial continuing expenses
for legal and accounting fees and we cannot guarantee our ability to keep
the registration statement effective.
Difficulty of Trading and Obtaining Quotations for Common Stock.
Winmax's Common Stock is currently quoted on the Pink Sheets LLC under the
symbol WMTG. Our Common Stock is traded but the bid and ask prices for our
Common stock have fluctuated significantly. As a result, an investor may
find it difficult to dispose of, or to obtain accurate quotations of the
price of, Winmax securities. This severely limits the liquidity of the
Common Stock, and would likely have a material adverse effect on the
market price of the Common Stock and on our ability to raise additional
capital.
Penny Stock Regulation.
Winmax's Common Stock is subject to Rule 15g-9 under the Exchange Act.
This rule imposes additional sales practice requirements on broker-dealers
that sell such securities to persons other than established customers and
"accredited investors." For transactions covered by Rule 15g-9, a
broker-dealer must make a special suitability determination for the
purchaser and have received the purchaser's written consent to the
transaction prior to sale. Consequently, the rule could affect the ability
of broker-dealers to sell our securities and could affect the ability of
purchasers to sell any of our securities in the secondary market.
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RISK FACTORS AFFECTING WINMAX'S BUSINESS OPERATIONS.
Winmax could be subject to fines, sanctions or shutdowns if it fails to
comply with the laws and regulations applicable to its business or if
those laws and regulations change.
Winmax is subject to the laws and regulations of the jurisdictions in
which it operates. Failure to abide by these laws could result in Winmax's
operations being restricted or prohibited. Changes in laws or new
interpretations of existing laws may have a dramatic effect on Winmax's
business and results of operations.
Continued pressure could reduce Winmax's margins and limit Winmax's
ability to maintain or increase its market share.
Certain competitors of Winmax may have or may obtain significantly greater
financial and marketing resources than Winmax. As a result, Winmax could
encounter increased competition in the future and face increase pricing
pressure which would limit its ability to maintain or increase its market
share.
Winmax's future success depends significantly on the skills, experience
and efforts of its chief executive officer, President and Director, Gerald
E. Sklar. Mr. Sklar would be difficult to replace as he has developed, and
is engaged in carrying out, Winmax's strategic business plan. The loss of
the services of Mr. Sklar would seriously harm Winmax's ability to
implement its strategy. A failure to implement Winmax Winmax's business
strategy could result in the cessation of it's operations which would have
a material adverse effect on our company and on your investment.
The market for Winmax's product is rapidly changing and competitive. New
products may be developed by others which could impair our ability to
develop, grow or maintain our business and be competitive.
Winmax's industry is subject to substantial technological and fashion
change. Developments by others may render our planned jewelry and existing
multi media products noncompetitive or obsolete or we may be unable to
keep pace with technological developments or other market factors.
Competition from other companies is intense and is expected to increase.
Many of these entities have significantly greater capabilities and budgets
than Winmax does, as well as substantially more marketing, manufacturing,
financial and managerial resources. These entities represent significant
competition for Winmax. Winmax is a development-stage enterprise and as
such its resources are limited and it may experience technical challenges
inherent in developing its technology and product lines.
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USE OF PROCEEDS
We will not receive any proceeds from the sale of the common stock by the
selling stockholders under this prospectus. All such proceeds will be received
by the selling securityholders. However, we expect to use the proceeds from the
exercise of the options and other restricted stock awards for working capital
and other general corporate purposes.
SELLING SECURITY HOLDERS
The shares offered by this prospectus are being registered for reoffers
and resales by the selling securityholders, who may acquire such shares pursuant
to the exercise of options or other stock awards granted under the Plans. No
options or stock awards have been made to date. The selling securityholders who
will be named by supplements to the prospectus are officers and directors who
would be deemed to be affiliates of the Company and may resell all, a portion or
none of such shares from time to time. In addition, certain non-affiliates of
Winmax, not named, may also use this prospectus to sell shares acquired by them
pursuant to the exercise of options or other stock awards granted to them under
the Plans.
PLAN OF DISTRIBUTION
The shares may be sold or transferred for value by the selling
securityholders, or by pledgees, donees, transferees or other successors in
interest to the selling securityholders, in one or more transactions in the Pink
Sheets, in negotiated transactions or in a combination of such methods of sale,
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at prices otherwise negotiated. The selling
securityholders may effect such transactions by selling the shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
underwriting discounts, concessions or commissions from the selling
securityholders and/or the purchasers of the shares for whom such broker-dealers
may act as agent (which compensation may be less than or in excess of customary
commissions). The selling securityholders, and any broker-dealers that
participate in the distribution of the shares, may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any commissions received by them and any profit on the resale of the shares sold
by them may be deemed to be underwriting discounts and commissions under the
Securities Act. All selling and other expenses incurred by individual selling
securityholders will be borne by such selling securityholders.
Upon our being notified by a selling securityholder that he has acquired
options or shares under this prospectus or any material arrangement has been
entered into with a broker or dealer for the sale of shares through a secondary
distribution, or a purchase by a broker or dealer, we will file a prospectus
supplement, if required, pursuant to Rule 424(b) under the Securities Act,
disclosing (a) the name of each of such selling securityholder and the
participating broker-dealers, (b) the number of shares involved, (c) the price
at which such shares are being sold, (d) the commissions paid or the discounts
or concessions allowed to such broker-dealers, (e) where applicable, that such
broker-dealers did not conduct any investigation to verify the information set
out or incorporated by reference in the prospectus, as supplemented, and (f)
other facts material to the transaction.
In addition to any such number of shares sold hereunder, a selling
securityholder may, at the same time, sell any shares of common stock, including
the shares offered by this prospectus, owned by such person in compliance with
all of the requirements of Rule 144 under the Securities Act, regardless of
whether such shares are covered by this prospectus.
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There is no assurance that any of the selling securityholders will sell
any or all of the shares offered by this prospectus.
We will pay all expenses in connection with this offering, other than
commissions and discounts of underwriters, dealers or agents.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of Winmax,
the SEC has expressed its opinion that 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 Winmax of expenses incurred or paid by a director, officer or
controlling person of Winmax in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the shares being registered, Winmax will, unless in the opinion
of our counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
us is against public policy as expressed in the Securities Act and we will be
governed by the final adjudication of such issue.
LEGAL MATTERS
Robinson & Cole LLP, 885 Third Avenue, Suite 2800, New York, NY 10022,
will provide the Registrant with a legal opinion in connection with the Common
Stock.
EXPERTS
The consolidated financial statements of the Registrant as of December 31,
2004 and 2003, incorporated by reference in this prospectus have been audited by
Goldstein Golub Kessler LLP ("GGK"), independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance on such report given on the authority of such firm as experts in
accounting and auditing.
CHANGE IN CERTIFYING ACCOUNTANTS
On January 13, 2004, the Registrant engaged GGK as its independent
auditors and accepted the resignation dated December 4, 2003, of Stark Winter
Schenkein & Co., LLP ("Stark") from such position. The decision to change
accountants was recommended and approved by the Registrant's Board of Directors.
No reports on the financial statements prepared by Stark since they were
retained as registrant's primary accountant on December 31, 1999, contained any
adverse opinion or disclaimer of opinion, or was qualified or modified as to
uncertainty, audit scope, or accounting principles, except that the reports on
the financial statements for the years ended December 31, 2000, 2001 and 2002
contained going concern qualifications. The decision to change accountants was
approved by the Registrant's Board of Directors. The Registrant did not consult
with GGK, its new independent accountants, regarding any matter prior to its
engagement.
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During the registrant's two most recent fiscal years, and any subsequent
interim period preceding the resignation on December 4, 2003, there were no
disagreements with the former accountant, Stark, or any other former accountant
on any matter of accounting principles or practices, financial statement
disclosure, or auditing scope or procedure, which disagreement(s), if not
resolved to the satisfaction of Stark , would have caused them to make reference
to the subject matter of the disagreement(s) in connection with their reports,
except that Stark stated in their response letter to our filing on Form 8-K on
June 4, 2004 that they were unable to complete their review of the September 30,
2003 financial statements because the registrant could not provide adequate
documentation to support its revenue recognition and related party transactions.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant incorporates the following documents by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 2004, which was filed with the Securities and Exchange
Commission on May 19, 2005;
(b) The Registrant's Quarterly Report on Form 10-QSB and amendments
thereto for the quarter ended March 31, 2005, which was filed with the
Securities and Exchange Commission on May 20, 2005;
(c) The Registrant's Articles of Incorporation and Amendments thereto, and
the Registrant's Bylaws; and
(d) All other documents filed by Registrant after the date of this
Registration Statement under Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment to this Registration statement that registers securities covered
hereunder that remain unsold.
For the purposes of this Registration Statement, any statement contained
in a document incorporated in this Registration Statement by reference shall be
deemed to be modified or superseded for the purpose of this Registration
Statement to the extent that a statement contained in this Registration
Statement modifies or supercedes a statement in such document. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
The class of securities to be offered hereby is subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended. The
Registrant's authorized capitalization is 751,000,000 shares of which
750,000,000 shares are Common Stock, $.001 par value and 1,000,000 shares are
preferred stock, no par value. As of May 20, 2005, there are 22,641,162 shares
of Common Stock issued and outstanding held by 63 shareholders of record.
Holders of the Common Stock are entitled to one vote per share on each matter
submitted to vote at any meeting of shareholders. Shares of Common Stock do not
carry cumulative voting rights and therefore, holders of a majority of the
outstanding shares of 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 members to the board of directors. The Registrant's board of directors has
authority, without action by the Registrant's shareholders, to issue all or any
portion of the authorized but unissued shares of Common Stock, which would
reduce the percentage ownership of the Registrant of its shareholders and which
would dilute the book value of the Common Stock.
Shareholders of the Registrant have no preemptive rights to acquire
additional shares of Common Stock. 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 the 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. During the last two fiscal years the Registrant has not paid cash
dividends on its Common Stock and does not anticipate that it will pay cash
dividends in the foreseeable future.
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Item 5. Interests of Named Experts and Counsel.
Robinson & Cole LLP, 885 Third Avenue, Suite 2800, New York, NY 10022,
will provide the Registrant with a legal opinion in connection with the Common
Stock.
Item 6. Indemnification of Officers and Directors.
The Registrant is a Florida corporation. Section 607.0850 of the General
Corporation Law of Florida provides authority for broad indemnification of
directors, officers, employees and agents. The Registrant's Articles of
Incorporation, as Amended, incorporate the indemnification provisions of the
General Corporation Law of Florida to the fullest extent provided.
The Registrant has entered into indemnification agreements with its
Directors indemnifying them against liability and reasonable costs and expenses
incurred in litigation arising by reason of the fact that he or she is or was a
director, officer, stockholder, employee, or agent of the Registrant, provided
that the director acted in good faith and in a manner reasonably intended to be
in or not opposed to the best interests of the Registrant, and with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Indemnification of Officers or persons controlling the corporation for
liabilities arising under the Securities Act of 1933, as amended, is held to be
against public policy by the Securities and Exchange Commission and therefore,
unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits
Exhibit Description
5.1 Opinion of Robinson & Cole, LLP.
10.1 2005 Non-Qualified Stock Award and Option Plan
10.2 Year 2005 Stock Award Plan
10.3 Form of Option Agreement
23.2 Consent of Goldstein Golub Kessler LLP, Certified Public Accountants
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.
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(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 offered 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 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(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 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 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 the Registration Statement 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 Calgary, Province of
Alberta, Canada By:
Winmax Trading Group, Inc.
(Registrant)
By: /s/ Gerald Sklar Date: July 8, 2005
- ---------------------------
Gerald Sklar, President, Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
By: /s/ Anthony Miller Date: July 8, 2005
- ---------------------------
Anthony Miller - Director
By: /s/ David Young Date: July 8, 2005
- ---------------------------
David Young - Director
By: /s/ Elaine Prober Date: July 8, 2005
- ---------------------------
Elaine Prober - Director
17
POWER OF ATTORNEY
WINMAX TRADING GROUP, INC.
REGISTRATION STATEMENT ON FORM S-8
2005 Non-Qualified Stock Award and Option Plan
Year 2005 Stock Award Plan
Each of the undersigned Directors and/or Officers of Winmax Trading Group, Inc.,
a Florida corporation (the "Company"), hereby constitutes and appoints Gerald
Sklar, the true and lawful attorney-in-fact of such Director and/or Officer,
with full power of substitution and resubstitution, for him or her and in his or
her name, place, and stead, in any and all capacities, to do any and all acts
and execute any and all instruments which the said attorneys may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933, as
amended (the "Securities Act"), and any rules and regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of an aggregate of 3,000,000 shares of
the Company's common stock, $.001 par value per share, issued or which may be
issued under the terms of the Winmax Trading Group, Inc. 2005 Non-Qualified
Stock Award and Option Plan, and 3,500,000 shares of the Company's Common Stock
under the Year 2005 Stock Award Plan, as amended from time to time, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his or her capacity as
Director and/or Officer of the Company to a Registration Statement on Form S-8
to be filed with the Securities and Exchange Commission with respect thereto, to
any and all amendments, including post-effective amendments, to the said
Registration Statement, and to any and all instruments and documents filed as a
part of or in connection with the said Registration Statement or amendments
thereto; and each of the undersigned hereby ratifies and confirms all that the
said attorneys, or any of them, has done, shall do, or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this power of attorney
this ___ day of July 2005.
/s/ /s/
- ----------------------------- -----------------------------
Gerald Sklar Anthony Miller
/s/ /s/
- ----------------------------- -----------------------------
David Young Elaine Prober
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